The FTC`s announcement does not specify any changes to its approach to timing agreements, but warns that it is conducting a „Matter by Matter“ review of its investigations and litigation to examine the need to change timing agreements.  As with the DOJ, parties who are the subject of a second investigation into the FTC`s second application should expect that requests for closure will be delayed. The new Model Timing Agreement is the culmination of the significant contributions of all departments and regional offices within the office as well as the Front Office. The Office expects future time agreements to correspond to this model or to correspond essentially to this model. Deviations from the model may be necessary in some cases. The front desk of the Office reviews all pre-implementation time agreements and reviews the rationale for any changes. The model requires the parties to agree not to close the proposed transaction until 60 to 90 calendar days after certification of essential compliance with the second application, depending on the complexity of the competition issues raised by the agreement. This period, in line with current practice, should serve as a reference and not as a ceiling. The date of compliance depends on the circumstances of each case. For example, staff may need more than 90 days to analyse data or information before making a recommendation to the Commission in areas that concern particularly complex sectors. Merger investigations typically include timing agreements that provide, among other things, an agreed framework for the date of certain stages of the investigation. Timing agreements also ensure that FTC employees are informed of the parties` plans for the settlement of the transaction.
Both parties and officials benefit from the adoption of such a framework shortly after the publication of the request for additional information and documents, also known as the second request, as it allows staff and parties to engage in substantive exchanges efficiently and without too much uncertainty during the period of consideration of the second request. In addition, the model requires parties to notify 30 calendar days in advance before certifying substantial compliance with the second request and 30 calendar days before the conclusion of the proposed transaction. These communication requirements help staff structure the date for the development of a recommendation on this topic. Most importantly, they allow staff to plan an appropriate schedule for all meetings that the parties wish to have with the management of the department, the Bureau of the Bureau and individual commissioners, so that the parties have the opportunity to present their arguments and evidence before the end of the agreed review period. Clients who are the subject of a second request from an agency should be prepared for a broad review and a request for an extension under an existing or pending time agreement. HSR-reported transactions that are not subject to a second application can also be appeased because the FTC has suspended the granting of early termination. The office began using a version of the Model Timing Agreement earlier this year, and we have refined the provisions of the agreement based on feedback and experience in recent merger investigations. The version of the Model Timing Agreement, announced today, replaces all versions that the parties have seen before. The Bureau may continue to update the model and these updates will be available to the public.
As always, parties are encouraged to approach staff at an early stage as part of a second investigation to negotiate a time agreement. Part of the purpose of an effective time agreement is to allow for constructive feedback between Office staff and the parties, by increasing security as to the date of an investigation. We hope that the new model will allow the parties to better anticipate the Bureau`s expectations, which in turn should help to promote smoother and more efficient studies. . . .