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FTC and DOJ ‘Temporarily’ Suspend Early Termination Grants; No Clear End to Suspension Identified

February 04, 2021

The DOJ and FTC have suspended early termination (i.e., early clearance) for filings made under the Hart-Scott-Rodino Act.

The Antitrust Division of the US Department of Justice (DOJ) and the Federal Trade Commission (FTC) announced on February 4 that the two agencies will temporarily suspend the early termination (ET) process for filings made pursuant to the Hart­Scott­Rodino Act (HSR Act). There will be no ETs granted during this suspension period. The agencies cite leadership transition, the global pandemic, and the increased volume of filings as unprecedented times warranting a full 30-day review. ET grants allow the parties to close prior to the expiration of the initial 30-day waiting period; without the grant of ET, there is a longer executory period creating some additional deal uncertainty.

Both agencies indicate they anticipate the suspension to be “brief.”

Early termination is not a statutory right. “The Federal Trade Commission and the Assistant Attorney General may, in their discretion, terminate a waiting period upon the written request of any person filing notification.”

The substantial increase in year-over-year HSR Act filings has created capacity challenges for dedicated FTC and DOJ Staff to review HSR filings promptly in order to grant ET:

2020 FY

2019 FY

January 2021 – 210

January 2020 – 162

December 2020 – 192

December 2019 – 172

November 2020 – 424

November 2019 – 209

October 2020 - 233

October 2019 – 146


Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

New York
Stacey Anne Mahoney
Harry T. Robins
Maria Luisa Di Lauro
Ricardo Doriott
Nicholas Passaro

San Francisco
Cecilia Wang

Washington, DC
David R. Brenneman
Ryan Kantor
Jonathan M. Rich 
Tracey F. Milich
Bernard W. Archbold
Damos Anderson

London
Omar Shah
Joanna Christoforou
Frances Murphy

Brussels 
Izzet Sinan
Christina Renner

Frankfurt
Michael Masling