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HSR Second Requests Expected to Increase Under Biden

As detailed in a presentation by Driven today, Driven Presents New Trends for Second Request Enforcement in the Biden Administration, the number of Second Requests under the Hart–Scott–Rodino Antitrust Improvements Act is expected to increase in 2021. As discussed in the Tip of the Night for October 19, 2017 , a HSR Second Request may require businesses contemplating a merger to make a quick document production to the Federal Trade Commission so the merger can go forward. Consequently, TAR is often used in these situations to complete document review as quickly as possible. See the Tip of the Night for October 19, 2017.

  • Congress is currently contemplating the The Competition and Antitrust Law Enforcement Reform Act, S.225, 117th Cong. (Feb. 4, 2021) which will make it easier for the FTC to enforce antitrust laws.

  • Last December, Congress increased the budget of the FTC by $20 million, and the budget of the Antitrust Division of the Department of Justice by $18 million.

  • Under the version of the DOJ's Model Timing Agreement, revised in September 2020, the parties may not finalize their transaction until 90 days after they compile with the Second Request, and the Antitrust Division completes its investigation. Previously, the period was 60 days.

  • Lina Khan is the new Commissioner of the Federal Trade Commission. She is well known for criticizing the anticompetitive effects of businesses like Amazon, and is expected to implement a more aggressive anti-monopoly policy under the Biden administration.

  • In June 2021, the DOJ filed an action to block the merger of Aon and Willis Tower Watson, two of the country's largest insurance brokers, signaling a start to an aggressive new approach in enforcing antitrust laws.


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