Five mistakes general counsel make in second requests
A second request is not a document production exercise. It is a litigation. Treating it like the former is the most common — and most expensive — mistake general counsel make.
The framing — We have defended second requests at the FTC, DOJ, and EU Commission for two decades — 47 of them across the partnership, with an average compliance cost north of $14 million and a median timeline of 9 months from issuance to substantial compliance. The same five mistakes appear in nearly every matter where the deal is not closed on time. They are easy to avoid in the abstract and hard to avoid in the room.
Mistake one: treating it as production — General counsel reach for their document-discovery vendors and prepare for a paper exercise — 6 to 10 million documents, three review tiers, predictive coding scaled up across two hundred contract reviewers. Meanwhile the regulator is preparing for a trial. The team that wins the second request is the team that has already imagined cross-examining the eventual economic expert before the first custodian list is exchanged. Discovery sequencing follows from the trial theory, not the other way around.
Mistake two: trusting the merger control timetable — The agency's clock is not the deal's clock. By the time the second request issues — typically day 30 of a 30-day HSR window — the agency has been thinking about the matter for three to four months. Front-office staff have read the deal memo, the strategic rationale, and the contemporary documents the parties produced under voluntary access. The defense must be ready on day one, not week eight. A team that takes the first month "to get organized" is conceding the head start the agency built before the request even issued.
Mistake three: outsourcing the economic model — The defense's economic analysis is the heart of the case. Outside economists who have never read the deal documents will write a model that does not survive cross — the cross is built from the deal documents. We have seen Daubert challenges resolved in 20 minutes once the court compared the expert's assumptions to a single internal email the expert had never seen. The model and the documents must be authored together, by counsel who has read both.
Mistake four: divesting too early — Most general counsel want a divestiture option in their back pocket from the first negotiation. That signal becomes the floor. Once a divestiture is on the table — even informally, even at the staff level — the path of least resistance for the agency is divestiture, and the size of the carve-out grows. Of the matters we have defended where divestiture was floated before substantial compliance, the final divestiture was on average 2.3x larger than the original proposal. A credible no-divestiture position has to be the only position in the room until it is not.
Mistake five: forgetting the parallel regulator — If the EU is also reviewing, the EU is also litigating. The submissions must say the same thing. The discrepancy that doesn't matter to one regulator becomes the case in front of the other — and the gap between a Phase II decision in Brussels and a complaint in D.C. is often only weeks. Inconsistent market definitions, inconsistent unilateral effects theories, or even inconsistent witness statements across the Atlantic will be cited back to you in the closer forum.
The corrective — Treat the second request as a litigation. Hire a litigation team. Build the record as if you are walking into trial six months after substantial compliance — because in any close case, you are. The deal closes because the case was unwinnable for the agency, not because you produced enough documents. The teams who internalise that distinction close on schedule. The teams who don't pay the production bill and then pay a divestiture bill on top of it.
