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.