A Second Request for a Hart-Scott-Rodino (HSR) filing thrusts companies and their counsel into a high-stakes race against time, complicated by massive data volumes and strict requirements. Policy and enforcement shifts by the Federal Trade Commission (FTC) and Department of Justice Antitrust Division (DOJ), brought on by a change in presidential administrations, complicate the landscape even further.
In early 2022, Lighthouse analyzed the data and recent history of Second Requests in our whitepaper, the 2021 Second Request Trends Report, to help predict activity this year and beyond.
Now, as we approach the halfway point of the Biden administration’s inaugural term, it seems a pertinent time to check in on the agencies’ attitudes and actions thus far, and what they mean for mergers and acquisitions — both today and in the future.
To grasp the shifts in HSR Second Requests over the past two years, Lighthouse's Bill Mariano interviewed Corey Roush, a partner at Akin Gump who leads their antitrust and competition practice, and is head of their FTC-facing consumer protection practice. Below is an excerpt from their conversation.
The Biden administration has now had more than a year and a half to shape its approach to mergers and acquisitions. How do you view the landscape at this point?
I see outward signs of moderate hostility towards mergers that have created general uncertainty. This owes mostly to statements by leadership at both agencies rather than unexpected actions. For the most part, we are seeing Second Requests issued when one would traditionally expect them, and we are also seeing some high-profile public transactions like Elon Musk/Twitter and PMI/Swedish Match avoiding Second Requests.
What have regulatory agencies done to create this atmosphere?
A handful of things, from making specific policy changes to expressing general disdain for consolidation.
The discourse coming from regulators is guided largely by a July 2021 Executive Order from President Biden. Inspired by that order, FTC Chair Lina Khan told Congress that “significant consolidation has undermined open and competitive markets” so it’s her agency’s responsibility “to redouble [its] commitment to policing mergers.” That attitude was echoed by Assistant Attorney General Jonathan Kanter, head of the Antitrust Division at DOJ, who said mergers “can harm downstream consumers and upstream workers at the same time that they foster coordination or exclusion in adjacent markets. Everyone loses, except extractive powerful firms in the middle.”
Disdain for consolidation, at least among the largest companies, is an increasingly bipartisan posture, by the way. Last spring Senator Josh Hawley (R-Mo.) introduced the Trust-Busting for the Twenty-First Century Act, complaining that a small group of “woke mega-corporations control the products Americans can buy, the information Americans can receive” and so on. The legislation would help regulators “crack down on mergers and acquisitions by monopoly companies” and even “pursue the breakup of dominant, anticompetitive firms.”
There’s the hostility you mentioned. What about enforcement? How are they following through on this rhetoric?
And even when companies agree to delay consummation under a timing agreement, the agencies may ask for even more time. Last year, 7-Eleven was three days away from closing an acquisition when the FTC asked for more time — and this was after the company had already given the Commission more time on four separate occasions. The company was able to close the deal as planned and without a Commission vote because it had already negotiated a consent decree approved by the FTC staff. Two Commissioners responded with a public threat stating, “The parties have closed their transaction at their own risk. The Commission will continue to investigate to determine an appropriate path forward to address the anticompetitive harm and will also continue to work with State Attorneys General.” After all that, a “new” consent order was issued that was almost identical to the one that the company had previously agreed to and was approved by the Commission on a 4-0 vote two months later.
It seems like “close at your own risk” is becoming a trend now?
It is. The FTC has been issuing letters since the fall of 2021 warning parties whose regulatory review periods had expired or were about to expire that the agency was continuing to investigate the transaction, so parties who decided to close on their planned date would do so at their own risk. By early 2022, the DOJ joined the fray, issuing at least one warning letter that I’m aware of.
So far, though, it appears to be a red herring. First, parties have always closed with some risk of a post-closing challenge. For instance, the FTC is currently challenging Facebook’s acquisition of WhatsApp and Instagram—deals that were consummated eight and ten years ago, respectively. Second, in the current landscape, companies have been closing despite receiving the letters, and we haven’t seen any efforts to unwind those deals. Nor have we seen many investigations actually continue.
What other policy changes have altered the landscape for HSR and Second Requests?
The big one in my mind affects prior approval. In July of 2021, the FTC — by a 3-2 party-line vote — adopted a new policy that requires “buyers of divested assets in Commission merger consent orders to agree to a prior approval for any future sale of the assets they acquire in divestiture orders.” This rescinds a nearly 30-year-old policy and creates real complications in the divestiture process. To state the obvious, an asset is less attractive if it comes with a restriction on its sale and a requirement that the divestiture buyer sign a consent decree with the FTC.
We now see these agreements in consent orders regularly. That said, we have also seen at least one consent order that did not require the divestiture buyer to sign on. What distinguished that case from the others is unclear.
What does this all mean going forward? What should parties expect from regulators?
Longer reviews, with unpredictable engagement. Some deals that do not present clear competition problems are taking longer than one might traditionally expect. At the same time, we have avoided Second Requests even though, at first glance, there were competitive overlaps and/or vertical relationships. In those cases, along with competitive analysis proving the transaction wasn’t troublesome, our early engagement with the agencies appeared to be key.
The uncertainty applies mostly to certain high-profile, high-scrutiny areas like tech, pharma, and agriculture. Deals outside of those areas appear to be more predictable and consistent with past scrutiny.
So, will 2023 be more of the same?
Most likely. Legislation like the American Innovation and Choice Online Act and Open App Markets Act have bipartisan support. Alvaro Bedoya was confirmed as the third Democrat Commissioner in May. And the antitrust agencies are working on new merger guidelines that could replace the current Horizontal Merger guideline and provide more guidance on vertical merger enforcement (the FTC rescinded the existing vertical guidelines last year). Given all this, we expect the trends of hostility and uncertainty to magnify in the near future.
Vice President | Bill Mariano is an attorney and Vice President at Lighthouse. In his role, Bill works with Fortune 500 corporations and AmLaw 100 law firms throughout the United States, Europe, and Asia Pacific to help clients improve their strategies for handling complex discovery matters while creating greater cost and control efficiencies throughout the discovery process.Prior to his start in the ediscovery industry over 12 years ago, Bill was a litigator for 5 years, as well as a guest trial advocacy instructor at Seton Hall University where he taught students how to leverage technology in practice. He is also a frequent presenter and author on a variety of topics including: How to Develop an Electronic Discovery Action Plan; The FRCP Amendments: Dealing with Electronic Discovery; Emerging Case Law in Electronic Discovery; and Leveraging Technology to Reduce Discovery Costs.Bill earned his J.D. from Seton Hall University School of Law.