Agency Transparency in Merger Enforcement (TIME) Report

Transparency In Merger Enforcement

Merger enforcement updates from the U.S. antitrust agencies typically focus on adverse outcomes like litigated challenges (complaints), abandonments and formal settlements. By contrast, agency press releases rarely include information about the many transactions subject to extended (Second Request) investigations that receive clearance. Understanding this unreported activity, however, is important for companies considering new transactions.

To help fill this gap, Akin’s antitrust & international competition practice has created a dataset of Second Request investigation activity that includes both announced enforcement actions and investigations publicly disclosed by merging parties, which goes back to 1996. This dataset provides the backbone for our Agency Transparency in Merger Enforcement (TIME) Report, offering a more rounded view of merger investigation outcomes than possible from agency statements alone.

Methodology

The Agency TIME Report is a fulsome study of publicly available material relating to Second Request or equivalent investigations conducted by the U.S. antitrust agencies under U.S. merger control laws.

Because the agencies are bound by strict confidentiality obligations under the Hart-Scott-Rodino (HSR) Act, there is no way for private parties to track every Second Request investigation. At the same time, merging parties often speak publicly about the investigations that affect their deals. Public companies, for example, are often required to disclose the receipt of Second Requests under certain circumstances, typically under penalty of perjury. Certified disclosures like these are inherently credible and provide valuable information for students of merger enforcement.

The Agency TIME Report considers all available information on Second Requests disclosed by either the U.S. antitrust agencies or the parties to each transaction themselves since 1996. Our sources include agency press releases, other agency materials released without press statements and other verifiable disclosures offered by parties to notified transactions or their agents through U.S. Securities and Exchange Commission (SEC) filings, corporate press releases, court filings and other public statements. In this study, transactions subject to Second Requests are tracked by the following outcomes:

Outcome	Description
Complaint	An investigation that ends with a complaint to block the transaction.
Abandoned	An investigation that ends with a deal being abandoned without any complaint (whether announced in an agency press release or not).
Settlement	An investigation that ends with an announced settlement (consent decree or consent order).
Recommendation	An investigation that ends with an agency recommendation to another federal or state authority but no direct settlement.
Closing Statement	An investigation that ends with a formal agency closing statement.
Closed Without Statement	An investigation that ends with a closed deal and no agency press release.