Blog Posts Tagged with Hart-Scott-Rodino Act (HSR)

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Wait for it—a Waiting Period Letter confirms your HSR filing

Once you’ve submitted a Hart-Scott-Rodino filing to the FTC’s Premerger Notification Office, make sure you receive official confirmation that your filing has been received. We’ve compiled important tips on communications regarding the status of filings and the applicable waiting period.

HSR Early Termination After a Second Request Issues

On February 4, 2021, the Federal Trade Commission, with the support of the Department of Justice, announced the temporary suspension of granting early termination (ET) under the Hart-Scott-Rodino Act and its implementing rules (HSR Act).  This decision reflected a need to pause during the transition to a new administration combined with the unprecedented volume of HSR filings (HSR transactions for the month of February hit a

HSR threshold adjustments and reportability for 2021

When Congress passed the Hart-Scott-Rodino Antitrust Improvements Act of 1976, it created minimum dollar thresholds to limit the burden of premerger reporting. In 2000, it amended the HSR statute to require the annual adjustment of these thresholds based on the change in gross national product. As a result, reportability under the Act changes from year to year as the statutory thresholds adjust.

Got questions about the HSR Rulemaking? We’ll answer them live (virtually).

The FTC welcomes comments on its recent HSR Rulemaking initiative, and to facilitate a robust and thoughtful set of public comments, the Commission is holding a series of three live virtual workshops in November to answer the public’s questions before comments are due. 

Seeing the whole picture on avoidance devices

Under the Hart-Scott-Rodino (HSR) Act and Rules, parties cannot use a transaction structure for the purpose of avoiding or delaying their premerger filing obligation.  If they do, the Commission must ignore the structure and review the substance of the transaction as a whole to determine whether an HSR filing is required. Premerger Notification Office (PNO) staff have recently rethought some prior advice, and today PNO is withdrawing a 2003 informal interpretation relating to special dividends.

Real-Time Transparency for HSR Transaction Numbers

In response to increased interest in levels of M&A activity, the Bureau of Competition’s Premerger Notification Office (PNO) is responding in real-time by posting monthly figures for Hart-Scott-Rodino (HSR) Act filings.  Starting today, the PNO is posting monthly totals for the most recent six-month period, and will update the numbers on a six-month rolling basis on the PNO homepage.  While the Commission publicly reports monthly HSR transaction numbers in its

HSR Filing Fees – Reminders and Tips

The PNO handles Hart-Scott-Rodino (HSR) premerger notification filings for thousands of transactions each year.  Filing fees are also required as part of the HSR premerger notification process.  Failure to pay the required fee on time will delay the HSR waiting period, but careful planning for the fee submission can help avoid most fee-related problems.  The reminders and tips in this blog will help ensure that the PNO receives and processes the HSR fee as promptly as possible.

HSR threshold adjustments and reportability for 2020

When Congress passed the Hart-Scott-Rodino Antitrust Improvements Act of 1976, it created minimum dollar thresholds to limit the burden of premerger reporting. In 2000, it amended the HSR statute to require the annual adjustment of these thresholds based on the change in gross national product. As a result, reportability under the Act changes from year to year as the statutory thresholds adjust. The PNO fields many questions about the upcoming adjustments to the HSR thresholds from parties whose transactions may take place around the time of the revisions.

Avoidance devices won’t avoid HSR penalties

The Commission and Department of Justice’s recent case against Canon Inc. and Toshiba Corporation for violating the Hart-Scott-Rodino Antitrust Improvements Act makes an important point: restructuring a deal to avoid or delay an HSR filing may subject the merging companies to substantial penalties if the restructured transaction still results in an acquisition by the A side.

HSR threshold adjustments and reportability for 2019

When Congress passed the Hart-Scott-Rodino Antitrust Improvements Act of 1976, it created minimum dollar thresholds to limit the burden of premerger reporting. In 2000, it amended the HSR statute to require the annual adjustment of these thresholds based on the change in gross national product. As a result, reportability under the Act changes from year to year as the statutory thresholds adjust. The PNO fields many questions about the upcoming adjustments to the HSR thresholds from parties whose transactions may take place around the time of the revisions.

Control no longer controlling for HSR reporting of not-for-profit combinations

The PNO routinely provides informal guidance on Hart-Scott-Rodino reporting obligations that arise when combining not-for-profit entities, typically in the context of hospital combinations. In the past, much of this guidance focused on whether the combination resulted in a change of "control" of the board of directors of one or more of the combining entities. This was because those seeking guidance described hospital combinations primarily in terms of formal board governance.

It takes less time to do a thing right

Longfellow said “It takes less time to do a thing right than to explain why you did it wrong.” We agree, especially when it comes to designing effective merger remedies—ones that maintain competition at pre-merger levels so that the merger does not lead to higher prices, lower quality, or reduced innovation. From the perspective of the Bureau of Competition and the Commission, getting it right takes time.

You don’t have to write a check to acquire an HSR-reportable interest

If your HSR compliance program tracks only those acquisitions that require a payment, you may miss a variety of reportable acquisitions, leading to liability and fines for failures to file. In most situations, you have to file notification under the Hart-Scott-Rodino Act before you pay to purchase voting securities, assets, or certain non-corporate interests. As a result, many HSR compliance programs kick in when someone has to write a check. Below we flag some examples of situations in which you may need to file – a compliance program that won’t catch these isn’t doing its job.

Avoiding antitrust pitfalls during pre-merger negotiations and due diligence

Most antitrust practitioners are attuned to advising clients about the antitrust risk that a proposed acquisition may violate Section 7 of the Clayton Act. But counsel and clients must also be conscious of the risks of sharing information with a competitor before and during merger negotiations—a concern that remains until the merger closes.

HSR threshold adjustments and reportability for 2018

When Congress passed the Hart-Scott-Rodino Antitrust Improvements Act of 1976, it created minimum dollar thresholds to limit the burden of premerger reporting. In 2000, it amended the HSR statute to require the annual adjustment of these thresholds based on the change in gross national product. As a result, reportability under the Act changes from year to year as the statutory thresholds adjust. The PNO fields many questions about the upcoming adjustments to the HSR thresholds from parties whose transactions may take place around the time of the revisions.

“All” means All: Submit side agreements with an HSR filing

When preparing an HSR filing for a proposed acquisition, some practitioners counsel their clients not to submit binding agreements or side letters negotiated between the merging parties that reflect the parties’ antitrust review obligations, risk-sharing commitments, and potential remedial measures. Some claim that these “side agreements” are ancillary to the main agreement, while others withhold such side agreements believing they are protected by a common interest privilege or as part of a joint defense agreement.

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