Parties to a transaction subject to the reporting requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) must observe a statutory waiting period (30 days for most transactions) after filing their notification forms and report before concluding the transaction. .
The Federal Trade Commission (FTC) and the Department of Justice are authorized to terminate this waiting period early, at the request of the parties or on their own initiative, after determining that no additional information is necessary and that the transaction does not raise significant competition concerns. . A request for early termination may be made directly on the HSR Notice and Reporting Form, and decisions to grant early termination are made public on the FTC’s website.
In February 2021, the early termination process was “temporarily” suspended due to a backlog of reported transactions and the impact of COVID-19. Prior to the suspension, early termination was granted in about half of all reported transactions.
However, according to recent remarks made by Commissioner Noah J. Phillips at an antitrust symposium at George Mason University’s Antonin Scalia Law School, the FTC has no plans to reinstate the process of early termination so soon. Commissioner Phillips attributed the failure to review the early termination process to the prevailing view in Washington that mergers, rather than being an “important part of commerce,” are nothing more than a driver of harmful business concentration. Commissioner Phillips also spoke out against the FTC’s use of warning letters, which inform parties that, despite the expiration of the waiting period related to their particular transaction, the FTC may later choose to challenge the transaction.
Commissioner Phillips said that to his knowledge, no investigation is ongoing into the transactions for which these warning letters were issued.
©2022 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XII, Number 69