The FTC's prior approval policy likely will eliminate incentives to cooperate with antitrust investigations

In another blow to the cooperative spirit between private businesses and federal regulators, the Federal Trade Commission (the “Commission”) issued its “Statement of the Commission on Use of Prior Approval Provisions in Merger Orders,” (the “Policy”) on October 25, 2021, announcing that it now intends to “routinely require[e] merging parties subject to a Commission order to obtain prior approval before closing any future transaction affecting each relevant market for which a violation was alleged . . . for a minimum of ten years.” Companies willing to enter into a consent decree with the Commission will now be required to subject future transactions to Commission review and approval without any of the statutorily prescribed rules governing merger review under the Hart-Scott-Rodino (“HSR”) Act; meaning the Commission can now review—and block—such transactions without complying with any statutory timeframe or substantive standards.

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Special thanks to Tim Chung (New York) for his assistance in the preparation of this content.