December 4, 2021

Volume XI, Number 338

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FTC Announces Proposed Changes to Second Request Process, But...

On September 28, 2021, the Federal Trade Commission (FTC) issued a blog post announcing several changes to how the FTC will investigate mergers and acquisitions and how it will approach second-request negotiations. The blog post stated that the process changes were needed to address the “surge in merger filings” overwhelming the FTC’s limited resources and reiterated the FTC’s position that it will ensure that merger reviews are “more comprehensive and analytically rigorous.” In addition, the blog post states that FTC staff will only consider requests for any modifications of a second request after the party under investigation has provided “certain foundational information.” Parties must also provide information on the e-discovery tools they will be using, and the FTC is discontinuing the prior option of allowing parties to submit a partial privilege log. 

Interestingly, Commissioner Noah Phillips publicly stated that the new processes come at “precisely the wrong time” given the “recent uptick in merger activity.” Indeed, Commissioner Phillips argued that in effect the agencies are defying the legislative directive of the Hart-Scott-Rodino process in that they “tax transactions through uncertainty, expense, and government fiat. This will leave companies and their customers and suppliers in limbo, cause assets to dissipate, and sometimes lead to the abandonment of deals that benefit consumers.”

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 294
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About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney
Member

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

202-861-1825
Patricia M. Wagner, Epstein becker green, health care, life sciences
Member

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of...

202-861-4182
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