FTC and DOJ Report Annual Findings on HSR Premerger Notification Program
The FTC and DOJ reported data on the Hart-Scott-Rodino ("HSR") Premerger Notification Program for fiscal year 2021. Fiscal year 2021 data covers transactions reported between October 1, 2020 and September 30, 2021.
The HSR Premerger Notification Program alerts the FTC and DOJ to transactions that meet the HSR reporting requirements. The agencies reported 3,520 HSR filings for fiscal year 2021, which represents an approximate 115 percent increase from the previous year. The agencies also reported 65 "second requests" for additional information (42 by the FTC and 23 by the DOJ), an increase from 48 the previous year.
The FTC challenged 18 mergers, issuing a final consent order in five mergers, initiating a legal proceeding in six mergers, and seven mergers were abandoned or restructured. The DOJ initiated 14 merger challenges, resulting in two federal lawsuits seeking to block the mergers, nine consent decrees, and three instances where the merger was restructured in light of the DOJ's concerns.
In a joint statement on the annual report, FTC Chair Lina M. Kahn, Commissioner Rebecca K. Slaughter and Commissioner Alvaro M. Bedoya urged Congress to revise the HSR Act to keep pace with the increase in "volume and complexity" of merger transactions. The Commissioners specifically requested that Congress (i) extend the 30-day period for the FTC to decide whether to challenge a merger and (ii) provide additional funding for the agency.
FTC Commissioner Christine S. Wilson disagreed with the need to revise HSR Act provisions, stating that in many instances the FTC negotiated a "timing agreement" that would allow it more time beyond the 30-day period to decide whether to challenge a merger. She also said that merger-related enforcements have decreased under the current administration and that the FTC should consider a re-allocation of its resources to ensure a smoother HSR Act process. (On February 14, 2023, Ms. Wilson resigned from her position as an FTC Commissioner through an Op-Ed in the Wall Street Journal.)