Impact of Government Shutdown on US Antitrust Merger Enforcement

By White & Case LLP – Daniel J. Rosenthal, George L. Paul, Rebecca Farrington and Heather Greenfield

USA January 22 2018
On January 19, 2018, the federal government failed to enact appropriations to fund federal operations, resulting in a government shutdown. Both the Department of Justice (DOJ) and Federal Trade Commission (FTC) have issued plans for how this shutdown will impact antitrust merger enforcement.

Key Takeaways

• Hart-Scott-Rodino (HSR) filings will be accepted by the agencies during the government shutdown.
• Early Termination of the HSR waiting period will not be granted during the shutdown.
• Due to its limited staff, the Premerger Notification Office of the FTC will not answer email or telephone inquiries regarding HSR rules or filing procedures.
• HSR waiting periods will continue to run during a government shutdown and DOJ and FTC staff will continue to review premerger filings and conduct investigations to determine whether to challenge reported transactions under the antitrust laws.
• Second Requests will continue to be issued.
• If engaged in merger litigation, FTC and DOJ attorneys will notify opposing parties and the courts of the government shutdown and attempt to negotiate timing extensions and suspensions. If such relief is not available, they will continue to litigate the matter.
• The FTC and DOJ websites will be available during a shutdown but will not be regularly updated.

Analysis

The DOJ and FTC have developed a shutdown plan in the event of a government shutdown. Each plan designates which employees are furloughed during a shutdown and which employees are excepted from the furlough requirement.

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