Wait for it—a Waiting Period Letter confirms your HSR filing

Once you’ve submitted a Hart-Scott-Rodino filing to the FTC’s Premerger Notification Office, make sure you receive official confirmation that your filing has been received. We’ve compiled important tips on communications regarding the status of filings and the applicable waiting period.

As most antitrust practitioners know, the HSR Act requires the parties to a reportable transaction to notify the FTC and our sister agency, the Department of Justice Antitrust Division, about the proposed transaction, then observe a waiting period so the agencies can assess the transaction’s competitive effects. The PNO communicates with filing parties about the start and the expiration of the waiting period by sending what is known as a Waiting Period Letter, which serves as the official confirmation that the agencies have received the filing and the waiting period has started.

While the PNO strives to review filings as promptly as possible, it may take several days to send out Waiting Period Letters, especially given the current high volume of filings. This is due to the time needed to download and prepare electronic filings for review, as well as the time necessary for substantive review.

PNO staff will only send Waiting Period Letters if both the FTC and the DOJ have received complete filings from all persons required to submit a notification. If your Waiting Period Letter appears to be delayed, it might be the result of a filing deficiency that requires a correction by one or more of the filing parties, or possibly due to problems with paying the filing fee. Before reaching out to the PNO, be sure to check with counsel for the other party to ascertain whether the PNO has contacted them about the transaction.

However, if you have not received a Waiting Period Letter from the PNO within five business days of filing, reach out to the PNO by sending an email to premerger@ftc.gov. But keep in mind: the PNO follows strict confidentiality rules in its communications about the status of any HSR review, including the start and expiration of the waiting period. As a result, the PNO cannot reveal any details about the status of one party’s filing to the other party.

Here are some additional tips to keep in mind regarding Waiting Period Letters:

• Until you receive a Waiting Period Letter confirming the dates, you should not assume that the waiting period is running or will expire on a certain day. Most of the time, the waiting period will start on the day the agencies receive the filing. Occasionally, if filing deficiencies are not cured promptly or for other reasons (as noted above), PNO staff must delay the start of the waiting period.
• You should not assume that the waiting period is running because the PNO has provided you the transaction number. If there are issues with your filing, PNO staff will give you the transaction number to ensure that corrections and updates are processed appropriately. The assignment of a transaction number, which creates a record of the filing, does not mean that the waiting period has started and is not a substitute for the Waiting Period Letter.
• In 801.30 transactions (such as tender offers or acquisitions from third parties), only the buyer will receive a Waiting Period Letter. 801.30 transactions are by definition non-consensual, and the buyer’s waiting period is confidential under the HSR Rules. After the PNO receives the seller’s 801.30 filing, the PNO will send an acknowledgement letter providing only the transaction number.
• If you need a confirmation that the PNO has received and downloaded your submission before you receive your Waiting Period Letter, use the tracking function of the Accellion FTP platform. You will need to go into your Sent folder in the Accellion FTP application, open the submission, and click on the “Track” button. There is no need to contact the PNO to confirm receipt of the filing.

As always, if you have questions, contact the PNO.