Completing the HSR Form in the Post Consummation Filing Context

Which version of the HSR Form should I use?

Use the current Form with certain adjustments. For example, there may be no place in Item 2(c) of the current Form to indicate the correct threshold if the actual transaction was consummated under the pre-2001 thresholds, such as for a $20 million deal.  In that case, you should not check any of the boxes in Item 2(c) but should explain in Item 3 that although the deal does not cross the current $50 million (as adjusted) threshold, it did cross the then-$15 million threshold in place at the time that the transaction was consummated.  If, however, an applicable threshold does apply to your transaction, indicate that threshold in Item 2(c). 

What is the applicable date to insert at the top of the Form in a corrective filing?

The applicable date is the date that the corrective filing is made, rather than the date that the filing should have been made. 

May I request early termination?

No.  Early termination will not be granted.

Do I need to determine the UPEs as of the time the filing should have been made?

No.  The applicable UPEs are the current UPEs.

Should my description of the acquisition in Item 3(a) differ from the description I would provide for a regular filing?

No.  Provide the same description that you would for a regular filing.  However, you must also provide a brief description of the circumstances surrounding the failure to make a timely filing.

What is the time frame applicable to Items 4 through 8 of the Form?

For Items 4(a), 4(b), 5, 6, 7 and 8, provide documents that would have been submitted if the parties had made a timely filing. That is, documents submitted and information reported should reflect the period just prior to the consummation of the acquisition.

The response to Items 4(c) and (d), however, should include all documents up to the date of the corrective filing.

Do I need to submit the affidavits required by 803.5 of the HSR Rules?

Yes.  The affidavits should reflect that the acquisition already took place.

Do I need to send the target a notice letter in an 801.30 transaction?

Yes.  The notice letter should specify that the acquisition already took place and the date of the acquisition.

What are the applicable filing fees and filing fee thresholds?

The applicable filing fees and thresholds are those in place at the time of the corrective filing.  If the filing is for an acquisition valued below the current filing fee threshold of $50 million (as adjusted), the acquiring party must pay $45,000, the lowest current filing fee.

Do filings need to be submitted to both the Federal Trade Commission and the Department of Justice?

Yes.  Submit the same number of filings to the FTC and DOJ as if the parties were making a regular HSR filing.