Hart-Scott-Rodino HSR Filing Preparation Workflow

You are tasked with preparing a comprehensive Hart-Scott-Rodino Act premerger notification filing for submission to the Federal Trade Commission and the Department of Justice. This filing must comply with all requirements of 15 U.S.C. § 18a and the implementing regulations at 16 C.F.R. Parts 801-803. Your preparation should be thorough, accurate, and organized to facilitate efficient agency review while protecting the client's interests.

Initial Document Review and Information Gathering

Begin by conducting a comprehensive review of all transaction documents and corporate records available in the matter files. Search through uploaded materials to identify and extract key transaction details including the definitive purchase agreement, merger agreement, or other primary transaction documents along with all exhibits, schedules, amendments, and ancillary agreements. Pay particular attention to provisions describing the transaction structure, purchase price and consideration, closing conditions, representations and warranties, and any competitive or market-related discussions. Extract specific information about the parties including full legal names, addresses, jurisdictions of organization, corporate structures, and ultimate parent entities.

Identify all documents that constitute competitive analyses, market studies, or strategic assessments prepared by or for officers and directors. These Item 4(c) and 4(d) documents are critical HSR filing requirements and often include board presentations, investment committee memoranda, confidential information memoranda, market research reports, competitive landscape analyses, synergy studies, and strategic rationale documents. Search for any materials discussing market shares, competitive positioning, potential sales growth, market expansion opportunities, or competitive dynamics. Flag these documents for inclusion as required attachments and note their relevance to the substantive antitrust review.

Review financial statements, SEC filings, and revenue records to gather information necessary for the NAICS code revenue breakdown. Extract revenue figures by business segment, product line, or service category that will need to be mapped to six-digit NAICS codes. Identify any prior acquisitions made by the acquiring person, particularly those in related industries or markets, as these must be disclosed if they occurred within the past ten years in overlapping NAICS codes.

Transaction Structure and Valuation Analysis

Prepare a detailed narrative description of how this transaction is structured and will be effectuated. Explain whether the acquisition proceeds through a merger, stock purchase, asset purchase, or other mechanism, and describe the specific legal steps that will transfer control from the acquired person to the acquiring person. If the transaction involves multiple stages, interim entities, or post-closing reorganizations, map out the complete sequence with clarity about timing and interdependencies. Address any complexities such as triangular mergers, reverse subsidiaries, or multi-party arrangements that may affect the HSR analysis.

Calculate the total transaction value in accordance with HSR valuation rules under 16 C.F.R. § 801.10, ensuring compliance with the current size-of-transaction threshold as adjusted annually for inflation. Break down the valuation components including cash consideration, fair market value of any stock or other non-cash consideration, assumed liabilities that must be included under the valuation rules, and the treatment of any earnout provisions or contingent payments. If the transaction involves acquiring voting securities, determine whether the acquisition will result in crossing the 25%, 50%, or other applicable percentage thresholds that trigger separate HSR filings. Document your valuation methodology with sufficient detail to withstand agency scrutiny and potential requests for additional information.

Verify that the transaction meets both the size-of-transaction test and the size-of-person test, referencing the current threshold amounts. If the transaction qualifies for any exemptions under 16 C.F.R. Part 802, analyze whether those exemptions apply and document the basis for any exemption claims. Be particularly careful with exemptions for acquisitions of assets in the ordinary course of business, acquisitions of real property, and acquisitions of voting securities solely for investment purposes, as these are frequently misapplied.

Parties Identification and Corporate Structure

Provide complete identifying information for both the acquiring person and the acquired person as those terms are defined under the HSR Act and regulations. For the acquiring person, identify the ultimate parent entity that controls the acquiring entity, explaining the chain of control through any intermediate parent companies. Describe the corporate structure with sufficient detail that the reviewing agencies understand which entities within the corporate family will hold the acquired assets or voting securities and which entities' revenues and prior acquisitions must be reported.

For the acquired person, identify what specifically is being acquired—whether it is the entire entity, specific voting securities that will result in control, or particular assets. If only a subsidiary or division is being acquired, clearly delineate the scope of the acquisition and explain the relationship between the acquired entity or assets and the broader corporate family of the seller. Describe the acquired person's ultimate parent entity and explain any complexities in ownership or control that may affect the determination of which entity is the "acquired person" for HSR purposes.

Document the principal business activities of both parties with specificity about the products manufactured, services provided, and markets served. This business description should provide context for the subsequent NAICS code analysis and competitive overlap assessment. Include information about geographic scope of operations, customer bases, distribution channels, and any vertical relationships in the supply chain that may be relevant to the competitive analysis.

NAICS Code Revenue Analysis and Competitive Overlaps

Prepare a comprehensive breakdown of revenues by six-digit NAICS code for both the acquiring person and the acquired person for their most recent fiscal year. For each NAICS code in which either party derived revenues of one million dollars or more, state the specific revenue amount and describe the products or services that generated those revenues. Research the appropriate NAICS code classifications using the official NAICS manual and industry guidance, being careful to classify revenues at the most specific six-digit level that accurately reflects the nature of the business activity.

Where products or services could reasonably fall into multiple NAICS classifications, document your methodology for allocating revenues and explain the basis for your classification decisions. Address any complexities such as bundled products, integrated services, or vertically related activities where revenue attribution may not be straightforward. Consider whether the parties' internal financial reporting aligns with NAICS classifications or whether revenues must be reattributed for HSR purposes.

Identify all horizontal overlaps where both parties derived revenues of one million dollars or more in the same six-digit NAICS code. For each overlap, conduct a detailed competitive analysis describing the specific products or services that compete or potentially compete, the degree of substitutability from a customer perspective, and the competitive dynamics in the relevant market. Estimate market shares for both parties using the best available data sources, which may include industry reports, trade association statistics, SEC filings, or the parties' internal market intelligence. Identify the principal competitors in each overlapping market and their approximate market shares to provide context for assessing the competitive significance of the transaction.

Analyze whether any horizontal overlaps raise potential competitive concerns under the agencies' Horizontal Merger Guidelines, considering factors such as market concentration, barriers to entry, the likelihood of coordinated interaction, the potential for unilateral effects, and any efficiency justifications. If the combined market share in any relevant market exceeds thresholds that typically trigger closer scrutiny (such as a post-merger HHI above 2500 with a delta exceeding 200), prepare a preliminary assessment of potential competitive issues and consider whether the parties have procompetitive justifications or mitigating factors.

Geographic Market Definition and Vertical Relationships

For each relevant NAICS code, describe the geographic scope of operations for both parties. Identify where each party manufactures, distributes, or sells products or provides services, specifying countries, regions, states, or metropolitan areas as appropriate to the nature of the business. Analyze whether markets are local, regional, national, or international in scope based on factors such as transportation costs, customer preferences, regulatory requirements, and the geographic reach of competitors.

For areas of actual or potential geographic overlap, explain the competitive dynamics including market concentration, the presence and strength of other competitors, barriers to entry such as regulatory requirements or capital intensity, and any regional variations in competitive conditions. If the parties compete in some geographic areas but not others, clearly delineate where overlaps exist and where they do not. This geographic analysis is essential for the reviewing agencies to assess whether the transaction may substantially lessen competition in any relevant geographic market.

Identify and analyze any vertical relationships between the parties where one party operates at a different level of the supply chain from the other. Describe any supplier-customer relationships, including whether the acquiring person purchases inputs from the acquired person or vice versa. Analyze whether the transaction could result in vertical foreclosure concerns by giving the combined entity the ability and incentive to disadvantage rivals by restricting access to important inputs or distribution channels. Consider whether the transaction could facilitate coordination among competitors by increasing transparency into rivals' costs or business strategies.

Prior Acquisitions and Roll-Up Analysis

Identify all acquisitions made by the acquiring person within the past ten years in any NAICS code where a horizontal overlap exists with the current transaction. Search through corporate records, SEC filings, and press releases to compile a complete list of prior acquisitions. For each prior acquisition, document the date of acquisition, the name of the acquired entity or assets, the transaction value if publicly disclosed, and a description of the products or services acquired.

Analyze how these prior acquisitions have affected market structure and the acquiring person's competitive position in the relevant markets. Assess whether the current transaction is part of a roll-up strategy or pattern of acquisitions that may cumulatively raise competitive concerns even if individual transactions appear modest in isolation. The reviewing agencies pay particular attention to serial acquisitions in the same industry, as they may indicate a strategy to consolidate markets and reduce competition over time. If the acquiring person has made multiple acquisitions in overlapping markets, prepare an analysis explaining the business rationale and addressing why the cumulative effect does not substantially lessen competition.

Item 4(c) and 4(d) Document Collection and Review

Conduct an exhaustive search for all documents that must be submitted as Item 4(c) and 4(d) materials. Item 4(c) requires submission of all studies, surveys, analyses, and reports prepared by or for any officer or director for the purpose of evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth, or expansion into product or geographic markets. Item 4(d) requires similar documents prepared by or for any officer or director to evaluate or analyze the acquisition with respect to the same competitive factors.

Search broadly through board materials, management presentations, investment committee memoranda, strategic planning documents, market research reports, consultant studies, and internal analyses. Include documents prepared by financial advisors, consultants, investment banks, and other third parties if they were provided to officers or directors. The scope of Item 4(c) and 4(d) is intentionally broad to ensure the agencies receive all materials that informed the parties' decision-making about competitive aspects of the transaction.

Review each identified document to determine whether it falls within the Item 4(c) or 4(d) requirements. Documents that merely discuss financial aspects, operational integration, or other non-competitive topics generally need not be submitted, but documents that touch on competitive factors even tangentially should be included to avoid disputes about compliance. Organize the documents logically with a descriptive index that allows the reviewing agencies to understand the nature and purpose of each submission.

Be aware that Item 4(c) and 4(d) documents often drive the agencies' substantive investigation, as they reveal the parties' own assessments of competitive dynamics and market power. Documents that discuss market leadership, competitive advantages, pricing power, or the elimination of competition are particularly significant. Ensure that the filing includes all responsive documents to avoid potential civil penalties for non-compliance and to facilitate a complete and efficient agency review.

SEC Filings and Financial Documentation

Compile all documents filed by either party with the Securities and Exchange Commission during the most recent fiscal year. This includes annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statements, registration statements, and any other SEC filings. If either party is not a public company and therefore does not file with the SEC, include audited financial statements, annual reports to shareholders or members, and any other financial reports prepared in the ordinary course of business.

Include any confidential information memoranda, offering memoranda, management presentations, or similar documents prepared for potential buyers or investors in connection with this transaction. These materials often contain detailed business descriptions, financial projections, market analyses, and competitive assessments that are relevant to the HSR filing and the agencies' substantive review.

Organize all financial and SEC filing materials in a logical manner with clear labeling and indexing. Ensure that the most recent and complete versions of all required documents are included. If any required documents are not available or do not exist, document the reasons for their absence to demonstrate good faith compliance efforts.

Certification and Execution Procedures

Prepare the formal certification statement that must accompany the HSR filing. This certification attests that the Notification and Report Form, together with all appendices, attachments, and exhibits, was prepared and assembled under the supervision of the certifying individual in accordance with the instructions issued by the Federal Trade Commission and Department of Justice. The certifying person must attest that the information contained in the filing is, to the best of their knowledge and belief, true, correct, and complete, and that all required documents have been submitted.

Identify the appropriate authorized official to execute the certification on behalf of the filing person. This must be an officer or director of the filing person with supervisory responsibility for the preparation of the HSR filing, or an authorized representative with personal knowledge of the filing's contents. Verify that the signatory has the requisite authority under the filing person's organizational documents and has reviewed the filing sufficiently to make the required attestations.

Understand that the certification carries significant legal weight and that the certifying individual may be subject to penalties for false statements under 18 U.S.C. § 1001. Ensure that all information in the filing has been verified for accuracy and that all required documents have been identified and included. The date of execution establishes the official filing date for purposes of commencing the statutory waiting period, which is typically 30 days but may be shortened by early termination or extended by a Second Request.

Filing Assembly and Quality Control

Assemble the complete HSR filing in accordance with the current filing instructions and format requirements. Organize the filing into clear sections corresponding to the Notification and Report Form, with all required attachments properly labeled and indexed. Ensure that all narrative responses are complete, accurate, and responsive to the specific questions asked. Verify that all numerical data, including revenue figures, transaction values, and market shares, are consistent throughout the filing and supported by underlying documentation.

Conduct a comprehensive quality control review to identify any errors, omissions, or inconsistencies before submission. Cross-reference the filing against the HSR Act, implementing regulations, and current filing instructions to ensure full compliance. Verify that all required attachments are included and that Item 4(c) and 4(d) document production is complete. Confirm that the filing fee has been calculated correctly based on the transaction value and that payment arrangements are in place.

Prepare the filing for electronic submission through the FTC's HSR electronic filing system, ensuring compliance with all technical requirements for file formats, naming conventions, and submission procedures. Retain complete copies of the filing and all supporting documentation for the client's records and for reference during the agency review process. Coordinate the timing of submission with the other filing party if this is a dual filing transaction to ensure that both parties file on the same day and the waiting period commences simultaneously.

Post-Filing Considerations and Agency Interaction

After submission, monitor the filing for any deficiency notices or requests for additional information from the FTC or DOJ. Be prepared to respond promptly to any questions about the filing or requests for clarification. Understand that the agencies have 30 days from the date of filing to conduct their initial review, during which they may request voluntary submission of additional information or may issue a Second Request for more extensive document production and interrogatory responses.

Track the waiting period carefully and advise the client about when the statutory waiting period will expire, when the transaction may legally close, and whether early termination of the waiting period might be available. Early termination is granted at the agencies' discretion when they determine that no further review is necessary, and it can significantly accelerate transaction timing.

Maintain communication with the client about the status of the agency review and any developments that may affect the transaction timeline or structure. If the agencies identify competitive concerns during their review, be prepared to discuss potential remedies such as divestitures, behavioral commitments, or transaction restructuring that might address those concerns and allow the transaction to proceed. Throughout the process, protect the client's confidential business information while providing the agencies with the information they need to conduct an efficient and thorough review.