On August 4, 2015, the Federal Trade Commission (“FTC”) issued its Best Practices for Merger Investigations. The Best Practices provide guidance to merging parties on steps they can work cooperatively with the staff by engaging in early discussions, determining effectively when to pull and refile an HSR notification form, narrowing Second Requests, engage in a quick look review and modify Second Requests.
Engage the Staff Early
The FTC guidance encourages merging parties to engage the staff early during the initial waiting period or even before the HSR filing. Antitrust counsel should provide strategic plans, product catalogs, top 10 customer lists, competitor information, market shares, helpful ordinary course of business documents and anything else pertinent to the potential competitive issues. Most of this information would be requested in a voluntary access letter anyway so providing these materials in advance of a request may preempt a prolonged investigation or save time by helping the staff narrow the areas of concern.
Effective Use of “Pull and Refile”
The FTC notes that the “pull and refile” of the HSR Notification allows the staff to have more time to review the transaction. In certain situations, the “pull and refile” strategy can be very effective. Historically, the use of the “pull and refile” strategy has reduced the likelihood of a Second Request being issued or results in a more narrowly tailored Second Request. The guidance reiterates that no extra fees are necessary if the HSR is filed within two business days but acknowledges that using the “pull and refile” strategy does not guarantee that a Second Request will not be issued.
Narrow Second Requests
The FTC guidance encourages early meaningful and substantive discussions between the parties and staff of competitive issues, custodians, data, and documents in order to help the staff understand the competitive concerns and the data gathering issues. This dialogue can result in narrowing the Second Request to efficiently address those concerns. Therefore, providing information, such as organizational and data storage charts, to the staff before discussions may also facilitate clarification of such issues quickly. This type of interaction should lead to less costly, more focused Second Requests, which in turn leads to faster compliance and review.
The FTC’s guidance can be found in “Best Practices for Merger Investigations” on its website.