The Federal Trade Commission (FTC), with the concurrence of the DOJ, released the agencies’ fiscal year 2010 report on their treatment of mergers under the Hart-Scott-Rodino premerger notification program. The report examines the agencies’ activities aimed at ensuring that firms are complying with the premerger notification rules and procedures.
In 2010, 1,166 transactions were reported under the HSR Act, about a 63 percent increase from the 716 transactions reported in 2009. When the agencies have some reservation that a proposed transaction might negatively affect competition, but do not have sufficient information to determine whether that reservation is warranted, the reviewing agency may issue a request for additional information, known as a "second request." The statistics show that the number of second requests increased 48 percent from the number of second requests issued in 2009. Second requests were issued in 46 merger investigations in fiscal year 2010 (20 issued by the FTC and 26 issued by the DOJ).
The FTC challenged 22 transactions, resulting in 19 consent orders and three transactions that were abandoned after the parties learned of the FTC’s concerns. The DOJ challenged 19 merger transactions, leading to 10 consent decrees and one matter currently in litigation, and abandonment or the restructuring of eight transactions after the DOJ informed the parties of its concerns related to the transactions. In fiscal year 2009, by comparison, the FTC challenged 19 transactions and the DOJ challenged 12 transactions.
Despite being busier with the increased number of premerger filings, second requests and transaction challenges, the report also notes that the FTC challenged five consummated mergers and the DOJ challenged two. The report makes clear that the agencies are vigorously reviewing reportable and non-reportable transactions and making use of the second request tool available to them under the HSR Act.