Every day, the Premerger Notification Office processes premerger notification filings for transactions reportable under the Hart-Scott-Rodino Act. The numbers are daunting: over 1,400 transactions requiring more than 2,800 filings in an average year. Not only does the PNO keep up with this volume, its staff of HSR specialists screens each filing for HSR compliance and identifies which transactions require further review.
Just as important is the PNO’s outward-facing work: answering thousands of emails and phone calls from antitrust practitioners to provide informal guidance on how to interpret the HSR rules. The PNO will – on a no-names, hypothetical basis – take the most complicated HSR questions and provide practical, reliable guidance. With an email or phone call (but preferably an email), our PNO staff can help you determine a) whether you have to file; b) whether there is an exemption available; and c) how to fill out the form. (Yes, Virginia, there is a Santa Claus.)
At the end of this month, one of the key members of our PNO team – Mike Verne – is retiring. Like many of you, I have Mike’s contact information (and even vacation schedule) memorized from my days in private practice. He has always been highly professional and amazingly responsive in dealing with the complicated (at least to those in the private bar) and urgent (at least to your clients) HSR questions thrown his way. Before he heads out the door, I asked him a few questions about his 18 years of service in the PNO.
When did you start at the Commission?
Mike: My first day was July 1, 1996. I was put in an office by myself with a copy of the source book, which was a binder filled with all the key HSR materials back in the pre-internet days. I started to think I had made a mistake.
Who was your mentor?
Mike: I spent most of my time in the first couple of years in Dick Smith’s office, trying to absorb some of his vast institutional knowledge. Dick had been an attorney in one of the merger shops until John Sipple convinced him to join the Premerger Office.
What was it like at the PNO during the merger wave of the late 1990’s, when there were over 4,500 transactions a year?
Mike: Hectic, to say the least. We had a much larger staff then, but it was still common for each person to review 20 to 25 filings a week. And with more filings, there were more questions. It was a bit overwhelming at times.
What has been your biggest challenge at the FTC?
Mike: The non-corporate rulemaking that was finalized in 2005. This was an effort to elevate substance over form, so that similar transactions are treated the same way under the HSR Rules. Before the rule changes, an acquisition involving a corporation could be reportable but a similar transaction involving an LLC was likely not. I worked with a super team from all over the agency to address this discrepancy, and it took about five years from first concept to final rule. I remember that we struggled with how to handle some of the more esoteric issues, but our goal was to have consistency in our rules so that reportability is not determined by how a deal is structured. And we still missed a few details, which we had to clean up later.
If you could give just one piece of advice, what would it be?
Mike: Can I give two? Have both people who are listed as contacts in Item 1(g) check the Form one last time for accuracy before submitting it. And do a little research of the rules and informal interpretations before asking the PNO for informal advice.
While Mike’s knowledge and affability will be missed, the other HSR specialists at the PNO continue to be available to offer expert advice on any and all HSR questions. Please join me in congratulating Mike Verne on a well-deserved retirement and thanking the PNO for their ongoing efforts to make it as easy as possible to comply with the HSR Act.