The merger notification and review process in the United States continues, but timelines may be impacted in unpredictable ways.
The Federal Trade Commission’s Premerger Notification Office and the Department of Justice’s Premerger Office remain open during the government shutdown, and they are accepting new HSR filings. However, they will be operating with a smaller staff, so they will not answer email or telephone questions regarding the HSR rules and will not be granting Early Termination. (Note that most filings do not require posing questions to the Premerger Notification Office and thus will not be affected by their failure to respond to questions.) Even if the government shutdown is resolved quickly, it is possible that the short staffing during the pending HSR waiting period will extend the overall review timeline, even for simple transactions that would otherwise be good candidates for early termination, so that review of these transactions takes most if not all of the 30-day review period.
The shutdown does not impact the statutory 30-day HSR review period. For transactions that present more complicated issues, however, it is possible the short staffing caused by the shutdown will increase the risk that the DOJ or FTC will require more than 30 days to complete the necessary review, in which case the agency staff may encourage the parties to “pull and refile” their filings or even issue a request for additional information (a “Second Request”). Any time during the initial 30 day review period, the parties can “pull” their filing and then resubmit the filing, thereby providing the agencies a second 30 day review period. If the parties resubmit the filing within two days of pulling the original notification form, the parties do not have to pay the filing fee again. Note that the parties would have to update the HSR form and add any additional 4c/4d documents created during the first review period to their second submission.
With respect to antitrust litigation involving the federal enforcement agencies, the federal courts remain open and ready for business, as they have enough funds to remain open through approximately February 9th. However, it is possible that the DOJ or FTC will seek continuances of hearing or filing dates if key staff attorneys are on furlough and unable to prepare or participate.