Second Request Antitrust Investigation: FTC and DOJ Merger Review

A Second Request is a demand for additional information in a federal merger investigation. It can change the transaction schedule and require substantial work from the parties, their employees, and their advisers. The first practical step is to identify the reviewing agency, read the actual request with antitrust counsel, and map the information, decisions, and closing obligations that depend on the investigation.

The Hart-Scott-Rodino process applies to certain reportable transactions. A Second Request does not itself decide whether a transaction violates the antitrust laws. It gives the investigating agency an opportunity to examine the proposed transaction more closely. This guide explains the process and the decisions a deal team should prepare for; the applicable rules and agency requirements should be checked for the particular transaction.

How the initial HSR review works

For a transaction requiring a filing, the parties submit the required notification to the Federal Trade Commission and Department of Justice. One agency reviews the proposed transaction. The FTC's merger review guide explains the filing and preliminary review process.

The ordinary initial waiting period is 30 days, with a 15-day period for a cash tender offer or a bankruptcy transaction described in the FTC guidance. Early termination may be granted where available. These periods and their calculation need to be checked against the current rules and the facts of the transaction, including when the filing is complete and how holidays affect expiration. A waiting period that expires does not prevent an agency from later challenging a transaction under antitrust law.

Check current filing materials

The FTC's HSR forms and instructions page reports that the updated form was vacated in 2026 and identifies filing materials accepted following that decision. Filing requirements and agency procedures can change. Counsel should check the current notice and applicable rules when preparing a filing, rather than rely on a prior form or a summary of past changes.

Build a review calendar

Record the filing date, the agency assigned to review, the initial waiting-period calculation, and any contractual closing conditions. Give one person responsibility for maintaining the calendar and confirming dates with counsel. Keep regulatory deadlines distinct from dates in the purchase agreement. The closing team also needs to know whether financing, consents, or other transaction documents depend on the anticipated review schedule.

What a Second Request asks for

Before the initial waiting period expires, the reviewing agency may issue a request for additional information and documentary material. The FTC describes requests for business documents and data that inform its assessment of products or services, market conditions, and likely competitive effects. The actual request and any agreed modifications determine what a particular party must provide.

Read the specifications before collecting

Work with antitrust counsel to identify the defined terms, relevant products and locations, time periods, custodians, document categories, data requirements, and instructions. Identify which teams maintain the relevant information and who can explain the systems. A specification that appears familiar may have a definition or exception that changes the collection task, so the request itself should govern the response plan.

Create a response matrix linking each specification to its information owner, source systems, collection method, reviewer, and production status. Track open questions and agency discussions. For business data, identify the underlying fields and their meaning before exporting files. For documents, identify where employees communicate and store materials, including systems managed by outside providers where relevant to the request.

Coordinate legal and business teams

A response requires legal judgment and practical knowledge of the business. Assign counsel to interpret the request, manage privilege review, and communicate with the agency. Assign business and technical personnel to identify custodians, explain systems, and test data. The deal team should also track how the investigation affects financing, closing conditions, and outside commitments. For the broader transaction work, see the M&A due diligence process.

The parties should take preservation and collection advice from counsel in light of the request, relevant facts, and applicable obligations. Avoid assuming that a standard checklist resolves every preservation or privilege question. Counsel can determine what instructions to give, document decisions, and assess whether a particular communication is privileged.

Substantial compliance and the extended waiting period

The FTC explains that a Second Request stops the initial waiting period. After valid certification of substantial compliance, the ordinary extended waiting period is 30 days; the FTC describes a 10-day period for cash tender offers and certain bankruptcy transactions. See the FTC's timing guidance. The calculation and conditions must be assessed for the transaction, and early termination or other applicable circumstances may affect timing.

Prepare for certification

Certification is a significant step. Counsel should compare the production with the actual request, applicable instructions, any modifications, and outstanding questions. The response matrix can show what was collected, reviewed, produced, withheld as privileged, or remains unresolved. Review data formats and explanations as well as the documents themselves. The party responsible for certification needs a defensible basis for the statement being made.

Do not treat the target certification date as a substitute for completion of the required work. If a production issue arises, assess its effect with counsel and discuss the appropriate response with the agency. A deal calendar should account for uncertainty about collection, review, certification, and agency action rather than presume an investigation will end on a preferred date.

Distinguish statutory time from agreement

A timing agreement can include commitments about when parties will provide information or close. The FTC explains that a timing agreement does not itself extend the statutory HSR waiting period, even though the parties may agree to additional time before closing. Read the actual agreement with counsel and place both the statutory dates and contractual commitments on the deal calendar. FTC timing guidance.

Discuss scope and timing with the agency

A request's scope affects the time and resources needed to respond. Counsel can discuss specifications, sources, custodians, search methods, data formats, and possible modifications with agency staff. Any change should be documented and communicated to the collection and review teams. The response plan should reflect the actual request as modified, rather than an informal assumption about what the agency will accept.

In July 2026, the DOJ announced a targeted Second Request process and published a model timing agreement. DOJ describes prioritizing certain information that could address its questions before full compliance; after review, it may close the investigation, modify the request, or require full compliance. The process depends on the circumstances and an agreement with the Division. It should not be assumed to apply automatically to an FTC investigation or to every DOJ matter.

Identify decisions that need agency input

Bring concrete questions to counsel: which specifications are unclear, which systems are difficult to export, whether definitions can be clarified, and what format is suitable for transaction data. Record the answer, the date, and who will carry it out. A change in a custodian list or production format can affect several teams, so ensure the matrix and project schedule are updated together.

Keep the business informed

The investigation can require significant employee time. Explain the collection process to affected teams through counsel and designate contacts for technical issues. Protect confidential information during collection and review. The people responsible for financing and the purchase agreement should receive updates on material schedule risks without assuming that a deal-team forecast is an agency commitment.

Evaluate possible outcomes and remedies

After review, an agency may close its investigation, consider a settlement, or seek to challenge the transaction. The outcome depends on the facts, the agency's analysis, and applicable law. Parties should coordinate their response with antitrust counsel and review the purchase agreement's provisions on regulatory efforts, remedies, termination, and closing conditions.

A proposed divestiture is one possible remedy in an appropriate case. The FTC's merger remedies guidance discusses the agency's review of the proposed asset package and buyer. A proposal should be evaluated against the competitive concern the agency identifies, the assets needed for an effective business, and the buyer's ability and incentive to operate it. The guide is agency guidance, not a promise that a proposed remedy will be accepted.

If the parties consider a divestiture, identify the assets, contracts, personnel, intellectual property, and services needed for the proposed package. Consider how separation affects both the divested business and the retained operations. Check whether the purchase agreement allocates responsibility for offering a remedy and who must approve changes. Develop a realistic transition plan with specialists who understand the business and relevant regulatory issues.

Coordinate the merger agreement and other jurisdictions

The investigation sits alongside the transaction documents. Review the outside date, obligations to pursue regulatory approval, conditions to closing, remedy provisions, and rights if review continues longer than expected. Identify the people authorized to speak with the agency and approve material changes. A buyer and seller may share the objective of closing while having different contractual responsibilities and risk tolerances.

A cross-border transaction may require separate assessment in other jurisdictions. Local notification rules, substantive standards, confidentiality rules, and timetables can differ. Counsel in the relevant jurisdictions can coordinate filings and communications while respecting the requirements of each authority. The parties should consider any confidentiality waiver on its actual terms and obtain advice before agreeing to share protected information.

For the broader transaction context, see the HSR Antitrust M&A Legal Guide and the M&A Due Diligence Checklist.

Frequently asked questions

Does a Second Request mean the transaction is prohibited?

No. It is a request for additional information during an investigation. The agency's subsequent decision depends on its review and the facts. The parties should follow the applicable waiting-period rules and consult counsel before closing.

When does the extended waiting period begin?

The FTC explains that the extended period follows valid certification of substantial compliance. The ordinary period and special rules for cash tender offers or certain bankruptcy transactions differ. Confirm the applicable calculation with counsel and the reviewing agency.

Can a Second Request be narrowed?

Counsel can discuss the scope and potential modifications with agency staff. Any modification depends on the agency, the investigation, and the terms agreed. Record agreed changes and ensure the production team uses the current instructions.

Does a timing agreement change the statutory waiting period?

The FTC states that timing agreements do not themselves extend the statutory HSR waiting period. They can contain separate commitments about information or closing. Review the specific agreement and track those commitments alongside statutory deadlines.