August 13, 2020
Antitrust: HSR Second Requests Up in 2019, But Challenges Down
The FTC & DOJ published their HSR Act Annual Report last month, and it discloses that while HSR second requests rose during 2019, the percentage of deals challenged declined significantly. Here’s an excerpt from this Perkins Coie memo on the report with some of the highlights:
In fiscal 2019, a total of 2,089 transactions were reported under the HSR Act, which is just a 1% decrease from the 2,111 transactions reported in fiscal 2018. In 2019, the FTC and the DOJ investigated about 12% of reported transactions in which a Second Request could be issued, a slight decrease from the number investigated in fiscal 2018.
Of the transactions investigated, about 26% resulted in the issuance of Second Requests, a 63.6% increase over the 16% reported in fiscal 2018. Where Second Requests were issued, there was 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, 62.3% compared to 87% in fiscal 2018.
The memo advises companies considering a deal that’s likely to raise agency concerns to address potential anti-competitive concerns with counsel during the preparation of their HSR filings & engage with regulators as soon as possible during the waiting period.
– John Jenkins