October 3, 2022

Volume XII, Number 276

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September 30, 2022

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Return of Early Termination of the HSR Waiting Period Not on the FTC’s Agenda, According to Commissioner Phillips

Parties to a transaction subject to the reporting requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) must adhere to a statutory waiting period (30 days for most transactions) after filing their Notification and Report Forms before closing on the deal.

The Federal Trade Commission (FTC) and the Department of Justice are authorized to terminate this waiting period early, upon the request of the parties or on their own, after determining that no additional information is necessary and that the transaction does not pose significant competitive concerns. A request for early termination can be made directly on the HSR Notification and Report Form, and decisions to grant early termination are made public on the FTC’s website.

In February 2021, the early termination process was “temporarily” suspended due to a backlog of reported transactions and the impact of COVID-19. Prior to the suspension, early termination was granted in approximately half of all reported transactions.

However, according to recent remarks made by Commissioner Noah J. Phillips during an antitrust symposium at George Mason University’s Antonin Scalia Law School, the FTC has no plans to re-implement the early termination process anytime soon. Commissioner Phillips attributed the failure to revisit the early termination process to the prevailing view in Washington that mergers, rather than being an “important part of commerce,” are nothing more than a driver of harmful corporate concentration. Commissioner Phillips also railed against the FTC’s use of warning letters, which place parties on notice that, despite expiration of the waiting period related to their particular transaction, the FTC may later choose to challenge the transaction.

Commissioner Phillips stated that as far as he knows, there are no ongoing investigations of transactions in which these warning letters have been issued.

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XII, Number 69
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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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