Paul Hewitt Quoted on Disparity Between DOJ and FTC Second Requests in Mergers

Akin Gump antitrust partner Paul Hewitt is quoted in the Global Competition Review article “Annual HSR data shows second-request disparity.”

The article addresses 2013 differences in the rate of Hart-Scott-Rodino second requests issued by the Department of Justice (DOJ)’s Antitrust Division and the Federal Trade Commission (FTC) following a grant of clearance in the initial stage of antitrust merger review. The FTC sought and received clearance to conduct twice as many Hart-Scott merger investigations as DOJ.  However, DOJ issued post-clearance second requests 78 percent more frequently than the FTC. Hewitt says some of this may be due to a difference in the characteristics of the particular industries assigned to the DOJ and FTC, but questions whether institutional differences between the agencies might also play a role. Is DOJ more efficient than the FTC in deciding at an earlier stage which transactions truly need further detailed review?  Is the FTC more focused than DOJ on assuring that no potential violations slip through the cracks?

The information in the article comes from the 2013 Hart-Scott-Rodino Report, which, Hewitt says, “provides very interesting data,” but leaves several important questions unanswered.