The staff of the Premerger Notification Office processes, reviews, and answers inquiries related to around two thousand transactions, involving roughly 4,000 HSR filings, each year. The number one priority of the PNO is to process incoming HSR filings in a timely fashion so Bureau of Competition and Antitrust Division litigation staff can review filings of interest and we can clear non-problematic transactions for closing as quickly as possible.
In addition to processing HSR filings, the PNO staff responds to requests for informal interpretations of the HSR Act and Rules. Sometimes the questions are straightforward, and materials available on the PNO website provide a quick answer. The vast majority of questions that the PNO receives, however, involve complex factual scenarios or novel situations, and the PNO often receives a dozen of these complicated questions in a single day.
Our internal goal in the PNO is to respond to all questions as quickly as the complexity of the question and our workload allows, and we strive to respond no later than the end of the next business day. For the vast majority of inquiries, we meet this goal. Despite our best efforts, there are times when it may take longer, often due to the number of filings our eight attorneys and two admin staff are reviewing.
So what can you do to speed up the process for getting HSR advice? We have some tips that will help us respond to requests for informal guidance as quickly as possible:
- Use the HSRHelp@ftc.gov email address to make your request.
The PNO recently rolled out a new email address that forwards incoming questions to all of the attorneys in the shop. By using this address, you’re ensuring that your request is seen and that someone will be able to respond quickly, rather than the possibility that you’re sending the request to an individual who may be out or busy. Please use email rather than calling staff on the phone. We have found that email minimizes the chance for miscommunication and helps ensure that all the relevant facts are presented up front.
- Give us the relevant facts.
Summarize the transaction in a clear, concise manner and state all the facts necessary to evaluate your question. It’s better to be over inclusive than under, since omitting facts may change the analysis. The more quickly we are able to understand the structure of a transaction, the more quickly we can analyze the question.
- Give parties distinguishable, intuitive names.
When a question refers to multiple entities and only distinguishes between these entities with a single letter or roman numeral, this can be very confusing (both for us and the author of the question). In addition, if you are using letters to identify the parties, we generally expect the Acquiring Person to be called some variation of A (Company A, LLC A) and the Acquired Person some variation of B (Company B, LLC B).
- A picture can be worth a thousand words.
Don't be afraid to show us what’s going on in your transaction. Oftentimes, a sketch (hand-drawn is fine!) of ownership structures or acquisition steps can replace paragraphs of text and make things much more clear.
- Be clear about whether voting securities, non-corporate interests, or assets (or a combination) are involved.
The rules have been amended several times to increase parity across all transaction types. However, as seasoned HSR practitioners know, whether the transaction involves corporate or non-corporate entities or assets can change the analysis.
- Give parties distinguishable, intuitive names.
- Provide and support your analysis.
Any question we receive should reference the potentially applicable rules, SBP sections, informal and formal guidance, and/or other sources relied on. Be wary of relying upon informals that are older than 5 years or that do not comport with your understanding of the rules - when in doubt, ask us for clarification! Remember that online informals often predate rule changes or have been superseded. Keep in mind that when guidance states "agree," it should only be read to agree with the conclusion, not necessarily the analysis. Finally, do not ignore existing guidance that may cut against your position. Rather, take the opportunity to distinguish your facts or advocate for why the prior guidance should be reconsidered.
- Reference related questions.
If your question relates to previous issues we have addressed with you, please be sure to note and attach the previous guidance.
- Pose your conclusions clearly.
Relying on your facts and analysis, state your conclusion(s) – then we can agree (or not).
- Provide adequate time for our response.
If your transaction triggers a question, be sure to reach out to us as soon as you can so that there is plenty of time for us to ask follow up questions if need be. That said, we recognize that last-minute, urgent questions can arise. If this is the case, please let us know the deadline you are working under and we will do our best to accommodate it.
Any HSR practitioner knows that the Act and Rules are highly technical – we hope that this guidance will allow us to more efficiently work together to get to the right answer as quickly as possible.
If you have questions, contact the PNO at HSRHelp@ftc.gov.