FTC Announces Proposed Changes to Second Request Process, but Commissioner Phillips Raises Concerns

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On September 28, 2021, the Federal Trade Commission (FTC) issued a blog post announcing several changes to how the FTC will investigate mergers and acquisitions and how it will approach second-request negotiations. The blog post stated that the process changes were needed to address the “surge in merger filings” overwhelming the FTC’s limited resources and reiterated the FTC’s position that it will ensure that merger reviews are “more comprehensive and analytically rigorous.” In addition, the blog post states that FTC staff will only consider requests for any modifications of a second request after the party under investigation has provided “certain foundational information.” Parties must also provide information on the e-discovery tools they will be using, and the FTC is discontinuing the prior option of allowing parties to submit a partial privilege log. 

Interestingly, Commissioner Noah Phillips publicly stated that the new processes come at “precisely the wrong time” given the “recent uptick in merger activity.” Indeed, Commissioner Phillips argued that in effect the agencies are defying the legislative directive of the Hart-Scott-Rodino process in that they “tax transactions through uncertainty, expense, and government fiat. This will leave companies and their customers and suppliers in limbo, cause assets to dissipate, and sometimes lead to the abandonment of deals that benefit consumers.”

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