The Federal Trade Commission (FTC) Bureau of Competition recently released a revised set of best practices for merger investigations. Despite the many similarities with previous guidance from the FTC and the Department of Justice (DOJ), these new best practices re-emphasise several strategic and effective ways for parties to avoid a request for additional information ('second request') or substantially minimise its burden.
The revised best practices were made available on August 10 2015. They note that FTC staff have seen limited use of the previous guidance issued by the FTC in 2006. This prompted the bureau to issue a revised set of best practices, recognising that more streamlined e-discovery and search techniques may have made the mechanistic reforms contained in the 2006 reforms less relevant. The new best practices shift attention to early advocacy and timing of discussions with FTC staff that can either eliminate a second request or substantially limit the scope.
Revised best practices
Early voluntary provision of information
The best practices emphasise first that counsel and parties should engage with staff early – either during the initial waiting period or even before the filing is made. This proactive interaction to explain key information can help to eliminate the need for a second request or at least narrow the burden of production.
The FTC highlighted the key information that staff almost always ask for to evaluate a transaction early on. Gathering this information expeditiously can accelerate the merger review process.
- strategic and marketing plans for the previous two years (and sometimes longer) in order to capture a pivotal business development or historic event;
- a list of all currently manufactured, marketed or sold products and products in development;
- a list of top 10 customers (and suppliers if relevant), with contact information for customers of overlapping products;
- a list of top competitors, with contact information for competitors that provide overlapping products;
- market share information for overlapping products;
- a list of the type of reports that the company prepares on a regular basis;
- information to assist staff in assessing the proposed merger and the markets involved;
- an organisation chart to help to identify document custodians or candidates for interviews; and
- a data map to identify the types of data available and the relationship between different data sets.
Effective use of withdraw and refile
The best practices reiterate a party's ability to withdraw its Hart–Scott–Rodino filing and refile it to reset the 30-day period and give staff more time to digest any open issues. No additional filing fee is required. This tactic is useful in reducing the likelihood of a second request or otherwise limiting the scope of a second request for transactions that do not appear to require substantial review. In recent years, some agency staff had given conflicting signals on whether a pull and refile was favoured by FTC management and could have any positive effects. This statement confirms that parties can use the pull and refile mechanism when appropriate as a way to provide staff with more time and information that might eliminate the necessity of issuing a second request.
Negotiating the second request
Finally, the best practices highlight the continued importance of communicating with staff to negotiate modifications to the second request in order to reduce the burden on merging parties. For most transactions that receive a second request, open communication and negotiation with staff is vital. These conversations give staff an opportunity to convey their competitive concerns and what information they need, while allowing parties to play an informative role. In addition to the substantive issues, early discussions about custodians, data and documents lead to a more focused review.
With respect to requests for modifications, the best practices note that parties can expect to receive a decision within two business days. The bureau will still issue formal letters granting modifications, but these no longer require the signature of division management. Timing agreement discussions should begin even earlier, especially for transactions that require substantial review. Staff and parties can lay out an investigation plan that considers each side's burdens and needs.
During the last 15 years, both the FTC and DOJ have listened to concerns from the private sector about the rising costs of compliance with second requests and have taken steps to try to reduce the burden and costs imposed on merging parties. Some of these steps have produced positive results, while others have been forgotten over time. Effective counsel have learned that the most productive way to reduce the burden and costs of a second request is to engage with staff on the relevant issues as early as practicable. These new best practices reaffirm that approach.
For further information on this topic please contact Joseph G Krauss at Hogan Lovells US LLP by telephone (+1 202 637 5600) or email (firstname.lastname@example.org). The Hogan Lovells website can be accessed at www.hoganlovells.com.
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