The Merger Review Process: A Step-by-step Guide to Federal Merger Review

Front Cover
Revised and expanded, this comprehensive guide to the process and procedures of merger review at the federal agencies makes the federal review process more comprehensible and accessible to parties and their counsel.
 

What people are saying - Write a review

We haven't found any reviews in the usual places.

Selected pages

Contents

BACKGROUND
1
b Sherman Act
6
c Federal Trade Commission Act 5
7
b Additional Antitrust Division Investigatory Powersthe Antitrust Civil Process Act
14
c Additional Federal Trade Commission Investigatory Powers
15
d State Investigatory Powers
16
3 JurisdictionalEnforcement Statutes
17
b Federal Trade Commission Enforcement
18
2 Enforcement Agency Procedures for Asserting Noncompliance and Commencing a Compliance Action
195
4 The Appeal Process
198
1 Litigating Compliance Disputes
200
F What the Agency Staff Is Doing While the Parties Are Compiling the Response
202
2 Preparation of Affidavits
205
3 CIDs and Subpoenas for Documents
206
4 Interviews and Depositions of Party Employees
207
5 Confidentiality Undertakings
210

c Private Enforcement
20
B Overview of the Enforcement Agencies and the Review Process
21
b The Antitrust Division
25
2 The Review Process
26
b Reviewers and Ultimate Decision Makers
28
2 The FTC
29
C Confidentiality Considerations
31
2 Disclosure to State Attorneys General
35
3 Disclosures to Foreign Antitrust Enforcement Authorities
40
4 Confidentiality of Materials Submitted in Response to Compulsory Process
41
5 Confidentiality of Voluntary Submissions
44
BEFORE THE HARTSCOTTRODINO FILING
49
A Making the Initial Substantive Assessment
50
1 Public Information
52
2 Internal Client Documents
53
3 Client Personnel
55
4 Industry Participants
56
5 Industry Consultants and Associations
57
6 Antitrust Economists
58
B Understanding and Explaining the HartScottRodino Merger Review Process
59
C Determining Whether the Transaction Is Reportable under the HartScottRodino Act
66
D Valuation of Transactions
71
1 Acquisition of Assets
72
E Controlling Exposure
73
2 Coordinating with Other Competition Counsel
76
3 Coordinating with Other Filings and Releases
78
5 Developing a Strategy
80
F Analyzing and Shaping the Parties Contractual Obligations
82
2 Provisions That May Give Rise to Antitrust Exposure
86
3 Agreements among Counsel
90
G Preparing the HSR Filing
92
2 Completing the Form
95
3 Voluntary Submissions
96
5 Sources of Information
97
6 The Mechanics of Filing
98
c Faxed Signature Pages
99
e Notarial Seals
100
H Prefiling Communications with the Enforcement Agencies
102
2 Types of SubmissionsForm and Format
105
3 Possible Impact on Claims of Privilege
106
5 Other Vehicles for Communication with the Agencies
107
I Preflling Investigations Initiated by the Enforcement Agencies
108
2 Procedures at the FTC
109
J The Role of InHouse Counsel
110
1 Establishing an HSR Compliance Program
111
c Warrant and Option Exercises and Conversions
112
3 Preparation of the HSR Filing
113
b Item 4c Documents
114
5 Contacts with the Reviewing Staff
115
DURING THE INITIAL WAITING PERIOD
117
B Preclearance Review
125
2 Preliminary Investigation
127
c Conduct of the Initial Investigation
128
C Preclearance Communications with Agency Staffs
129
2 Forum Shopping
131
D The Clearance Procedure
133
2 Agency Escalation of a Clearance Dispute
134
2 Interviews with Customers Competitors and Complainants
135
3 Conclusion of the Initial Investigation
136
F Issuance of a Second Request
137
2 Internal Mechanism at the Antitrust Division
139
4 Alternatives to Issuance of a Second Request
140
G Tactical Options Available to Counsel
141
2 Transactions That Raise Substantive Antitrust Concerns
142
a Working with Counsel for the Other Party
144
b Deciding Whether to Hire an Economist
145
c Submitting Information to the Reviewing Agency
146
d Preparing a White Paper
148
e Identifying Customers for Agency Interviews
150
f Making a Presentation to the Agency
151
g Preparing to Respond to a Second Request
153
WHILE COMPILING THE SECOND REQUEST RESPONSE
155
1 Description of the Negotiation Process
159
2 Timing of Negotiations
161
3 Preparation for the Negotiation
162
4 Whether to Raise Particular Issues
165
5 Limitations That Are Routinely Granted
167
c Transactional Documents
168
f Translations
169
h Privilege Logs
170
b Foreign and Affiliate Offices
171
1 The Quick Look Procedure
172
2 Phased Production
175
C Compiling the Second Request Response
176
a Location
177
b Controlling Document Collection and Review
178
d Creating the Master List
179
2 The Logistics of Responding to Interrogatories
184
3 The Privilege Log
185
4 Objections and Noncompliance Statements
186
5 Final Preparations for Submission
187
6 Second Request Compliance Checklist
188
D Substantial Compliance and Compliance Disputes
190
1 The Statutory Framework
191
G What Counsel Can Do Beyond Compiling the Response
212
2 Developing the Affirmative Case
216
3 Communications with Agency Staff
218
AFTER RESPONDING TO THE SECOND REQUEST
221
B Meetings with the Section Chief or Assistant Director after the Staff Has Recommended Challenge
227
C Higher Level Review
230
2 At the Antitrust Division
238
D Timing and Extensions
243
E Responses to the Agencys Determination
246
1 If the Agency Decides Not to Challenge
247
2 If the Agencys Determination Is Adverse
248
c Proceeding to Litigation
249
d Abandoning the Transaction
252
DIFFERENCES IN THE PROCESS FOR NONREPORTABLE TRANSACTIONS
255
B Transactions Subject to Prior Notification to the FTC
256
C Transactions Not Subject to HSR Notification Requirements or Prior Notification
257
1 Deciding Whether to Notify the Agencies of a Nonreportable Transaction
258
2 NonHSR Investigations
259
b Differences in Timetables
260
3 Issuance of Process to the Parties
262
a Antitrust Division
263
b Federal Trade Commission
265
4 Agency Review Process
267
D Conclusion
268
THIRDPARTY INVOLVEMENT IN THE MERGER REVIEW PROCESS
269
2 State Attorneys General
274
3 Other US Agencies
276
B Representing Third Parties Who Receive Compulsory Process in Connection with Merger Investigation
279
1 The Antitrust Division
282
2 The Federal Trade Commission
284
C Representing Third Parties Wishing to Object to a Merger
286
RESOLUTION WITHOUT LITIGATION
293
A Strategic Considerations in the Timing and Substance of Proposed Resolutions
294
1 Considerations Common to FixItFirst Resolutions and Consent Orders
295
2 Considerations Unique to FixltFirst Resolutions
299
B Procedures at the FTC
301
2 Review of a Proposed Consent Order
302
3 Placement of the Proposed Consent Agreement on the Public Record for Comment
303
5 Compliance Procedures
305
b Confidentiality and Access to Compliance Reports
307
C Procedures at the Department of Justice
308
2 Review of a Proposed Consent Decree
309
A Tool for Disclosure
310
c How the Tunney Act Works
311
2 Public Comment
313
4 The Courts Role under the Tunney Act
314
d Strategic and Tactical Aspects of the Tunney Act
318
b Seeking Federal Trade Commission Approval for Divestiture
323
c Seeking Antitrust Division Approval for Divestiture
326
2 Hold Separate and Asset Maintenance Requirements
327
3 Trustee Provisions
328
4 Prior Approval Provisions
330
5 Order Termination Provisions
332
7 Supply Arrangements and Technical Assistance
333
CLAYTON ACT 7
335
ABAS GUIDANCE FOR FEDERAL MERGER INVESTIGATIONS AND COMPLYING WITH SECOND REQUESTS
337
SHERMAN ACT 12
371
FTC ACT 5
373
HSR ACT
383
THE HSR REFORM ACT OF 2000
389
HSR NOTIFICATION AND REPORT FORM AND INSTRUCTIONS
393
NAAG VOLUNTARY PREMERGER DISCLOSURE COMPACT
416
PROTOCOL FOR COORDINATION IN MERGER INVESTIGATIONS BETWEEN THE FEDERAL ENFORCEMENT AGENCIES AND STATE AT...
424
CLAYTON ACT 15
437
SHERMAN ACT 4
439
TUNNEY ACT
441
ORGANIZATION CHARTS
447
FTC EXPERTISE LIST BY LITIGATION AND REGIONAL OFFICES
449
ANTITRUST DIVISION STANDARD INDUSTRIAL CODE ALLOCATION
463
SAMPLE WAIVER LETTERS
487
SAMPLE RETENTIONCONFIDENTIALITY AGREEMENT FOR AN ECONOMIC CONSULTANT
501
SAMPLE CONTRACTUAL PROVISIONS ALLOCATING RISK
503
SAMPLE JOINT DEFENSE AGREEMENT
505
SAMPLE LIST OF QUESTIONS TO CLIENT FOR COMPLETION OF AN HSR FILING
507
SAMPLE SECTION 1746 DECLARATION
511
FTCDOJ CLEARANCE PROCEDURE
513
FTCDOJ ANNOUNCEMENT OF EXPEDITED CLEARANCE PROCEDURE
517
MODEL SECOND REQUEST
519
SECOND REQUEST INTERNAL APPEAL PROCEDURE
531
FTCDOJ ANNOUNCEMENT ON QUICK LOOK PROCEDURE
535
IDENTIFYING PRIVILEGED MATERIAL AND MAINTAINING PRIVILEGE WHEN COMPLYING WITH SECOND REQUESTS
537
SAMPLE AGENCY ASSURANCE OF PROTECTION OF CONFIDENTIAL INFORMATION
555
SAMPLE PROTECTIVE ORDER
557
SAMPLE LETTER ADVISING OF SUBSTANTIAL COMPLIANCE WITH SECOND REQUEST
563
SAMPLE LETTER EXTENDING WAITING PERIOD
565
SAMPLE LETTER SETTING DEADLINES FOR ANTITRUST DIVISION INVESTIGATION
567
SAMPLE LETTER CONTAINING NOTICE AGREEMENT
569
SAMPLE WITHDRAWAL LETTER AND AGENCY RESPONSE
571
SAMPLE LETTER WAIVING CONFIDENTIALITY TO ALLOW COMMUNICATIONS BETWEEN FEDERAL AGENCY AND STATE ATTORN...
573
SAMPLE LETTER WAIVING HSR CONFIDENTIALITY FOR OTHER REGULATORY AGENCIES
577
SAMPLE LETTERS CONTAINING SET AND ROLLING EXTENSIONS
579
SAMPLE LETTER FROM COMPLIANCE DIVISION FOLLOWING ISSUANCE OF CONSENT ORDER
581
SAMPLE 15 USC 16G FILING
585
Copyright

Common terms and phrases

Bibliographic information