March 24, 2020

Antitrust: More Covid-19 Implications for Merger Review

I blogged last week about the FTC’s decision to not grant early termination of the HSR waiting period while its Covid-19 driven temporary e-filing rules are in effect.  In the unlikely event that you’re in a rush to close a pending deal, this Winston & Strawn memo says that the DOJ’s Antitrust Division has more bad news for you:

Following the Federal Trade Commission’s (FTC) recent announcement regarding temporary changes to its Hart-Scott-Rodino (HSR) processes, the DOJ Antitrust Division (“Division”) announced that it also has adopted temporary changes to its HSR processes, which will apply during the COVID-19 emergency.

For “mergers currently pending or that may be proposed,” the Division announced that it is “requesting from merging parties an additional 30 days to timing agreements to complete its review of transactions after the parties have complied with document requests.” This follows a similar announcement from the FTC in which it indicated that it would seek modifications to timing agreements with merging parties on a “matter-by-matter” basis.

The memo says that this request will “almost certainly” result in longer review times for companies that have received a Second Request, since it will tack on an additional 30 days to the 60-90 period typically called for in the timing agreements that parties receiving a second request merging parties routinely enter into with the DOJ.

John Jenkins