March 30, 2020

Antitrust: HSR Early Terminations Back on the Table

That was fast.  A couple of weeks ago, I blogged about the FTC’s implementation of temporary e-filing procedures and its decision to deny HSR early termination requests while the new procedures were in place. On Friday, the FTC issued new guidance indicating that early termination requests were back on the table.  However, as this excerpt from the guidance indicates, it’s still far from business as usual:

Parties and their counsel should not call the PNO or the litigation shops to advocate for early termination of the waiting period applicable to a notified transaction. We understand that all parties who request it would like early termination of the waiting period, but current conditions require us to prioritize processing filings that raise competitive concerns.

Premerger staff is at capacity, and both Agencies’ litigation teams are already working hard to evaluate the extent to which individual transactions might present competitive concerns. Forcing our staff to spend additional time engaging with parties or their counsel will slow our review, not expedite it, and will increase the stress on the premerger program.

In case they have to hit people over the head, the FTC’s guidance goes on to make it clear that during the Covid-19 crisis, early termination will be granted in fewer cases, and more slowly, than under normal circumstances.

John Jenkins