FTC Seeks Comments on Proposed Changes to HSR Form, Instructions

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The FTC has proposed modifications to the Hart-Scott-Rodino premerger notification form and related rules and instructions.

The agency is seeking public comments, through October 18, on the proposed changes, which are intended to streamline the form and focus on the information most needed by the agencies in their initial merger review.

Among the changes would be the addition of a new Item 4(d), which would require filing parties to submit certain documents that merging parties might already be including with their Item4(c) documents. Item 4(d) documents would include:

• Offering memoranda laying out the details of a company for prospective buyers;

• Certain studies and reports prepared by investment bankers, consultants, or other third- party advisors prepared for an officer or director for the purpose of evaluating or analyzing competition and other market issues; and

• Documents discussing synergies and/or efficiencies likely to result from a transaction.

In addition, the Commission has proposed the deletion of items that do not provide helpful information. Cited as examples are Item 3(c)—which requires filing parties to provide overly-detailed information regarding the number and classes of voting securities to be acquired—and Item 5(a)—which requires the reporting of 2002 revenues.
The Commission also has proposed the elimination of Item 4(b)’s requirement to submit a company’s most recent regularly prepared balance sheet.

The proposed revised form and instructions appear here and will be reported at CCH Trade Regulation Reporter ¶50,255.

Comments about the proposed modifications should refer to “HSR Forms Changes.” They can be filed in electronic form here.

A comment may also be filed in paper form. It should include the “HSR Forms Changes” reference both in the text and on the envelope and should be mailed or delivered to: Federal Trade Commission, Office of the Secretary, Room H-135 (Annex Q), 600 Pennsylvania Avenue, NW, Washington, DC 20580.