November 9, 2021

Antitrust: Where’s the Enforcement Surge?

Given the surge in HSR filings last fall & some of the fire-breathing statements coming out of the FTC in recent months, you’d expect to see a significant uptick in the agency’s merger enforcement activity.  According to the most recent edition of Dechert’s merger investigation timing tracker, that doesn’t seem to have happened:

Given FTC warnings about a “surge” of HSR filings last Fall, which led the FTC and DOJ to suspend grants of early termination of the 30-day HSR waiting period in February, the data depict what might feel like the calm before a storm.

Assuming that the increase in overall HSR filings will lead to at least some uptick in the number of significant U.S. merger investigations, we would expect to begin seeing an increase in the number of significant U.S. merger investigations concluded as we reach a year after the initial surge begun. We have not seen that surge yet. To the contrary, the FTC did not file a single complaint or consent decree in the third quarter.

The report suggests that one of the reasons behind the absence of an enforcement surge is that the number of  significant U.S. merger investigations concluded in 2021 is still behind historical averages.  The disconnect between the surge in HSR filings last year and the lower number of completed investigations this year provides reason to believe that the duration of investigations is “ticking upwards.”

According to the report, the upshot of all this is that parties to a significant deal should in the U.S. should plan on at least 12 months for the agencies to investigate their transaction and should also plan for another 7-9 months if they want to preserve their right to litigate an adverse agency decision.

John Jenkins