In response to the COVID-19 pandemic, the staffs at the Federal Trade Commission (FTC) and Department of Justice (DOJ) responsible for Hart-Scott-Rodino (HSR) merger reviews are working remotely. Accordingly, HSR filings cannot be made in hard copy — which is the only way those filings have been made in the past. In order address this situation, the FTC Premerger Notification Office has set up a temporary electronic platform to enable parties to make their HSR filings electronically. The new platform went live on Tuesday, March 17. Given the dislocations caused by these changes, the FTC has advised that it will not be granting Early Termination of the HSR Waiting Period on electronic filings at this time. Accordingly, parties who need HSR clearance on their transactions should factor in a full 30 days for HSR clearance in setting their timetables for closing.
In addition, for strategic deals that may raise substantive antitrust issues, there is some concern that the FTC or DOJ may not be able to complete their reviews and clear those deals within the 30-day Waiting Period. In those cases, there may be an increased risk that the reviewing agency will issue Second Requests for Information in order to stop the HSR clock so that the review can be completed. Parties to strategic deals may wish to take this into account in calculating time to closing.