On July 23, 2026, the U.S. Department of Justice Antitrust Division (DOJ) announced that it would revive targeted Second Request investigations and published a revised model timing agreement.[1] Merging parties that agree to DOJ’s timing agreement during a Second Request now have the option of pursuing a streamlined, Priority Production on potentially dispositive issues. If successful, DOJ will close the investigation without full substantial compliance with the Second Request, shortening the review period and reducing compliance costs. But DOJ may still require modified or full compliance with the Second Request and the broader timing agreement includes an extended no-close commitment following substantial compliance (potentially resulting in a longer review period overall) and significant litigation-related concessions.
I. Background of Timing Agreements in Second Request Investigations
Timing agreements can give merging parties and DOJ greater certainty during Second Request investigations. After the parties substantially comply with a Second Request, the HSR Act provides a 30-day post-compliance waiting period. In the modern e-discovery era, productions may involve millions of documents and substantial volumes of data, and timing agreements can provide DOJ with additional review time beyond the 30-day period that generally begins upon substantial compliance. Parties may also need to update collections and make rolling productions as the investigation proceeds in order to comply with the broad scope of the Second Request. Timing agreements will trade reduced compliance burdens and procedural certainty for additional review time: DOJ may agree to limit custodians, date ranges, business units, or depositions, among other accommodations. In exchange the parties typically commit to not close for a certain period of time and accept procedural and litigation-related terms.
II. New Model Timing Agreement: Optional Expedited Consideration Process
The new model timing agreement is a direct response to a negotiating process that had become so burdensome that many parties were increasingly choosing to substantially comply without a timing agreement, giving the agencies only 30 days to review the production. DOJ describes the revised model timing agreement as a return to targeted Second Request investigations intended to focus review on potentially dispositive issues and reduce burdens. The Expedited Consideration section is optional, and DOJ has stated that it remains open to good-faith negotiations over Second Request modifications in all cases. The new model timing agreement’s expedited consideration process includes the following key features[2]:
- DOJ identifies priority custodians, specifications, and data for an initial Priority Production. The current draft model provides no default caps, or other details regarding how many custodians or specifications will be designated as priorities;
- Before producing materials, the parties must describe their search and collection methodology and then make rolling productions. Each party must certify that its Priority Production is complete;
- Only a streamlined “metadata” privilege log is required with the Priority Production, although DOJ may request a more detailed log covering no more than 5% of the documents on the priority privilege log. A full privilege log is required if the investigation continues; and
- DOJ will offer a Front Office meeting within 21 days after the Priority Production Date and, within 14 days after that meeting, will notify the parties whether it intends to: (1) close the investigation; (2) narrow the scope of the Second Request based on the information received; or (3) require full compliance with the Second Request. The model sets no deadline for negotiating or completing the Priority Production, so the stated 35-day review period begins only after both parties complete and certify that production. DOJ retains sole discretion over the outcome, and the periods may be changed by written agreement.
If DOJ does not resolve the investigation through the expedited consideration process, the full timing agreement governs the path to substantial compliance. Key terms include:
- The earliest closing date that is 60 days after substantial compliance. The previous model timing agreement provided 90 days;
- Negotiated limits on custodians and depositions (though indicative numbers are not provided in this model). The previous model timing agreement suggested limiting document custodians to around 20, with the right to add 5 more, and included a cap on depositions at 12;
- Production of all documents not subject to the privilege review at least 30 days before certifying substantial compliance and certain granular data at least 45 days before certifying substantial compliance; and
- A complete privilege log at least 5 days before certifying substantial compliance; and
- Written notice to DOJ 14 days before closing, absent DOJ’s written agreement to a shorter period.
In addition, as with DOJ’s previous model timing agreement, the revised timing agreement requires the parties to agree to certain litigation rights, which include:
- Agreeing not to seek a declaratory judgment action against DOJ;
- Agreeing not to close the transaction until 10 days after final judgment by the court (instead of forcing DOJ to obtain a TRO); and
- Foregoing the argument that the length of DOJ’s investigation or the volume of materials reviewed should limit DOJ’s ability to seek additional discovery.
III. Key Considerations
While the revised model timing agreement on its face expedites DOJ review, parties should carefully consider whether the expedited track fits the transaction, the available evidence, and the deal timetable before agreeing to its terms.
- Is the issue set sufficiently discrete? The expedited procedure is likely most promising when DOJ’s concerns turn on a limited number of dispositive issues and the parties can produce the relevant documents and data quickly. For a complex or data-intensive investigation, the additional phase could lengthen the overall process.
- What will the Priority Production require? The model provides no default limits on priority custodians or specifications, and the required search may include data, shared repositories, predecessor and successor files, and supporting personnel. Parties should obtain enough details early in the process to estimate cost, timing, and likelihood of an early resolution.
- How should the parties prepare for full compliance? Parties should consider whether it is strategically beneficial to continue collection, review, data, and privilege work in parallel so that an unfavorable expedited decision does not create a five-week pause, even when parties believe there is a good chance the transaction will be cleared with the expedited procedure. Only picking up work toward full compliance after a potential five-week pause would delay substantial compliance. In continuing to work toward full compliance, parties will still get the benefit of not having to produce the incremental documents in the event of approval based on the Priority Production but will likely need to incur at least some of the costs associated with that additional work, limiting the benefits of the expedited procedure.
- How does the process fit the merger agreement? The potential additional phase, the 60-day no-close commitment, and day-for-day extensions should be tested against the outside date, regulatory covenants, financing commitments, reverse termination fee, and other regulatory approvals.
- What is the impact of the litigation concessions to this matter? The agreement removes the need for DOJ to seek interim relief to prevent closing during litigation. Agreeing to give that up may be a material concession when closing flexibility matters, although it may carry less practical weight where other regulatory approvals may already prevent closing.
- How should advocacy be sequenced? The Priority Production should be built around the factual and economic issues most likely to be dispositive, with company witnesses, data personnel, and any economic analyses prepared early enough to support Front Office engagement.
- Does the transaction face DOJ or FTC review? This new expedited review procedure applies only to transactions reviewed by DOJ. Transactions facing review by the Federal Trade Commission (FTC) remain subject to the FTC’s model timing agreement, which does not contain this new process.[3]
The revised model offers a potentially valuable path to an earlier decision, but its benefit will likely come down to the scope of the production, the speed with which the parties can complete their productions, and the likelihood that a focused record can resolve DOJ’s concerns. Parties should evaluate their options early, negotiate the scope carefully, preserve momentum toward full compliance, and align the timing agreement with the transaction’s broader closing strategy. These considerations and tradeoffs are only becoming more complicated, making it extremely important to work with experienced counsel in these negotiations.
[1] Justice Department Resumes Targeted HSR Merger Review Process, Dep’t of Justice (July 23, 2026).
[2] Revised Model Timing Agreement, Dep’t of Justice (July 23, 2026).
[3] FTC Model Timing Agreement (Public Version), Fed. Trade Comm’n.