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Timing Considerations for HSR Filings During COVID-19 Pandemic

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| Legal Advisory

COVID-19 continues to present novel challenges and disruptions to the merger and acquisitions market during this unprecedented time. New requirements for electronic filing during the COVID-19 outbreak under the Hart-Scott Rodino Antitrust Improvements Act of 1976 (“HSR Act”) may affect the timing of transactions that are currently under review and transactions that are submitted for review.

Under the HSR Act, parties to certain large mergers and acquisitions are required to file premerger notifications with the Federal Trade Commission (“FTC”) and the U.S. Department of Justice (“DOJ”). Generally, this includes transactions in which one party has sales or assets of at least $188 million and the other has sales or assets of at least $18.8 million and, as a result of the proposed transaction, the acquiring party will hold an aggregate amount of voting securities, non-corporate interests and assets of the acquired party valued at greater than $94 million. As of March 16, 2020, the Premerger Notification Office will no longer accept hard copy or DVD filings and now will only accept HSR filings via a new e-filing system that has been temporarily put in place. 

The FTC and the DOJ will continue to review HSR filings that are submitted electronically in the normal course, however, the offices will not grant any early terminations. Generally, the waiting period of the review of such filings is 30 days, but parties will often request that the waiting period be terminated early. With the electronic filing system, this will no longer be available, and thus parties will be required to wait the full 30 days before closing. This change may affect the timing of transactions currently under review and transactions that are submitted while this electronic filing system remains in place.

This advisory was prepared by Shannon Zollo, chair of Nutter’s Mergers and Acquisitions practice group, and Meghan Kelly. For more information, please contact Shannon or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising. 

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