Will the FTC Match DOJ’s Efforts to Speed Up Merger Reviews?
On October 3, 2018, at a hearing before the U.S. Senate Subcommittee on Antitrust, Competition Policy, and Consumer Rights (“Hearing”), Makan Delrahim, the Assistant Attorney General for the Antitrust Division of the Department of Justice (“DOJ”), announced efforts by DOJ to “modernize and speed up the process of merger review.” Among other things, DOJ stated that it would endeavor to resolve most merger investigations within six months of filings. Relatedly, DOJ plans to make modifications to its second request process, including reforms to its timing agreements with merging parties.
However, many health care-related transactions, including hospital and physician mergers, are primarily reviewed by the Federal Trade Commission (“FTC”), and it is not clear what, if anything, the FTC will do to speed up its merger review process. In remarks at the Hearing, the FTC revealed the following:
In response to concerns that merger investigations are taking longer than they used to, the Bureau [of Competition] has developed a more robust system of tracking key milestones in the merger review process to determine whether this perception has merit and, if so, why some reviews may be taking longer. Armed with better information, the Bureau will assess what might be done to make the merger review process more efficient and less burdensome, while still ensuring the right outcome for consumers.
But the results of this tracking have yet to be seen, and how the FTC might move to speed up the merger review process is unknown. For now, parties to a health care-related transaction under review by the FTC should anticipate a merger review period that could last as long as (and, in some situations, in excess of) 10 months if the transaction presents any serious concerns.