In 1976, Congress enacted the Hart-Scott-Rodino Act (HSR). Under the HSR merger review process, parties to transactions above certain thresholds must provide advance notice to the Federal Trade Commission (FTC) and the Department of Justice (DOJ) and may not complete the transaction until expiration of the statutory waiting period.

The FTC and DOJ retain jurisdiction to review transactions before or after closing, regardless of whether an HSR waiting period has expired—though historically, the FTC and DOJ rarely have investigated transactions after allowing the HSR waiting period to expire. The FTC has upended the review process with its recent practice of issuing warning letters with respect to transactions that have been through HSR review. The practice coincides with an unprecedented merger wave of 4,130 acquisitions filed with the agencies in 2021, reportedly straining the FTC’s resources.

The warning letters are part of several new tactics that are causing further delay and uncertainty in merger review and clearance. This article discusses those tactics and their immediate impact. The general approach has been a doubling down on enforcement, stripping away of exemptions and interpretations, and more burdensome investigations with less predictable outcomes.

Read article.

Reproduced with permission. Published August 2022. Copyright 2022 The Bureau of National Affairs, Inc. 800-372-1033. For further use, please visit http://www.bna.com/copyright-permission-request/ 

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Photo of Bryan A. Cruz Bryan A. Cruz

Bryan A. Cruz is an associate in the Litigation Department.

Bryan earned his J.D. from Harvard Law School, where he participated in the Crimmigration Clinic and as an extern at the Asian American Legal Defense and Education Fund through the Voting Rights Litigation…

Bryan A. Cruz is an associate in the Litigation Department.

Bryan earned his J.D. from Harvard Law School, where he participated in the Crimmigration Clinic and as an extern at the Asian American Legal Defense and Education Fund through the Voting Rights Litigation and Advocacy Clinic. Bryan interned his 1L summer at Disability Rights Texas.

Prior to law school, Bryan taught bilingual elementary school in San Antonio, Texas for two years as part of Teach For America. Bryan then taught middle school for two years.

Photo of John R. Ingrassia John R. Ingrassia

John is a partner at the Firm, advising on the full range of foreign investment and antitrust matters across industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services consumer goods and health care. He is the first call clients make in matters relating…

John is a partner at the Firm, advising on the full range of foreign investment and antitrust matters across industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services consumer goods and health care. He is the first call clients make in matters relating to competition and antitrust, CFIUS or foreign investment issues.

For more than 25 years, John has counselled businesses facing the most challenging antitrust issues and helped them stay out of the crosshairs — whether its distribution, pricing, channel management, mergers, acquisitions, joint ventures, or price gouging compliance.

John’s practice focuses on the analysis and resolution of CFIUS and antitrust issues related to mergers, acquisitions, and joint ventures, and the analysis and assessment of pre-merger CFIUS and HSR notification requirements. He advises clients on issues related to CFIUS national security reviews, and on CFIUS submissions when non-U.S. buyers seek to acquire U.S. businesses that have national security sensitivities.  He also regularly advises clients on international antitrust issues arising in proposed acquisitions and joint ventures, including reportability under the EC Merger Regulation and numerous other foreign merger control regimes.

His knowledge, reputation and extensive experience with the legal, practical, and technical requirements of merger clearance make him a recognized authority on Hart-Scott-Rodino antitrust merger review. John is regularly invited to participate in Federal Trade Commission and bar association meetings and takes on the issues of the day.

Photo of Timothy E. Burroughs Timothy E. Burroughs

Tim Burroughs is an associate in the Litigation Department.

Tim earned his J.D. from Vanderbilt Law School, where he was the Executive Student Writing Editor for the Vanderbilt Journal of Transnational Law and Teaching Assistant for the legal writing program. While at Vanderbilt…

Tim Burroughs is an associate in the Litigation Department.

Tim earned his J.D. from Vanderbilt Law School, where he was the Executive Student Writing Editor for the Vanderbilt Journal of Transnational Law and Teaching Assistant for the legal writing program. While at Vanderbilt, Tim interned at the U.S. Attorney’s Office for the Southern District of New York and published his student note on international anti-money laundering regulation in the fine-art market.

Prior to law school, Tim taught elementary school in the Brownsville neighborhood of Brooklyn for three years as part of Teach for America.