DAMITT Q3 Update: Significant US Antitrust Merger Investigations and Complaints Are Down Sharply But Taking Longer

by Dechert LLP

Dechert LLP

Fast Facts

  • The number of significant merger investigations was down 25% on both a YTD and RTM basis
  • Only one significant investigation resulted in a complaint in 2017 YTD (two on an RTM basis), down about 80%
  • Although fewer in number, significant merger investigations and complaints took nearly 20% longer—11.6 months for 2017 YTD and 11.2 months on an RTM basis
  • The time between deal announcement and the issuance of a second request continued to creep up—from 72 to 81 days on a YTD basis and from 69 to 87 days on an RTM basis
  • Companies do not appear to be responding to the longer duration of significant merger investigations and litigations by allotting more time in transaction agreements for antitrust review

The Dechert Antitrust Merger Investigation Timing Tracker (DAMITT) for Q3 2017 recorded a 25% decline in the number of significant merger investigations and an 80% decline in the number of complaints challenging proposed Hart-Scott-Rodino (HSR)-reportable deals compared to the prior year, on both a year-to-date (YTD) and a rolling 12 months (RTM) basis. At the same time, merging parties were giving the agencies more time from the date of announcement to the issuance of second requests—81 days in 2017 YTD (up from 72 days during the same period in 2016) and 87 days on an RTM basis (up from 69 days in the prior 12 months). Despite this added time at the outset, the duration of significant merger investigations continued to grow, hitting 11.6 months for 2017 YTD and 11.2 months on an RTM basis, both of which exceed the longest full year on record by nearly 20%. The changes over the same period last year are so pronounced that they are difficult to chalk up to randomness. But it is unclear whether the extended significant investigations reflect delays caused by the transition in administrations, a policy shift of the Trump administration, or some other systemic change.

Decline in Significant Investigations and Complaints Filed

The number of significant U.S. merger investigations concluded by the Department of Justice (DOJ) and Federal Trade Commission (FTC) has declined during 2017 YTD and on an RTM basis. “Significant” merger investigations include proposed HSR-reportable transactions resulting in a closing statement, consent order, complaint challenging a transaction, or transaction abandonment for which the antitrust agency issues a press release. There were 18 significant investigations that concluded in the first three quarters of 2017, down 25% from the same period in 2016. Over the RTM ending Q3 2017, there were 27 significant investigations, which was also 25% lower than the 36 significant investigations in the prior 12-month period.

The number of significant investigations resulting in a complaint was down about 80%—from 5 complaints during the first three quarters of 2016 to only 1 during 2017 YTD, and from 9 complaints during the 12 months ending Q3 2016 to only 2 complaints over the RTM ending Q3 2017.

Given that the number of U.S.-targeted transactions announced in 2017 YTD is up by about 18% from a year ago according to Thomson Reuters, the declines in significant investigations and resulting complaints could be the result of less aggressive enforcement, companies avoiding risky deals as a result of the increase in the number of complaints filed in CY2015 and CY2016, or some combination of these factors.

Significant U.S. Antitrust Merger Investigations (2011  Q3 2017)

The Average Length of Significant Investigations Has Continued to Increase, with 2017 Producing the Three Longest in DAMITT History

Despite the decline in the number of significant merger investigations, those concluding during the first three quarters of 2017 averaged 11.6 months, nearly two months longer than the 9.7 month average during the first three quarters of 2016. For the 12 months ending Q3 2017, the average duration was 11.2 months, as compared to 9.5 months over the prior 12 months ending Q3 2016. These increased durations are partially driven by the fact that 2017 has produced the three longest significant investigations since DAMITT began tracking the data in 2011—Walgreens/Rite Aid, Abbott/Alere and DaVita/Renal Ventures. However, the trend toward longer significant investigations is not driven solely by a small number of record-setting transactions—50% of the significant investigations concluding in 2017 YTD persisted for at least 10.3 months, a length that would best the previous DAMITT record annual average duration of 9.9 months set in 2016.

The exact cause of this continued upward trend is unclear, though it could be some combination of delays caused by the transition in administrations, a policy shift of the Trump administration, or some other systemic change.

Average Duration of Significant U.S. Antitrust Merger Investigations (2011 – Q3 2017)

Average Time Between Deal Announcement and Issuance of Second Request Increased

Officials at the antitrust agencies have suggested that merging parties are waiting longer to make their pre-merger HSR filing or are more frequently using the one-time-only pull-and-refile procedure. This suggestion is supported by the DAMITT data. Based on publicly available data for about 60% of the significant merger investigations comprising the DAMITT database, the average time between deal announcement and the issuance of second requests increased to 81 days in 2017 YTD (up from 72 days during the same period in 2016) and 87 days on an RTM basis (up from 69 days in the prior 12 months). These durations are at least a month longer than the 51 day average in CY2011.

Under the HSR Act, the initial waiting period is 30 days (15 days for cash tender offers or bankruptcy situations) from the time of filing unless early termination is granted by the government or the acquirer “pulls and refiles,” which restarts the initial waiting period. Merging parties often delay filing or pull and refile in the hope that the additional time up front will enable the staff to streamline and shorten the investigation. This strategy may reflect a concession to the reality of the longer investigation process or it may constitute a response to increased staff requests that parties pull and refile. Regardless of the explanation, parties allocating more time prior to the issuance of a second request do not necessarily face longer—or shorter—overall investigations than parties that allocate less time pre-second request.

Percentage of Divestiture Consents Requiring Upfront Buyers Remains Steady

The agencies’ consent orders continued to reflect a high frequency of upfront buyer requirements. The percentage of divestiture consent orders requiring upfront buyers was 79% for 2017 YTD (compared to 81% for the first three quarters of 2016) and 84% on an RTM basis (compared to 83% in the prior 12 months). These figures are up sharply from the 43% average between CY2011 through CY2013 when post-order buyer consents were more common.

When an upfront buyer is required, before the merging parties can consummate their transaction, they must find a willing and able buyer, negotiate a purchase agreement with that buyer for the divested assets, and present that purchase agreement, the buyer’s business plan, and other information to the agency as part of the approval process. This process can add significant time to the investigation. Between 2011 and 2017 YTD, DAMITT has observed that investigations ending with consents requiring upfront buyers lasted about two months longer than those with consents permitting the merging parties to find and negotiate with divestiture buyers after consummating their transaction.

Upfront vs. Post-Order Buyer Trend (2011 – Q3 2017

No New Data Available on the Length of Antitrust Merger Litigation Filed in 2017

In addition to investigations taking longer, prior DAMITT analyses found that antitrust merger litigation was trending longer, too. However, as there have not been any merger litigation cases filed in 2017 that have reached a decision, no new data are available for analysis in this update.

Merging Companies Do Not Appear to Be Adjusting to Increased Durations by Using Longer Termination Periods in Transaction Agreements

Despite the increasing length of significant merger investigations and litigations, DAMITT’s analysis of publicly available transaction agreements for deals involved in significant merger investigations suggests that merging parties may not be responding with longer termination periods. The average time period from deal announcement to the final termination date in transaction agreements among parties involved in significant merger investigations that concluded in the RTM ending Q3 2017 was 14.2 months, down from 15.7 months in the 12 months ending Q3 2016. The average was 14.6 months for 2017 YTD, down from 16.8 months during the same period in 2016.

Time from Announcement to Final Termination Date (Months)
Significant Antitrust Merger Investigations in 2015

Time from Announcement to Final Termination Date (Months)
Significant Antitrust Merger Investigations in 2016

Time from Announcement to Final Termination Date (Months)
Significant Antitrust Merger Investigations in 2017 YTD


Although the number of significant investigations has declined in 2017, the duration of significant merger investigations and subsequent litigation continues to trend upward to record levels. While the circumstances of future antitrust-sensitive transactions may lead to results above or below DAMITT averages, the latest trends suggest that parties to the hypothetical average “significant” deal would have to plan on approximately 12 months for the agencies to investigate a transaction and another seven months if they want to preserve their right to litigate an adverse agency decision. Even more time may need to be allotted going forward if the current trends toward longer investigations and litigations continue.


Written by:

Dechert LLP

Dechert LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.