Acquisitions Under the Hart-Scott-Rodino Antitrust Improvements Act. Third Edition,Revised

Table of Contents

Volume 1

Chapter 1
An Overview of the Hart-Scott-Rodino Act
1.01 Introduction
1.02 The Basic Goals of the Act
1.03 Executive Summary of the Act
[1] When Does the Act Apply?
[2] Complying with the Act
[3] Summary of Recent Amendments to the Act and Rules
1.04 The Relationship of the Act to Antitrust Merger Enforcement
[1] Historical Background of the Act
[2] The Pro-Enforcement Objectives of the Act
[3] Antitrust Merger Enforcement Trends into the 2000s
[4] The Impact of the Act on Merger Enforcement
1.05 The Future Role of the Act

Chapter 2
The Past as Prologue: The Background to Hart-Scott-Rodino
2.01 Introduction
2.02 Prior Attempts to Enact a Statutory Preacquisition Notification Program
2.03 The Act's Course Through Congress
[1] The Act in the Senate
[2] The Act in the House
[3] The Senate-House Compromise
[4] The 2000 Reform of the Act
2.04 Significant Issues Addressed by the Legislative History of the Act
[1] Special Treatment for Tender Offers
[2] The Meaning of “Substantial Compliance”
[3] The Scope of Second Requests
[4] The Act's Penalty Provision
[5] The Act's Commerce Requirement
[6] The Size of Covered Transactions
[7] The Legislative History of the Act's Exemptions
2.05 The Act's Broad Grant of Rulemaking Authority
2.06 The FTC's Rules

Chapter 3
Hart-Scott-Rodino: A Transactional Approach
3.01 Introduction
3.02 801.30 Transactions (Rules §801.30, 801.31, 801.2(e), 801.1(g), 801.4, 801.1(f))
[1] The Text of the Rules
[2] Derivation
[3] Discussion
3.03 Non-801.30 Transactions (Rule 801.2(e))
[1] The Text of the Rule
[2] Derivation
[3] Discussion
3.04 Joint Ventures (Rules §801.40, 801.50, 802.40, and 802.41)
[1] The Text of the Rules
[2] Derivation
[3] Discussion
3.05 “Hybrid” Transactions
[1] Multi-Step Acquisitions
[2] Part Cash, Part Stock Acquisitions
[3] Partial Acquisitions of a Public Company's Stock

Chapter 4
Setting the Stage for the Act's Application
4.01 The Basic Statutory Prohibition: Some Preliminary Observations
[1] “No Person Shall Acquire . . .”
[2] The Act Applies to “Persons”
[3] The Undefined Term “Acquire”
[4] Acquisitions of “Voting Securities”
[5] Acquisitions of “Assets”
4.02 Key Definitions
[1] Introduction
[2] “Person,” “Entity,” and “Ultimate Parent Entity” (Rule 801.1(a))
[3] “Control” (Rule 801.1(b))
[4] “Hold” (Rule 801.1(c))
[5] “Voting Securities” and “Non-Corporate Interests” (Section 7A(b)(3)(A) and Rules §801.32 and 802.31; 801.1(f)(1)(ii))
4.03 Identifying the “Acquiring Person” and the “Acquired Person”
[1] Introduction
[2] “Acquiring and Acquired Persons” (Rule 801.2)

Chapter 5
The Act's Jurisdictional Requirements: The Commerce Test, The Size-of-Person Test, and The Size-of-Transaction Test
5.01 Introduction
5.02 The Commerce Test (Section 7A(a)(1) and Rules §801.1(l) and 801.3)
[1] The Text of the Statutory Provision and Applicable Rules
[2] Derivation
[3] Discussion
5.03 The Size-of-Person Test
[1] $100 Million/$10 Million (Section 7A(a)(2)(B) and Rule 801.1(j))
[2] Determining the Sales and Assets of a Person (Rules §801.11 and 801.1(i)(2))
5.04 The Size-of-Transaction Test
[1] Introduction
[2] Securities and Cash Not Considered Assets of the Person from Whom Acquired (Rule 801.21)
[3] Valuation of Voting Securities, Non-Corporate Interests, and Assets (Rule 801.10 )
[4] Calculating Percentages of Voting Securities (Rule 801.12 )
[5] Aggregation of Acquisitions (Rules §801.13 , 801.14 , and 801.15 )
[6] Notification Thresholds and Incremental Acquisitions of Voting Securities (Rules §801.1(h), 801.20, 802.21, and 803.7)

Chapter 6
Transactions Exempted from the Act's Coverage
6.01 Introduction
[1] Overview
[2] The Rationales for the Exemptions
[3] Specific Transactions Not Exempted from the Act's Coverage
6.02 Goods or Realty Transferred in the Ordinary Course of Business (Section 7A(c)(1) and Rule 802.1)
[1] The Text of the Statutory Provision and Rule
[2] Derivation
[3] Discussion
6.03 Certain Acquisitions of Real Property Assets and Rule 802.2
[1] The Text of the Rule
[2] Derivation
[3] Discussion
6.04 Acquisitions of Carbon-Based Mineral Reserves and Rule 802.3
[1] The Text of the Rule
[2] Derivation
[3] Discussion
6.05 Acquisitions of Voting Securities of Issuers or Non-Corporate Interests in Unincorporated Entities Holding Certain Assets the Direct Acquisition of Which Is Exempt and Rule 802.4
[1] The Text of the Rule
[2] Derivation
[3] Discussion
6.06 Acquisitions of Investment Rental Property Assets and Rule 802.5
[1] The Text of the Rule
[2] Derivation
[3] Discussion
6.07 Acquisitions of Obligations Which Are Not Voting Securities (Section 7A(c)(2))
[1] The Text of Section 7A(c)(2)
[2] Derivation and Discussion of Section 7A(c)(2)
6.08 Intraperson Transactions (Section 7A(c)(3) and Rule 802.30)
[1] The Text of the Statutory Provision and Rule
[2] Derivation
[3] Discussion
6.09 Governmental Exemptions (Section 7A(c)(4) and Rules §801.1(a)(2) and 802.52)
[1] The Text of the Statutory Provision and Rules
[2] Derivation
[3] Discussion
[4] Some Other Questions
6.10 Transactions Specifically Exempted from the Antitrust Laws by Federal Statutes and Those Which Require Prior Agency Approval (Sections 7A(5), (6), (7), and (8) and Rules §802.6 and 802.8)
[1] The Text of the Statutory Provisions and Rules
[2] Derivation
[3] Discussion
6.11 Acquisitions Solely for the Purpose of Investment (Section 7A(c)(9) and Rule §801.1(i)(1) and 802.9)
[1] The Text of the Statutory Provision and Rules
[2] Derivation
[3] Discussion
6.12 Stock Dividends, Stock Splits, and Reorganizations (Section 7A(c)(10) and Rule 802.10 )
[1] The Text of the Statutory Provision and Rule
[2] Derivation and Discussion
6.13 Certain Transactions by Creditors and Insurers (Section 7A(c)(11) and Rule 802.63)
[1] The Text of the Statutory Provision and Rule
[2] Derivation
[3] Discussion
6.14 Minimum Dollar Value Exemption (Former Rule 802.20)
6.15 Transactions Involving Foreign Persons (Rules §801.1(e), 801.1(k), 802.50, and 802.51)
[1] The Text of the Rules
[2] Derivation
[3] Discussion
6.16 Certain Foreign Banking Transactions (Rule 802.53)
[1] The Text of the Rule
[2] Derivation
[3] Discussion
6.17 Acquisitions by Employee Trusts (Rule 802.35)
[1] The Text of the Rule
[2] Derivation and Discussion
6.18 Acquisitions by Securities Underwriters (Rule 802.60)
[1] The Text of the Rule
[2] Derivation
[3] Discussion
6.19 Acquisitions of Voting Securities by Certain Institutional Investors (Rule 802.64)
[1] The Text of the Rule
[2] Derivation
[3] Discussion
6.20 Acquisitions Subject to Order (Rule 802.70)
[1] The Text of the Rule
[2] Derivation and Discussion
6.21 Acquisitions by Gift, Intestate Succession or Devise, or by Irrevocable Trust (Rule 802.71)
[1] The Text of the Rule
[2] Derivation and Discussion
6.22 Acquisitions of Non-Corporate Interests in Financing Transactions (Rule 802.65)
[1] The Text of the Rule
[2] Derivation and Discussion
6.23 Transitional Rule for Transactions Investigated by the Agencies
[1] The Text of the Rule
[2] Derivation and Discussion

Chapter 7
Notification and Waiting Period Procedures
7.01 Introduction
7.02 The Statutory Framework (Sections 7A(b)(1), 7A(e)(1)(A), 7A(e)(2), 7A(g)(2), and 7A(k))
[1] The Text of the Statutory Provisions
[2] Derivation
[3] Discussion
7.03 Starting the Clock: Filing Requirements (Rule §803.10 (a), 803.10 (c), 801.30(b))
[1] The Text of the Rules
[2] Derivation
[3] Discussion
7.04 Initial Waiting Period (Rule 803.10 (b)(1))
[1] The Text of the Rule
[2] Derivation
[3] Discussion
[4] Informal Procedure for Extending Initial Waiting Period
7.05 Waiting Period After Request for Additional Information (Rules §803.20, 803.21, 803.8(b), 803.10 (b)(2), 803.10 (b)(3), and Section 7A(e)(1)(B))
[1] The Text of the Rules and the Statutory Provision
[2] Derivation
[3] Discussion
7.06 Midcourse Changes in a Transaction: The Impact on the Waiting Period (Rule 802.23)
[1] The Text of the Rule
[2] Derivation
[3] Discussion
7.07 Statement of Reasons for Noncompliance (Rule 803.3)
[1] The Text of the Rule
[2] Derivation
[3] Discussion
7.08 Early Termination of the Waiting Period (Section 7A(b)(2) and Rule 803.11 )
[1] The Text of the Statutory Provision and the Rule
[2] Derivation
[3] Discussion

Chapter 8
Understanding and Preparing the Notification and Report Form
8.01 Introduction
8.02 The History and Evolution of the Form
[1] The Legislative Basis and History
[2] A Comparison with the Previous Premerger Notification Special Report Form
[3] The Evolution of the Form
8.03 Some General Observations
[1] Confidentiality
[2] Preparation and Strategy
[3] Updating a Preacquisition Filing
8.04 The Form and the Rules: Preparing to File
[1] The Form: Rule 8.03 .1
[2] Instructions: Rule 803.2
[3] The Form and the Foreign Person: Rule 803.4
[4] Certification: Rule 803.6
[5] Filing Fee: Rule 803.9
8.05 The HSR Form and Instructions: An Item-by-Item Analysis
[1] Introduction
[2] General Instructions
[3] The Basic Concept of the Form and Summary of Recent Changes to the Form Items
[4] Detailed Discussion of Items 1 through 8
[5] Item 1: General Data
[6] Item 2: Ultimate Parent Entities; Value of Securities, Interests, or Assets
[7] Item 3(a): Description of Acquisition
[8] Item 3(b)(i): Description of Assets to Be Acquired
[9] Item 3(b)(ii): Description of Assets Held by Acquiring Person
[10] Item 3(b)(iii): Description of Assets Held by Unincorporated Entities
[11] Item 3(c): Description of Voting Securities to Be Acquired
[12] Item 3(d): Contract, Agreement-in-Principle, or Letter of Intent
[13] Former Item 3: Holdings of Acquiring Person
[14] Item 4: Documents Prepared by Person Filing Notification
[15] Items 4(a) and 4(b): SEC Filings and Other Reports
[16] Item 4(c): Studies, Surveys, Analyses, and Reports on the Acquisition
[17] Item 6: Information Relating to the Reporting Person
[18] An Introduction to Items 5, 7, and 8
[19] Item 5(a): Dollar Revenues by Industry
[20] Item 5(b): Dollar Revenues by Manufactured Product and Product Class
[21] Item 5(c): Dollar Revenues by Non-Manufacturing Industry
[22] Item 5(d): Information Pertaining to the Formation of a Joint Venture Corporation or Unincorporated Entity
[23] Item 7: Geographic Markets
[24] Former Item 8: Customer-Supplier Relationships
[25] Item 8 (Former Item 9): Certain Prior Acquisitions of an Acquiring Person
[26] Former Item 10: The “Contact” Person
[27] The Insurance Appendix
[28] Remedial Filings

Chapter 9
Compliance With and Enforcement of the Act and Rules
9.01 Introduction to Compliance and Enforcement
[1] Summary of the 2001 Amendments
[2] The Amended Statute Concerning Compliance and Enforcement
[3] Derivation of Recent Statutory Amendments
[4] Discussion of Recent Statutory Amendments
9.02 The Amended HSR Rules Concerning Compliance and Enforcement
[1] Rule 801.90: Transactions or Devices for Avoidance
[2] Rule 803.10 : Running of Time
[3] Rule 803.20: Requests for Additional Information or Documentary Material
9.03 Preparing for Prompt Compliance With the Act and Rules
[1] The Appointment of a “Compliance Director”
[2] Creation and Identification of Documents Responsive to Item 4(c)
[3] Maintaining an Updated Preacquisition Filing
[4] Preparing to Respond to the Government's Request for Additional Information
[5] Authorization to Determine “Fair Market Value”
[6] Keeping Current with Interpretations of the Act and Rules
9.04 How the Act and Rules Affect the Parties' and Government's Antitrust Review of Proposed Acquisitions
[1] Dealing With the Government Prior to Making a Preacquisition Filing
[2] Dealing With the Government Subsequent to Making a Preacquisition Filing
[3] The Liaison Agreement: The Turnstile to the Government's Expanded Investigation
[4] Going Beyond the Form: The Expanded Investigation
[5] Accelerating the Preacquisition Waiting Period
[6] The FTC's Expanded Investigation
[7] The Antitrust Division's Expanded Investigation
[8] The Second Request Process: Modifications and Appeals
9.05 The Government's Enforcement of the Act and Rules
[1] An Extension of the Waiting Period Pursuant to Section 7A(g)(2) of the Act
[2] Rule 801.90: The “Catch-All” Rule
[3] Compliance Enforcement
9.06 Fix-It-First or Later?
9.07 The Act's Impact on the Government's Substantive Antitrust Challenges
[1] Section 7A(i): Subsequent Enforcement and Investigation
[2] Section 7A(f): Preliminary Injunction Motions
9.08 Judicial Review of Agency Action or Inaction Under the Act
[1] Preclusion of Judicial Review
[2] Action Committed to Agency Discretion
[3] Ripeness
[4] The Standard of Review
[5] Hueblein, Inc. v. Federal Trade Commission

Authors

Joseph P. NisaJoseph P. Nisa is a counsel (retired)at Skadden, Arps, Slate, Meagher & Flom, LLP. Mr. Nisa was in Skadden's HSR practice from 1987 to 2014, and provided extensive advice and prepared Premerger Notifications for thousands of transactions. He contributed to the Second and Third Editions of the ABA Antitrust Section's publication Premerger Notification Practice Manual.
Blaine V. FoggBlaine V. Fogg is Of Counsel to Skadden, Arps, Slate, Meagher & Flom LLP and is located in the New York office. Mr. Fogg has worked on mergers and acquisitions, both negotiated and contested, and other complex corporate transactions for many years. He has also authored numerous articles and spoken at many forums on mergers, acquisitions and restructurings.
Bruce J. PragerBruce J. Prager is a partner (retired) at Latham ; Watkins LLP. A practitioner in Antitrust Mergers ; Acquisitions, Mr. Prager is also an author and lecturer on antitrust topics. Mr. Prager served as Chairman of the Executive Committee of the Antitrust Section of the New York State Bar Association, continues as a member of the Executive Committee, and is a representative to the House of Delegates of the New York State Bar Association. He is currently appointed to the Antitrust Committee of the New York City Bar Association. Mr. Prager lectures on antitrust in Mergers & Acquisitions for the American Law Institute-American Bar Association (ALI/ABA).
Neal R. StollNeal R. Stoll is a partner in the New York office of Skadden, Arps, Slate, Meagher Flom LLP. Mr. Stoll has vast federal trial and appellate experience. Mr. Stoll has lectured for the Practising Law Institute and the New York State and City Bar Associations and has written extensively on antitrust and trade regulation matters. Mr. Stoll has been a monthly columnist for the New York Law Journal for more than thirty years.
Stephen M. AxinnStephen M. Axinn is a partner in the New York office of Axinn, Veltrop; Harkrider LLP. Mr. Axinn has taught at both NYU and Columbia Law Schools and has served as Chair of the Antitrust Section of the New York State Bar Association and Member of Council of the ABA Antitrust Section. He was also an advisor to the United States Sentencing Commission and was the monthly antitrust columnist for the New York Law Journal for ten years.