On August 18, 2011, final rules adopting changes to the report form required for certain transactions under the Hart-Scott-Rodino Act go into effect, the Federal Trade Commission (“FTC”) recently announced, with the concurrence of the Department of Justice (“DOJ”) Antitrust Division.
These form changes are the most significant since the introduction of the HSR program. The announced final changes impose additional requirements for information and documents as part of the HSR filing, while eliminating the need to provide certain information that the FTC and DOJ have found to be of little use. In response to public comments, several important clarifications and adjustments were made to the original changes proposed last year.
The elimination of a number of items from the current form is significant. However, of greater interest to merging parties are the requirements for additional documents and information. These include:
- Filers will need to provide additional categories of documents prepared by investment advisors and documents discussing merger-related efficiencies. (Item 4(d))
- Filers who sell in the U.S. products that they manufacture in a foreign country will need to allocate such sales by 10-digit-level North American Industrial Classification System codes. (Item 5(a))
- Acquiring party filers will need to determine the identity of their “Associates” (i.e., certain commonly managed affiliates) and provide certain information regarding their holdings that overlap with the target. (Items 6 and 7)
Parties filing HSR notifications after August 18 will need to ensure that their filings comply with the new rules. HSR compliance is particularly important because parties who violate the requirements of the HSR Act may be subject to a maximum $16,000 per day civil penalty.