Antitrust Law Daily FTC, Department of Justice outline process changes in wake of COVID-19 pandemic
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Tuesday, March 17, 2020

FTC, Department of Justice outline process changes in wake of COVID-19 pandemic

By Jeffrey May, J.D.

Merger reviews could be delayed as merging parties are asked to add an additional 30 days to timing agreements.

With most FTC and Department of Justice Antitrust Division employees working remotely in response to the COVID-19 coronavirus pandemic, the agencies have implemented a number of process changes to prioritize their enforcement efforts. The changes directly impact merging parties and those involved in agency investigations or litigation.

As the FTC Bureau of Competition reallocates resources to maintain continuity of core operations, it is conducting a matter-by-matter review of investigations and litigations to consider appropriate modifications of statutory or agreed-to timing. Bureau of Competition Director Ian Conner announced the changes in a Competition Matters blog post. Merging parties and parties in litigation or investigations were advised to expect bureau meetings to be conducted by telephone or videoconference rather than in-person. Parties also were encouraged to reach out to staff proactively to discuss proposed modifications to statutory or agreed-to timing.

Meanwhile, at the Department of Justice, Antitrust Division meetings will be conducted by phone or video conference, absent extenuating circumstances. All scheduled depositions will be temporarily postponed and rescheduled using secure video conferencing capabilities.

Timing agreements. The Antitrust Division also is requesting from merging parties an additional 30 days to timing agreements to complete its review of transactions after the parties have complied with document requests. Generally, timing agreements between the government and merging parties provide the agencies with additional time to analyze a transaction following a second request for documents. According to a Justice Department statement released today, the Antitrust Division may revisit its timing agreements with merging parties in light of further developments if circumstances require.

Makan Delrahim, Assistant Attorney General in charge of the Antitrust Division, confirmed however that the Antitrust Division was "open for business."

Delay in FTC administrative proceedings. The Commission has already taken action to postpone an administrative hearing in the agency’s challenge to body-worn camera systems manufacturer Axon Enterprise, Inc.’s May 2018 acquisition of competitor VieVu, LLC. Commencement of the hearing was pushed from May 19 to June 23 because public health risks were interfering with plans for approximately 50 depositions around the country that were scheduled to begin on March 17. With a number of matters in administrative litigation, more extensions should be expected. In addition, with federal courts continuing deadlines and postponing hearings, parties in FTC federal litigation will likely see delays.

Companies: Axon Enterprise, Inc.; VieVu, LLC

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