HSR Form Changes Q&A

Question

Can you provide additional detail on the drafts requirement?

Answer

The new Form requires submission of Transaction Related Documents shared with a member of the board of directors (or similar body). As noted in the PNO post, 2025 HSR Form Updates: What Filers Need to Know, documents that board members merely had access to, such as through a collaborative drafting tool or platform, do not need to be submitted, but the filing must include a statement of noncompliance stating board members had access to draft versions that were not produced.

Additionally, only drafts provided to board members are potentially responsive. If an individual holds both a board (or similar) position as well as other roles within the organization, only those drafts that were shared with the individual in their role as a board member need to be produced.

Here are some specific scenarios:

• A draft report is presented to a supervisory deal team lead who is not a member of the board of directors (or similar body). That draft report does not need to be produced as long as the final or the latest available version of the report is produced.
• A board member has access to a collaborative drafting tool or platform that contains Transaction Related Documents. That board member should produce final versions of responsive documents as well as any drafts that board member downloaded, edited, or printed out. The associated filing must include a statement of non- compliance.
• A deal team member who is on the board of directors of an indirect subsidiary is collaborating with other deal team members on a draft presentation. The director/deal team member is forwarded or cc’d on an email containing edits or proposed input to the document, and those edits or input contains responsive content. If the document wasn’t sent to the director/deal team member in their role as a board member, the draft document attached to the email and the email itself would not be responsive, so long as they were not received by another member of the board of directors (or similar body).

Question

A CEO, who is on the board of directors of the acquiring person, regularly reviews drafts of ordinary course business plans and reports prepared for the board on a periodic basis (quarterly, semi- annually, annually). Such draft documents contain discussions of market shares, competition, competitors, or markets of products provided by both the acquiring person and the acquired entity in the context of the proposed transaction and fall within the one-year time limitation. Are these draft documents responsive?

Answer

First, only draft documents shared with the individual in their role as a member of the board of directors would be potentially responsive. Documents that currently meet the requirements of Item 4(c) or Item 4(d) should be considered Transaction Related Documents, and responsive drafts sent to individuals in their role as a member of the board of directors (or similar body) should be produced. Drafts of documents that are not Transaction Related Documents do not need be produced.

Question

If a buyside 801.30 filing is submitted before the new Form goes into effect, can the corresponding sellside 801.30 filer use that same version of the Form even if it files after the effective date of the new Form?

Answer

No. Sellside 801.30 filers should use the Form in effect at the time their filing is submitted. If the new Form goes into effect after the buyside 801.30 filer submits its filing but before the sellside 801.30 filer submits its filing, the sellside 801.30 filer must use the new Form.

Question

We have questions about how pull and refile would work for HSR filings to be submitted on or after this Friday as the refile would occur on or after the effective date of the new rules (i.e., February 10, 2025).

Per current 803.12(c)(1)(iii), the filer would submit new affidavit and certification pages with “Items 4(a), 4(b), 4(c), and 4(d) of the Notification and Report Form…updated to the date of the resubmission”. For re-filings as of February 10, 2025:

• Should parties follow the requirement under the new rules (e.g., drafts and supervisory deal team lead) for additional item 4 documents created on/after February 10, and follow the current requirements for additional item 4 documents created before February 10?
• Could you please confirm the separate category of CEO and Board “Plans and Reports” (which are “Business Documents” but not “Transaction Related Documents” under the new rules) would not fall under the refile requirement?
  • New 803.12(c)(1)(iii) provides: “The resubmitted notification is recertified, and the submission, as it relates to Transaction-Specific Agreements, Transaction-Related Documents, and Subsidies from Foreign Entities of Concern sections of the Notification and Report Form, is updated to the date of the resubmission;”
  • The above language does not require submission of Plans and Reports on refiling.

Answer

With regards to withdraw/refiles and bounces for filings submitted before the February 10, 2025 effective date of the new HSR Form, the following procedures will be in effect:

• When filing parties have been informed that the agencies are conducting further review to determine whether a second request may be appropriate for their transaction or otherwise wish to extend the time for initial agency review of their filing, those filing parties should use the 803.12(c) procedures and Form in effect at the time of their original filing.
• The 803.12(c) procedures may not be used to cure a non-compliant filing. Filing parties should understand that the submission of non-compliant filings could require submission on the new form.
• For refilings when the original filing was made using the new Form, new documents qualifying only as Plans and Reports that were created after the original filing do not need to be submitted but new documents that qualify as both Plans and Reports and as Transaction- Related documents do need to be submitted.

Question

I’m preparing a draft HSR form using the new Acquired Person form. I’m reviewing instructions and don’t see anything about the text block for the first page of the attachments, labeling of final HSR documents (0_HSR Form, 0_Letter, etc.). Will that stay the same as well as the procedures for uploading the final documents? Are we keeping the Affidavit/Certification separate from the filing as we’ve done in the past (0_Affidavit, 0_Certification)?

Answer

Yes, the submission procedures will remain the same. We are going to start asking people to merge the Form/Cert/Affidavit into one document, as many people already do. But keep the 0_ as a label for the combined docs so we can sort the submission with the Form at the top.

A labeling scheme for attachments is forthcoming on the PNO webpage.