On August 26, 2016, the FTC, with the concurrence of the Antitrust Division of the Department of Justice, took steps to make the process of completing and submitting Hart-Scott-Rodino premerger notification filings easier. The effective date of the new rules is today, September 1, 2016.
The biggest change is that the FTC and DOJ will now accept HSR filings on DVD. We know that filing parties and their lawyers create and maintain the HSR Form and the documentary attachments electronically, yet – until now – we have required paper submissions. Accepting HSR filings on DVD eliminates the expensive and time-consuming printing and duplication of electronically maintained documents, making the submission process more efficient and less burdensome. Paper copies will still be accepted, but we expect filers will take advantage of the new DVD option.
If filing on DVD, keep these requirements in mind:
- DVDs are the only acceptable media - no CDs, flash drives, SD cards, etc.
- Follow the file naming and DVD labelling conventions.
- DVDs with viruses, encryption or passwords will be rejected.
- Submit two DVDs to the FTC and two DVDs to the DOJ.
- Paper copies of the cover letters, as well as the original affidavits and certification pages are still required.
- Any errors with the Form, attachments, or DVD will require replacement DVDs.
- Parties will continue to have the option to file on paper, but combination DVD/paper filings will not be permitted.
The final rule also updates the Instructions applicable to the HSR Form. Some of these updates relate to DVD filing, but most aim to make the Instructions more straightforward and easier to understand.
Here are some highlights from the updated Instructions:
- Fee Information: now includes the FTC’s current requirements to track and process payments
- Affidavit: clarifies the affidavit requirements
- Item 1(g): requires the identification of a second contact person
- Item 4(b): specifies the kinds of financial reports to be submitted and which entities must submit them and eliminates the option to reference a prior HSR filing
- Items 4(c) and 4(d): specifies how documents responsive to Items 4(c) and 4(d) must be identified and numbered and clarifies the requirements for a claim of privilege
- Item 5: defines “dollar revenues”
- Item 6(b): clarifies that this item only requires information about minority shareholders
- Item 7(b): explains which entities must be listed
- Item 7(c): requires the listing of states and territories by postal code and the total number of states and territories at the end of the response
Be sure to consult the Statement of Basis and Purpose and review the updated Instructions for a complete rundown of the changes. DVD Filing Guidelines and an updated HSR Filing Style Sheet are also available on the PNO's website.
As always, if you have questions about HSR filings, contact the PNO.