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Hart-Scott-Rodino Act: Overview

Resource type: Practice Note: Overview

Status: Maintained

Jurisdiction: USA

This Note provides an overview of the reporting requirements which apply to certain mergers and acquisitions

under the Hart-Scott-Rodino (HSR) Act. It first considers the types of transactions that require notification

and the thresholds that apply. It then summarizes the procedural processes connected with making a

merger filing with the US federal antitrust agencies.

Lee Van Voorhis, Baker & McKenzie LLP and Vadim Brusser, Weil, Gotshal & Manges LLP, with PLC

Antitrust

Contents

Notifiable Transactions Under HSR

Filing Requirements

Waiting Period

Gun Jumping

Procedures After Filing

Allocation of Cases Between the FTC and DOJ

Initial Investigation

Early Termination or Expiry of Waiting Period

Request for Additional Information (Second Request)

Exemptions Applicable to Acquisitions of Voting Securities of Foreign Corporations

and Foreign Assets

Associates: The Impact on Investment Funds

The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (www.practicallaw.com/4-382-3521), as

amended (HSR), requires that certain mergers, acquisitions and joint ventures be cleared by the US federal

antitrust authorities before completion. Companies proposing transactions that meet certain criteria set out

by HSR must notify both the Federal Trade Commission (www.practicallaw.com/1-382-3457) (FTC) and

the Antitrust Division of the Department of Justice (www.practicallaw.com/9-382-3397) (DOJ) and wait for

agency approval to proceed with the transaction. The parties submit an HSR form that requires basic

information and documents regarding the companies and the proposed transaction, and the acquiring party

must pay a filing fee.

Once the parties submit completed HSR filings to the FTC and DOJ, they must wait for a statutory period

before the transaction can be completed (see Waiting Period). During this initial waiting period, the agencies

review the filings, may conduct a preliminary investigation of the proposed transaction, and determine

whether the proposed transaction warrants a full-phase investigation and a Request for Additional

Information (Second Request) (see Request for Additional Information (Second Request)). For more

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information on how the HSR process impacts the various stages of a corporate transaction and how to best

manage client expectations and minimize antitrust risk during the merger review process, see Practice

Note, Corporate Transactions and Merger Control: Overview (www.practicallaw.com/9-507-2799).

The filing obligations under HSR are distinct from the substantive legal analyses that apply to mergers. The

distinctions are discussed in the Practice Note, How Antitrust Agencies Analyze

M&A (www.practicallaw.com/3-383-7854). The government can investigate a transaction even if the deal is

not reportable under HSR. The enforcement agencies also will open investigations of completed deals based

on complaints from customers or competitors or from public reports about the deal.

Notifiable Transactions Under HSR

The notification obligations under HSR apply to the following types of transactions:

Acquisitions of voting securities.

Acquisitions of assets.

Acquisitions of interests in non-corporate entities (partnerships and limited liability companies (LLCs))

resulting in control.

Mergers of corporate and non-corporate entities.

Formations of corporations and non-corporate entities, including joint ventures.

Exclusive licenses for certain types of intellectual property.

As a general rule these types of transactions are subject to the filing requirements of HSR, if the following

three jurisdictional tests are met:

Commerce test. The commerce test is met if the acquiring or the acquired person, including any

subsidiary or division, is engaged in commerce in the US or in any activity affecting US commerce.

Foreign persons meet the commerce test if they engage in business activity in the US or make sales in

or into the US.

Size-of-transaction test. The size-of-transaction test measures the value of the assets, voting

securities and non-corporate interests (membership interests or units) that the acquiring person will

hold as a result of the acquisition. This may include certain assets, voting securities and non-corporate

interests of the acquired person already beneficially owned by the acquiring person. The size-of-

transaction test is met if, as a result of the acquisition, the acquiring person will hold voting securities,

assets or non-corporate interests of the acquired person with a value of more than $68.2 million (see

Practice Note, Determining Hart-Scott-Rodino Applicability: The Size-of-Transaction

Threshold (www.practicallaw.com/9-516-9560)).

Size-of-person test. The size-of-person test applies only to transactions resulting in the acquiring

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person holding voting securities, assets and non-corporate interests of the acquired person valued at

more than $68.2 million but not exceeding $272.8 million. Transactions valued in excess of $272.8

million are reportable regardless of the size-of-person. Generally, this test is met if one person involved

in the transaction has worldwide total assets or annual net sales of at least $136.4 million and the other

person has worldwide total assets or annual net sales of $13.6 million. Total assets and annual net

sales include the assets and sales of the ultimate parent entity and all its subsidiaries (see Practice

Note, Determining Hart-Scott-Rodino Applicability: The Size-of-Person

Threshold (www.practicallaw.com/9-516-9560) and Determining the Ultimate Parent Entity).

The dollar thresholds are adjusted annually. This Note reflects the 2012 dollar thresholds.

For more information about how to determine whether a transaction is reportable under the HSR Act, see

Practice Note, Determining Hart-Scott-Rodino Applicability (www.practicallaw.com/9-516-9560).

For certain exemptions from these general tests for acquisitions of foreign voting securities and foreign

assets, see Box, Exemptions Applicable to Acquisitions of Voting Securities of Foreign Corporations and

Foreign Assets.

Filing Requirements

When the transaction is notifiable under HSR, both the acquiring person and the acquired person are

required to make separate HSR filings with both the DOJ and the FTC.

The filing involves:

HSR form. The types of information needed to complete the form include:

a copy of the executed agreement or letter of intent including the signed signature page;

the most recent annual reports and annual audit reports of the person filing notification and of

certain of its subsidiaries;

revenue information by NAICS (North American Industry Classification System) codes of activities

conducted within the US and of foreign manufacturing operations if products are sold in or into the

US (see Practice Note, HSR Form: Item 5 (www.practicallaw.com/4-520-7084));

a list of controlled subsidiaries and their locations;

a list of holders that own 5% or more of the outstanding voting stock or non-corporate interests of

the acquired entity, the acquiring entity and the acquiring entity's parent company;

a list of minority stock and non-corporate interest holdings of more than 5% but less than 50% in

certain other entities;

documents created for the sale of the target company that contain competition-related content;

information on associates, which include entities under common investment or operational

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management with the acquiring person (see Practice Note, Associate Rules: Hart-Scott-Rodino:

Defining Associates: Concepts of Control and Management). The acquiring party must provide

information, to its knowledge and belief, about its associates’ minority holdings in any competitor of

the target company, as well as geographic information for associates (and their controlled holdings)

that compete with the target (see Box, Associates: The Impact on Investment Funds); and

the name and title of an officer or director of the filing party who will execute a declaration that the

filing party has the good faith intention to close the transaction and a certification that the

information provided in the HSR form is complete and correct.

For a sample request list for information to complete the HSR form in transactions not involving

associates, see Standard Document, HSR Information Request: Non-Associate

Transactions (www.practicallaw.com/3-507-7648). For a similar request list in transactions involving

associates, see Standard Document, HSR Information Request: Associate Transactions. For more

information on the associate rules, see Practice Note, Associate Rules: Hart-Scott-

Rodino (www.practicallaw.com/6-518-9423). For a sample declaration for negotiated transactions, see

Standard Document, Rule 803.5(b) Declaration for Negotiated Transactions: Hart-Scott-

Rodino (www.practicallaw.com/3-521-4297).

Filing fee. The filing fee is graduated and the amount of the fee depends on the total value of the

assets, voting securities or non-corporate interests that the acquiring person will hold as a result of the

acquisition. Although the acquiring person is required to pay the fee, the parties can agree to split the

payment of the fee. The fees are:

$45,000 for transactions valued at more than $68.2 million but less than $136.4 million;

$125,000 for transactions valued at $136.4 million or more but less than $682.1 million; and

$280,000 for transactions valued at $682.1 million or more.

The value ranges to which the fee amounts apply are adjusted annually. This Note reflects the 2012

value ranges.

Competition-related documents. Certain documents relevant to the competitive aspects of the

transaction must be provided to the federal antitrust agencies along with the HSR form. The contents of

these key documents may well determine whether a more detailed investigation is opened. These

documents are referred to as 4(c) and 4(d) documents because they refer to Items 4(c) and 4(d) of the

HSR form.

The instructions for Item 4(c) ask for:

"All studies, surveys, analyses and reports which were prepared by or for any officer(s) or

director(s) (or, in the case of unincorporated entities, individuals exercising similar

functions) for the purpose of evaluating or analyzing the acquisition with respect to market

shares, competition, competitors, markets, potential for sales growth or expansion into

product or geographic markets, and indicate (if not contained in the document itself) the

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date of preparation, the name and title of each individual who prepared each such

document."

Item 4(d) requires the parties to produce:

offering memoranda prepared by or for officers or directors within a year of the HSR filing that relate

to the sale of the target company. Or, if no offering memoranda exist, any document given to an

officer or director of the buyer that is meant to serve the function of an offering memorandum.

banker’s books, pitch books and similar documents prepared by third party advisors for officers or

directors within a year of the HSR filing that relate to the sale of the target and that have

competition-related content. Documents prepared both during engagement and in seeking

engagement are required.

documents prepared by or for officers or directors that evaluate the transaction’s potential synergies

or efficiencies.

The importance of finding and submitting all documents responsive to Items 4(c) and 4(d) cannot be

overstated. If documents responsive to Items 4(c) or 4(d) are uncovered after the HSR filing has been

submitted, the agency can restart the premerger notification waiting period (see Waiting Period),

impose civil penalties or both. In addition, the company and the certifying official can be subject to

significant civil penalties if an incomplete HSR form is submitted.

For strategies about how to search for, select and prepare Item 4(c) and 4(d) documents, see Practice

Note, HSR Form: Item 4(c) and 4(d) Documents (www.practicallaw.com/4-506-9134). For a sample

memorandum that informs deal team members about how to identify and compile documents required

by Items 4(c) and 4(d), see Memorandum: Identification and Collection of Potential 4(c) and 4(d)

Documents (www.practicallaw.com/6-507-2791).

Waiting Period

A transaction that requires notification under HSR cannot be completed until the waiting period has expired

or has been terminated by the enforcement agencies. The relevant statutory waiting period depends on the

type of transaction:

Negotiated transactions. The waiting period is 30 days, beginning when both the acquiring and

acquired persons file separate HSR filings with the FTC and DOJ. The parties usually coordinate the

timing of these filings so that they are filed on or about the same time.

Open market purchases, non-cash tender offers and other acquisitions of voting securities

(from a person other than the acquired person). The waiting period is 30 days, and it begins when

the acquiring person files its HSR form. The acquired person is required to file its HSR form no later

than 15 days after the acquiring person files. If the acquired person does not file within the 15-day

period, the statute provides for civil penalties of up to $16,000 per day for each day of non-compliance.

The same requirements apply to hostile transactions.

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Cash tender offers. The waiting period is 15 days, and it begins when the acquiring person files its

notification. The acquired person is required to file no later than 10 days after the acquiring person files.

If the acquired person does not file within the 10-day period, the statute provides for civil penalties of up

to $16,000 per day for each day of non-compliance. The same requirements apply to hostile

transactions.

Acquisitions from a Debtor-in-Possession or Trustee in Bankruptcy. The waiting period is 15 days,

and it begins when the acquiring and acquired persons file their notifications.

The waiting period can be terminated early by the agencies if a party requests it and the agencies complete

their review within the initial period and determine that no further action is required (see Early Termination or

Expiry of Waiting Period). Alternatively the initial waiting period is extended if the reviewing agency issues a

Second Request for information (see Request for Additional Information (Second Request)).

Gun Jumping

Until the waiting period expires or is terminated by the agencies, the parties must not begin to consummate

the transaction. The buyer or acquiring person cannot begin exercising control over the operations or assets

to be acquired before the expiration of the waiting period. This practice, called gun jumping, can violate HSR

as well as the Sherman Act. The FTC and DOJ have initiated several multi-million dollar civil penalty actions

for violations of HSR for gun jumping.

For more guidance on gun jumping and other pre-closing conduct, see Practice Note, Information Exchange

and Integration Planning in M&A: Antitrust (www.practicallaw.com/5-383-7853). For suggestions on

counseling clients to avoid gun-jumping behavior, see Avoiding Gun-jumping in Corporate Transactions

Check list (www.practicallaw.com/6-507-3328).

Procedures After Filing

HSR filings must be made to the respective Premerger Notification Office (PNO) at both the FTC and the

DOJ. The PNOs take several days to ensure the filings are complete and comply with HSR. While the

waiting period does not start running until filings are considered complete, most filings are deemed complete

at the time of filing.

The PNOs also conduct a preliminary review of the filing for substantive antitrust problems. If the PNOs

determine that there is no competitive overlap between the parties, and early termination has been

requested by one filer, the PNOs may grant early termination of the mandatory waiting period (see Early

Termination or Expiry of Waiting Period). If the PNOs believe the filing requires additional review or

investigation, the filings are referred to the division at both agencies with the most experience with the

products, industry or parties involved in the transaction.

Allocation of Cases Between the FTC and DOJ

Both the FTC and DOJ have jurisdiction over US mergers. To determine which agency reviews a filing, the

agencies have implemented a clearance process. Essentially, one agency must clear the way for the other

agency to investigate the transaction. Clearance can take a few days or a few weeks, depending on how

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much expertise each agency has that is relevant to the transaction at issue. If both agencies want to

examine the filing, they exchange clearance claims detailing their respective expertise and negotiate among

themselves to resolve which of them deals with the case.

The principal ground for the allocation of a case to a particular agency is their expertise with the product(s)

or service(s) as well as the parties involved in the anticipated investigation. Expertise is defined as having

conducted a substantial investigation involving the product(s), service(s) or parties within the last five years.

If the parties to the transaction, customers or competitors make contact with either or both of the agencies,

the relevant agency can follow up on those communications. In addition, each agency can research the

proposed transaction by consulting relevant public sources and obtaining information from other government

agencies.

Once one agency has been cleared to review the transaction, the other agency has no substantive role in

the merger review procedure.

Initial Investigation

Once either the FTC or DOJ receives clearance, the reviewing agency can send the parties an informal

request for additional information (beyond that provided in the HSR filing) that will assist it in assessing the

transaction. Compliance by the parties with such a request is voluntary. However, it is often beneficial to

respond, as it can help to focus or narrow the scope of an agency's investigation.

Information sought, while tailored to the issues in the particular case, is likely to include at least some of

the following:

The identity of competitive overlaps.

The identity of product substitutes.

Sales, capacity and import data.

Customer lists (including names, addresses, telephone numbers and a contact person).

Competitor information and market share estimates.

Product brochures.

Business plans.

Market studies.

Company analyses of the transaction that are not part of the HSR filing.

Win/loss reports and other analyses of the outcome of sales efforts.

Analyst reports on the companies or transaction.

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The reviewing agency also contacts those customers and competitors most likely to be affected by the

transaction. If relevant, it can also contact other sources, such as trade associations, industry experts,

state or federal government officials, suppliers or downstream customers.

Early Termination or Expiry of Waiting Period

After conducting their initial investigation, if the reviewing agency believes that there is no need to issue a

Second Request (see Request for Additional Information (Second Request)), they can either let the waiting

period expire without taking any action or grant early termination of the waiting period. Early termination is

granted either by:

The PNO for transactions that are not cleared to either agency for substantive review.

The reviewing agency before expiration of the 30-day waiting period.

In cases in which early termination is granted, the FTC’s PNO notifies both the acquiring person and the

acquired person, and the FTC publishes a notice in the Federal Register and posts the information on its

website. Once the parties are notified that their transaction has received early termination or the waiting

period has expired without any agency action, the companies can close their transaction.

Request for Additional Information (Second Request)

If either the FTC or DOJ, as applicable after their initial investigation, has concerns about the transaction or

requires additional information to make a decision, the agency can extend the waiting period by issuing a

Second Request to both the acquiring person and the acquired person. A Second Request is a

comprehensive document and interrogatory request issued to each of the parties to the transaction.

For most transactions, the issuance of a Second Request extends the waiting period until 30 days after the

acquiring and acquired persons substantially comply with the Second Request. In the case of a cash tender

offer or an acquisition from a debtor-in-possession or trustee in bankruptcy, the waiting period is extended

until ten days after the acquiring person substantially complies with the Second Request. If the waiting

period is set to expire on a Saturday, Sunday or federal holiday, it is automatically extended until the end of

the next business day. Parties frequently grant the investigating agencies extensions to this deadline to

mitigate the threat of litigation.

Unlike a subpoena, a Second Request arguably requires an examination of every document in the parties'

possession, unless specifically excluded, to determine that they are not responsive. Parties typically

negotiate with the reviewing agency to narrow the scope of the Second Request or determine if a quick look

at a particular issue should satisfy the agency. A quick look is a partial document submission that enables

the agency to review documents on particular issues or from key business people. The agency can still

require a full document submission after receiving documents under a quick look agreement. However, under

certain conditions, a quick look may be enough to resolve the government's concerns regarding a particular

transaction.

Complying with a Second Request typically takes between two and four months, but might take longer

depending on the volume of documents that need to be collected and reviewed. The parties' response to a

Second Request has two components:

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The document production.

The response to interrogatories, which often includes production of a significant amount of data.

The response to a Second Request can involve a large volume of documents, as well as a potentially large

volume of e-mails and electronic files. All of these documents should be read carefully for relevance and

responsiveness to the Second Request. Any documents withheld from the agency based on privilege must

be logged. Responsive documents not in English must be translated for the agency. The narrative response

to interrogatories requires collecting a significant amount of data about the parties' businesses and the

industry.

While the parties are collecting and reviewing documents, the reviewing agency often interviews or deposes

business people at each company, as well as customers and competitors, to obtain additional information

about the relevant industry and the transaction.

Once the agency has confirmed that both parties have substantially complied with the Second Request, the

second waiting period begins. During that time, the agency reviews the documents to determine whether it

still has antitrust concerns. This review leads to one of the following outcomes:

If the agency determines that it does not have concerns, it closes the investigation without any further

action. However, if concerns still exist, the agency can ask for additional time to analyze the

transaction or to negotiate a settlement.

A settlement or consent order resolves the agency's concerns about the transaction, but allows the rest

of the transaction to proceed. A settlement usually entails divesting assets, licensing technology or

both to remedy any harm to competition that the agency believes may result from the proposed

transaction (see Practice Note, Merger Remedies).

If the agency has concerns, but no settlement is possible from the agency's perspective or the parties’

perspective, then the government might seek a preliminary injunction in federal district court to block

completion of the transaction. Parties might abandon the transaction rather than engage in litigation

because of the time and cost involved.

Exemptions Applicable to Acquisitions of Voting Securities ofForeign Corporations and Foreign Assets

The following transactions are exempt from notification to the US agencies under HSR:

Acquisition of assets located outside of the US is exempt unless those assets generated sales in or

into the US in the seller's most recent fiscal year exceeding $68.2 million.

Acquisition of assets that includes both foreign and US assets is exempt if the foreign assets did

not generate sales into the US in the seller's most recent fiscal year exceeding $68.2 million and

the value of the US assets does not exceed $68.2 million.

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Acquisition of the voting securities of a foreign corporation is exempt if the foreign corporation did not

make sales in or into the US in its most recent fiscal year exceeding $68.2 million and does not

own assets located in the US valued at more than $68.2 million.

Acquisition by a foreign person of the voting securities of a foreign corporation resulting in its

ownership of less than 50% of the target's outstanding voting stock is exempt.

Acquisition by a foreign person of assets located outside of the US or of the voting securities of a

foreign corporation is exempt if all of the following are true:

the aggregate value of the assets or voting securities to be acquired does not exceed $272.8

million in value;

the ultimate parents of the acquiring and the acquired persons are both foreign persons;

the parties do not have combined total assets located in the US of $150.1 million or more; and

the parties did not make combined sales in or into the US in their most recent respective fiscal

years of $150.1 million or more.

Acquisition by or from a corporation or a non-corporate entity controlled by a foreign government is

exempt if the acquisition is of either:

assets located within that foreign country; or

voting securities of a corporation or non-corporate interests or units of an entity organized under

the laws of that foreign country.

Associates: The Impact on Investment Funds

Before the 2011 amendments, the HSR rules required an acquiring person to file information about itself

and all of the entities it controls (generally, entities of which the acquiring person owns 50% or more). In

the context of investment funds, such as a private equity fund, this typically meant that the fund was

required to disclose information about itself and its controlled portfolio companies.

An investment fund sponsor (manager) often manages a family of investment funds. However, the funds

may not be controlled by or under common control with other funds in the family. The prior HSR rules did

not require disclosure about these related fund entities and their portfolio companies.

In commentary to the HSR rule changes, the government stated that it was unable to fully analyze the

potential competitive effects of private equity and other investment fund acquisitions because it did not

have information about competitive overlaps between the target company and entities closely related to,

but not controlled by or under common control with the acquiring fund. To capture this information, the

FTC and DOJ introduced the concept of associates.

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An associate includes the following:

The managing entity of the acquiring person (such as a sponsor of an investment fund).

Entities controlled by or under common control with the managing entity of the acquiring person.

An entity for which the acquiring person is the managing entity.

An entity under common management with the acquiring person (such as other investment funds

managed by the same sponsor that manages the acquiring fund).

An entity under common management with the acquiring person’s managing entity.

The revised rules require acquiring parties such as private equity funds, hedge funds and master limited

partnerships (often used in the oil and gas industry) to disclose information about their:

Associates’ businesses and businesses of associates' controlled holdings that compete with the

target company.

Associates’ minority holdings in entities that compete with the target company.

Therefore, the 2011 amendments require an acquiring investment fund to disclose significant additional

information. For more information on the associate rules, see Practice Note, Associate Rules: Hart-

Scott-Rodino (www.practicallaw.com/6-518-9423).

Resource information

Resource ID: 9-383-6234

Products: PLC US Antitrust, PLC US Corporate & Securities, PLC US Law Department

This resource is maintained, meaning that we monitor developments on a regular basis and update it as soon as

possible.

Resource history

Editorial Review

This Note was reviewed in October 2012 by our editorial team as part of ongoing maintenance. This Note is alsocontinually monitored for any necessary changes due to legal or practice developments.

Change in Filing Thresholds

This Note has been updated to reflect the increased reporting thresholds for 2012. This change was effective onFebruary 27, 2012.

Amendments to HSR Rules and Form

This Note has been updated to reflect the revised 2011 Premerger Notification Rules and HSR Form. This change

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was effective on August 18, 2011.

Increased Civil Penalties

This Note has been updated to reflect the increase in Federal civil penalties for violations of the HSR Act from$11,000 per day to $16,000 per day in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990.This change was effective on February 9, 2009.

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Standard Clauses

12/31/12 PLC - Hart-Scott-Rodino Act: Ov erv iew

13/13uslf .practicallaw.com/9-383-6234?q=&qp=&qo=&qe=

Purchase Agreement: HSR Size-of-Person Test Not Met (http://uslf.practicallaw.com/topic0-520-5614)

Purchase Agreement: HSR Size-of-Transaction Test Not Met (http://uslf.practicallaw.com/topic1-520-4096)

Checklists

Avoiding Gun-jumping in Corporate Transactions Checklist (http://uslf.practicallaw.com/topic6-507-3328)

Creating 4(c) and 4(d) Documents Checklist (http://uslf.practicallaw.com/topic1-507-2798)

Valuing a Transaction under the HSR Rules Checklist (http://uslf.practicallaw.com/topic5-521-7558)