Important Changes to HSR Rules and Form

August 1, 2011

The Federal Trade Commission and Department of Justice recently announced significant revisions to the Hart-Scott-Rodino (“HSR”) premerger notification rules and related premerger notification and report form.

While the new rules streamline certain aspects of the information required in an HSR filing, several revisions have created increased burdens on certain filers, particularly private equity and other investment funds, by significantly expanding the types and amounts of information that they must include in an HSR filing. The following are some of the more important revisions:

  • An acquiring party will now be required to disclose the names, certain holdings, and geographic markets of “associates” – e.g., entities under common management with, but not controlled by, the acquiring party – if such “associates” or their holdings derive revenues in the same industry as the target company. This revision imposes a significant additional burden on private equity and other investment funds as it requires them to potentially gather detailed information about the holdings of both its “managing entity” and all other funds managed by that entity and their respective portfolio companies and other holdings.
  • A new category of business documents will now need to be included in HSR filings. Referred to as Item 4(d) documents, they include confidential information memoranda produced within the previous year which relate to the sale of the target entity, materials prepared by or for officers or directors within the previous year by third party advisors relating to market share, competition, etc., and materials prepared by or for officers or directors for purposes of analyzing synergies or efficiencies related to the acquisition.
  • In an effort to make the processing of HSR forms more efficient and less burdensome for filers, parties will no longer need to report base year revenue data (e.g., revenues in 2002) to allow for comparison against current year revenues, and certain financial statement information and SEC filings will no longer need to be submitted. Required information regarding corporate structures and investments will also be streamlined.
  • Companies that manufacture products will now be required to provide product and revenue information relating to the sales of those products in the United States even if not manufactured in the United States.

These revisions are expected to take effect on August 18, 2011 after their official publication in the Federal Register. Once effective, all HSR filings will be governed by these new rules and will need to be made using the new form.

If you have any questions concerning the foregoing, please contact your relationship attorney or Nick Katsanos in Seward & Kissel’s Business Transactions Group.