Coronavirus Sparks Changes to Premerger Notification Process at the FTC

Sheppard Mullin Richter & Hampton LLP

In response to COVID-19, the FTC’s Premerger Notification Office (PNO) just announced several changes for all Hart-Scott-Rodino (HSR) filings going forward. While these changes have been described as temporary, no specific end date has been identified.

  1. Hard copy HSR filings will no longer be accepted, until further notice
  2. No HSR filings whatsoever may be submitted on Monday, March 16.
  3. Starting at 8:30 a.m. on Tuesday, March 17, HSR filings must be submitted through a new, temporary e-filing system. That system is not yet operational. It will require parties to upload documents to a secure FTP site.
  4. While this temporary e-filing system is in place, early termination will not be granted for any filing.

The Sheppard Mullin team will continue to monitor the situation and provide additional updates as they become available. PNO intends to release additional guidance on the temporary e-filing system and new operating procedures soon.

Whether the new FTP filing solution will be operational by Tuesday and whether filings can be made as easily as in the past remains to be seen. For deals requiring an HSR filing, we recommend parties build in extra time to complete the HSR filing. Get your legal team involved earlier than normal. If a merger agreement sets a deadline for filing HSR forms, again consider building in extra days or even weeks to account for uncertainty with the new system.

For deals with substantive antitrust issues, it may well be the case that the antitrust agencies are no longer holding external in-person meetings, so any meetings or presentations will need to be by phone or videoconference. In some instances, it is possible the agencies may delay such meetings until the situation has stabilized.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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