Thirty days into the U.S. government shutdown, most federal agencies are operating with only “essential” personnel. The SEC and FTC are running with minimal staffing, authorized to take only limited actions. At the SEC, no registration statements have been declared effective since the shutdown began, and a backlog of more than 1,000 filings is expected to await review once operations resume.
Despite these constraints, M&A activity continues to move from signing to closing. Today’s closing of Roche’s acquisition of 89bio illustrates that deals structured as tender offers can proceed even amid a shutdown. The 89bio transaction was signed 12 days before the shutdown, with the tender offer commencing on October 1 – the first day of the closure. Because tender offers may close following the minimum offering period (absent SEC comments or required extensions), the SEC’s limited operations have not impeded these deals. Likewise, one-step mergers structured as cash tenders with a proxy statement (but not requiring SEC clearance) can also close.
By contrast, stock-based mergers that depend on registration statements on Form S-4 or F-4 remain effectively frozen until the SEC reopens.
On the antitrust side, the FTC continues to accept HSR filings and is screening submissions for potential issues. The absence of objections during the statutory waiting period – 15 days for an all-cash tender offer or otherwise 30 days – allows low-risk deals to close on a typical schedule.
While the shutdown has significantly disrupted many federal agencies, the 89bio closing demonstrates that for all-cash or cash-plus-CVR transactions with limited antitrust exposure, it remains largely business as usual in much of the M&A market.