|October 4, 2013|
Previously published on October 2, 2013
The FTC and DOJ have implemented contingency plans for their operations during the “lapse in appropriations,” which began as we entered the new 2014 fiscal year on October 1, 2013. According to the agencies’ plans1, they may only incur obligations (other than those funded from prior appropriations, or otherwise authorized by law) that are necessary to protect human life or property ... .” Thus, the agencies are limiting their operations due to the lack of necessary appropriations and are proceeding with limited staffing, though certain salaried employees, including the FTC’s Chairwoman and Commissioners and the DOJ’s Assistant Attorney General for Antitrust, may continue to work.
The FTC’s Bureau of Competition expects to have approximately 29% of its employees on hand, and the DOJ’s Antitrust Division may have up to approximately 37% of its employees working during the shutdown. Because the parties to HSR-reportable transactions are required to notify the FTC and DOJ and the government is required to review and process the HSR Forms submitted by the parties, the agencies need to have adequate staff for these purposes. The FTC’s plan indicates that five of its “regular” nine employees will be managing intake and review of HSR filings.
Merger and acquisition reviews under the Hart-Scott-Rodino Act have the following implications:
- The FTC’s website directs users to a “shutdown” page and many of the HSR resources are unavailable; the Antitrust Division’s website is available, but states that it will not be updated during the shutdown;
- The FTC’s Premerger Notification Office will be open to accept and organize new filings, but with very limited staff;
- Staff may not be able to respond as quickly, or at all, to informal requests for guidance on HSR Act compliance;
- Parties should expect to observe the full 30-calendar day waiting period, as early termination seems less likely than pre-shutdown;
- November 29, 2013 is the last day parties can submit an HSR Notification, observe the full waiting period, and close on December 31, 2013;
- The FTC will continue conducting HSR investigations during the shutdown, but only to the extent consummation of a merger may substantially hinder the government’s ability to obtain effective relief later;
- The DOJ will continue to prepare cases that must be filed due to HSR or statute of limitations deadlines if an extent an extension or waiver cannot be obtained, where not doing so would pose a reasonable likelihood of peril to property; and
- The agencies may need to issue second requests to extend the waiting period, if the shutdown is lifted late into an initial 30-day waiting period.
All non-merger investigations will be suspended during the shutdown and the FTC will request suspensions of dates for trials, hearings and filings, etc. to preserve the government’s claim in appropriate litigated matters. The agencies have reserved the ability to revisit and amend their plans as conditions warrant. We will continue to monitor these developments.
1 The Federal Trade Commission’s Contingency Plan is available here: http://www.ftc.gov/ftc/oed/130925ftcshutdownplan.pdf, and the Department of Justice’s Contingency Plan is available here: http://www.justice.gov/jmd/publications/doj-contingency-plan.pdf.