The parties should submit their explanation letter with the filings submitted to both agencies, but should not delay their filing if additional time is needed to prepare the explanation letter.
The letter should be addressed to Marian R. Bruno, Deputy Director, Bureau of Competition, Room 303, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, DC 20580.
All parties to a transaction must submit an explanation letter except for the acquired party in non-consensual (801.30) transactions.
The letter may be prepared by the lawyers of the parties. It must, however, be signed by the acquiring or acquired individual or by a company official if the acquiring or acquired entity is not an individual.
The letter must contain details explaining:
- Why the violation occurred, and specifically whether the filing party:
- conducted an analysis of the transaction under the HSR Act;
- was aware of its HSR obligations;
- had previously filed an HSR notification; and/or
- had previously failed to file a required HSR notification.
- When and how the violation was discovered;
- Whether the parties realized any advantage (such as tax, contractual, financial or regulatory benefits) that would not have been realized had they filed and observed the appropriate waiting period under the HSR Act;
- A detailed list of all acquisitions of (1) assets from the same seller or (2) voting securities in the same issuer between the initial violation and the time of the explanation letter; and
- A detailed description of the steps that have been taken to ensure future compliance with the HSR Act. Examples of such steps include, but are not limited to: implementation of training programs with antitrust counsel; monitoring of company dealings for HSR purposes by the Chief Financial Officer and the General Counsel; establishment of an HSR review committee; or inclusion of HSR provisions on acquisition checklists.