The Antitrust Division’s Return To Targeted Second Requests: Real Milestones, Modest Relief, But No Reason To Wait

The DOJ Antitrust Division's new model timing agreement offers merging parties an optional “Expedited Consideration” path: a negotiated Priority Production targeting potentially dispositive issues, followed by a Front Office meeting within 21 days and a Division decision within 14 days thereafter to close, modify the Second Request, or proceed in full.

The off-ramp is genuine but discretionary — unless the Division closes early, the Earliest Closing Date remains keyed to full compliance (ordinarily 60 days after certification), so parties should negotiate the Priority Production backward from the decisive issue while maintaining a parallel full-compliance workstream.

Targeted review can succeed where the parties build an ordinary-course documentary record that actually resolves the potentially dispositive issue — the Division can be expected to test the parties' substantive claims against ordinary-course documents and data, from the parties and from third parties, rather than accept them on advocacy alone.

History counsels caution: similar DOJ and FTC reforms since 2006 produced limited practical change, so parties should watch how the Division actually administers the process before making Expedited Consideration the centerpiece of a second request response strategy.

The Antitrust Division's new model timing agreement gives merging parties a genuine opportunity to resolve some Second Request investigations before full compliance. But it is an opportunity, not an entitlement, and parties should pursue it while continuing to prepare for full compliance.

The reform

The Justice Department’s Antitrust Division has announced that it will resume “targeted Second Request investigations” and has published a model timing agreement to implement them.¹ Under the model's optional “Expedited Consideration” process, the merging parties produce a negotiated “Priority Production”: a subset of documents and data directed at the issues the Division identifies as potentially determinative. The Division will offer a Front Office meeting, to occur within twenty-one days of the Priority Production's completion or as otherwise agreed, and within fourteen days after that meeting the Division notifies the parties whether it intends, in its sole discretion, to close the investigation or grant early termination, to modify the Second Request, or to proceed without modification. If the Division selects either of the latter two paths, the parties must comply with the Second Request as modified or in full.

Unless the Division closes the investigation during Expedited Consideration, the parties' Earliest Closing Date remains keyed to full compliance, not to the Priority Production: it is ordinarily sixty days after certification of full compliance, a supplemental production following a timely Non-Compliance Notice can reset that clock, and the parties must give the Division fourteen days' written notice before closing. (See Figure 1 in the Appendix.) The model offers real, if modest, relief along the way, including an agreed custodian list for the full-compliance document search and simplified privilege logging for the Priority Production. But it does not guarantee an off-ramp: if the limited production does not resolve the Division's concerns, the parties must comply in full or as modified. The Division promises to consider a limited production first; it does not promise that the limited production will be the last.

Lessons from past reforms

The Division has been here before. Its 2006 Merger Review Process Initiative generally limited Second Request document searches to thirty employees per party, while its 2018 guidance assumed twenty custodians and no more than twelve depositions per party and sought a decision within sixty days after compliance. The 2026 model leaves custodian and deposition limits to negotiation but adds the Priority Production and the 21-day and 14-day decisional sequence.

The FTC pursued a parallel course. In 2006, Chairman Deborah Platt Majoras announced reforms that reduced the production obligation itself through rebuttable presumptions, including a limit of 35 custodians per party and a two-year document period. Yet the FTC’s own 2015 retrospective reported that the formal presumptions were rarely invoked and that investigation length had not changed materially, and its companion guidance observed that formal quick-look agreements were rare and that protracted negotiations over them could distract from the substantive investigation.²

Targeted review can work

The Division has already supplied an early illustration, although not yet a test of the published model. Earlier this month, it closed its investigation of the merger of Seismic Software and Highspot, competing sales enablement software providers, after a roughly three-month review under a timing agreement that prioritized production of the evidence the Division considered relevant to AI entry and repositioning.³ Associate Attorney General Woodward called the resolution “an excellent example” of expedited review focused on “key dispositive issues.” The mechanism shared the model's core architecture: a negotiated priority production aimed at the potentially determinative issue, under an agreement negotiated before the Division published its model, which underscores that the work is done by case-specific negotiation.

The Division also paired the closing with a warning. Deputy Assistant Attorney General Beller cautioned that merging parties “often claim that AI is a disruptive force,” and that the Division tests such claims against ordinary-course documents and data from the parties and from third parties. The entry argument carried the day in Seismic/Highspot because the record, not the advocacy, supported it.

Practical implications

Full compliance remains the fallback endpoint, and the closing clock runs from certification of full compliance, not from the Priority Production. Three practical propositions follow.

• Negotiate the Priority Production backward from the potentially dispositive issue. The Priority Production is the core record for the expedited Front Office decision. Custodians, data, time periods, and what will constitute completion should all be framed by the issue the Division must resolve.
• Maintain a parallel full-compliance workstream. Do not make the off-ramp a critical-path assumption. A party that gambles on the short review being dispositive and has not run a parallel workstream risks losing months if the Division elects to proceed with a full investigation.
• Watch how the Division administers Expedited Consideration. Experienced counsel and “repeat players” should monitor the size of their Priority Productions, the frequency of early exits, and adherence to the announced milestones before making Expedited Consideration the centerpiece of a review strategy. One closing statement is an encouraging data point, not a track record.

Chairman Majoras promised “consistent investigation timetables” twenty years ago,⁴ and the agencies have repeatedly returned to that goal. The 2026 model supplies useful milestones and a genuine off-ramp. But it remains a negotiating framework, not a substitute for preparation: its value will depend on whether the parties can define a genuinely limited Priority Production, build a record that resolves the decisive issue, and keep full-compliance work moving in parallel.

Appendix

View the Four Illustrative Paths to Closing here.

Footnotes

^{1. U.S. Dep't of Justice, Justice Department Resumes Targeted HSR Merger Review Process (July 23, 2026); U.S. Dep't of Justice, Antitrust Div., Model Timing Agreement §§ II, III, VI (July 2026).}

^{2. U.S. Dep't of Justice, Antitrust Div., Background Information on the 2006 Amendments to the Merger Review Process Initiative (Dec. 14, 2006); U.S. Dep't of Justice, Antitrust Div., Frequently Asked Questions: Voluntary Requests and Timing Agreements (Nov. 2018); Deborah Platt Majoras, Chairman, Fed. Trade Comm'n, Reforms to the Merger Review Process (Feb. 16, 2006); Bureau of Competition, A Fine Balance: Toward Efficient Merger Review, FTC Competition Matters (Aug. 4, 2015); Fed. Trade Comm'n, Bureau of Competition, Best Practices for Merger Investigations 4 (Aug. 2015).}

^{3. U.S. Dep't of Justice, Statement of the Department of Justice Antitrust Division on the Closing of Its Investigation of the Merger of Seismic Software Inc. and Highspot Inc. (Aug. 19, 2026).}

^{4. Majoras, supra note 2.}

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