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The Deal: Merger Enforcers Working During Government Shutdown

NEW YORK ( TheStreet) - The antitrust agencies will continue ongoing merger reviews and initiating new ones despite the shutdown of most of the federal government. So while many other types of civil investigation are brought to a halt, most aspects of merger review will move along at something close to full speed.

Although many functions of the Federal Trade Commission and the Department of Justice Antitrust Division are being halted and employees in most areas sent on hiatus, both agencies have deemed staffers assigned to pre-merger investigations to be essential personnel because the Hart-Scott-Rodino Act puts the agencies under a 30-day deadline to clear a new merger application or launch an extended investigation of the deal with a second request for information.

"Because the parties have a statutory right to file their pre-merger notification reports, the agencies have an implied responsibility to have adequate staff on hand to receive and promptly process the filings," according to a description of the FTC's plans for dealing with the shutdown posted on the commission's website.

The four merger cases in litigation also appear to be moving ahead. Although the DOJ on Monday asked the federal appeals court in Washington to stay proceedings in the agency's challenge to US Airways Inc.'s plan to acquire AMR (AAMRQ)'s American Airlines Inc., Judge Colleen Kollar-Kotelly refused. That trial is set to begin Nov. 25.

In asking for the stay, DOJ citing federal litigators' inability to work on the case. "Absent an appropriation, Department of Justice attorneys and employees are generally prohibited from working, even on a voluntary basis, except in very limited circumstances, including 'emergencies involving the safety of human life or the protection of property,' " the DOJ said in its motion to the court. "This is creating difficulties for the [DOJ] to perform the functions necessary to support its litigation efforts and, accordingly, the [DOJ's] policy is to seek a stay in all pending civil litigation," the department said.

But Kollar-Kotelly found that DOJ is able to keep attorneys on the case, given the antitrust regulators' findings that keeping up with merger reviews and any associated litigation are necessary to protect merging parties' property and a judge has refused to stay a case.
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