Year-End and Post-Election US Antitrust Deal Dates that Matter

As we approach the end of 2024 and the 2024 US presidential and congressional elections, there are several key antitrust-related deadlines and potential changes to watch for at the US antitrust enforcement agencies and other government institutions. This LawFlash summarizes some of the most important ones.

1. Last Day to File HSR and Close Proposed Transactions by Year End

To allow for a year-end close, proposed transactions subject to the Hart-Scott-Rodino Act (HSR) must be filed no later than 5:00 pm ET, Friday, November 29, 2024 (the day after the Thanksgiving holiday). This timeline would allow for the 30-day HSR waiting period to expire on or before 11:59 pm ET, December 30, 2024 and thus allow closing on December 31, 2024, assuming no second request is issued.

2. Last Day to File HSR Before the New, More Burdensome HSR Rules Are Effective

On October 10, 2024, the Federal Trade Commission (FTC or Commission) published new HSR Rules that expand the scope of documents and information required to be submitted in HSR filings. These rule changes affect the content of the HSR filings, but do not change which deals must be reported. See our October 14 LawFlash discussing the new HSR reporting requirements.

The effective date of the new HSR rules is 90 days after the date of publication in the Federal Register. As of November 4, 2024, such publication has not yet occurred. Accordingly, the new HSR rules will go into effect no earlier than February 3, 2025. Companies have until at least January 31, 2025 to file under the current HSR rules. If a transaction has the potential to warrant a “pull and refile” (granting FTC/Department of Justice (DOJ) another 30 calendar days), parties should submit the initial HSR filing by December 30, 2024 to avoid potential New Year’s Eve complications and to allow for sufficient time to refile on or before January 31, 2025.

3. Potential Change of Administration Milestones at the FTC in the Event of Party Change

Under US law, the FTC is an independent agency led by five commissioners who are nominated by the president and confirmed by the Senate. [1] No more than three commissioners can come from the same political party, and the party holding the presidency effectively gets a majority of the Commission seats. [2] Accordingly, the FTC is currently composed of three Democratic and two Republican commissioners. The president can designate the chair of the FTC from among the sitting FTC commissioners. [3]

If former President Trump is elected, the most likely immediate change at the FTC would be the designation of a new chair for the agency. One of the two existing Republican FTC commissioners (Melissa Holyoak and Andrew Ferguson) could be appointed chair or acting chair shortly following the inauguration on January 20, 2025. While the FTC chair has the same single vote as other commissioners on voting matters, such as whether to file a specific case or to adopt a rule, the chair is responsible for significant executive and administrative responsibilities at the FTC overall, including staffing decisions, and exercises direct oversight of several offices, including the Offices of Policy Planning, Public Affairs, and Technology.

Because the president may designate a chair from among the sitting commissioners at any time, when the party of the president changes after an election, a new chair, often only an acting chair, may be designated shortly thereafter, although there is no requirement to do so. The acting chair is designated so the president can take the time to determine whether to make that commissioner or a different commissioner the chair.

In the past two transitions, Democratic Commissioner Rebecca Kelly Slaughter was appointed acting chair one day following the inauguration of President Biden, and Republican Commissioner Maureen Ohlhausen was appointed acting chair six days after the inauguration of former President Trump. Both were later replaced as chair by Lina Khan and Joseph Simons, respectively.

Further changes at the FTC would not necessarily happen quickly. Because of the time it takes for FTC commissioners to be nominated and confirmed by the Senate, even if there were a Republican president, the Democrats could potentially continue to hold a 3-to-2 voting majority on the Commission past the first quarter of 2025.

A Republican chair would not meaningfully affect this dynamic. In the past two transitions, that scenario did not transpire because the preceding chair resigned shortly after the time of the inauguration. Former Chair Edith Ramirez resigned soon after former President Trump’s inauguration and prior Chair Joseph Simons resigned soon after President Biden’s inauguration.

It has typically taken several months into a new administration to confirm a new commissioner. During this time, the incoming president needs to vet and nominate appointees and to gain Senate approval, the timing of which is inevitably impacted by various other priorities and political considerations.

• Under President Biden, Lina Khan was confirmed by a Democratic-controlled Senate and sworn in as commissioner and chair of the FTC on June 15, 2021, roughly five months following the inauguration. Until then, Democratic Commissioner Rebecca Kelly Slaughter served as acting chair, and the Commission was composed of two Republicans and two Democrats.
• Under former President Trump, Joseph Simons was confirmed by a Republican-controlled Senate and sworn in as commissioner and chair of the FTC on May 1, 2018, roughly 15 months after the inauguration. Until then, Republican Commissioner Maureen Ohlhausen served as acting chair, and the Commission was composed of one Republican and one Democrat.

Complicating matters further, current Chair Lina Khan’s term expired in September 2024, and therefore that seat is currently eligible for a new nomination. [4] In theory, this position could be filled by President Biden and confirmed by the current Senate before the end of the year, although there has been no indication of any plan to do so to date. If the seat remains eligible for nomination, then it will be available for the next administration to determine whom to appoint to it. If Democrats retain the presidency, then the new Democratic president would still need to decide whom to nominate to this seat and could renominate Chair Khan or a new commissioner.

4. Potential Change of Administration Milestones at the DOJ in the Event of Party Change

At the Department of Justice, the president, with the advice and consent of the US Senate, is responsible for appointing the attorney general [5] and the assistant attorney general for the Antitrust Division. [6] In the event of a party changeover, this process has historically taken several months to complete. For example, following the change from the Trump administration to the Biden administration, Jonathan Kanter was confirmed as assistant attorney general on November 16, 2021, roughly 10 months after the inauguration. In the prior transition, Makan Delrahim was confirmed as assistant attorney general on September 27, 2017, roughly eight months after the inauguration.

Acting personnel would typically lead the DOJ in an interim capacity while a new administration’s appointments are pending. During this interim period, before the politically appointed leaders responsible for directing policy are in place, major policy changes or new initiatives are unlikely.

For example, in 2017, the Trump administration’s new antitrust policy initiatives at the DOJ were not apparent until former Assistant Attorney General Delrahim gave a policy speech after taking office in September of that year, outlining a change in approach toward patents and standard setting organizations. As with the FTC chair, it is also possible that a new Democratic president could choose to make a personnel change as part of the new administration despite party continuity.

5. Potential Change of Control for House Judiciary (Antitrust) Going to Democrats

The US House of Representatives currently has a slim Republican majority. The House Judiciary and Oversight Committees have been highly critical of the current leadership at the FTC. [7] A new two-year Congress will begin on January 3, 2025. Should the House flip to Democratic control following the 2024 elections, the House Judiciary Committee, and its antitrust-focused subcommittee, would likely see changes.

Under the Republican leadership of Chair Jim Jordan, the House Judiciary Committee has conducted numerous antitrust investigations, focusing on topics such as alleged collusion with respect to climate goals. (See this July 31, 2024 article regarding navigating antitrust considerations in connection with ESG.) A shift in control would likely alter priorities and significantly reduce the committee’s Republican staff, shifting the balance of staff to favor the Democratic side. The current ranking Democratic member of the committee is Rep. Jerrold Nadler, [8] with Rep. J. Luis (Lou) Correa [9] as the ranking member of the antitrust subcommittee, although it is unclear who would hold leadership roles in a new Congress.

Committee assignments are typically established by internal political processes within Congress in the first few weeks of a new Congress. Some areas of focus for a Democratic House Judiciary Committee might include antitrust attention to those areas that have been highlighted by the Democratic campaigns, such as issues affecting the prices of food, drugs, energy, and healthcare.

6. Potential Change of Control for Senate Judiciary (Antitrust) Going to Republicans

The US Senate currently has a slim Democratic majority. If the Senate shifts to Republican control in the new Congress, there would also likely be changes in the Senate Judiciary Committee and in the antitrust subcommittee led by Senator Amy Klobuchar. In the current Congress, that committee has held hearings on topics such as housing markets and technology companies.

As with the House, a change in party control would likely shift the committee’s focus. The current ranking Republican member is Senator Lindsey Graham, with Senator Mike Lee as the ranking member of the antitrust subcommittee, although leadership roles in a future Congress remain unknown. Where the Republican leaders would take us here is unknown, but continued scrutiny on the big technology platforms seems probable.