Hart-Scott-Rodino and Merger Control in the Time of COVID-19

Faegre Drinker Biddle & Reath LLP

COVID-19 (commonly known as the coronavirus) has now spread to the premerger antitrust review process for reportable proposed acquisitions, investments, joint ventures and nonprofit membership changes. Citing the COVID-19 emergency and the need for government employees to continue their work remotely, temporary emergency provisions have been announced by both the Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) Premerger Notification Office.

Until further notice, HSR notifications will only be accepted in electronic form. For each HSR notification a filing party (or its counsel) must alert the FTC in advance by email to premerger@ftc.gov. The FTC will send a one-time electronic link to deliver the HSR filing. Requests for early termination will not be granted until the emergency is lifted. In addition, the DOJ is asking merging parties for extra time (30 days, possibly more) to complete its review of HSR filings. You can view the DOJ announcement here and the FTC’s guidance here.

The new emergency protocol is being tweaked as users and the agencies develop experience with it, and the PNO website should be checked regularly for the latest updates. The addition on March 20 indicated that the filing software should not be used with zip files.

Around the globe, merger control authorities in other countries and regions have already made or are expected to make similar announcements. For one example, please see the European Union’s announcement here.

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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