On July 23, 2026, the Department of Justice (DOJ) Antitrust Division announced a return to “targeted” Second Request investigations and published a revised model timing agreement. The agreement offers an optional “Expedited Consideration” process potentially allowing investigations to be resolved without a full Second Request production. Under the expedited procedures, parties produce a limited set of documents, data, and information relevant to particular issues and concerns raised by the Antitrust Division. If the targeted production is sufficient to resolve the DOJ’s concerns, the investigation may be terminated without full Second Request compliance. In addition, the targeted production may provide a context for potential settlement negotiations. If concerns remain, the DOJ may require further productions, either of the full Second Request specifications or on modified terms.
For many merger deals, the new procedure provides a formalized process for identifying discrete competitive issues of interest to the Antitrust Division and a streamlined process for developing and resolving them short of full compliance. Parties anticipating a potential Second Request from the DOJ Antitrust Division should work closely with antitrust counsel to determine opportunities to save time and reduce costs through Expedited Consideration.
Background
Transactions subject to reporting under the Hart-Scott-Rodino (HSR) Antitrust Improvements Act of 1976 cannot be closed until 30 days after the date the transaction is noticed to the antitrust agencies. If the reviewing agency is unable to resolve its competitive concerns about the deal within that “waiting period,” it will issue an extensive request for additional documents and information known as a “Second Request.” There is no deadline for compliance with a Second Request, but the transaction cannot close until 30 days after both parties have substantially complied with the Second Request by completing their productions. Complying with a Second Request typically takes several months and can cost millions of dollars.
Parties receiving a Second Request typically negotiate a “timing agreement” with the reviewing agency that may modify or limit compliance obligations in exchange for extending the waiting period after substantial compliance to give the agency more time to review the deal. In addition, timing agreements can establish interim production milestones, prioritize production of certain documents, set meeting schedules, set terms for depositions, and adjust other elements of the parties’ production and agency review. Prior to the Biden Administration, both the DOJ and the Federal Trade Commission (FTC) negotiated timing agreements based on model agreements promulgated by each agency. The agreements included provisions to stage Second Request productions prioritizing materials of particular relevance to agency competitive concerns and potentially allowing resolution of the investigation before substantial compliance. Under President Biden, however, the agencies retreated from such targeted reviews in favor of requiring full compliance before making enforcement decisions.
The New DOJ Model Timing Agreement
The new DOJ Antitrust Division model timing agreement returns to pre-Biden practice and formalizes the process for making a “Priority Production” tied to issues that DOJ staff considers potentially dispositive. To take advantage of this expedited review, the parties and the DOJ must negotiate a set of information specifications and a set of custodians for a Priority Production. It is at the DOJ’s discretion whether to offer a Priority Production in the first place or to accept modifications to its specifications. If the parties accept a Priority Production, they are required to make rolling productions and to comply with certain privilege log and privilege withholding requirements. There is no fixed deadline for completing the production. The model agreement contemplates that the parties and DOJ staff, including representatives of the Expert Analysis Group (the Division’s economists), will engage in a “continuing dialogue regarding the facts and the relevant legal and economic issues” during the Expedited Consideration process.
The agreement further provides that the DOJ will offer a meeting with the DOJ’s Front Office within 21 days of the date that the Priority Production is completed (or as otherwise agreed). Within 14 days of the Front Office meeting or as otherwise agreed, the DOJ will state whether it intends to:
(1) close the investigation or provide early termination (if applicable); (2) modify the Second Requests or otherwise narrow or modify the investigation of the Proposed Acquisition; or (3) proceed with the investigation of the Proposed Acquisition without modification to the Second Requests.
If the DOJ decides to proceed with the Second Request, the model agreement states that parties may not certify substantial compliance until 30 days after document productions are complete and 45 days after certain data productions are complete. Once substantial compliance is certified, the parties cannot close the transaction for 60 days under the model agreement.
In addition to streamlining information production, the new Expedited Consideration process can also provide factual context for an early discussion of potential remedies, a priority for the antitrust agencies under the Trump Administration and a sharp reversal from their practice under President Biden. Jonathan Kanter, Assistant Attorney General for the DOJ Antitrust Division during the Biden presidency, noted in 2022 that the agency should prefer “a simple injunction” to block problematic mergers and make settlements “the exception, not the rule.” By contrast, both the DOJ and the FTC under the Trump Administration have prioritized settlements and emphasized their desire for parties to engage in settlement discussions early in the process.
Key Takeaways
The new model agreement applies only to the DOJ. While the FTC has negotiated targeted Second Request productions, it does not have a formal model like the Priority Production process outlined in the new DOJ model timing agreement.
Do not rely on an early close. The DOJ retains complete discretion to terminate, modify, or continue its investigation after Expedited Consideration. Compliance with a Second Request is a complex and lengthy process, and parties should not delay laying the groundwork for a full production just because they are offered Expedited Consideration. Close engagement with experienced counsel is needed to appropriately balance efforts toward a targeted review and preparation for a full investigation. Forgoing Expedited Consideration in favor of prompt, full compliance with a Second Request offers one notable advantage: it gives the parties more control over the timeline.
The availability of formal expedited review may encourage the DOJ to investigate borderline issues. The Priority Production process could be used to obtain compulsory process on issues of borderline competitive significance, potentially resulting in more reviews receiving Second Requests.
Expedited Consideration offers the potential for substantial time and cost savings in merger reviews but can also raise risks for the parties in certain situations. For more information on HSR merger review strategy, targeted Second Request negotiations, or antitrust merger clearance, please contact a member of Wilson Sonsini’s Antitrust and Competition practice.
