October 3, 2018

Antitrust: DOJ Pledges Faster Merger Review – FTC, Not So Much. . .

In a recent speech, DOJ Antitrust Division chief Makan Delrahim outlined the DOJ’s plan to “modernize” the merger review process.  Picking up the pace of the review process is a big part of those modernization plans, with Delrahim pledging that – assuming parties “expeditiously cooperate and comply” during the process – the DOJ will aim to resolve most investigations within six months of filing.

That’s good news – but as this Wachtell Lipton memo points out, the FTC hasn’t signed on to the DOJ’s pledge:

This new framework notably would not apply to mergers reviewed by the FTC, which shares authority to investigate mergers with the Antitrust Division. Last month the FTC adopted a Model Timing Agreement that requires parties to agree not to close their transaction for 60 to 90 days following substantial compliance with a Second Request, and also contemplates extensive investigational hearings and other procedural requirements that could result in additional delay and expense for the parties.

The memo also notes that a senior FTC official recently issued guidance to the effect that “expedited review is the exception, not the norm” – particularly when it comes to approval of proposed remedies.

John Jenkins