HSR Early Terminations Halted And FTC and DOJ Implement Temporary E-Filing During COVID-19 Telework Directive

In response to COVID-19, the Premerger Notification Office (PNO) at the Federal Trade Commission (FTC) and the Department of Justice (DOJ) have implemented a temporary e-filing system for all filings made pursuant to the Hart-Scott-Rodino Act (HSR Act). The PNO and DOJ began accepting HSR filings via the e-filing system on Tuesday, March 17, 2020 and will not accept any hard copy or DVD submissions while the temporary e-filing system is in place. We have now submitted two filings on the temporary e-filing system and the process went smoothly. The e-filing protocols and updates about the procedure from the PNO are available here.

The PNO will not be granting early termination of the 30-day waiting period (or 15-day waiting period for cash tender offers or acquisitions covered by 11 U.S.C. 363(b)) while the e-filing system is place, so, merging parties should expect to observe the full waiting period before closing transactions. The waiting period under the HSR Act will commence as usual when all parties required to file pursuant to the HSR Act have submitted their complete filings to the PNO and the Antitrust Division of the DOJ and the full filing fee required pursuant to the HSR Act for the transaction has been paid and received by the FTC. Additionally, the DOJ is requesting here an additional 30 days to timing agreements to complete its review of transactions after parties have complied with document requests for mergers currently pending or that may be proposed.

In light of the mass telework directive, the PNO and DOJ staff are completing reviews of HSR Act submissions remotely through the e-filing system and conducting meetings by phone or video conference. Our initial experiences with the new e-filing system have been positive, and we hope this might be an opportunity for the PNO to move towards a permanent e-filing system. However, the PNO may require the filing parties to submit hard copies or DVDs of filings made using the temporary e-filing system to both the PNO and DOJ once the temporary procedure is lifted. We expect that we could see additional adjustments to the merger review timing and process by the PNO and DOJ as they adapt to the process changes during the COVID-19 outbreak.