Overview

On July 23, 2026, the U.S. Department of Justice (“DOJ”) Antitrust Division (the “Division”) announced that it has returned to implementing targeted Second Request investigations to expedite merger review under the Hart-Scott-Rodino (“HSR”) Act. Simultaneously, the Division published a model timing agreement setting forth the framework for this expedited process. This development is significant for merging parties and their counsel, as it signals a more efficient and predictable approach to DOJ merger investigations—one that can meaningfully reduce the cost, burden, and timeline associated with Second Request compliance.  Associate Attorney General Stanley E. Woodward Jr. stated: “This Department of Justice is working to eliminate bureaucratic burdens while still preserving the integrity of Second Request investigations, which are aimed at protecting American consumers and affordability.” 

Key Takeaways 

The return to targeted Second Request investigations offers potential benefits—but also requires careful preparation. Merging parties and their counsel should consider the following:

• Engage early with DOJ staff on scope. Proactively engage with DOJ staff attorneys early in the process to understand the Division’s competitive concerns and identify the categories of information most likely to resolve those concerns. Early engagement can influence the scope of the priority production and help avoid unnecessary compliance costs.
• Propose and negotiate a timing agreement. Parties receiving a Second Request should promptly propose use of the model timing agreement or a negotiated variant. The published model provides a clear starting point, but its terms are negotiable. Be prepared to discuss which items should be included in the priority production and the schedule for their delivery.
• Prioritize custodian and document scope negotiations. The narrower and more focused the priority production, the faster the path to resolution. Parties should devote significant attention to negotiating custodian lists, search terms, date ranges, and document categories for the priority production, as these will determine whether the Division can resolve its concerns without full compliance.
• Prepare for the possibility of full compliance. While the targeted approach may result in the Division closing its investigation or narrowing its demands after the priority production, parties should not assume this outcome. Document preservation, litigation holds, and e-discovery infrastructure should be in place from the outset in case full compliance is ultimately required.
• Ensure accuracy of compliance certifications. The model timing agreement requires attestations of completeness. Given DOJ’s heightened enforcement posture regarding HSR compliance violations—parties must take certification obligations extremely seriously. Implement robust quality-control processes and supervision of document collections to ensure completeness and accuracy.
• Build deal timelines around the Earliest Closing Date mechanics. Merger agreements should account for the Earliest Closing Date provisions in the timing agreement. Parties should ensure that outside dates, financing commitments, and other time-sensitive deal conditions provide sufficient flexibility to accommodate the targeted review timeline, including the risk of day-for-day extensions if production deadlines are missed.
• Understand and plan for day-for-day extension risk. The model agreement provides that any delay in meeting the production schedule triggers day-for-day extensions of all subsequent deadlines. This means that a single missed deadline can cascade through the entire review timeline. Parties should build internal production schedules with appropriate buffers and resource allocations to mitigate this risk.
• Leverage the timing agreement to create predictability for deal planning. For boards of directors, lenders, investors, and other stakeholders, the timing agreement provides a degree of certainty regarding the regulatory review timeline. Parties can use the agreement’s milestones to communicate realistic expectations about deal timing.
• Monitor for further guidance. The Division’s announcement signals a policy shift, but the details of implementation may evolve. Parties should monitor for additional guidance, including how the Division applies targeted reviews to different types of transactions and industries, and whether it adopts different approaches for horizontal versus vertical transactions.

Conclusion

The DOJ Antitrust Division’s return to targeted Second Request investigations is a welcome development for the M&A community. By focusing government resources on the most competitively significant aspects of proposed transactions, the targeted approach has the potential to reduce costs, shorten timelines, and provide greater predictability for merging parties—without sacrificing the rigor of antitrust enforcement. Parties contemplating or currently undergoing merger review should work closely with experienced antitrust counsel to take full advantage of this development.