How to avoid common HSR filing mistakes with attachments

The PNO handles Hart-Scott-Rodino Premerger Notification Filings for well over a thousand transactions each year. When you submit an HSR Form with all the required information, the PNO can quickly review the filing, and if necessary, forward it to the investigative staff who will focus on determining whether the acquisition presents competitive issues that warrant further review.

But when filings contain mistakes, the PNO review process can get bogged down. In the worst case, mistakes can lead us to “bounce” a filing for deficiencies, and the initial HSR waiting period will not restart until they are fixed. Often, these deficiencies are easy to avoid. To help you avoid the most common filing mistakes (and avoid having a filing bounced), we have put together some basic tips.

Our first post covered mistakes on affidavits and notice letters. In this post, we focus in on common mistakes made with attachments to the Form.

Attachments come in two types: additional pages created to respond to an item within the Form and pre-existing documents that are submitted as attachments to the Form. Each type requires slightly different preparation before submitting your HSR Form.

Additional pages (aka part of the Form)

Filing parties often need to create additional pages to complete a lengthy response to an item within the Form. For example, filing parties may have a particularly long list of documents responsive to Item 4(c) or Item 4(d) and, as a result, they create additional pages to accommodate the required log of 4(c) or 4(d) documents. Filing parties also typically create additional pages for voluminous responses to other parts of the Form, such as Item 5 (NAICS codes), Item 6(a) (subsidiaries), or Item 7(c)(iv) (geographic overlap by state, county and town).

Additional pages created to respond to specific items are part of the Form. Thus, filing parties must submit any additional pages in the same number of copies as the Form (original and one copy to FTC; three copies to DOJ). Filing parties often make the mistake of placing additional pages among the Documentary Attachments, which means that the agencies do not receive the required number of copies. Filing parties should place any additional pages responding to an item directly behind the item number or at the end of the Form, and not among the Documentary Attachments.

“Documentary Attachments” (aka not part of the Form)

The general instructions on the Form define Documentary Attachments and the Style Sheet lays out how to submit them. Unlike additional pages, Documentary Attachments are not part of Form. Each agency should receive only one copy of each Documentary Attachment.

Documentary Attachments must accompany the Form, and typically include the agreement (Item 3(b)), and any documents that are responsive to Items 4(c) and 4(d) – the confidential deal documents. Documentary Attachments also may include voluntary submissions of additional documents pursuant to §803.1(b) of the Rules. For instance, filing parties often voluntarily submit documents that are not technically responsive to Item 4(c) or 4(c), but that they believe would be helpful to understanding the transaction.

And now the nitty-gritty on how to submit attachments. All Documentary Attachments should be separately stapled or clipped, and labelled with the following information:

• the name of the filing person;
• the Item to which the document responds (if more than one document responds to that Item, include additional numbering, e.g., 4(c)-3); and
• the date of the Form.

You may use adhesive labels with this information, or you may put the required information on a separate sheet of paper. If you use a separate sheet of paper, make sure to staple or clip this sheet of paper to the front of the Documentary Attachment. If the Documentary Attachment is too thick to staple, use a binder clip (NOT a paper clip). More tips to avoid other common mistakes: Don’t use divider tabs to separate the Documentary Attachments. Don’t bind the Documentary Attachments together. Don’t provide double-side copies; copies of the Form and Documentary Attachments should be single-sided.

Note that if you are using the PNO-created pdf version of the Form, please refer to the specific instructions for labeling Documentary Attachments. You should also follow the advice above and place additional pages directly behind the item number to which they respond in the Form or at the end of the Form.

Use the PNO checklist to avoid these and other common mistakes. As always, if you have questions about HSR filings, contact the PNO.

Next up: Mistakes with Item 4(c) and Item 4(d) documents