October 23, 2021

Volume XI, Number 296

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FTC Responds to Tsunami of HSR Filings

A Surge of HSR Filings

On August 3, 2021, the Acting Director of the Bureau of Competition of the Federal Trade Commission (“FTC”) authored a blog post discussing the tsunami of Hart-Scott-Rodino (“HSR”) filings that the FTC has received in 2021. The post notes that the number of filings is straining the agency’s capacity to review the proposed transactions within mandated time frames (the “waiting period”). Indeed, by the end of July 2021, the FTC had received more HSR filings than it did for the entire year 2020.

Managing the Filings Spike

As a result of the surge in HSR filings, the FTC has started to send a form letter to some transacting parties for whom the waiting period is set to expire with the investigation yet to be completed. The letter does the following:

  • indicates that the FTC’s investigation remains open, but allows the waiting period to expire;

  • warns that if the transacting parties “consummate [the] transaction before the Commission has completed its investigation, they would do so at their own risk”;

  • further emphasizes that the FTC can bring an action, even if the parties have consummated the transaction; and

  • warns that “inaction by the Commission before the expiration of the waiting period should not be construed as a determination regarding the lawfulness of the transaction.”

A Caveat for Transacting Parties

Parties receiving such a letter from the FTC will need to evaluate their options thoughtfully.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 224
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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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