A Second Request — formally a "Request for Additional Information and Documentary Materials" — is the tool by which the FTC or DOJ escalates a merger review from a routine screen into a full, in-depth investigation. It is issued under the HSR process when the reviewing agency, during the initial 30-day waiting period, identifies competitive concerns it wants to examine closely. Receiving a Second Request is the single biggest antitrust event that can hit a deal's timeline.
What it does
A Second Request extends the HSR waiting period: the parties cannot close until they have "substantially complied" with the request, after which a further waiting period (e.g., 30 days for most deals, 10 days for cash tender offers) runs before closing is permitted. In practice this pushes the timeline out by many months — often six months to a year or more from signing.
Why it is so burdensome
A Second Request is famous for its enormous breadth and cost. It typically demands:
- vast volumes of documents — emails, board materials, strategic plans, pricing and competitive analyses — often spanning years and many custodians;
- detailed transactional and sales data for economic analysis;
- written interrogatory-style responses; and
- depositions / investigational hearings of executives.
Complying can require reviewing millions of documents, large e-discovery and economic teams, and legal and consulting bills running into the millions of dollars. The sheer expense and delay of a Second Request is itself a deterrent — some deals are abandoned simply because the parties are unwilling to endure it.
How it resolves
After the parties certify substantial compliance, the agency completes its analysis and the deal resolves like any reviewed transaction:
- Clearance — the agency closes the investigation and the deal proceeds;
- Settlement — a consent decree with a divestiture or behavioral remedy; or
- Challenge — the agency sues to block the deal in court.
Deal implications
Because a Second Request transforms timing and risk, merger agreements for HSR-sensitive deals address it directly: antitrust efforts covenants (how hard the buyer must fight, up to "hell-or-high-water" obligations to divest whatever is required), outside dates long enough to absorb a Second Request, reverse break fees payable if antitrust kills the deal, and interim conduct terms. Anticipating Second-Request risk is a central part of antitrust diligence on any large, overlapping combination.
See also
- Hart-Scott-Rodino Act — The U.S. Hart-Scott-Rodino Antitrust Improvements Act of 1976, which requires premerger notification and an initial waiting period for transactions exceeding statutory size thresholds.
- FTC merger review — Competition review of a transaction by the U.S. Federal Trade Commission, sharing jurisdiction with the DOJ Antitrust Division for HSR-reportable deals.
- DOJ Antitrust Division review — Competition review by the U.S. Department of Justice Antitrust Division. Allocation between DOJ and FTC depends on the industries involved.
- Antitrust and merger control — Government review of mergers to prevent harm to competition.
- Closing checklist — An exhaustive list of conditions, deliverables, signatures, consents and filings required to take a deal from signed agreement to closed transaction. Maintained by deal counsel.