According to the doJ`s latest Model Timing Agreement, this period is usually 60 days or less.  However, as part of this temporary change to the process, DOJ will require an additional 30 days, or up to 90 days in total, after the parties have complied with their second requests. The DOJ cautioned against further revision of existing time agreements in the future, as the situation evolves. The FTC`s announcement does not change its approach to time agreements, but cautions that it is conducting a “thorough review” of its investigations and litigation to see if there is a need to amend time agreements.  As in the case of DOJ, the parties should expect that transactions under investigation on the FTC`s second application will be subject to requests delaying the financial statements. Merger investigations generally include agreements over time, which provide, among other things, an agreed framework for certain stages of the investigation. The timing agreements also ensure that FTC staff are informed of the parties` plans for the transaction comparison. Both parties and staff benefit from the establishment of such a framework shortly after the issuance of the request for additional information and documents, also known as the second request, as it allows officials and parties to effectively and significantly associate with a relevant exchange during the review period of the second application. The new type-timing agreement is the culmination of significant contributions from the various regional departments and offices within the Office and the Front Office of the Office.
The Bureau expects future time agreements to be or will be essentially consistent with this model. Deviations from the model may be necessary in some cases. The Office of the Office reviews all scheduling agreements prior to implementation and will consider the reasons for any changes. As always, the parties are encouraged to approach a second inquiry staff early on to negotiate an agreement over time. The objective of an effective agreement over time is to facilitate constructive feedback between Office staff and the parties by enhancing security at the time of an investigation. We hope that the new model will allow the parties to better anticipate the Office`s expectations, which in turn should help promote smoother and more effective investigations. Earlier this year, the Bureau began using a version of the standard schedule agreement and we refined the provisions of the agreement based on feedback and experience from the latest merger investigations. The version announced today of the Model Timing Agreement replaces all versions that the parties have seen before. The Office can continue to update the model and these updates will be available to the public. The model requires the parties to agree not to complete the planned transaction up to 60 to 90 calendar days after certification of substantial compliance with the second application, depending on the complexity of the competition issues raised by the merger. This period, in accordance with current practice, should serve as a reference, not a ceiling. The timing according to respect depends on the circumstances of each case.
In particularly complex areas, for example, employees may need more than 90 days to analyze data or information before making a recommendation to the Commission. Clients who have made transactions subject to a second request from one of the two agencies should be prepared for an expanded review and an extension request under an existing or pending time agreement.