The new Hart-Scott-Rodino (HSR) Premerger Notification and Report Form (the “Form”) went into effect on February 10, 2025.
The new Form institutes several changes to the HSR process, including slightly expanding the category of individuals required to provide responsive documents (traditionally referenced as 4(c) documents), as well as broadening the requirement for when a draft presentation must be included in the 4(c) documents.
As to the latter, the new requirement is that a draft presentation, shared with a single member of an organization’s board of directors, must be included in the filing, even if a final version of the presentation is also included. However, whether the draft needs to be included depends on whether the recipient received the presentation in their capacity as a board member or in some other capacity, such as the CEO of an organization. In addition, the Federal Trade Commission’s (FTC’s) guidance provides that when board members have access to a collaborative drafting tool or document, the various drafts need not be provided, but a statement of noncompliance must accompany the filing.
Those attorneys who may have been looking forward to hearing live guidance from the FTC on the new HSR process may be disappointed, as the new chair issued a directive prohibiting FTC political appointees from speaking at or attending any American Bar Association (ABA) conference or event and barring the use of FTC funds for any ABA membership, participation, or event attendance. Presumably, the dictate will also scuttle the traditional agency update with the FTC Bureau Directors at the ABA Antitrust Law Spring Meeting.
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