FTC and DOJ Suspend Grants of Early Termination of the HSR Waiting Period

On February 4, 2021, the Federal Trade Commission announced (press release here) a suspension of grants of early termination of the 30-day HSR waiting period, for all transactions, during a ‘review period’ as the FTC and the DOJ assess the policies and procedures used to grant early termination.  During the suspension, the agencies will not grant early termination, but the waiting period still can expire in due course. 

Under the Hart-Scott-Rodino (HSR) Act, transactions meeting certain size-of-deal/size-of-person thresholds must be reported to the agencies for review, and cannot close unless a 30-day waiting period expires without action by the agencies, or unless an agency grants early termination of the waiting period. 

The FTC’s press release cites a “historically unprecedented volume of filings during a leadership transition amid a pandemic” and indicates the need for a full review period in order to ensure appropriate competition and consumer protection.

In March 2020, the agencies suspended grants of early termination for 17 days, while an e-filing system was being launched in response to the COVID-19 pandemic.  The FTC’s press release indicates that the duration of the current suspension is similarly expected to be short.  Nonetheless, transactional attorneys and business parties should plan for a full 30-day review period during the period of the suspension, and potentially beyond (as the suspension may lead to a delay in processing filings even after early termination resumes, and given the agencies’ stated intention to assess procedures going forward).

This e-Bulletin was prepared by David Sikes and Michael Knight.  Mr. Sikes and Mr. Knight are partners at Jones Day, and Mr. Sikes is a member of the Corporations Committee of the Business Law Section of the California Lawyers Association.  This e-Bulletin does not necessarily reflect the views of Jones Day.  The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firm with which they are associated.