On September 28, 2021, the Federal Trade Commission (FTC) issued a blog post announcing several changes to how the FTC will investigate mergers and acquisitions and how it will approach second-request negotiations. The blog post stated that the process changes were needed to address the “surge in merger filings” overwhelming the FTC’s limited resources and reiterated the FTC’s position that it will ensure that merger reviews are “more comprehensive and analytically rigorous.” In addition, the blog post states that FTC staff will only consider requests for any modifications of a second request after the party under investigation has provided “certain foundational information.” Parties must also provide information on the e-discovery tools they will be using, and the FTC is discontinuing the prior option of allowing parties to submit a partial privilege log. 

Interestingly, Commissioner Noah Phillips publicly stated that the new processes come at “precisely the wrong time” given the “recent uptick in merger activity.” Indeed, Commissioner Phillips argued that in effect the agencies are defying the legislative directive of the Hart-Scott-Rodino process in that they “tax transactions through uncertainty, expense, and government fiat. This will leave companies and their customers and suppliers in limbo, cause assets to dissipate, and sometimes lead to the abandonment of deals that benefit consumers.”

* * *

For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte:

E. John Steren
Member of the Firm
Patricia Wagner
General Counsel / Chief Privacy Officer
Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.