Over the past several weeks, the U.S. antitrust enforcement agencies – the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) – have made several public announcements regarding changes to antitrust investigations and regulatory processes in response to the COVID-19 pandemic. In addition to changes to filing and meeting processes, the main takeaway from these announcements is that while agency staff continue to work remotely, parties should expect delays of investigations and litigations. This post summarizes the announcements that have been made by the FTC and the DOJ related to COVID-19 and what individuals and businesses should expect going forward:

• The DOJ warns it will use resources to enforce violations of antitrust laws with respect to public health products. On March 9, the DOJ announced that it would ensure resources were available to enforce antitrust laws against “bad actors” that might take advantage of the current emergency situation.[1] In particular, the announcement warned that individuals engaging in price fixing, bid rigging or market allocation with respect to personal health protection equipment such as face masks, gloves and respirators could face criminal prosecution.[2]
• The DOJ and the FTC have instituted expedited review procedures for COVID-19-related business collaborations. On March 24, the DOJ and the FTC announced expedited review procedures and provided guidance for collaborations of businesses working to protect the health and safety of Americans during the COVID-19 pandemic.[3] The agencies are aiming to resolve requests to evaluate proposed conduct addressing public health and safety within seven calendar days of receiving all necessary information.[4]
• The DOJ and the FTC seek additional time for investigations. For current and future investigations, the DOJ is seeking timing agreements from parties that give the DOJ 30 additional days to complete its investigation after compliance with second requests.[5] These 30 days would be in addition to the statutory time period of 30 days or whatever time period the DOJ and the parties had previously agreed to (which is 60 days under the DOJ’s Model Timing Agreement).

The FTC is conducting a review of investigations and litigations to decide whether to seek additional time under statutory and agreed-to timing requirements.[6] The FTC noted that “[p]arties and their counsel should expect that we will be in touch to discuss proposed modifications.”[7] The FTC has not specified how much additional time it is seeking.

• Meetings will be by phone or videoconference. The DOJ and the FTC will conduct all meetings by phone or video conference.[8] The FTC noted that this includes meetings with the front office and commissioners.[9]
• DOJ depositions are to be rescheduled using video conference. All scheduled DOJ depositions will be temporarily postponed and will be rescheduled using secure videoconferencing capabilities.[10] The FTC has not specifically mentioned depositions in its announcements, though as mentioned above, it has said that all meetings will be held by phone or video conference.
• E-filing is being used for HSR filings. The FTC Premerger Notification Office (PNO) and the DOJ suspended all hard-copy and DVD submissions of HSR filings on March 13 and began accepting filings through a temporary e-filing system as of March 17.[11] A PNO webpage provides details regarding the use of that e-filing system.[12]

While the PNO’s webpage indicates that the PNO’s and the DOJ’s review of the filings will continue as normal, it notes several changes from the ordinary filing procedures, including:

• Relaxation of signature requirements. E-signatures are acceptable on the certification and the affidavit.
• No transaction numbers. The PNO will not provide transaction numbers.

• Early terminations are on a more limited basis. After temporarily suspending early terminations, the FTC and DOJ announced on March 27 that in light of the success of the temporary e-filing program, both agencies again are processing requests for early termination.[13] The agencies cautioned, however, that early termination will “be available on a more limited basis than has historically been the case. Specifically, it will be granted in fewer cases, and more slowly, than under normal circumstances.”[14]

While the agency announcements indicated that the agencies are seeking additional time for investigations through agreements with parties, there have been reports that the agencies are also seeking to secure additional time for investigations during the crisis through legislative action.[15] The DOJ has reportedly asked Congress to include in its next COVID-19 legislation package a 15-day extension of the initial 30-day waiting period under HSR during emergencies.[16] FTC Commissioner Rohit Chopra recently suggested that “Congress should stop the shot clock so public servants have enough time to investigate and sue to block bad deals,”[17] and Commissioner Christine Wilson wrote that the FTC “is seeking more time to ensure full review of pending deals.”[18] In addition to extended timing for merger reviews, reports indicate that the DOJ is also seeking a six-month extension of the statute of limitation on price-fixing and bid-rigging cases due to the pandemic.[19]

Despite these reports and comments from commissioners, the Coronavirus Aid, Relief, and Economic Security (CARES) Act that was signed on March 27 did not include any modifications of the antitrust laws. So for the time being, parties should expect the agencies to continue to seek timing modifications through agreements with parties.

[1] U.S. Dep’t of Justice, “Justice Department Cautions Business Community Against Violating Antitrust Laws in the Manufacturing, Distribution, and Sale of Public Health Products” (March. 9, 2020) available at https://www.justice.gov/opa/pr/justice-department-cautions-business-community-against-violating-antitrust-laws-manufacturing. See also BakerHostetler, “Navigating Antitrust Issues in the Wake of COVID-19” (March 19, 2020) available at https://www.bakerlaw.com/alerts/navigating-antitrust-issues-in-the-wake-of-covid-19.

[2] Id.

[3] U.S. Dep’t of Justice and Federal Trade Commission, “Joint Antitrust Statement Regarding COVID-19,” (March 24, 2020) available at https://www.justice.gov/atr/joint-antitrust-statement-regarding-covid-19.

[4] Id.

[5] U.S. Dep’t of Justice, Justice Department Announces Antitrust Civil Process Changes for Pendency of COVID-19 Event (March 17, 2020) available at https://www.justice.gov/opa/pr/justice-department-announces-antitrust-civil-process-changes-pendency-covid-19-event.

[6] Federal Trade Commission, “Changes in Bureau procedure during COVID-19 coronavirus pandemic” (March 16, 2020) available at https://www.ftc.gov/news-events/blogs/competition-matters/2020/03/changes-bureau-procedure-during-covid-19-coronavirus.

[7] Id.

[8] U.S. Dep’t of Justice, Justice Department Announces Antitrust Civil Process Changes for Pendency of COVID-19 Event (March 17, 2020) available at https://www.justice.gov/opa/pr/justice-department-announces-antitrust-civil-process-changes-pendency-covid-19-event; Federal Trade Commission, “Changes in Bureau procedure during COVID-19 coronavirus pandemic” (March 16, 2020) available at https://www.ftc.gov/news-events/blogs/competition-matters/2020/03/changes-bureau-procedure-during-covid-19-coronavirus.

[9] Federal Trade Commission, “Changes in Bureau procedure during COVID-19 coronavirus pandemic” (March 16, 2020) available at https://www.ftc.gov/news-events/blogs/competition-matters/2020/03/changes-bureau-procedure-during-covid-19-coronavirus.

[10] U.S. Dep’t of Justice, Justice Department Announces Antitrust Civil Process Changes for Pendency of COVID-19 Event (March 17, 2020) available at https://www.justice.gov/opa/pr/justice-department-announces-antitrust-civil-process-changes-pendency-covid-19-event.

[11]  Federal Trade Commission, “COVID-19 – Guidance for Filing Parties” (updated March 17, 2020) available at https://www.ftc.gov/enforcement/premerger-notification-program/guidance-filing-parties.

[12] Id.

[13] Federal Trade Commission, “Resuming early termination of HSR reviews” (March 27, 2020) available at https://www.ftc.gov/news-events/blogs/competition-matters/2020/03/resuming-early-termination-hsr-reviews.

[14] Id.

[15] Politico, “DOJ wants more time on merger reviews, price-fixing cases because of pandemic” (March 21, 2020) available at https://www.politico.com/news/2020/03/21/doj-merger-reviews-coronavirus-140669.

[16] Id.

[17] Rohit Chopra (@chopraftc), Twitter (March 18, 2020)

[18] Christine Wilson (@CSWilsonFTC), Twitter (Mar. 19, 2020) https://twitter.com/CSWilsonFTC/status/1240691934684839936.

[19] Politico, “DOJ wants more time on merger reviews, price-fixing cases because of pandemic” (March 21, 2020) available at https://www.politico.com/news/2020/03/21/doj-merger-reviews-coronavirus-140669.