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March 13, 2020

FTC Announces Suspension of Early Terminations of the Waiting Period Under the HSR Act and Temporary E-Filing Procedures

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The Premerger Notification Office of the Federal Trade Commission (PNO) has announced temporary filing procedures under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) in response to the developing COVID-19 coronavirus pandemic. While these procedures remain in effect, early termination of the HSR Act waiting period will not be available and filings must be submitted electronically through Accellion. The new procedures are effective on Tuesday, March 17, 2020; no filings may be submitted on Monday, March 16, 2020.

Acquisitions that are subject to the HSR Act may not be completed until after a waiting period that begins with the filing of notifications with the PNO and the Department of Justice. The waiting period is generally 30 days (15 days for cash tender offers and certain acquisitions in the bankruptcy context). The antitrust agencies may extend the waiting period by requesting additional information; they are also authorized to grant early termination of the waiting period and routinely do so when they conclude that the acquisition does not present a meaningful antitrust issue. However, early termination of the waiting period will not be available while these temporary procedures remain in effect.

The temporary procedures require electronic filing of notifications with the PNO and the Department of Justice, instead of the hard copy and DVD format currently in effect. Documents to be e-filed must be in searchable PDF or MS Excel files and labeled in the same manner as set forth in the PNO's instructions applicable to DVD filings. When notified by a party that it wishes to make a filing, the Staff of the PNO will forward a link which will allow the filer to upload the contents of its complete HSR filing to a secure Accellion file-transfer platform. Filing fees are currently paid by wire transfer and the procedure for doing so remains unchanged.

Upon the resumption of normal agency operations, all filing parties may be required to submit hard copies or DVDs of their respective filings previously made using the temporary e-filing system to both the PNO and Department of Justice. For more details, read the FTC's Guidance for Filing Parties (March 13, 2020).

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.