September 5, 2018

Antitrust: HSR Second Requests & Deal Challenges Decline in 2017

Despite a significant increase in the number of HSR filings last year, this Perkins Coie memo says that the DOJ & FTC’s HSR Annual Report reveals that Second Requests & deal challenges declined. This excerpt runs through the numbers:

In fiscal 2017, a total of 2,052 transactions were reported under the HSR Act, which is a 12% increase over the 1,832 transactions reported in fiscal 2016. In 2017, the FTC and the DOJ investigated about 14% of reported transactions in which a Second Request could be issued, a 3.5% increase from those investigated in fiscal 2016. Of the transactions investigated, just 18% resulted in the issuance of Second Requests, a nearly 19% decrease from the 23% reported in fiscal 2016.

Where Second Requests were issued, there was also a decrease in the number of transactions which resulted in an abandoned or restructured deal, a consent decree requiring the parties to divest assets, or litigation in federal district court, just 77% in fiscal 2017 compared to 87% in 2016.

So what’s been the experience this year? According to this Dechert memo, the number of significant merger investigations so far are on track to match last year, with 13 investigations so far this year resulting in a consent decree, closing statement, lawsuit or an abandoned deal, compared with 12 during the first half of 2017.

John Jenkins