DealLawyers.com Blog

With the lapse in appropriations, federal agencies are currently operating at limited capacity, and the antitrust agencies — the FTC and the DOJ’s Antitrust Division — are no exception. While the agencies remain open to accept HSR filings, the Premerger Notification Office is working on a reduced schedule, as detailed on its website and in the FTC’s shutdown plan. Specifically:

PNO staff will be online from 9 am to 1 pm ET each business day

During this time, the PNO will not respond to questions or requests for information or provide filing advice

Waiting periods will be unaffected and run as usual, but the PNO will not grant early termination 

This Cooley alert discusses implications for merger reviews. With the FTC and DOJ Antitrust Division staffed at about half the normal levels, the alert says it’s going to take longer for filings to be reviewed for completeness and compliance and forwarded to staff for substantive analysis and the staff is going to be more likely to encourage parties to “pull and refile.” 

This procedure allows the acquirer to withdraw its filing and refile within two business days without paying an additional fee. A “pull and refile” restarts the HSR waiting period, providing the agencies more time to evaluate the competitive implications of a transaction.

If the parties don’t refile, the alert says the reviewing agency may issue a second request for a transaction (presumably even one that normally wouldn’t result in a second request) to ensure it does not close before review is completed.

– Meredith Ervine