Expect Delays in the HSR Clearance Process Due to the Coronavirus Pandemic
The Premerger Notification Office of the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) announced that their review of Hart-Scott-Rodino (“HSR”) filings will continue despite the coronavirus pandemic. However, both agencies have adopted and mandated the use of a temporary e-filing system and announced that while this system is in place, early termination of the waiting period will be suspended.
Furthermore, the agencies have directed all non-essential personnel to work remotely, limiting the ability to review HSR submissions in a timely fashion. As a result, DOJ is asking companies that are currently in the middle of the merger review process to permit a 30-day addition to any timing agreements already in place. Likewise, in a recent blog post, the FTC indicated that it is “conducting a matter-by-matter review of [its] investigations and litigations to consider appropriate modifications of statutory or agreed-to timing.” The FTC also indicated that counsel should expect to be contacted to discuss proposed modifications and encouraged parties “to reach out to staff proactively to begin those discussions themselves.”
While efforts to address price gouging and other immediate antitrust issues have taken precedence during this unusual time, Makan Delrahim, Assistant Attorney General of the Antitrust Division, attempted to reassure the business community that merger reviews will continue as efficiently and effectively as possible by stating recently that “[w]e are in this together and intend to work cooperatively with the business community on pending mergers, consistent with our responsibilities under the antitrust laws and to protect the health and safety of our employees and the public.”