How to avoid common HSR filing mistakes with Item 4(c) and 4(d) documents

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 of 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. Our second post focused on common mistakes made with attachments to the Form. This post will highlight mistakes related to Items 4(c) and 4(d) of the HSR Form.

The most common mistakes the PNO sees in Items 4(c) and 4(d) relate to document logs and privilege logs. Although these lists are not required (as long as the required information is provided in some form), they can be helpful in organizing a large volume of documents. But incomplete information on a document log or privilege log will result in a call from the PNO and a potential bounce.

Item 4(c)

Item 4(c) of the Form requires filers to submit documents prepared by or for officers or directors used to evaluate or analyze the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into product or geographic markets. The instructions state that the filing party must provide, for each document, the date of preparation and the name and title of each individual who prepared the document unless this information is clearly contained in the document.

In practice, filers typically create a document log containing this information for all responsive 4(c) documents. Although not required, an all-inclusive document log makes it easier for the PNO to process the filing. But when creating a document log, check to ensure that it contains sufficient detail for each document. For instance, listing “management” or referencing a corporate division of your client as the author of a document is not specific enough to satisfy what is called for in Item 4(c).

Here are some tips for creating a compliant 4(c) document log:

• If a third party prepared the document, provide the date of preparation and the name of the third party. 
• If a specific date is not available, indicate the month and year the document was prepared.
• If a large group of people prepared a document, at a minimum, list the principal authors along with their titles, and if possible include all authors and their titles.  Alternatively, it is acceptable to indicate that a document was prepared under the supervision of the lead author and name that author.

Item 4(d)

Item 4(d) of the Form requires filers to submit certain documents prepared by or for officers or directors that relate to the acquisition, including confidential information memoranda, documents prepared by third party advisors, and documents evaluating or analyzing synergies. For the majority of transactions, 4(d) documents are prepared by third parties; in such cases, provide the date of preparation and the name of the third party on the 4(d) document log. But if the filing person created the 4(d) document, the filing person must provide the same information in its 4(d) document log as it would for the submission of a document responsive to Item 4(c): that is, the date of preparation and the name and title of each individual who prepared the document.

A prior post contained guidance on submitting documents with the HSR Form, including those that are responsive to Items 4(c) and 4(d). Here are some additional tips:

• If submitting a document responsive to both 4(c) and 4(d), list it only once under 4(c) or 4(d).
• Do not use combined entries such as “4c-1/4d-1.”
• Do not list the sub-parts of 4(d); identifying documents as 4d-1, 4d-2, etc., is sufficient.

The Item 4(c) and 4(d) tipsheets provide additional guidance on these items.

Privilege Logs

When documents are redacted or withheld in response to Items 4(c) or 4(d), the filing person must submit a statement of reasons for non-compliance pursuant to 16 CFR 803.3(d).  This typically takes the form of a privilege log. Rule 803.3(d) requires certain information for each document (or portion of a document) withheld: the claim of privilege, the identity of each document, its author, addressee, date, subject matter, all recipients of the original and of any copies, its present location, and who has control of it. 

A privilege log that does not contain all of the information specified in 803.3(d) will result in a call from the PNO and a potential bounce.    

Here are some additional tips for completing the privilege log:

• The title of the author(s), addressee(s), and recipient(s) should be listed in the privilege log. If a document was circulated to a group, such as the Board or an Investment Committee, the name of the group is sufficient, but you should be prepared to disclose the names of the individual members if requested.
• If claiming privilege, provide as much information as possible to assert the privilege claim for each redacted or withheld document.
• If the claim of privilege is based on advice from outside counsel, specify the name of outside counsel and his or her law firm. If several lawyers participated in providing the advice, identifying lead counsel is sufficient.
• In identifying who controls a document, the name of the law firm is sufficient. 
• When creating a privilege log, use a separate numbering system for withheld documents, such as P-1, P-2, etc. Do not assign a number within the 4(c) or 4(d) document logs to a withheld document. 
• Redactions can be included in the privilege log for withheld documents or listed in a separate privilege log solely for redactions of produced documents. Redactions described on any such list must comply with rule 803.3(d) and should identify which 4(c) or 4(d) document was redacted.

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