On February 5, 2020, Assistant Attorney General Makan Delrahim spoke at the Media Institute on the current merger review landscape (see Makan Delrahim, “Getting Better: Progress and Remaining Challenges in Merger Review”). While he celebrated an administrative success, he also forewarned of a formidable obstacle to effective agency enforcement.

Delrahim remarked that since the Antitrust Division of the Department of Justice (the Division) outlined reforms modernizing the merger review process 18 months ago, the average time between filing and notification has decreased substantially. The Division aspired to resolve nearly all merger investigations within six months of filing and published a model timing agreement and model voluntary request letter to encourage merging parties to cooperate with its goal.

The Division, according to Delrahim, has met or exceeded expectations. According to data compiled since the Division’s reforms, it takes an average of only 5.4 months for the Division to notify the merging parties of its position following the submissions of the parties’ HartScottRodino Antitrust Improvements Act of 1976 (as amended) filings; and an average of only 5.7 months to notify the merging parties after an investigation that results in a legal challenge. Overall, when merging parties are cooperative and a transaction is not viewed by the antitrust agencies as creating a significant harm to competition, merger reviews are faster now than in the past.

But Delrahim also highlighted a concern: third parties undermining federal enforcement decisions. He lamented a recent effort by several states to ask the Southern District of New York for a nationwide injunction preventing a high-profile merger that had otherwise been reviewed by the antitrust authorities and produced a settlement that protected competition while maximizing the benefits of the transaction for certain, disadvantaged populations. Delrahim cautioned that such behavior could pose a risk to the future of beneficial transactions and settlements. In closing, Delrahim reiterated the Division’s commitment to protecting the interests of consumers nationwide when enforcing mergers involving national markets.

Cooperation with the antitrust agencies during the merger review process is the key to producing faster results. Knowledgeable outside antitrust counsel will further facilitate a quicker and smoother process. To learn more, please contact the Reed Smith attorney with whom you regularly work.