Overview of the Hart-Scott-Rodino Annual Report for Fiscal Year 2020
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Overview of the Hart-Scott-Rodino Annual Report for Fiscal Year 2022
Introduction
The Federal Trade Commission (FTC) and the U.S. Department of Justice Antitrust Division (DOJ) (collectively, the Agencies) recently issued the Hart-Scott-Rodino Annual Report for Fiscal Year 2020 (the Report). Covering the time period from October 1, 2019 through September 30, 2020, the Report, which provides data on the premerger notification program established under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act), shows a dramatic decrease in notified transactions as a result of the global COVID-19 pandemic in FY2020.
However, this is only a partial picture of the pandemic’s effects on merger activity – since the time period covered by the Report, preliminary data indicates that the number of transactions has increased to record levels and now vastly exceeds pre-pandemic monthly numbers. In response, the Agencies have reallocated resources and staff to meet demand and suspended early termination of review, creating additional uncertainties in the merger review process. While the Report does not capture the full extent of the surge in filings, it does show a quick rebound after an initial precipitous drop in April and May.
The key takeaways from the Report are:
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FY2020 saw a 21.6% decrease in notified transactions from the prior fiscal year, driven in large part by the global COVID-19 pandemic and the responses of businesses and governments. The statistics from the months following FY2020, however, indicate a robust recovery, with more than twice the number of notifications in November 2020 as compared to November 2019.
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Merger enforcement levels remained steady from the prior year, with the Agencies issuing Second Requests in 3.0% of notified transactions, but higher than the 2.7% average over the past five fiscal years.
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Similar to the prior year, the industries with the most notified transactions were consumer goods & services (representing 28.2% of total notified transactions), information technology (10.6%), manufacturing (10.2%), and banking & insurance (10.1%). FY2020 saw an increase in notified transactions in information technology and banking & insurance.
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In almost all transactions where the Agencies brought a merger enforcement challenge, remedies were required or the transaction was abandoned or restructured. The Agencies brought 43 challenges, of which 18 (42%) were resolved by consent orders or settlements containing remedies, 19 (44%) were abandoned (4 after the relevant Agency filed a complaint), and 2 (5%) remain pending. Only 4 transactions (9%) were resolved without a remedy imposed (1 after litigation).
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The absolute number of Second Requests decreased in line with the decline in notified transactions, but the Agencies’ merger enforcement activity increased, with the Agencies issuing 48 Second Requests, initiating 43 merger enforcement challenges, and bringing 7 actions in administrative or federal court (compared to 61 Second Requests, 38 challenges, and 5 cases brought in administrative or federal court in FY2019).
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The Agencies received 23 post-consummation corrective filings in FY2020, but did not bring any civil enforcement actions for violations of the HSR Act.