FTC AND DOJ ‘TEMPORARILY’ SUSPEND EARLY TERMINATION GRANTS; NO CLEAR END TO SUSPENSION IDENTIFIED

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 – January 2021 – 210/ 2019 FY- January 2020 – 162
2020 FY – December 2020 – 192/ 2019 FY- December 2019 – 172
2020 FY – November 2020 – 424/ 2019 FY- November 2019 – 209
2020 FY – October 2020 – 233/ 2019 FY- October 2019 – 146

Azevedo Sette Advogados