Question
April 7, 2004
Michael B. Verve, Esq.
Staff Attorney
Premerger Notification Office
Federal Trade Commission
Washington, D.C. 20580
Re: Applicability of 4(c) to Certificate of Need MaterialsProposed A ' Acquisition of Hospital Assets in Jacksonville, Florida Our File (redacted):
Dear Mr. Verne:
This confirms our teleconferencewith (redacted) on Tuesday, April 6, 2004, regarding the production ofcertificate of need materials s as c) documents. As a general matter, youagreed that documents otherwise subject to 4(c) were not exempt from productionif filed in the certificate of need proceeding, and that documents containingmarket data that were prepared strictly in connection with the certificate ofneed process would not constitute 4(c) documents. We discussed four examples:
1. Abusiness plan containing a third party valuation of the assets to be acquiredand the anticipated competitive impact of the transaction would be a 4(c)document regardless of whether that business plan was submitted as an exhibitin the certificate of need proceeding.
2. Adocument prepared in connection with the certificate of need proceeding thatcontained market data extracted from the business plan in Example 1 would notbe a 4(c) document.
3. Adocument prepared strictly for use or anticipated use in the certificate ofneed proceeding would not be a 4(c) document even if it included market datanot otherwise disclosed in the party's 4(c) documents.
4.Regardless of the contents of the document, the certificate of need applicationitself, hearing transcripts, briefs and similar documents are not 4(c)documents; however, any exhibit thereto that would constitute a 4(c) documentnotwithstanding the certificate of need proceeding would continue to be a 4(c)document.
We truly appreciate your assistance in this matter. Please contactme via e-mail if I have misinterpreted the scope of our conversation or theconclusions reached.