On July 23, 2026, the U.S. Department of Justice’s Antitrust Division released a new “targeted review” approach for its in-depth investigations of proposed mergers and acquisitions under the Hart-Scott-Rodino (HSR) Act, known as “Second Requests.” As announced by Associate Attorney General Stanley E. Woodward Jr., parties can seek to enter into a timing agreement with the Antitrust Division that would allow them to respond to priority information requests and then receive a meeting with the Division’s Front Office within 21 days. Within 14 days of that meeting, the Division would either close its investigation, modify the scope of the materials requested, or require full compliance. The new process, which is memorialized in a new model timing agreement, is aimed at “reducing the burden and cost on merging parties,” but DOJ also made clear that in some cases full compliance will still be necessary.
HSR Process Background
Under the HSR Act, companies must notify DOJ and the Federal Trade Commission of transactions that meet certain thresholds and observe a waiting period prior to closing. If the government has concerns that a transaction may substantially lessen competition in a relevant market that remain unresolved after the initial waiting period, it can issue a Request for Additional Information and Documentary Material (the “Second Request”), which extends the waiting period until after substantial compliance with the Second Request.
The Antitrust Division and FTC, which share antitrust enforcement jurisdiction, have long required that parties enter into a timing agreement in conjunction with the negotiation of modifications to the Second Request. For the government, the main purpose of such timing agreements is to have parties agree not to close for a period longer than the statutory waiting period so that the government has additional time to consider Second Request responses. Parties also benefit from more time for advocacy before the government decides whether to file suit to block the transaction. DOJ’s new “targeted review” process is memorialized as an “optional” provision in the new model timing agreement.
Key Features of New ‘Targeted Review’ Model Timing Agreement
Perhaps most notable about the Antitrust Division’s announcement is that it facilitates advocacy directly to the Front Office much earlier in the Second Request process and allows parties to obtain resolution on the merits of their arguments in just over a month from completing the priority responses. This is a significant development, as such meetings are at the discretion of the Division and historically have tended to come at the end of full Second Request compliance.
However, while the Antitrust Division’s new model timing agreement provides for an abbreviated Second Request response, the shortened path still imposes some burden on merging parties:
- DOJ will enumerate certain specification requests from its full Second Request as the “Priority Production” and set a specific date (to be negotiated) for the Priority Production response in the timing agreement.
- The model timing agreement contemplates defining certain custodians – including predecessors, successors, administrative assistants and other administrative support staff, and relevant centralized files – that must be searched for any document requests covered by the Priority Production.
- The parties must produce a privilege log by the Priority Production return date and make productions of responsive documents downgraded from an initial privilege determination within seven days of the Priority Production deadline. Those “de-priv” documents must constitute less than 5% of the total production for a custodian. DOJ also can request a full privilege log for no more than 5% of the logged documents.
- Parties must certify the accuracy and completeness of their Priority Production response.
It also is notable that DOJ’s model form now stands in contrast with that of the FTC, which requires only that priority data and documents be submitted at least 30 business days before the parties certify substantial compliance with the Second Request.
Takeaways and Strategic Considerations
The Antitrust Division’s process announcement is consistent with the current administration’s approach of engaging with merging parties to resolve potential competitive concerns where feasible through remedies. While the process enables a path toward a less burdensome investigation, parties will still need to incur significant costs in collecting and producing information in response to even the priority requests. Moreover, parties that enter into a timing agreement providing for “Expedited Consideration” will need to consider whether to work concurrently on full Second Request compliance as a contingency in the event the early engagement does not fully resolve the government’s concerns. Doing so would avoid losing time in certifying compliance, but would also come at additional cost if the Expedited Consideration results in the Division closing the investigation.
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