Updated: July 1, 2016
Several times a year, parties contact the Premerger Notification Office (PNO) to report that they have consummated a reportable acquisition without filing the required notification or observing the appropriate waiting period under the Hart Scott Rodino (HSR) Act. For more detail on the types of transactions that trigger the need for a post-consummation filing, click here.
This webpage provides informal advice concerning post-consummation filings to persons who have consummated transactions, sometimes inadvertently, without filing and in violation of the HSR Act. Remember: a separate filing is required for each violation and a filing fee must accompany each post-consummation filing.
Determining Whether a Post-Consummation Filing Is Necessary
Determining whether a post-consummation or “corrective” filing needs to be made often involves a complicated analysis. For an overview of key elements of this analysis, click here.
Making a Post-Consummation Filing
When parties discover that they have consummated a reportable acquisition without filing and waiting, they should immediately notify Kristin Shaffer and Evan Storm of the Premerger Notification Office.
Kristin Shaffer: 202-326-3434 or email@example.com
Evan Storm: 202-326-3193 or firstname.lastname@example.org
They should also file their notification as soon as possible and be sure to check the box indicating a corrective filing on page one of the Notification and Report Form (“Form”).
The information required on the Form should be provided in substantially the same manner as if the filing had been made in a timely manner. For details on how to fill out the Form, click here.
In addition to submitting a completed Form, all parties to a transaction (except for the acquired party in 801.30 transactions) must submit a detailed, written explanation letter about the violation, explaining all of the facts to be considered by the agencies. If the party is an individual, the explanation letter should be signed by that individual. If the party is a company, the explanation letter should be signed by a company official. For more details on the contents of the letter, click here.
On the same day that the parties submit hardcopies of their post-consummation filings, they should email optical character recognition (OCR) pdf copies of their HSR form and explantion letter to both Ms. Shaffer and Mr. Storm.
Processing of Post-Consummation Filings
Post-consummation filings will be processed like any other filing, except that requests for early termination will not be granted. The FTC will also undertake an investigation to determine whether to seek civil penalties. For more information on the FTC’s analysis, click here.
- Index of all FTC and DOJ HSR Enforcement Actions (updated August 17, 2016) (PDF)