As the September 30, 2023, deadline for U.S. Congress to enact appropriations to fund the federal government approaches, the Federal Trade Commission (FTC) and Department of Justice (DOJ) have issued contingency plans detailing the impact of a federal government shutdown on antitrust enforcement, including the processing and review of notifications made pursuant to the Hart-Scott-Rodino (HSR) Act.1
Key Takeaways:
- According to public reporting, the FTC has funding to maintain normal operations for approximately three weeks, until October 20, 2023.
- A significant number of employees from both agencies will be furloughed, including approximately 50 percent from the FTC Bureau of Competition and 40 percent from the Antitrust Division of the DOJ.
- The Premerger Notification Office (PNO) will continue to accept new HSR filings, but may operate with reduced staff, hours, or days of operations. PNO staff will not be available to respond to requests for information or advice from outside parties.
- FTC and DOJ staff will process and review HSR filings and may issue Second Requests. HSR waiting periods will continue to run, but parties may experience delays in the review of filings as a result of lower staffing levels.
- Non-merger investigations within the FTC will be suspended except as needed to prevent statutes of limitations from precluding monetary remedies available to the government in the future. Response dates for FTC Civil Investigative Demands and subpoenas will be extended.
- Staff may request suspensions of trial, hearing, and filing deadlines for matters in active litigation. Staff may continue to work on litigation matters as is necessary to protect the government’s interest in litigation, including in the event that a court denies the government’s request for an extension.
Parties with transactions that are likely to sign during the government shutdown should consider HSR strategy, including the potential for delays or other complications.
[1] https://www.justice.gov/jmd/page/file/1015676/download; https://www.ftc.gov/system/files/ftc_gov/pdf/FTC%20Shutdown%20Plan.pdf.
