On March 27, 2020, the US Federal Trade Commission (FTC) announced that it would resume granting early terminations (ETs) of merger filings made under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act). The FTC previously said that it would not grant ET while its temporary e-filing program for HSR filings was in effect during the COVID-19 crisis. Whether ET is granted is an important deal-timing consideration; without it, filing parties must wait the entire 30-day waiting period prior to closing their transactions.

The FTC’s action is not without qualifications. ET will be granted only as “time and resources allow.”[1] The FTC said that because staff is at capacity, it is going to “prioritize” filings with potential issues.[2] The FTC specifically stated that it will continue to investigate fully all competition concerns, “consistent with the Bureau’s normal practice,” and it will resolve any doubts against granting ET.[3] The FTC also warned that the number of deals receiving ET would be lower than normal, and the timeline to ET will be longer than normal. In FY 2018,[4] ET was granted for nearly 80% of filings where it was requested.[5] Based on Mayer Brown’s own tracking, ET typically is granted around calendar day 14 of the HSR waiting period.

The resumption of ET is a good sign for parties contemplating transactions. But, given the FTC’s caveats, parties should be prepared that the HSR waiting period still will take the full 30-days. Moreover, the FTC’s strong admonition that it is continuing to investigate all competition concerns thoroughly serves as a reminder that antitrust laws always apply, even in times of crisis.

[1] See “Resuming early termination of HSR reviews,” By Ian Conner, Bureau of Competition, Mar. 27, 2020, https://www.ftc.gov/news-events/blogs/competition-matters/2020/03/resuming-early-termination-hsr-reviews.

[2] Id.

[3] Id.

[4] The US government’s 2018 fiscal year ran from October 1, 2017 to September 30, 2018.

[5] See “Hart-Scott-Rodino Annual Report, Fiscal Year 2018,” at 6, https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-bureau-competition-department-justice-antitrust-division-hart-scott-rodino/fy18hsrreport.pdf.

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