DealLawyers.com Blog

I’ve previously blogged about the growing length of antitrust M&A investigations – and according to this recent Dechert memo, the trend toward longer investigations continues.  The good news is that the DOJ has noticed this trend too, and says that it wants to do something about it.

In a recent speech, the Antitrust Division’s DAAG for Litigation Don Kempf said that the Division’s current leadership wants to reverse the trend by speeding up the review process and reducing the burdens associated with it.  This excerpt has some thoughts about streamlining the second request process:

When a second request appears necessary, tell us how you think we can make the investigation more efficient by improving our ability to identify the information we need to make our enforcement decisions. We know that second requests can be burdensome. I saw one downside to broad second requests when I was in the defense bar: they impose a huge burden on parties to produce the documents. Now that I’ve joined the government I’ve seen another downside: it’s also a huge burden on the government to review them. Our goal should not be more information, but better information. The Division is looking for relevant documents, not a needle in a haystack.

Don also recommended that companies work with the Division to help it tailor document requests to limit the universe of responsive documents to those most likely to be relevant to assessing the deal’s impact on competition, and make efforts to provide relevant information early in the investigation.

In his speech, Don Kempf noted that “one source” said that the average time to complete significant merger reviews has increased from 7 months in 2011 to 11.6 months, which is a new high. If you’ve been reading our blogs on this topic, you know that the source is likely the Dechert folks – who’ve been highlighting this issue in their quarterly “Dechert Antitrust Merger Investigation Timing Tracker.”

– John Jenkins