Longfellow said “It takes less time to do a thing right than to explain why you did it wrong.” We agree, especially when it comes to designing effective merger remedies—ones that maintain competition at pre-merger levels so that the merger does not lead to higher prices, lower quality, or reduced innovation. From the perspective of the Bureau of Competition and the Commission, getting it right takes time. The Bureau and the Commission review the final proposal only after sign off from the relevant investigating division and the Compliance Division, and execution of the Agreement Containing Consent Orders by the parties.
Parties and their counsel should be aware that it typically takes four weeks to review a consent package after staff and the parties formally submit the settlement package to the Director of the Bureau of Competition. The Director of the Bureau of Competition then will take two weeks to review the consent package. Once the Director agrees that the proposed settlement addresses the competitive risk raised by the merger, the Director will make a recommendation to the Commission that the Commission accept the proposed consent order for public comment. The Bureau of Economics will separately make its own recommendation. The Commission will typically take two weeks to review the Bureau Directors’ recommendations before voting on whether to accept the consent. The Commission’s time to review and to vote is solely in the Commission’s discretion and the Commissioners’ review may exceed two weeks when necessary.
Expedited Review is the exception, not the norm
While these timelines for Bureaus and Commission review may be shortened or lengthened—in the discretion of the Bureau Directors in the first period, or the Commission in the second period—counsel should not make commitments that the review period will be shorter.
If parties believe that expedited review of a consent package is appropriate in their particular matter, they must submit a letter requesting expedited review and explaining why expedited review is requested. Before seeking expedited review, parties should have notified Bureau of Competition staff as early as possible during the investigation of the issues cited in the letter justifying expedited review. Expedited review is unlikely to be granted when the parties had the power to address these issues themselves, or it was reasonably foreseeable that there would be timing issues (e.g., the parties negotiated a drop-dead date that allowed only four months to close, or agreed to a ticking fee on financing that failed to anticipate antitrust review). Further, expedited review is unlikely to be granted when the parties have not responded diligently or efficiently to FTC requests for information and documents. For example, if parties take months to negotiate custodians or fail to respond meaningfully to a Second Request or prioritized information requests, an expedited review request that asserts that the investigation has taken a substantial amount of time is unlikely to lead to expedited review of a settlement. Further, routine business exigencies related to deal closing are unlikely to constitute sufficient grounds for expedited review. Finally, frequent outreach to the Bureau of Competition Front Office or to Commissioners’ offices is unlikely to expedite a decision further once a letter is received.
Taking the time to fully consider a proposed settlement saves time that no one wants to spend figuring out where things went wrong if the remedy fails. From our perspective, doing it right in the first place is time well spent.