By Bryan Koenig

Law360 (September 25, 2020, 1:51 PM EDT) -- Despite the upheavals stemming from COVID-19, U.S. and European antitrust enforcers have not slacked off on competition and merger enforcement, although some delays have crept in, experts say.

Any changes to merger enforcement since most government workers were sent home in March appear to have taken place largely on the edges. Court proceedings generally are slower, agencies have released guidance  explaining how businesses can collaborate to ward off coronavirus-related market breakdowns without violating prohibitions on outright collusion, and the European Commission gave more time to pay back a fine in at least one case. But on the whole, six months into a pandemic that has disrupted global economies and work-life balances, professionals have seen little change in agency priorities or responsiveness.

The regulatory environment may not be entirely normal. But enforcers at least in Europe are carrying on "as close to normal as is possible in the circumstances," said Andrea L. Hamilton, a McDermott Will & Emery LLP partner based in Brussels.

That normality, according to antitrust professionals, appears to include the rigor and focus applied to agency investigations. Professionals have seen little change in the level of scrutiny antitrust enforcers apply to mergers, or in the specific areas of interest for that scrutiny.

"I haven't seen any real differences in the kind of questions [asked]," said Colin Kass, a Proskauer Rose LLP partner based in Washington, D.C., who co-chairs the firm's antitrust practice.

That experience jibes with repeat admonitions enforcers made early in the pandemic that their standards would not relax and that they would brook no efforts to take advantage of any opportunity to collude, such as through minimum pricing agreements among competitors to avoid a race to the bottom while companies ride out the economic turmoil.

Those warnings, however, have translated into few if any COVID-related antitrust enforcement actions so far.

It is possible that some could come down the road, according to Proskauer's Jade-Alexandra Fearns, a special antitrust and regulatory counsel in the firm's London office, who said that coronavirus-related antitrust enforcement simply may not have entered the public arena yet. "And that's not unusual," she said.

Unusual, of course, is a relative term for a pandemic that as of Sept. 23 had infected 6.8 million and killed over 200,000 people in the U.S., according to Centers for Disease Control and Prevention data. The European Centre for Disease Control and Prevention puts the bloc's numbers at over 2.9 million cases and more than 187,000 deaths.

Despite some speculation that the pandemic's economic impacts would make agencies more receptive to arguments that an otherwise unwelcome transaction is needed to keep a company afloat, enforcer admonitions that the level of rigor they would apply would remain unchanged have so far held up.

"They're applying the same principles," said Rani A. Habash, a Dechert LLP partner based in Washington, D.C.

One of the few deal reviews so far that enforcers publicly acknowledge was impacted by the pandemic was the strange case of Amazon's minority investment in Deliveroo. The U.K.'s Competition and Markets Authority initially said in April that Deliveroo needed the infusion of cash to survive the pandemic's economic turmoil, only for the agency to reverse course two months later and say that Deliveroo was no longer in danger of exiting the market. The CMA nevertheless cleared the deal after concluding it posed no competitive dangers.

U.S. and EU antitrust enforcers had also anticipated the need for companies to coordinate to combat the pandemic, so they opened the door to firms that might seek advance assurances before launching joint projects.

In the U.S., that meant creating an expedited process for companies seeking U.S. Department of Justice or Federal Trade Commission assurances that activities related to combating the spread of COVID-19, such as collaborations and joint ventures to coordinate the distribution of much-needed products, don't violate antitrust law. In late March, the agencies announced that companies seeking a DOJ Antitrust Division business review letter or FTC advisory opinion for coronavirus-related conduct "addressing public health and safety" would receive a response within seven calendar days of the agencies getting "all necessary information."

In the months since announcing that expedited process, however, the DOJ has issued only four pandemic-related business review letters, and the FTC has received no requests for its own version.

According to Elaine Johnston, co-head of Allen & Overy LLP's global antitrust practice, many companies may have simply felt themselves on firm legal footing and didn't need a say-so from enforcers. The feeling, she said, is: "Do they really need the imprimatur of government?"

The biggest change has been on a number of procedural issues.

Enforcers are more likely to use what flexibility they have in merger review timetables, according to Ingrid Vandenborre, the head of Skadden Arps Slate Meagher & Flom LLP's Brussels office. Other than some changes to the acceptance of merger filings however, "no agency has made a material difference in their framework," Vandenborre said.

The pandemic's economic impacts did prompt the European Commission in July to double the amount of time, from three months to six months, for companies to pay €260 million ($302.2 million) in fines for colluding to drive down the price of ethylene they were purchasing.

One of the procedural changes that may be permanent is a shift to all-electronic filing for merger notifications. Paper filings, Vandenborre said, are "a thing of the past, and it may stay that way."

Another impact in the virtually all-remote environment, according to some attorneys, is a loss of some of the informality when talking with agency officials.

"Informal discussions have become a lot more difficult," Vandenborre said.

However, Vandenborre has seen no delays from the change, and she and other professionals say they can still reach agency staffers, they just aren't running into them at conferences or courthouse hallways.

"The agencies have been extremely responsive during this whole pandemic," saidDechert's Habash, although he asserted that responsiveness slowed early in the outbreak only to pick back up and now seems "to be getting relatively back to normal."

In more formal settings, antitrust agencies appear to have adapted fairly well to the necessary technology after some initial hiccups, according to professionals.

"I think they have been able to keep on working," said Alec Burnside, a partner in Dechert's Brussels office.

If anything, remote depositions are easier than their in-person counterparts, or at least quicker to schedule because travel is no longer a necessary logistical hurdle to tackle, according to Habash.

Merger filings too seem to be returning to their prepandemic levels following a precipitous decline. After dropping from 140 transactions submitted to U.S. antitrust enforcers in February and 138 in March to 79 in April and 73 in May, according to FTC data, merger filings began picking up in June and by August had hit 182, even more than the 173 deals counted in August 2019.

"M&A is definitely beginning to come back," said Johnston.

In the first months of the pandemic, the European Commission focused much of its energies on approving member country state aid proposals meant to combat the pandemic and its economic impacts. But the pace of state aid approvals has slowed considerably from the beginning of the pandemic, when projects were getting cleared every day. The commission had approved only 10 state aid projects this month to date under its temporary framework for addressing the pandemic.

Despite prioritizing state aid, the pandemic doesn't appear to have significantly delayed merger reviews by the European Commission, according to the most recent analysis of publicly available deal review information in Dechert's Antitrust Merger Investigation Timing Tracker, based on the first half of 2020, which found reviews apace with their numbers from the previous year.

"They have been efficient and productive and allowed to be done what needs to be done," said Burnside.

But Burnside noted that between July and August the European Commission stopped the review clock on virtually all of its active phase 2 merger probes. That could signal an issue with the reviews, he said, but it's difficult to say. "Mergers are still being processed," Burnside said.

One issue that may be complicating reviews is the need to reach out to other industry participants, even though third parties may be hard-pressed to find time to respond to antitrust probes into their peers.

Habash likewise said it's possible mergers filed in the middle of the pandemic might see some delays, noting that U.S. enforcers have asked companies pursuing deal clearance to permit extensions to previously inked timing agreements, the extensions that merging parties allow enforcers carrying out an in-depth merger investigation.

"They may have gotten off to a slower start," Habash said.

--Editing by Jill Coffey.

For a reprint of this article, please contact reprints@law360.com.