Merger Review, Reviewed

Antitrust Division Spring Update 2019

On September 25, 2018, Assistant Attorney General (AAG) Makan Delrahim gave a speech on modernizing the merger review process. Emphasizing that expeditious merger review takes two—the parties merging and the agency reviewing—AAG Delrahim set a goal of resolving most investigations within six months of filing, provided that the parties promptly comply with Division requests throughout the entire process. To facilitate fast cooperation and compliance, the Division published a Model Voluntary Request Letter, a Model Timing Agreement, and some Frequently Asked Questions regarding voluntary requests and timing agreements.

The Model Voluntary Request Letter is a roadmap to the type of information the Division typically needs to resolve mergers without going to a Second Request (or, if outstanding issues exist, narrowly tailor any Second Request). Getting the requested information to the Division quickly is important to resolving cases quickly.

The Model Timing Agreement gives transparency to a common practice. It also reflects several changes designed to speed merger review, including

  • seeking fewer custodians (20 per party unless a DAAG authorizes more);
  • seeking fewer depositions (12 per party unless a DAAG authorizes more); and
  • providing less time from compliance to a decision (60 days or less unless a DAAG authorizes more).

In exchange, the Division requires

  • faster and earlier productions of documents;
  • earlier production of data; and
  • a reasonable post-compliance discovery period (for the rare investigation that turns into litigation).

AAG Delrahim also made clear that these timing goals require the parties to be forthcoming and accurate about privilege issues—the Division will not tolerate privilege gamesmanship. Already, since AAG Delrahim’s speech, the Division has rejected a Second Request compliance certification in a major investigation based solely on deficiencies in privilege logs. The Division continues to take this issue very seriously and will soon announce a standard privilege protocol for all parties producing documents. This initiative will continue to streamline and improve the merger review process.

Stopwatch

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Updated March 26, 2019

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