March 23, 2020

Hart-Scott-Rodino and Merger Control in the Time of COVID-19

COVID-19 (commonly known as the coronavirus) has now spread to the premerger antitrust review process for reportable proposed acquisitions, investments, joint ventures and nonprofit membership changes. Citing the COVID-19 emergency and the need for government employees to continue their work remotely, temporary emergency provisions have been announced by both the Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) Premerger Notification Office.

Until further notice, HSR notifications will only be accepted in electronic form. For each HSR notification a filing party (or its counsel) must alert the FTC in advance by email to premerger@ftc.gov. The FTC will send a one-time electronic link to deliver the HSR filing. Requests for early termination will not be granted until the emergency is lifted. In addition, the DOJ is asking merging parties for extra time (30 days, possibly more) to complete its review of HSR filings. You can view the DOJ announcement here and the FTC’s guidance here.

The new emergency protocol is being tweaked as users and the agencies develop experience with it, and the PNO website should be checked regularly for the latest updates. The addition on March 20 indicated that the filing software should not be used with zip files.

Around the globe, merger control authorities in other countries and regions have already made or are expected to make similar announcements. For one example, please see the European Union’s announcement here.

Update as of March 30, 2020: Hart-Scott-Rodino Early Termination Returns

The Federal Trade Commission announced that the moratorium on early termination of the HSR waiting period, first published more than two weeks ago, has been lifted (you can read the FTC blog post here. This is good news for those who need to get reportable transaction cleared, but the agencies’ remote work may still signal delays. The blog post indicates that rigorous review of proposed transactions will not slacken, and early termination “will be available on a more limited basis than has historically been the case.”

As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.

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