DOJ Attempts to Streamline Merger Review Process, Reduce Burdens

The Department of Justice Antitrust Division has amended its 2001 Merger Review Process Initiative in order to streamline its investigation process, improve efficiency, reduce costs, and lessen burdens on parties to transactions, according to the December 15 announcement by the Department of Justice.

The 2001 Merger Review Process Initiative was intended to help the Division identify critical legal, factual, and economic issues regarding proposed mergers more quickly; to facilitate more efficient and focused investigative discovery; and to provide an effective process for the evaluation of evidence.

The new amendments include a voluntary option enabling companies to reduce the duration and costs of merger investigations. The option would limit the document search required by a Division information request (known as a “second request”) to particular files and a targeted list of 30 employees whose files must be searched for responsive documents. This option will be conditioned on timing and procedural agreements that protect the Division’s ability to obtain appropriate discovery should it decide to challenge the deal in district court.

The Antitrust Division is also changing its model second request to reduce compliance burdens further by (1) reducing the default search period to two years prior to the date of the issuance of an information request and (2) limiting the volume of materials that companies must collect, review, and produce in response to a second request.

“The amendments to the Division’s already successful Merger Review Process Initiative are part of our ongoing efforts to reduce enforcement burdens, while at the same time preserve our ability to conduct thorough investigations and protect consumers from anticompetitive transactions,” said Thomas O. Barnett, Assistant Attorney General in charge of the Antitrust Division.

The 2001 initiative has resulted in an average decrease in the number of days that pass from the opening of a preliminary investigation to the early termination or closing of the investigation from 93 days to 57 days.

The amended initiative and a model second request appear on the Division’s web site.