FTC and DOJ Release Report of 2016 HSR Activity

On October 3, the Federal Trade Commission Bureau of Competition and the Antitrust Division of the Department of Justice released the Hart-Scott-Rodino Annual Report for the fiscal year ended September 30, 2016. Highlights of the Report, which summarizes activity in the premerger notification program for the just completed fiscal year, include that 1,832 transactions were reported under the HSR Act in fiscal year 2016, an increase of approximately 1.7% from the 1,801 transactions reported in fiscal year 2015, still below the ten-year high mark of 2,201 transactions reported in 2007 while well above the ten-year low of 716 transactions in 2009.

A total of 47 merger transaction challenges were initiated during fiscal year 2016, up from the 42 challenges initiated in fiscal 2015. The 22 challenges brought by the FTC resulted in 16 consent orders, initiation of administrative or federal court litigation in 5 matters, and abandonment or restructuring of the transaction in the remaining challenge. Of the 25 challenges brought by the DOJ, 15 resulted in complaints filed by the DOJ in U.S. district court, 6 resulted in restructuring by the parties to resolve concerns, and the remaining 4 with the parties abandoning their transactions in light of competitive concerns.

The number of merger investigations in which second requests were issued also increased in fiscal year 2016 to 54 from the 47 issued in fiscal 2015, with the corresponding percentage of transactions in which a second request was issued increasing from 2.7% in 2015 to 3.0% in 2016.

Early termination of the HSR waiting period was granted in 80.2% of the transactions where requested in fiscal year 2016, up slightly from fiscal year 2015’s rate of 79.5%.

The agencies received clearance to conduct an initial investigation in 13.4% of the transaction reported in fiscal 2016, down from 14.7% of transactions for fiscal 2015.