[Federal Register Volume 89, Number 218 (Tuesday, November 12, 2024)]
[Rules and Regulations]
[Pages 89216-89414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25024]
[[Page 89215]]
Vol. 89
Tuesday,
No. 218
November 12, 2024
Part III
Federal Trade Commission
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16 CFR Parts 801 and 803
Premerger Notification; Reporting and Waiting Period Requirements;
Final Rule
Federal Register / Vol. 89, No. 218 / Tuesday, November 12, 2024 /
Rules and Regulations
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FEDERAL TRADE COMMISSION
16 CFR Parts 801 and 803
RIN 3084-AB46
Premerger Notification; Reporting and Waiting Period Requirements
AGENCY: Federal Trade Commission.
ACTION: Final rule.
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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission''), with
the concurrence of the Assistant Attorney General, Antitrust Division,
Department of Justice (``Assistant Attorney General'' or ``Antitrust
Division'') (together the ``Agencies''), is issuing this final rule and
Statement of Basis and Purpose (``SBP'') to amend the Premerger
Notification Rules (the ``Rules'') that implement the Hart-Scott-Rodino
Antitrust Improvement Act (``the HSR Act'' or ``HSR''), including the
Premerger Notification and Report Form for Certain Mergers and
Acquisitions (``Form'') and Instructions to the Notification and Report
Form for Certain Mergers and Acquisitions (``Instructions''). The final
rule requires parties to transactions that are reportable under the HSR
Act to provide documentary material and information that are necessary
and appropriate for the Agencies to efficiently and effectively conduct
an initial assessment to determine whether the transaction may violate
the antitrust laws and whether to issue a Request for Additional
Information (``Second Request'') as provided by the HSR Act. In
addition, the final rule implements certain requirements of the Merger
Filing Fee Modernization Act of 2022 (``Merger Modernization Act'') and
ministerial changes to the Rules as well as the necessary amendments to
the Instructions to effect the final changes.
DATES: This rule is effective on February 10, 2025.
FOR FURTHER INFORMATION CONTACT: Robert Jones, Assistant Director,
Premerger Notification Office, Bureau of Competition, Federal Trade
Commission, 400 7th Street SW, Washington, DC 20024, or by telephone at
(202) 326-3100.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
The Commission is amending and reorganizing the documentary
material and information requirements for premerger notification
required by the HSR Act, 15 U.S.C. 18a, (``notification'' or ``HSR
Filing'' or ``Filing'') to improve the efficiency and effectiveness of
premerger review and to implement changes mandated by the Merger
Modernization Act, 15 U.S.C. 18b. The Act and the Rules require parties
to certain mergers and acquisitions to submit a notification to the
Agencies and to wait a short period of time before consummating the
reported transaction. The reporting and waiting period requirements of
the HSR Act are intended to enable the Agencies to determine whether a
proposed merger or acquisition may violate the antitrust laws,
including section 7 of the Clayton Act, 15 U.S.C. 18, if consummated
and, when appropriate, to take appropriate law enforcement action prior
to consummation to prevent a violation of the antitrust laws.
To advance the Clayton Act's goal of preventing undue consolidation
or stopping it in its incipiency,\1\ Congress passed the HSR Act to
require mandatory premerger notification of some acquisitions. In
particular, it charged the Agencies with reviewing the details of those
proposed transactions in advance of consummation. The Agencies rely on
information submitted in an HSR Filing to conduct a premerger antitrust
risk assessment and to identify those transactions that require
additional investigation to determine if they may harm competition, and
thus violate the antitrust laws if consummated. The HSR Act requires
that the parties not consummate their planned transaction while the
Agencies conduct this assessment until the expiration of the statutory
waiting period, which for most transactions is 30 days (15 days in the
case of a cash tender offer or certain bankruptcy sales). During that
short period of time, referred to as the initial waiting period, the
Agencies review the information submitted in the parties' HSR Filings
to identify those transactions that require a closer look, including
through the collection of additional information from the acquiring and
acquired persons or from third parties. If either agency determines
during the initial waiting period to conduct an in-depth investigation
of the transaction, section 7A(e) of the Clayton Act, 15 U.S.C. 18a(e),
authorizes the Agencies to request additional information or documents
from each party, which is referred to as a Second Request.\2\ Issuing
Second Requests extends the waiting period under the HSR Act for
another 30 days (ten days in the case of a cash tender offer or certain
bankruptcy sales) after the parties have substantially complied with
the Second Requests. During this second waiting period, if the
reviewing agency believes that a proposed transaction may violate the
antitrust laws, it may seek an injunction in Federal district court to
prohibit consummation of the transaction.
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\1\ See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294,
318 n.32 (1962).
\2\ The FTC and DOJ share responsibility to enforce the
antitrust laws and have established a protocol to clear the
investigation of a transaction to one agency to avoid confusion and
conserve public resources. The agency that receives clearance
conducts the investigation and determines whether to issue Second
Requests.
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The Commission has administered the HSR Act's premerger
notification program for over forty-five years, issuing an initial set
of HSR Rules that took effect on September 5, 1978.\3\ Since then, it
has regularly updated these rules, with the concurrence of the
Assistant Attorney General, pursuant to its mandate under 15 U.S.C.
18a(d), to require a premerger notification for each reportable
acquisition that contains documentary material and information
necessary and appropriate to enable the Agencies to determine whether
the transaction is one that may violate the antitrust laws and proceed
to an in-depth investigation through the issuance of Second Requests.
In this rulemaking, the Commission is responding to several factors
that make today's economic reality more challenging for conducting a
premerger assessment with the limited information required by the
current rules. Simply put, the economy of 2024 is different than it was
in 1978 or 2000 and, in the Agencies' experience, the HSR Form has not
kept pace with the realities of how businesses compete today. There is
a higher degree of interconnectivity of businesses along the supply
chain as well as with other companies that provide ancillary services.
The focus of competitive interaction is not as obvious when companies
that supply goods or services also generate revenues from other
sources, such as data sales, and when even businesses in traditional
sectors such as manufacturing generate significant revenues from the
sale of associated services. The changing nature of competition makes
it more difficult for the Agencies to identify existing business
relationships that might be affected by the acquisition, including
through non-price effects such as innovation competition, and that are
not
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apparent from simply focusing on sales in output markets. In addition,
changes in mergers and acquisition (``M&A'') activity, corporate
structures, and investment strategies have rendered the current Form's
focus on traditional corporate structures outdated, and often the
Agencies are unable to determine which entities or individuals will be
making competitive decisions post-merger.
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\3\ The Commission commenced notice-and-comment rulemaking soon
after the passage of the HSR Act and made extensive revisions to its
proposed rules before issuing a final rule nearly two years later.
See 41 FR 55488 (Dec. 20, 1976), 42 FR 39040 (Aug. 1, 1977), 43 FR
33450 (July 31, 1978), 43 FR 34443 (Aug. 4, 1978), 43 FR 36053 (Aug.
15, 1978). See Fed. Trade Comm'n & U.S. Dep't of Justice, Second
Hart-Scott-Rodino Annual Report (FY 1978).
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These profound changes that have occurred over time have created or
exposed significant gaps in the information generated for premerger
review under the current HSR Rules. These gaps curtail the Agencies'
ability to efficiently and effectively detect transactions that may
violate the antitrust laws. To fill in these gaps and to directly
respond to the passage of the Merger Modernization Act, the Commission
relied on its experience and expertise to identify specific information
that is necessary and appropriate to conduct effective premerger
screening.
To initiate this rulemaking, the Agencies conducted a comprehensive
review of the premerger notification process, relied on their
experience collecting and reviewing data and documents during antitrust
investigations, and considered the cumulative effects of changes in
deal structure, investment strategies, and the competitive dynamics of
the modern economy explained in more detail below. From this review,
the Commission identified several information deficiencies in the
current HSR Filing that prevent the Agencies from efficiently and
effectively conducting a premerger assessment of reportable
transactions to identify which ones may violate the antitrust laws. The
Agencies compared documentary material and information they have
received over the years during in-depth merger investigations with the
information collected in HSR Filings and assessed whether having
certain types of documentary material and information at the beginning
of an investigation would have changed the Agencies' decision whether
and how to investigate reportable transactions. These specific
categories of information and documents, which are readily available to
the merging parties, are not required by the current Rules, but would
be highly probative to the initial antitrust screening of a transaction
during the initial waiting period and thus are necessary and
appropriate for that review. The information identified and required by
this final rule will enable the Agencies to detect transactions that
may violate the law in light of modern commercial realities and in
furtherance of the statutory mandate to arrest trends toward
concentration in their incipiency. The final rule also will allow the
Agencies to identify potentially unlawful transactions more quickly and
with greater accuracy, narrowing the scope of their investigations in
some cases, and in others, reducing the need to conduct a more
burdensome in-depth investigation by issuing Second Requests.
In June 2023, the Commission proposed amendments to address the
information deficiencies under the existing HSR Rules in a Notice of
Proposed Rulemaking (``NPRM'').\4\ The Commission received
approximately 721 comments.\5\ The majority of commenters were
individuals who expressed general support for the rulemaking or for
more vigorous antitrust enforcement more broadly. Others opposed
certain aspects of the proposed rule and some questioned the
Commission's authority to make any adjustments. After careful
consideration of the comments and as discussed in more detail below,
the Commission has substantially narrowed the information requirements
proposed in the NPRM. In the final rule, the Commission is not adopting
several proposed requirements outright, including those related to:
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\4\ On June 29, 2023, the Commission published a Notice of
Proposed Rulemaking, Premerger Notification; Reporting and Waiting
Period Requirements, 88 FR 42178 (June 29, 2023) (hereinafter NPRM).
On August 10, 2023, the Commission extended the comment period to
receive public comments through September 27, 2023. 88 FR 54256. The
comments on the NPRM (Doc. No. FTC-2023-0040) are available at
https://www.regulations.gov/docket/FTC-2023-0040/comments.
\5\ The Commission does not rely on any particular individual
comment submission for its findings, but rather provides here (and
throughout this final rule) examples of comments that were
illustrative of themes that spanned many comments. The Commission's
findings are based on consideration of the totality of the evidence,
including its review of the empirical literature, its review of the
full comment record, and its expertise and experience in identifying
mergers that violate the antitrust laws.
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a timeline of key dates for closing the proposed
transaction;
creating organization charts for the purpose of filing a
notification;
information about other interest holders;
drafts of submitted documents;
information about employees;
information about board observers;
geolocation information;
prior acquisitions involving entities with less than $10
million in sales or revenues, or consummated more than 5 years prior to
filing; and
information about steps taken to preserve documents or use
of messaging systems.
For other proposals, the Commission has substantially modified its
proposals to minimize where possible the costs to filers and third
parties, yet still provide the Agencies with information that is
necessary and appropriate for effective and efficient premerger review.
Overall, these modifications significantly reduce the effort required
to comply with the final rule as compared to the proposed rule and
include:
Creating a new category of ``select 801.30 transactions''
for which the cost of complying with the information requirements has
been limited because of the low risk that the transaction may violate
the antitrust laws;
Eliminating several document requirements to reduce costs;
Limiting some requirements to materials that already
exist;
Excusing the seller \6\ from certain information requests
if it would be duplicative of information received from the buyer;
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\6\ References to ``seller'' throughout refer to the acquired
person, as defined in 16 CFR 801.2, regardless of whether or not the
acquired person is actually a party to the transaction.
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Limiting some requirements to cover only recent
information;
Providing definitions or clarifications to reduce
uncertainty and improve filer compliance;
Creating de minimis exceptions to reduce the costs of
generating information that has little economic impact; and
Making the provision of certain information contingent on
the identification of a significant business relationship between the
filing persons that is critical to assessing whether the transaction
may violate the antitrust laws.
As modified, the final rule introduces necessary and appropriate
updates to HSR information requirements to allow the Agencies to
understand the reported transaction and conduct an initial antitrust
assessment within the statutory timeframe and does so in a manner that
aligns the associated costs with the likelihood that the transaction is
one that presents antitrust risk. With more complete information that
is targeted to disclose existing business relationships between the
parties, the Agencies can determine whether and how to deploy their
resources to further investigate potentially anticompetitive
acquisitions prior to consummation. The final rule will also provide
transparency for those contemplating a reportable transaction by
describing the information the
[[Page 89218]]
Agencies rely on to conduct their initial assessment of whether a
transaction may violate the antitrust laws. The amendments will also
reduce the current burden on third parties (such as customers and
competitors of the merging parties) on whom the Agencies often rely to
fill in many of the information gaps during the initial review period
because of inadequacies in the current Rules.
With this rulemaking the Commission has closely tailored the burden
of complying with the HSR Act to align as much as practicable with the
risks of a law violation presented by the particular transaction. This
alignment is consistent with the statutory purpose of premerger review,
which is for the Agencies to determine which reported transactions may
violate the antitrust laws during the brief period provided by the Act
for an initial antitrust assessment. As a result, the final rule
achieves the benefits associated with mandatory premerger review with
an overall burden that is reasonable and consistent with the
legislative purpose of the HSR Act.
II. Background
A. Premerger Review and the Implications for Merger Enforcement
Section 7 of the Clayton Act is, by its terms, forward-looking and
predictive, focused on acquisitions whose effect ``may be substantially
to lessen competition, or to tend to create a monopoly.'' \7\ To better
effectuate the Clayton Act's goal of preventing undue consolidation or
stopping it in its incipiency, Congress passed the HSR Act to require
mandatory premerger notification of some acquisitions, and charged the
Agencies with reviewing the details of those proposed transactions in
advance of consummation to determine whether they may violate the
antitrust laws. In doing so, Congress fundamentally changed the way the
Agencies enforce the nation's antitrust laws to prevent harmful
consolidation.\8\
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\7\ 15 U.S.C. 18. See Brown Shoe v. United States, 370 U.S. 294,
317-18 (1962) (Congress provided authority for arresting mergers at
a time when the trend to a lessening of competition in a line of
commerce was still in its incipiency and assure courts had the power
to brake the process of concentration at its outset and before it
gathered momentum).
\8\ See Peter W. Rodino, Jr., Statement on the 25th Anniversary
of Hart-Scott-Rodino (2001), https://www.ftc.gov/enforcement/premerger-notification-program/hsr-resources/pno-news-archive/statement-peter-w-rodino (``Hart-Scott-Rodino was intended to give
the anti-trust agencies two things: critical information about a
proposed merger and time to analyze that information and prepare a
case, if necessary. From what I hear, the legislation absolutely has
transformed merger enforcement. Competition, as well as the
consumer, has benefitted.'').
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Congress specifically charged that the Commission engage in
rulemaking to require information in the HSR Filing that is necessary
and appropriate to detect acquisitions that may violate the antitrust
laws. Section 18a(d)(1) of the HSR Act states that the Commission, by
rule and in accordance with the Administrative Procedures Act, shall
require that the notification contain such documentary material and
information to determine whether the acquisition may, if consummated,
violate the antitrust laws.\9\ Relying on this explicit rulemaking
authority, the Commission has adjusted those requirements over time to
carry out the purposes of the Act.
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\9\ 15 U.S.C. 18a(d)(1).
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In passing the HSR Act, Congress imposed mandatory premerger review
only for certain large transactions, in part to ``improve and modernize
antitrust investigation and enforcement mechanisms,'' \10\ ``ease
burdens on the courts by forestalling interminable post-consummation
divestiture trials . . . [, and] advance the legitimate interests of
the business community in planning and predictability.'' \11\ The
robust legislative history of the HSR Act makes plain that premerger
review should focus on the likelihood that a reported transaction may
violate the antitrust laws and that the Commission shall collect
information to make that determination prior to consummation.\12\
Consistent with Congressional mandate, the Agencies rely on
notifications under the HSR Act to target their enforcement efforts to
their best use in preventing undue consolidation by seeking to prohibit
the consummation of acquisitions that violate the antitrust laws.
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\10\ S. Rep. No. 94-803, at 1 (1976).
\11\ H.R. Rep. No. 94-1373, at 11 (1976). The HSR Act applies to
acquisitions that met the statutory thresholds whether they are
properly styled ``mergers'' and even if they do not result in a
change of control. The terms ``mergers,'' ``acquisitions,'' and
``transactions'' are used interchangeably to refer to transactions
for which an HSR filing is required.
\12\ 15 U.S.C. 18a(d)(1).
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To focus the Agencies' screening and potential enforcement efforts
on the mergers that are most likely to harm competition and consumers,
Congress required notice in advance for the largest mergers and tasked
the Agencies with conducting an assessment of the risk that the
proposed acquisition may violate the antitrust laws. To perform this
task, the Agencies must review thousands of filings each year and
identify which ones should be targeted for an intensive investigation
of their potential to violate the antitrust laws. This is a fact-
intensive endeavor that requires a deep understanding of precedent and
economic analysis. The Agencies employ lawyers, economists,
technologists, accountants, and support staff to conduct premerger
analyses of reported transactions in order to perform this critical
task on behalf of the American public.
Nonetheless, transactions reported under the HSR Act are a small
fraction of the total number of mergers and acquisitions that occur
each year in the United States. Relying on commercial data on M&A
activity and data from the Agencies' annual HSR reports, Table 1 shows
that during the five-year period of FY 2018 to 2022, HSR filings
represented a small percentage of overall deal activity in the United
States, on average 16.5 percent a year.\13\
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\13\ Using different commercially available data, the U.S.
Government Accountability Office recently estimated that HSR filings
during this same time frame averaged 15 percent of overall M&A
activity. See U.S. Gov't Accountability Office, Defense Industrial
Base: DOD Needs Better Insight into Risks from Mergers and
Acquisitions 8 Fig. 1 (Oct. 2023) (GAO-24-106129), https://www.gao.gov/assets/d24106129.pdf (using Bloomberg data).
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[GRAPHIC] [TIFF OMITTED] TR12NO24.032
While the Agencies investigate and ultimately seek to block only a
small subset of reportable mergers each year, the challenges of
administering mandatory premerger review have expanded and accelerated
over time due to the changes in the nature of M&A activity discussed in
detail below.
[GRAPHIC] [TIFF OMITTED] TR12NO24.033
As depicted in Figure 1, there was a recent spike in HSR-reportable
transactions: in FY 2021, the Agencies reviewed HSR Filings for 3,520
transactions, over twice the number of the prior year's filings. In FY
2022, the Agencies reviewed 3,152 transactions. Although the pace of
HSR Filings has recently moderated somewhat, the recent period of
intense merger activity highlighted significant inefficiencies and
deficiencies in current notification requirements that must be
addressed so that the Agencies can direct their scarce resources to
prevent those acquisitions most likely to cause widespread harm.\14\
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\14\ Contrary to suggestions from some commenters, it is not
practical for the Agencies to identify specific illegal transactions
that they ``missed'' during their premerger review, nor is the
Commission required to establish that as a predicate for invoking
its statutory rulemaking authority under the HSR Act. See Pharm.
Rsch. & Mfrs. Am. v. FTC, 790 F.3d 198, 199, 206 (D.C. Cir. 2015)
(hereinafter PhRMA). Doing so would require a redirection of
resources to investigate consummated mergers and away from resources
devoted to premerger review. Instead, it is imperative that the
Agencies ensure that they have the right information to address
deficiencies that have emerged to undermine premerger review as an
effective tool for detecting which transactions may violate the
nation's antitrust laws.
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The Commission is mindful of recent economic research that
underscores the importance of adequate detection for effective merger
enforcement. For instance, researchers posit that some firms appear to
be employing strategies to avoid antitrust scrutiny of their
anticompetitive deals, deliberately negotiating and structuring their
deals to avoid premerger review (so-called
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stealth acquisitions),\15\ or identifying acquisition targets at a
nascent stage to buy them before they are valuable enough to require
premerger review, sometimes solely for the purpose of preempting future
competition (so-called ``killer acquisitions'').\16\ One researcher
concludes that merger enforcement falls by about 90 percent when
transactions are not subject to premerger review.\17\ Because most
mergers are not subjected to premerger review, these strategies have
contributed to a rise in aggregate concentration by stimulating mergers
between competitors, with attendant negative effects on markups,
private investment, and the share of output going toward profits.\18\
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\15\ John Kepler et al., ``Stealth Acquisitions and Product
Market Competition,'' 78 J. Fin. 2837 (2023); John M. Barrios &
Thomas G. Wollmann, ``A New Era of Midnight Mergers: Antitrust Risk
and Investor Disclosures'' (Nat'l Bureau of Econ. Rsch., Working
Paper No. 29655, Jan. 2022), https://www.nber.org/papers/w29655; see
also Colleen Cunningham et al., ``Killer acquisitions,'' 129 J.
Political Econ. 649, 653 (2021) (killer acquisitions of overlapping
targets bunch just below HSR threshold while there is no such
pattern for non-overlapping acquisitions).
\16\ Cunningham et al., supra note 15, at 653.
\17\ See Comment of Thomas Wollmann, Doc. No. FTC-2023-0040-0680
at 1 n.2 (citing to Thomas G. Wollmann, ``Stealth Consolidation:
Evidence from an Amendment to the Hart-Scott-Rodino Act,'' 1 a.m.
Econ. Rev.: Insights 77-94 (2019) and Thomas G. Wollman, ``How to
Get Away with Merger: Stealth Consolidation and Its Real Effects on
US Healthcare'' (Nat'l Bureau of Econ. Rsch., Working Paper No.
27274, 2021)).
\18\ Thomas G. Wollmann, ``Stealth Consolidation: Evidence from
an Amendment to the Hart-Scott-Rodino Act,'' 1 a.m. Econ. Rev.:
Insights 77-78 (2019) (hereinafter ``Stealth Consolidation'').
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These studies support Congress' determination that premerger review
is essential to effective enforcement of the antitrust laws and that
without effective premerger review, there is inadequate detection of
mergers that violate the law and cause harm.\19\ While the Agencies can
and do challenge acquisitions that are not reported under the HSR Act
as well as consummated reported mergers that have caused harm,
unwinding an illegal merger post-consummation still requires a
significant investment of time and resources, and results in
significant harm to market participants until unwound.\20\ Even after
the Agency succeeds in establishing a law violation, it may be
difficult or impossible to restore the premerger state of competition,
especially if the parties have commingled, sold, or closed assets,
shared confidential information, or terminated key employees.\21\
Moreover, the decision to pursue these time-consuming investigations
involves opportunity costs, pitting the costs and benefits of
challenging a consummated merger against devoting those enforcement
resources to investigations into other potential antitrust violations,
including investigations that may arise from HSR Filings.
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\19\ See id. at 77 (post-2000, enforcement against newly exempt
transactions dropped to nearly zero while mergers between
competitors rose sharply, reflecting an endogenous response to
reduced premerger scrutiny).
\20\ In a recent example, the Commission ordered the unwinding
of an illegal merger three years and two months after consummation.
In December 2020, the Commission approved Otto Bock's divestiture of
the assets of Freedom Innovations to another company to resurrect
competition in the market for microprocessor prosthetic knees. In re
Otto Bock HealthCare N. Am., Inc., No. 9378 (F.T.C. Dec. 1, 2020).
The Commission's effort to unwind Polypore's illegal acquisition of
rival battery separator manufacturer Microporous required five
years, during which an Eleventh Circuit decision upheld the
Commission's divestiture order. See Press Release, Fed. Trade
Comm'n, ``FTC Approves Polypore International's Application to Sell
Microporous to Seven Mile Capital Partners; Sale Will Unwind Illegal
2008 Acquisition'' (Dec. 18, 2013), https://www.ftc.gov/news-events/news/press-releases/2013/12/ftc-approves-polypore-internationals-application-sell-microporous-seven-mile-capital-partners-sale. See
also Debbie Feinstein, ``Un-consummated merger,'' Fed. Trade Comm'n
Competition Matters blog (Dec. 18, 2013), https://www.ftc.gov/enforcement/competition-matters/2013/12/un-consummated-merger.
\21\ Fed. Trade Comm'n, The FTC's Merger Remedies 2006-2012, 18-
19 (2017) (report of the Bureaus of Competition and Economics) (less
than one-quarter of consummated merger remedies successfully
restored competition), https://www.ftc.gov/system/files/documents/reports/ftcs-merger-remedies-2006-2012-report-bureaus-competition-economics/p143100_ftc_merger_remedies_2006-2012.pdf.
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To fulfill the Agencies' mandate to conduct quick yet effective
premerger review of reported transactions, the Commission must make the
best use of the tools Congress gave the Agencies to detect and prevent
harmful acquisitions, including by requiring that the notification
contain the documents and information that are necessary and
appropriate for screening reportable mergers prior to consummation.
Because premerger review is critically important to effective merger
enforcement, the information contained in an HSR Filing must be fit for
the purpose of determining whether a reported transaction may violate
the antitrust laws in light of current market realities. Having the
information necessary to make that assessment allows the Agencies to
decide when and how to expend public resources to investigate and
potentially challenge mergers. The final rule will enable the Agencies
to engage in efficient and effective detection of illegal mergers that
are subject to the HSR Act and thus is a reasonable exercise of the
Commission's rulemaking authority under the HSR Act.
B. The Need for the Final Rule
The purpose of this rulemaking is to modernize the premerger review
process in light of changing market dynamics, making adjustments that
are necessary and appropriate to allow the Agencies to detect and
prevent illegal mergers prior to consummation. The final rule also
makes the process more efficient for filers, third parties, and the
Agencies, shifting some of the burden of information collection and
reporting to the merging parties (and away from third parties) and
requiring the information needed for a preliminary antitrust assessment
to be contained in the HSR Filing so that the Agencies have the full
statutory review period to assess and confirm the information. Overall,
the final rule addresses significant information gaps and asymmetries
that have grown over time and undermined the Agencies' ability to
conduct premerger review. In addition, this rulemaking implements
requirements Congress imposed by passing the Merger Modernization Act,
which broadened the scope of information the Agencies must collect as
part of premerger review, including by requiring the collection of
information about subsidies from foreign entities and governments of
concern.
Due to changing commercial realities referenced above, the existing
requirements for an HSR Filing leave significant gaps in the
information available to the Agencies for conducting this assessment.
Many of these gaps can be filled by information that the filing parties
already have and often use in their own assessment of the transaction.
Certain deficiencies in the existing reporting requirements prevent the
Agencies from spotting problem areas that would justify a more in-depth
investigation or, alternatively, from readily obtaining the facts
needed to conclude that the transaction does not merit in-depth review
prior to consummation. The rulemaking addresses these problems as well.
Based on the Agencies' extensive experience reviewing HSR Filings,
transactions that present certain attributes are more likely to violate
the antitrust laws and deserve further investigation. For instance, a
merger of two firms that compete (or will soon compete) to provide
goods or services to
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the same set of customers, or a merger involving a manufacturer and its
main distributor that also distributes the products of competing
manufacturers, may warrant closer scrutiny. On the other hand, if the
Agencies can determine from review of an HSR Filing that a transaction
does not present such attributes, the Agencies can more quickly and
confidently determine that the transaction does not require a more in-
depth review and may proceed to consummation.\22\ However, the Agencies
cannot make these determinations with confidence in the initial 15- or
30-day waiting period when the HSR Filings lack sufficient information
about relevant premerger competitive relationships between the parties.
By requiring the submission of such information, the final rule enables
effective Agency decision-making during the initial 15- or 30-day
waiting period.\23\ The intention of the final rule is to make it
possible for the Agencies to identify the most concerning transactions
for more in-depth review, including through the issuance of Second
Requests, and also to more quickly and confidently complete the review
of those transactions that do not merit additional investigation and
can proceed to closing at the end of the statutory waiting period.
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\22\ Until 2020, the Agencies routinely granted early
termination of the initial waiting period for certain transactions
that did not warrant further action pursuant to 15 U.S.C. 18a(b)(2).
In March 2020, in order to transition filers to an e-filing system
that permitted the Agencies to continue to process filings during
the COVID-19 pandemic, the Agencies temporarily suspended the
discretionary granting of early termination. In February 2021, the
Agencies once again suspended the granting of early termination in
response to an unprecedented volume of transactions. See Press
Release, Fed. Trade Comm'n, ``FTC, DOJ Temporarily Suspend
Discretionary Practice of Early Termination'' (Feb. 4, 2021),
https://www.ftc.gov/news-events/news/press-releases/2021/02/ftc-doj-temporarily-suspend-discretionary-practice-early-termination.
\23\ The HSR Act provides for a shortened 15-day initial waiting
period for reportable acquisitions by means of a cash tender offer
or acquisitions subject to certain Federal bankruptcy provisions. 15
U.S.C. 18a(b)(1)(B); 11 U.S.C. 363(b)(2), as amended (1994). For
these transactions, the second waiting period is also shorter, 10
days (as compared to 30 days for most transactions) after
appropriate certification of substantial compliance with the Second
Request. 15 U.S.C. 18a(e)(2). For convenience, this rulemaking
refers to the standard 30-day initial waiting period that applies to
most transactions even though the Agencies have even less time to
review information provided in the HSR Filing for cash tender or
certain bankruptcy transactions.
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The consequences of inadequate detection are revealed in a recent
analysis of hospital mergers that were reported to the Agencies for
premerger review co-authored by two economists from the Commission's
Bureau of Economics.\24\ The paper examined a set of consummated
hospital mergers and measured the effect of each merger on prices. The
study concluded that mergers not reportable under the HSR Act did not
result in larger price increases than reportable mergers. In contrast,
the authors found different outcomes among mergers that were subject to
premerger review based on how much review the transaction received. Of
the mergers reported to the Agencies, the largest average percentage
price increase occurred for those mergers that received early
termination of the initial waiting period. This suggests that the HSR
Filings failed to provide sufficient information to trigger additional
investigations that could have blocked these harmful mergers before
they were consummated; instead, the filings resulted in early
termination of the waiting period. While the study was not designed to
test the impact of this rulemaking, the study supports the Commission's
belief that there are information deficiencies with the current HSR
Rules that prevent the Agencies from identifying mergers that may
violate the antitrust laws.\25\
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\24\ Keith Brand et al., ``In the Shadow of Antitrust
Enforcement: Price Effects of Hospital Mergers from 2009-2016,'' 66
J. L. Econ. 639 (2023).
\25\ One commenter suggests that this study proves the opposite
and provides evidence that the current HSR Form provides Agency
staff with sufficient information to identify potentially
anticompetitive mergers. See Comment of U.S. Chamber of Com., Doc.
No. FTC-2023-0040-0684 at 14 n.32. The Commission disagrees with
this assessment of the results. Indeed, in their study, the authors
suggested that their results should encourage further study of the
process of granting early termination to better illuminate why
mergers that receive truncated review had higher price effects than
those that received a preliminary review but not a Second Request.
See Brand et al., supra note 24, at 663-64.
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Hundreds of individuals submitted public comments to describe their
own experiences in the aftermath of mergers and urge the antitrust
agencies to do more to prevent the harmful effects of consolidation,
including collecting more information in the HSR Filing. Examples of
supportive comments from these individuals include the following:
I was an employee at a mobile gaming company. . . . We
went through acquisition after acquisition, to finally end up in a
subsidiary of a big gaming multinational company. . . . There was a
hiring freeze, there were layoffs in another subsidiary we had been
affiliated with and then a month ago they cancelled our project and
laid off all California employees. . . . Before the final acquisition,
our company had 2 profitable games and was developing a third. After
the acquisition there were harsh [Key Performance Indicators] for the
new game and investment was cut back. Had our company been able to
resist the wave of subsequent acquisitions, it is likely we would still
be employed in a profitable and vibrant company that was able to
compete on the marketplace.\26\
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\26\ Anonymous Comment, Doc. No. FTC-2023-0040-0134.
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I am a General Partner at a small Venture Capital firm. I
support this proposal as I believe it will lead to increased
transparency which benefits us all. . . . We are facing an oligopoly/
monopoly crisis in this country/the world and it's important we strive
for real competition. I believe this proposal will provide the
government more information with which it can make sure our industries
thrive.\27\
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\27\ Anonymous Comment, Doc. No. FTC-2023-0040-0203.
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As a retired person, I have noticed prices going up much
more where a small group of suppliers have most of the market share. I
see companies using near-monopoly power to stop employees from having
unions. The only way the antitrust laws can be adequately enforced, is
to insist that anyone proposing a merger provide full accurate
information on what they are doing.\28\
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\28\ Comment of Joan Friedman, Doc. No. FTC-2023-0040-0237.
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I work as a cybersecurity engineer. Leaving aside the
economic concerns of monopolies, I want to bring up the security
concerns of allowing unchecked mergers. Haphazard, rushed mergers
increase the security risk across companies, as the engineering teams
must stitch together the environments for disparate organizations
quickly. . . . I look forward to these reporting requirements and I
hope they cause companies to slow down and think of the knock-on
effects of the mergers beyond the influx of cash and increased market
power.\29\
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\29\ Comment of Cybersecurity Engineer, Doc. No. FTC-2023-0040-
0238.
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As an investor and financial advisor, I approve of the
changes requiring more disclosure about the nature of mergers. The
impacts of industry consolidation are important. . . . A thorough
understanding of the purpose of mergers should help ensure that deals
are not anti-competitive.\30\
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\30\ Comment of Joseph Cook, Doc. No. FTC-2023-0040-0244.
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As a retired CPA and former business professor, I support
these proposed changes to the HSR form. The government needs the
additional information and greater clarity in order to carry out its
responsibility to oversee and evaluate proposed mergers and
acquisitions with a view to protecting
[[Page 89222]]
the common good and promoting competition within and across
industries.\31\
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\31\ Comment of Sue Ravenscroft, Doc. No. FTC-2023-0040-0259.
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Capitalism can only work with a robust system of
competition, and we are lo[]sing that at an ever-increasing rate. I am
in an agricultural business. There is virtually no competition for the
dollars I spend, and an equal lack of competition for what I produce.
This is stunningly true when looked at over the 40 years I have been in
business.\32\
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\32\ Comment of Jeffrey Bender, Doc. No. FTC-2023-0040-0267.
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Businesses certainly have a right to pursue mergers and
acquisitions as a means of improving their market positions, but the
public also has a right to know the ``five W's'' driving these
decisions: Who is funding the HSR Action; What are the specifics of the
proposed action; When are the HSR Actions taking place; Where are the
affected communities/localities; and Why are the stakeholders pursuing
the HSR Action (or, what is their business goal)? Another key piece of
information that the public has a right to know, is WHO will be
affected by the proposed merger or acquisition? The issues at stake
here are National Security, fair market competition, supply chain
disruptions, and negative impacts on labor markets. . . . I hope the
FTC sticks to their plan and implements these common-sense and much
needed reporting requirements.\33\
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\33\ Comment of Thomas Newman, Doc. No. FTC-2023-0040-0325.
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I am a 25-year veteran in an industry (publishing) that
has seen both jobs and innovation suffer due to unchecked consolidation
by large players. It is very possible some of this consolidation might
have been prevented, or at least steered in a direction that encouraged
innovation and growth, if regulators had this kind of information
available beforehand.\34\
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\34\ Anonymous Comment, Doc. No. FTC-2023-0040-0332.
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I am a private, sole-practitioner entrepreneur with a
vested interest in a diversified economic ecology that supports and
sustains vibrant, fair competition. . . . From my perspective, the
requirements for getting approval for large mergers should include
gathering enough information about the companies involved that the FTC
can make a best and rational assessment of the effects of the maneuver
on the industries, labor markets, consumer pricing, industry trends,
trading markets, etc, that they (mergers) will potentially affect.\35\
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\35\ Comment of Marla McFadin, Doc. No. FTC-2023-0040-0377.
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On the other hand, several commenters stated that the Agencies have
not provided any evidence that current information requirements are
insufficient, or identified transactions they did not challenge due to
shortcomings in the current premerger review process. One commenter
suggested that if the Commission intends to expand the information
requirements for the HSR Filing, it should lay a stronger legal and
evidentiary foundation that would justify its need for the additional
information. Another commenter urged the Commission to consider how
best to balance the need to determine whether further investigation is
warranted against the burden to filing parties.
In response to the comments and to explain further the need for
this rulemaking, the Commission discusses below the gaps that exist in
current HSR information requirements relating directly to potential
violations of the antitrust laws, and identifies the new information
requirements in the final rule that will provide a factual basis for
the Agencies to determine whether to conduct a more searching review of
a transaction based on these concerns. The gaps described below are
intended to be illustrative and not exhaustive.
1. Disclosure of Entities and Individuals Within the Acquiring Person
In reviewing a transaction filed under the HSR Act, the Agencies
must quickly understand the scope and nature of the buyer's business
and business relationships to determine whether the acquisition may
harm competition and thus violate the antitrust laws,\36\ which include
section 7 of the Clayton Act. The scope of section 7 is broad: it
prohibits any acquisition whose effect may be substantially to lessen
competition or to tend to create a monopoly, including those that
result in a small ownership stake.\37\ In many acquisitions, the buyer
gains control of the acquired entities or assets and directs the
decision-making at the combined firm post-merger. In addition, if the
buyer has a complex corporate or governance structure, an acquisition
can bring together individuals or investors within the buyer that
control or influence decision-making at a competitively significant
business, such as a competitor of the target \38\ of the filed-for
transaction.\39\ Indeed, holdings of entities within the acquiring
person that do not result in control under the HSR Rules nevertheless
can result in the ability to influence competitively important
decisions of the acquiring entity, and thus affect the analysis of
whether the acquisition of the target may harm competition.\40\
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\36\ 15 U.S.C. 12(a).
\37\ 15 U.S.C. 18. See United States v. E.I. du Pont de Nemours
& Co., 353 U.S. 586, 592 (1957) (any acquisition is within the reach
of section 7 whenever the reasonable likelihood appears that the
acquisition will result in a restraint of commerce or the creation
of a monopoly in any line of commerce).
\38\ To aid the clarity of the Form and Instructions, the
Commission defines ``target'' in the Instructions to include all
entities and assets to be acquired by the acquiring person from the
acquired person in the reported transaction. See section VI.A.1.h.
\39\ See, e.g., In re Red Ventures Holdco, LP, No. C-4627
(F.T.C. Nov. 2, 2017) (complaint) (overlapping limited partnership
holdings violated section 7); In re TC Group, L.L.C., No. C-4183
(F.T.C. Mar. 16, 2006) (complaint) (acquisition involving minority
stake giving two private equity investors seats on the boards of
competitors); In re Dan L. Duncan, No. C-4173 (F.T.C. Aug. 18, 2006)
(complaint) (acquisition combined general partners of competing
energy storage companies under common control). Competition concerns
about partial stakes can arise between horizontal competitors;
United States v. Dairy Farmers of Am., 426 F.3d 850, 860 (6th Cir.
2005), or a supply relationship, du Pont, 353 U.S. at 602-604 (23%
interest in General Motors, a key supplier, and a shared board
member). Section 7 does not apply to buyers making an acquisition
solely for the purpose of investment when the buyer does not intend
to use its position to bring about or attempt to bring about a
substantial lessening of competition. United States v. Tracinda Inv.
Corp., 477 F. Supp. 1093, 1100 (C.D. Cal. 1979).
\40\ See du Pont, 353 U.S. at 607 n.36 (finding the influence of
du Pont's 23% stock interest to be greater, due to diffusion of
remaining shares); Denver & Rio Grande W. R.R. Co. v. United States,
387 U.S. 485, 504 (1967) (identifying section 7 concerns with a 20%
investment). See also Dairy Farmers of Am., Inc., 426 F.3d at 862
(no voting interest but leverage via its position as financier to
control or influence competitor's decisions).
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The HSR Act states that, unless exempt, no person shall acquire,
directly or indirectly, any voting securities or assets of any other
person without first filing a notification with the Agencies and
waiting for the statutory period to expire.\41\ The HSR Rules require
notification of the transaction from the entity that, pursuant to the
Rules, controls the buyer (or seller), which the Commission has defined
as the Ultimate Parent Entity or ``UPE.'' \42\ But to determine
[[Page 89223]]
whether the transaction may violate the antitrust laws, the Agencies
need to understand the nature of the buyer's holdings pre- and post-
merger, as well as the identities of others who have holdings in the
buyer and thus may have influence, including possible veto power, over
the buyer's decision-making, since that ability affects the evaluation
of the competitive effects of the acquisition of the target.
Increasingly, this includes individuals and entities with significant
management rights that give them a ``seat at the table'' when the buyer
is making competitively important decisions.
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\41\ 15 U.S.C. 18a(a). Congress rejected a proposal to limit
covered acquisitions to those made by corporations, using the term
``person'' instead because the anticompetitive nature of a merger is
not dependent upon the legal form of the acquiring entity. 122 Cong.
Rec. 30876 (1976).
\42\ One of the many initial challenges that the Commission
faced in implementing the HSR Act was how to define ``control'' for
the purposes of determining reportability of transactions. The
Commission immediately understood that no set percentage of
ownership dictated whether an individual or entity had functional
control of or significant influence over a company, which is
critical to the analysis of the competitive effects of a
transaction. In 1976, the Commission originally proposed that
``control'' would include not only ownership of 50% or more of the
voting securities of an entity, but also the power to influence
through a minority stake. 41 FR 55488, 55490 (Dec. 20, 1976).
Commenters objected to such a subjective test for control. See 42 FR
39040, 39043 (Aug. 1, 1977). So, the Commission proposed to include
the contractual power to designate a majority of the directors or
trustees of an entity. Id. This proposal was also criticized for
being overly broad and subjective. In the end, in setting up the
premerger notification program, the Commission adopted the simple
50% or more threshold for control to give prospective filers
certainty as to their reporting obligations. But in doing so, the
Commission did not dismiss the significance of understanding who has
actual or working control of the filing parties. 43 FR 33450, 33457-
58 (July 31, 1978). This definition limited the number of
transactions subject to the filing requirements of the HSR Act, but
the Commission did not minimize the importance of examining who may
have significant influence over the acquiring person while assessing
antitrust risk arising from the transaction.
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Today, the mechanisms of influence are not limited to equity
stakes; the ability to influence corporate decision-making arises from
a variety of interests beyond voting rights.\43\ It may arise from
sharing key decision-makers, such as executives or members of their
respective boards of directors, or from a combination of a significant
minority stake and rights to appoint or nominate members of the
board.\44\ The power of key decision-makers of one competitor to place
members on the board of another competitor or veto financial decisions
can result in substantial influence over the buyer, and thus the target
after the transaction is consummated, rendering an acquisition of a
related target potentially illegal under section 7.\45\ A merger might
also violate the law if it gives individuals and entities of one
competitor access to officers, directors, or employees of another
competitor.\46\ Similarly, the existence of subsidies, among other
means, may subject the buyer to additional pressures from individuals
or entities not directly a party to the reportable transaction.\47\
Beyond voting rights, these interest holders can have similar influence
as holders of minority and non-corporate interests.
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\43\ Gabriel V. Rauterberg, ``The Separation of Voting and
Control: The Role of Contract in Corporate Governance,'' 38 Yale J.
Reg. 1124, 1148-54 (2021) (documenting trend of public companies
being subject to stockholder agreements that provide various species
of control rights to favored investors); Jill E. Fisch, ``Stealth
Governance: Shareholder Agreements and Private Ordering,'' 99 Wash.
U. L. Rev. 913, 930-33, 946-53 (2021) (discussing similar trend in
private companies).
\44\ E.g., United States v. U.S. West, Inc., No. 96-002529, 1997
WL 269482 (D.D.C. Feb. 28, 1997) (acquired firm had 20% stake plus
board seats in a competitor of acquiring firm).
\45\ E.g., United States v. Univision Commc'ns., Inc., No. 1:03-
cv-00758, 2003 WL 23192527 (D.D.C. Dec. 22, 2003) (buyer held
substantial equity stake plus ability to influence certain strategic
decisions through issuance of equity or debt or veto of future
acquisitions). See also Dairy Farmers of Am., 426 F.3d at 862 (buyer
had influence due to role as financier, so that acquired firm is
``locked in'' to a relationship with the buyer, which could lead to
anticompetitive effects).
\46\ E.g., In re Time Warner Inc., No. C-3709 (F.T.C. Sept. 12,
1996) (analysis to aid public comment) (walling off two individuals
and one entity to prevent them from influencing officer, directors,
and employees of competitor and its day-to-day operations).
\47\ As discussed elsewhere, Congress has directed the
Commission to require the reporting of subsidies received from
foreign countries or foreign entities of concern due to concerns
that these entanglements can distort the competitive process by
enabling the subsidized firm to submit a bid higher than other firms
in the market, or otherwise change the incentives of the firm in
ways that undermine competition following an acquisition. Merger
Filing Fee Modernization Act of 2022, 15 U.S.C. 18b. Congress also
enacted the Foreign Investment Risk Review Modernization Act of 2018
(FIRRMA) to expand the jurisdiction of the Committee on Foreign
Investment in the United States (CFIUS) over certain non-controlling
investments and real estate transactions involving foreign persons
that may be a threat to national security. Public Law 115-232, 132
Stat. 2173, Title XVII, Subtitle A (2018). For certain foreign
investments in U.S. businesses operating critical technologies or
infrastructure, or that collect sensitive personal data of U.S.
citizens, FIRRMA regulations require notification of non-controlling
investments, direct or indirect, that afford the foreign investor
(1) access to material non-public technical information; (2)
membership or observer rights on the board directors (or similar) or
the right to nominate an individual to that board; or (3) any
involvement, other than through voting of shares, in substantive
decision-making of the U.S. business. 31 CFR 800.211. Such
relationships are deemed a non-controlling interest in a U.S.
business that afford a foreign investor access to information or
involvement in substantive decision-making. See 85 FR 3112 (Jan. 17,
2020).
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a. Trends in Private Investment
Understanding the operations of the buyer has become more
challenging due to vast changes in M&A activity since the promulgation
of the HSR Rules in 1978. One notable recent trend in M&A activity is
that the role of private investors, including private equity, has
become more pronounced.\48\ In the Agencies' experience, these private
investors often utilize complicated structures of ownership and
managerial control. They also frequently take either majority or
minority stakes in many different operating companies (which may have
competitively significant relationships) and can exercise significant
influence over management and strategic decision-making. In particular,
the percentage of equity interest is often not a good indicator of the
extent to which investors can direct the strategic decisions of the
business.\49\ Investors can participate in the management of companies
by serving on the company's board, selecting or monitoring the
management team, having veto rights, acting as sounding boards for
CEOs, or stepping into management roles themselves.\50\
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\48\ Elisabeth de Fontenay, ``The Deregulation of Private
Capital and the Decline of the Public Company,'' 68 Hastings L. J.
445, 447 (2017). Private equity has accounted for an increasing
share of all merger activity over time, although private equity
activity is highly cyclical. See Michael Mauboussin & Dan Callahan,
``Public to Private Equity in the United States: A Long-Term Look,''
Morgan Stanley Inv. Mgmt., Counterpoint Global Insights 1 (Aug. 2,
2020), https://www.morganstanley.com/im/publication/insights/articles/articles_publictoprivateequityintheusalongtermlook_us.pdf.
Recent estimates suggest that private equity firms managed about 20%
of U.S. corporate equity and that private equity deal-making has
accounted for 40% or more of domestic M&A activity. Rog[eacute]
Karma, ``The Secretive Industry Devouring the U.S. Economy,''
Atlantic (Oct. 30, 2023). See also Steven A. Cohen, et al.,
``Private Equity in 2023--A Year (Not) to Remember,'' Harv. L. Sch.
Forum on Corp. Governance (Jan. 13, 2024), https://corpgov.law.harvard.edu/2024/01/13/private-equity-in-2023-a-year-not-to-remember/ (private equity deal volume declined in 2023 and
increasingly focused on smaller deals and minority investments).
\49\ See generally Bob Zider, ``How Venture Capital Works,''
Harv. Bus. Rev. (Nov.-Dec. 1998), https://hbr.org/1998/11/how-venture-capital-works; Thomas Hellman, ``The allocation of control
rights in venture capital contracts,'' 29 RAND J. Econ. 57 (1998).
\50\ See, e.g., Sec. Exch. Comm'n, ``Private Equity Funds,''
Investor.gov (last visited Sept. 10, 2024), https://www.investor.gov/introduction-investing/investing-basics/investment-products/private-investment-funds/private-equity.
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When these private investors take active positions in a wide
variety of companies, such holdings can create direct links between
competitors or other competitively relevant firms, such as critical
suppliers or distributors. Economic research has shown that
transactions that lead to cross-ownership of horizontal competitors or
other firms in a competitively significant business relationship can
create similar incentives and cause similar anticompetitive effects as
a full merger.\51\ But when these relationships are not well known or
easy to identify, the risk that anticompetitive harm from an unlawful
acquisition will go
[[Page 89224]]
undetected is greatly increased.\52\ This includes the risk of
collusive \53\ or coordinated behavior,\54\ or the risk that cross-
ownership of the combined firm will lead to foreclosure of rivals.\55\
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\51\ Timothy Bresnahan & Steven C. Salop, ``Quantifying the
competitive effects of production joint ventures,'' 4 Int'l J.
Indus. Org. 155 (1986).
\52\ Daniel P. O'Brien & Steven C. Salop, ``Competitive Effects
of Partial Ownership: Financial Interest and Corporate Control,'' 67
Antitrust L. J. 559, 570 (1999) (overview of the complex corporate
financial and governance structures of modern corporations,
including different types of shareholding and the relationships to
the boards of directors).
\53\ Robert J. Reynolds & Bruce R. Snapp, ``The competitive
effects of partial equity interests and joint ventures,'' 4 Int'l J.
Indus. Org. 141 (1986); David Flath, ``When is it rational for firms
to acquire silent interests in rivals?,'' 9 Int'l J. Indus. Org. 573
(1991); David Reitman, ``Partial Ownership Arrangements and the
Potential for Collusion,'' 42 J. Indus. Econ. 313 (1994); Sandro
Shelegia & Yossi Spiegel, ``Bertrand competition when firms hold
passive ownership stakes in one another,'' 114 Econ. Letters 136
(2012).
\54\ Rune Stenbacka & Geert Van Moer, ``Cross ownership and
divestment incentives,'' 201 Econ. Letters 109748 (2021).
\55\ Nadav Levy et al., ``Partial Vertical Integration,
Ownership Structure, and Foreclosure,'' 10 a.m. Econ. J.:
Microeconomics 132 (2018).
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The increasing role of private capital is reflected in the shifting
mix of reportable transactions. Using data from the Agencies' Annual
HSR Reports for the past 20 years, Figure 2 shows that the number of
transactions for which the name of the Ultimate Parent Entity of the
acquiring person included ``fund'' or some variation of ``L.P.'' has
increased from approximately ten percent to nearly 40 percent of all
reportable transactions.\56\ The acquiring person for these
transactions can be shell companies that have been created by an
investment group in order to make a particular acquisition, or an
entity that owns a variety of other operating entities (often referred
to as ``portfolio companies''). In either scenario, the entity is part
of the structure of a larger investment company or group.
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\56\ See Fed. Trade Comm'n & U.S. Dep't of Justice, Hart-Scott-
Rodino Annual Report, Fiscal Year 2010 appendix A (FY 2010)
(reporting Adjusted Transactions in which a Second Request could
have been issued from years 2001-2010); Fed. Trade Comm'n & U.S.
Dep't of Justice, Hart-Scott-Rodino Annual Report, Fiscal Year 2013
appendix A (FY 2013) (reporting Adjusted Transactions in which a
Second Request could have been issued from years 2004-2013); Fed.
Trade Comm'n & U.S. Dep't of Justice, Hart-Scott-Rodino Annual
Report, Fiscal Year 2022 appendix A (FY 2022) (reporting Adjusted
Transactions in which a Second Request could have been issued from
years 2013-2022). See also Fed. Trade Comm'n Annual Reports to
Congress Pursuant to the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, https://www.ftc.gov/policy/reports/annual-competition-reports (collecting reports). The Total Number of Adjusted
Transactions omits from the total number of transactions reported
all transactions for which the agencies were not authorized to
request additional information. These include (1) incomplete
transactions (only one party filed a complete notification); (2)
transactions reported pursuant to the exemption provisions of
sections 7A(c)(6) and 7A(c)(8) of the Act; (3) transactions which
were found to be non-reportable; and (4) transactions withdrawn
before the waiting period began. In addition, where a party filed
more than one notification in the same year to acquire voting
securities of the same corporation, e.g., filing for one threshold
and later filing for a higher threshold, only a single consolidated
transaction has been counted because as a practical matter the
agencies do not issue more than one Second Request in such a case.
These statistics also omit from the total number of transactions
reported secondary acquisitions filed pursuant to Sec. 801.4 of the
Premerger Notification rules. Secondary acquisitions have been
deducted in order to be consistent with the statistics presented in
most of the prior annual reports.
[GRAPHIC] [TIFF OMITTED] TR12NO24.034
Since the beginning of the premerger program, the Commission has
required filers to report certain entities that hold minority interests
in the filing parties to alert the Agencies to situations in which the
potential antitrust impact of the reported transaction does not result
solely or directly from the acquisition, but may arise from direct or
indirect shareholder relationships between the parties to the
transaction.\57\ As explained in the NPRM, reporting requirements
regarding the identification of certain minority holders of the filing
persons have been adjusted over time to reflect market realities,
including changes in investment activity and the growing role of these
intermediaries.\58\ Nonetheless, changes in the investment landscape
discussed above have created meaningful gaps in the reporting
requirements for a growing number and type of minority holders that
have the ability to influence competitive decision-making and to harm
competition via acquisitions that violate the antitrust laws.
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\57\ 43 FR 33450, 33531 (July 31, 1978).
\58\ NPRM at 42188.
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b. Corporate Structure Changes
Several commenters supported the need for additional information
that would identify entities holding minority
[[Page 89225]]
positions. One commenter stated that investors have shifted strategies
since the 1980s, when portfolios consisted of unrelated companies and
investors mainly focused on optimizing capital structures and improving
corporate governance.\59\ Another commenter stated that without a full
picture of the entire corporate structure of the merging parties, it
can be difficult or impossible to untangle or understand the potential
anticompetitive impacts of a transaction. Several commenters supported
the need to adjust information requirements to have a broader view that
reflects how firms are organized today. One commenter supported the
collection of more comprehensive information related to the merging
entities, arguing that a more holistic and systems-level approach would
examine the networks of firms involved in a market, which could expose
companies that can operate as bottlenecks or supply key resources to
other market participants. A group of State antitrust enforcers
supported the collection of more information related to corporate
control or the degree of financial interest so the Agencies can quickly
assess how the resulting ownership structure may change the parties'
incentives to compete, enhance the acquirer's ability to influence
decision-making through changes in voting interests or governance
rights, or facilitate the sharing of competitively sensitive
information between rivals.
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\59\ See also Aslihan Asil et al., ``Misaligned Measures of
Control: Private Equity's Antitrust Loophole,'' 18 Va. L. & Bus.
Rev. 51 (2023). Asil et al. argue that the complicated structure of
ownership in the typical private equity acquisition may make some
anticompetitive deals technically non-reportable under the HSR act,
because the investment structure under-represents the proportion of
control actually conferred by the transaction. Id. at 53.
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Another development that has caused the Commission to reassess its
rules is that the particular corporate structure of an entity is now
less indicative of its market behavior, and thus distinctions made on
that basis may no longer be sound. The decision to form as a
corporation, limited liability company, or limited partnership is often
influenced more by risk, liability, and tax considerations than by the
entity's business operations. Now more than ever, distinctions made
based on corporate form have little impact on an assessment of whether
and how firms compete. Moreover, corporate governance literature
highlights the changing nature of decision-making within even standard
organizational structures, such as corporations. Corporate law provides
sufficient flexibility to alter traditional roles, including the rights
of shareholders and the scope of director liability, by contract \60\
or through modification of bylaws or certificates of incorporation.\61\
The rise of shareholder agreements--private contracts by and among
shareholders--has affected who has the ability to direct decisions of
the company, separating voting and control, especially for those given
veto rights via contract.\62\ These forms of `stealth governance' have
implications for how decisions are made within the firm, making it
difficult for investors to know who is exercising control within the
company.\63\
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\60\ See Jill E. Fisch, ``Governance by Contract: The
Implications for Corporate Bylaws,'' 106 Cal. L. Rev. 373, 379
(2018).
\61\ Megan Wischmeier Shaner, ``Interpreting Organizational
`Contracts' and the Private Ordering of Public Company Governance,''
60 Wm. & Mary L. Rev. 985, 988 (2019) (the charter and bylaws of
public corporations are being used as tools for restructuring key
aspects of corporate governance).
\62\ Rauterberg, supra note 43.
\63\ Jill E. Fisch, ``Stealth Governance: Shareholder Agreements
and Private Ordering,'' 99 Wash. U. L. Rev. 913, 947 (2021) (One
investor's capacity to monitor may be limited by an agreement to
support director candidates chosen by another investor, or an
ownership structure that appears to involve shared power may be
undermined by the contractual formation of a control group).
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After careful consideration of these points and others raised by
commenters, the Commission has determined that the requirements of the
current Form and Instructions have not kept pace with market realities
and the accompanying changes in ownership structures. In light of these
shifts in corporate formation and governance, the current requirements
do not provide the Agencies with sufficient information that allow them
to understand how decisions are made at the respective companies, let
alone whether the acquiring person may have competitively relevant
premerger entanglements with the target's industry and minority holders
that may have significant rights to direct the acquiring entity's
actions.
To keep pace with prior changes in corporate form, the Commission
has adjusted the disclosure requirements for minority investors over
time and in light of its experience reviewing thousands of filings each
year, balancing the need to surface competitively relevant
relationships without burdening filers to provide information that
would not change the Agencies' premerger screening decisions. Under the
current rules, it has become increasingly difficult to screen
transactions because deal structures often have minority investors with
significant rights that are not disclosed. See Figures 4 through 8
below, section VI.D.1.d.ii. This includes situations where an investor
group is, for practical purposes, making the acquisition (or otherwise
significantly involved), but the HSR Filing does not alert the Agencies
to their role in the acquisition. These relationships are not currently
disclosed if the minority investment is not in the UPE or acquiring
entity, but rather in an entity (often a shell entity) that sits
between these two in the structure of the acquiring person. Even if the
minority investment is made in the UPE, if the UPE is an LP, only the
name of the general partner is disclosed. For situations where the
current information on the HSR Filing is unrelated to the public-facing
name of the entity that controls the acquiring person, the HSR Filing
does not alert the Agencies to the premerger relationships that exist
solely due to that investor's relationship with and role in the
buyer.\64\
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\64\ For example, a fund that operates as Alpha Capital Partners
could create an entity named 123ABC, LP to effectuate an
acquisition. 123ABC, LP could be its own UPE because Alpha Fund I
and Alpha Fund II each hold 49.9% of the 123ABC, LP, with the
general partner, 123ABC GP, LP, holding 0.2%. Currently, the Form
only requires 123ABC, LP to disclose that 123ABC GP, LP is its
general partner. The issue is compounded if Alpha Capital Partners
is co-investing with Beta Capital Partners and 123ABC, LP is held
49.9% by Alpha and 49.9% by Beta (or if Beta invests in an entity
that is not the UPE or acquiring entity). Disclosure of these
relationships are not currently required.
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To close this information gap, the Commission has determined that
the Agencies need additional information about entities in between the
UPE and the acquiring entity. If any of these entities or individuals
has a minority stake or other rights that give them the ability to
influence decision-making post-merger, then they are functionally ``in
the deal'' and their existing business relationships are relevant to a
thorough premerger antitrust assessment of the transaction. As
explained in more detail in section VI.D.1.d.ii.a., this information
was required of all corporate entities within the acquiring person
prior to a rule change in 2011 that limited the requirement in order to
exclude entities not related to the transaction. However, as
transaction structures have become more complex, application of the
2011 change has eliminated the requirement to provide information about
minority entities that are related to the acquiring entity. The final
rule addresses this gap in information so that the Agencies can
identify existing relationships among individuals and entities that
have interests in (1) the acquiring entity (and any entities it
controls or are controlled by it) and (2) other entities within the UPE
that have competitive relationships
[[Page 89226]]
with the target. These minority holders are competitively relevant
because they may have the ability to influence decision-making and
operations of the target post-merger \65\ but it is difficult for the
Agencies to detect these relationships based on information available
the current Form.
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\65\ See United States v. Dairy Farmers of Am., Inc., 426 F.3d
850, 860 (6th Cir. 2005) (district court erred in focusing on
control which ignored the possibility that there may be a mechanism
that causes anticompetitive behavior other than control, such as
leveraging position as financier).
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As discussed below in section VI.D.1.d. and VI.D.3.c., the final
rule requires additional information for Minority Shareholders or
Interest Holders as well as Officers and Directors from the acquiring
person. Information about other individuals or entities holding a
minority position or rights to serve or appoint members of the
governing board will fill an existing gap that has created a blind spot
for the Agencies that prevents a thorough premerger screening,
especially for transactions involving complex corporate structures and
investment vehicles. This information is most relevant from the entity
that will be making decisions post-consummation, and so the final rule
does not seek this information from the seller, other than the
identification of minority interest holders that will ``roll over''
their investments post-consummation.\66\ This information is necessary
to identify additional areas of competitive concern created by minority
stakeholders or other influential decision-makers (i.e., officers and
directors) that may have a relationship with entities related to the
target of the acquisition.
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\66\ In many transactions, the acquired firm ceases to exist
post-consummation. Even when some entity continues to generate
revenues, possibly in competition with some aspects of the buyer's
business, the Commission has determined to collect additional
information about entities within the UPE only from the acquiring
person at this time.
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However, in light of concerns raised by commenters about the burden
and relevancy of providing this information with respect to limited
partners, the Commission has modified these requirements to focus only
on those limited partners that also have management rights, such as the
right to appoint members to the board. Moreover, the final rule does
not adopt certain proposed requirements to identify board observers, or
creditors, holders of non-voting securities, or entities with
management agreements. The Commission has determined not to require
this information at this time but will continue to monitor market
activity as it implements the final rule.
Similarly, new document requirements contained in the final rule
are aimed at providing a more in-depth understanding of the motivation
and purpose of the transaction, and how the combined company will be
operated post-consummation. In particular, additional transaction-
related documents will provide a more complete picture of the buyer's
reason for pursuing the transaction, and for companies with complex
investment structures, these documents may reveal whether there are
other individuals or entities who will be participating in competitive
decisions post-merger. The final rule also requires a small set of
business plans and reports shared at the highest level of management
that discuss market shares, competition, competitors, or markets of any
product or service that is provided by both the acquiring person and
acquired entity. Together, these documents may reveal whether there are
significant investors in either party that also have investments in
businesses that compete with the target or if there are any other
planned investments in competitively relevant businesses, such as
competitors or suppliers, that would impact the Agencies' assessment of
whether the transaction may violate the antitrust laws.
2. Identifying Potential Labor Market Effects
The Clayton Act's prohibition on acquisitions that may
substantially lessen competition or tend to create a monopoly applies
to acquisitions that have these effects on competition to purchase
inputs that firms use to produce goods and services just as it does to
acquisitions that threaten competition in downstream markets for goods
and services themselves,\67\ and the antitrust laws protect competition
in markets for labor services.\68\ As evidence of decreasing
competition for labor continues to mount,\69\ the Agencies have
increasingly recognized the importance of evaluating the effect of
mergers and acquisitions on labor markets and have stepped up efforts
to identify and investigate potential labor market effects arising from
reportable transactions. The Agencies have challenged a few
transactions that may result in labor market harms,\70\ and consent
agreements have included provisions that stop the use of certain non-
compete clauses that limit the ability of potential market entrants to
hire key employees.\71\
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\67\ See United States v. Bertlesmann SE & Co., 646 F.Supp.3d 1
(D.D.C. 2022) (violation of section 7 where merger likely to
substantially lessen competition in market for publishing rights to
anticipated top-selling books due to harm to targeted sellers--
authors of top-selling books); Boardman v. Pac. Seafood Grp., 822
F.3d 1011, 1022 (9th Cir. 2016) (acquisition may violate section 7
by substantially lessening competition in multiple seafood input
markets). See also Mandeville Island Farms, Inc., v. Am. Crystal
Sugar Co., 334 U.S. 219, 235-36 (1948) (antitrust laws protects not
just consumers, purchasers, competitors or sellers but all victims
of illegal practices); Weyerhaeuser Co. v. Ross-Simmons Hardwood
Lumber Co., 549 U.S. 312, 321-22 (2007); United States v. Syufy
Enterprises, 903 F.2d 659, 663 n.4 (9th Cir. 1990); In re Grifols,
S.A., No. C-4654 (F.T.C. Aug. 1, 2018) (order requiring divestitures
to prevent monopsony in three local markets for the collection of
plasma).
\68\ NCAA v. Alston, 594 U.S. 69, 86-87 (2021) (plaintiff
student-athletes need not show harm in seller-side market as well as
buyer-side labor market); Anderson v. Shipowners Ass'n of the Pac.
Coast, 272 U.S. 359, 365 (1926) (Sherman Act protects competition
for labor).
\69\ See e.g., Anna Stansbury & Lawrence H. Summers, ``The
Declining Worker Power Hypothesis: An Explanation for the Recent
Evolution of the American Economy'' (Nat'l Bureau of Econ. Rsch.,
Working Paper No. 27193, 2020), https://www.nber.org/papers/w27193;
Orley Ashenfelter et al., ``Labor Market Monopsony,'' 28 J. Lab.
Econ. 203 (2010); V. Bhaskar et al., ``Oligopsony and Monopsonistic
Competition in Labor Markets,'' 16 J. Econ. Perspectives 155 (2002);
William M. Boal & Michael R. Ransom, ``Monopsony in the Labor
Market,'' 35 J. Econ. Lit. 86 (1997); Alan B. Krueger, Luncheon
Address at Kansas City Federal Reserve Bank, Reflections on
Dwindling Worker Bargaining Power and Monetary Policy (Aug. 24,
2018), https://www.kansascityfed.org/documents/6984/Lunch_JH2018.pdf; Brianna L. Alderman et al., ``Monopsony, wage
discrimination, and public policy,'' 61 Econ. Inquiry 572 (2022);
David Berger et al., ``Labor Market Power,'' 112 a.m. Econ. Rev.
1147 (2022); Chen Yeh at al., ``Monopsony in the US Labor Market,''
112 a.m. Econ. Rev. 2099 (2022); Jos[eacute] Azar et al., ``Labor
Market Concentration,'' 57 J. Hum. Resources S167 (2022).
\70\ Press Release, Fed. Trade Comm'n, ``FTC Challenges Kroger's
Acquisition of Albertsons'' (Feb. 26, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/02/ftc-challenges-krogers-acquisition-albertsons; United States v. Anthem et al., 1:16-cv-
01493 ] 71 (D.D.C. filed July 21, 2016) (complaint); United States
v. Aetna, et al., 3-99-CV 1398 ] 27 (N.D. Tex. filed June 21, 1999)
(complaint). See also Concurring Statement of Commissioner Slaughter
and Chair Khan Regarding FTC and State of Rhode Island v. Lifespan
Corporation and Care New England 1-2 (Feb. 17, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/public_statement_of_commr_slaughter_chair_khan_re_lifespan-cne_redacted.pdf (recommending including a count in the complaint
that the proposed merger would have violated section 7 of the
Clayton Act in a relevant labor market).
\71\ Press Release, Fed. Trade Comm'n, ``FTC Imposes Strict
Limits on DaVita, Inc.'s Future Mergers Following Proposed
Acquisition of Utah Dialysis Clinics'' (Oct. 25, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/10/ftc-imposes-strict-limits-davita-incs-future-mergers-following-proposed-acquisition-utah-dialysis.
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As stated in the NPRM, current notification requirements under the
HSR Act do not require any specific information about employees. And
yet virtually every firm competes for labor in at least one labor
market and, more commonly, in multiple labor markets, and transactions
that involve two firms
[[Page 89227]]
that purchase labor from the same labor market(s) may substantially
lessen competition between employers for labor services. Merging
parties may compete in the same labor market even when they do not
compete in the same product market.
The Commission received hundreds of comments from individuals, many
of whom are in the entertainment industry, who supported the need for
the Agencies to conduct a robust search for potential labor market
effects before the acquisition is consummated. Several dozen recounted
the effects that prior mergers have had on them. Examples of comments
supportive of reviewing transactions for labor market effects include
the following:
I'm a working TV writer at the beginning of my career. I'm
afraid for the future--the consolidation of the media companies in this
town and their vertical integration has made things so much harder and
less competitive, even in the time that I've been in LA and worked
within the system. Now that there are so few ``shops'' in town,
salaries are depressed and it's become incredibly difficult to not only
demand fair pay, but treatment as well. They know that they don't have
to negotiate or budge on whatever terms they set because there are
increasingly few alternatives to them.\72\
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\72\ Anonymous Comment, Doc. No. FTC-2023-0040-0511.
---------------------------------------------------------------------------
My background includes Strategy consulting for major
transnational Mergers. I think the new rules are very good as they
demand greater clarity from the firms before the transaction starts. I
have seen a lot of waste and backtracking as executives struggle
between their ego and the analytics that do not tell them the story
that they want about why the transaction will succeed. And the new
labor and financing provisions offer much needed transparency--layoffs
are a knee jerk habit and are not really helpful for the firm or the
industry.\73\
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\73\ Comment of Punya Upadhyaya, Doc. No. FTC-2023-0040-0283.
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Please collect data on labor markets. I've been affected
by the monopolies in the entertainment industry and likely will lose my
livelihood as well as that of my staff due to unchecked mergers within
the next month. After starting a successful business 23 years ago, it's
heartbreaking to lose it and will be costly to our economy as more and
more of us lose our businesses due to these unchecked mergers and the
power they wield to save them money.\74\
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\74\ Comment of Karen Wood, Doc. No. FTC-2023-0040-0271.
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I work in a small accounting firm and I have seen the
effects of mergers on consumer satisfaction and worker wellbeing
personally. . . . [M]any of the job-searching or hiring firms we'd
contract with to seek additional workers are worried about raising the
ire of the large firm in the region, as it comprises so much of their
client base now[.] . . . As a result, we're forced to go with larger,
national firms for hiring, and become part of the problem of sectoral
concentration.\75\
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\75\ Comment of John Kurpierz, Doc. No. FTC-2023-0040-0462.
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As a lifelong union member I also believe the requirement
for detailing merger effects on workers and unions to be a vital
necessity. Those of us outside the C suites, boardrooms and stockholder
meetings are stakeholders too, and our livelihoods and well being
should be considerations.\76\
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\76\ Comment of Chas McClelland, Doc. No. FTC-2023-0040-0273.
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I personally know many folks in entertainment (writers,
crew, actors, etc.) who have had such a difficult time surviving in
Hollywood that they've simply had to quit or move home. And, frankly,
folks who specifically represent cultures that are least visible in
society are often the first to go--because they don't necessarily have
the resources or didn't face as many obstacles as other artists. It's a
terrible cycle, magnified greatly by vertical mergers.\77\
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\77\ Comment of Alice Stanley, Doc. No. FTC-2023-0040-0508.
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Numerous commenters, including State antitrust enforcers and
members of Congress, expressed general support for an increasing focus
on labor market competition in merger analysis and requiring additional
labor market information in the Form to screen for such issues. Some
commenters highlighted potential efficiencies in the merger review
process from providing the Agencies with labor market information in
the earlier stages of review, including a more uniform process that
could result in the termination of more merger reviews within the 30-
day waiting period and a more efficient use of Agency resources where
no labor market issues exist.
The Commission disagrees with a commenter who stated that the
analysis under the Clayton Act requires consideration of competition
issues, but not labor. Antitrust law, including the Clayton Act, has
always been concerned with workers and labor markets.\78\ As noted by
the State antitrust enforcers, in the congressional debates on the
Clayton Act in 1914, legislators expressed concerns regarding the
monopsonist's power to dictate to its labor the wage it will pay for
the only commodity labor has to sell.\79\ As recently as 2021, a
unanimous Supreme Court in NCAA v. Alston affirmed that the antitrust
laws are designed to prevent harm to competition in labor markets.\80\
As noted in the concurring opinion: ``Price-fixing labor is price-
fixing labor. And price-fixing labor is ordinarily a textbook antitrust
problem because it extinguishes the free market in which individuals
can otherwise obtain fair compensation for their work.'' \81\ And there
is bipartisan agreement among current Federal enforcers and their
predecessors that the Agencies are empowered to enforce the Clayton Act
to prevent competitive harms in labor markets caused by mergers.\82\
Moreover, recent empirical work demonstrates the impact that mergers
have on competition in labor markets.\83\
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\78\ Anderson v. Shipowners Ass'n of the Pac. Coast, 272 U.S.
359, 365 (1926).
\79\ Comment of State Atty's Gen., Doc. No. FTC-2023-0040-0695
at 21 n.123 (citing 51 Cong. Rec. 9184 (1914) (statement of Rep. Guy
Helvering)). See also 21 Cong. Rec. 2457 (1890) (statement of Sen.
Sherman asserting trusts command the price of labor).
\80\ NCAA v. Alston, 594 U.S. 69 (2021). The Agencies' approach
to evaluating the potential labor market effects of mergers is set
forth in the Merger Guidelines. U.S. Dep't of Justice & Fed Trade
Comm'n, Merger Guidelines 2.10 (2023).
\81\ Alston, 594 U.S. at 109-110 (Kavanaugh, J., concurring).
\82\ See generally FTC Chairman Joseph J. Simons, Prepared
Keynote Address at American University Washington College of Law
Conference on Themes of Professor Jonathan Baker's New Book, The
Antitrust Paradigm: Restoring a Competitive Economy 9 (Mar. 8,
2019), https://www.ftc.gov/system/files/documents/public_statements/1515179/simons_-_jon_baker_speech_3-8-19.pdf; Assistant Attorney
General Makan Delrahim, Remarks at the Public Workshop on
Competition in Labor Markets 3 (Sept. 23, 2019), https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-remarks-public-workshop-competition.
\83\ See Elena Prager & Matt Schmitt, ``Employer Consolidation
and Wages: Evidence from Hospitals,'' 111 a.m. Econ. Rev. 397
(2021); David Arnold, ``Mergers and Acquisitions, Local Labor Market
Concentration, and Worker Outcomes'' (Working Paper, Oct. 27, 2019),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476369.
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One commenter stated that requiring merging parties to provide
labor and employment information is at odds with the consumer welfare
standard. This is not correct. Judge Easterbrook, writing for the
Seventh Circuit, recently rejected an employer's argument that
restrictions on the movement of employees could be justified because it
expanded the output of consumer products: ``One problem with this
approach is that it treats benefits to consumers (increased output) as
justifying detriments to workers (monopsony pricing). That's not right;
it
[[Page 89228]]
is equivalent to saying that antitrust is unconcerned with competition
in the markets for inputs, and Alston establishes otherwise.'' \84\
There is a clear consensus that the consumer welfare standard is
sufficiently flexible to encompass antitrust enforcement to prevent
competitive harms to labor markets.\85\ Because section 7 reaches these
concerns, it is appropriate for the Agencies to collect information to
determine if the transaction may violate the antitrust laws by
substantially lessening competition in any market for labor. The fact
that the Commission has not previously required this information to be
reported in HSR filings does not mean that the information is not
necessary and appropriate to enable the Agencies to determine whether
an acquisition, if consummated, may violate the antitrust laws. While
not every negative impact on workers reflects a harm to competition,
growing evidence about the potential for mergers to cause harm in input
markets for labor in violation of the antitrust laws shows that the
Agencies have a sound basis to review transactions for potential
competitive impacts on labor markets.
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\84\ Deslandes v. McDonald's USA, LLC, 81 F.4th 699, 703-04 (7th
Cir. 2023).
\85\ See Herbert Hovenkamp, ``Is Antitrust's Consumer Welfare
Principle Imperiled?,'' 45 J. Corp. L. 65, 78 (2019) (injury that
results from the exercise of monopsony power is technically similar
to the injury caused by monopoly; in both cases the defendant
reduces output); Delrahim, supra note 82, at 3-4 (consumer welfare
standard is flexible enough to take into account harm to competition
that is localized in an upstream labor market, not just a downstream
product market); FTC Commissioner Christine S. Wilson, Keynote
Address: Welfare Standards Underlying Antitrust Enforcement: What
You Measure Is What You Get 7 (Feb. 15, 2019), https://www.ftc.gov/system/files/documents/public_statements/1455663/welfare_standard_speech_-_cmr-wilson.pdf (consumer welfare standard
does address possible monopsony concerns, and the agencies apply the
consumer welfare standard to labor markets).
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As discussed below in section VI.I.3., the final rule does not
require filers to submit specific information about their employees as
suggested in the proposed rule. Instead, the Agencies will rely on
other information and documentary materials required in the final rule
to conduct a preliminary assessment of whether the transaction may
violate the antitrust laws with respect to any affected labor market.
The Agencies have been gaining experience analyzing information about
employees during ongoing merger reviews and other investigations of
conduct that may harm competition for workers, and the Commission
relies on this experience to determine which documents and information
have been most useful in identifying those transactions that warrant an
in-depth review of potential labor market effects through the issuance
of Second Requests.
As discussed below in section VI.I.3., the Commission will rely on
information contained in the new Overlap and Supply Relationships
Descriptions, as well as additional documents required by the final
rule to conduct a preliminary assessment of potential labor market
effects. In the Agencies' experience, those transactions that are
flagged for closer review due to concerns about effects in output
markets may also require a closer look at potential impacts in input
markets, including labor markets. Because the final rule will allow the
Agencies to conduct a more robust screening for potential effects in
output markets, it will also permit more robust screening for potential
effects in input markets, including those related to labor services. In
addition, the final rule requires the submission of certain plans and
reports shared at the highest level of management that discuss market
shares, competition, competitors, or markets of any product or service
that is provided by both the acquiring person and acquired entity.
These documents may also indicate whether the parties view themselves
as employing similar categories of employees or competing for certain
types of labor services. As a result, the final rule will enhance the
Agencies' ability to conduct a premerger assessment to determine if the
transaction may violate the antitrust laws with respect to competition
for labor. Although the Commission has determined not to require
specific information about workers or workplace safety information in
the HSR Filing at this time, as the Agencies acquire more experience
with conducting competition analyses of labor markets, the Commission
may revisit the issue in future rulemakings.
3. Identifying Acquisitions That Create a Risk of Foreclosure
Mergers between firms that are not direct competitors can still
violate the antitrust laws. As stated in the NPRM, an acquisition may
violate the law if it creates opportunities for post-merger foreclosure
of rivals arising from vertical or non-horizontal relationships.\86\
The nature and scope of potential non-horizontal competitive concerns
can often be complex and unique. To fully account for all the ways in
which a proposed transaction may violate the antitrust laws, the
Agencies need information to determine whether there are any existing
or emerging business relationships between the merging parties that
would allow the merged firm to limit access to products or services
that its rivals use to compete, referred to as ``foreclosure.'' \87\
Current information requirements in the Rules do not reveal these
existing relationships, which are well known to the parties. Even more
than in horizontal mergers, which require an assessment of whether the
merger may eliminate existing competition between rivals whose products
are viewed as substitutes, non-horizontal concerns arise from distinct
facts and industry structure that are not readily available to the
Agencies from other sources.
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\86\ NPRM at 42179.
\87\ See Illumina, Inc. v. FTC, 88 F.4th 1036, 1055 (5th Cir.
2023) (violation of section 7 where merger will result in the
potential foreclosure of key input by the sole supplier). See also
Ford Motor Co. v. United States, 405 U.S. 562 (1972).
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Various commenters, including members of Congress, supported new
information requirements targeting non-horizontal competitive issues. A
comment from State antitrust enforcers underscored the concern about
foreclosure, noting that because mergers may change the firms'
incentives or ability to disadvantage or eliminate rivals at one or
more levels of their supply chains, one of the anticompetitive harms
that may result from a merger--particularly non-horizontal mergers--is
the risk of foreclosure. The comments from a farmer-led advocacy
organization warned that dominant firms have expanded across product
markets--primarily through product-extension and conglomerate mergers--
to insulate against cross-industry competition or to develop product-
tying and other capacities for entrenchment and exclusion.
Other commenters maintained that vertical merger challenges are
uncommon and that antitrust precedent does not sufficiently support
non-horizontal theories of competitive harm to warrant the new
information requirements. For example, commenters stated that the
Agencies challenge very few vertical transactions, and the courts
generally have not been receptive to those challenges. One commenter
stated that an assessment of potential future competitors goes well
beyond what is typically relevant because non-horizontal theories of
harm are rare under section 7. The same commenter reasoned that when
challenging a vertical merger the antitrust agency must prove that one
party has substantial market power and that information regarding the
vendor-vendee relationship is not required to assess this threshold
question. A tech industry trade association stated that
[[Page 89229]]
most vertical mergers promote competition, so filers should not need to
answer detailed questions about vertical relationships.
While in the past non-horizontal challenges were less common than
those involving direct competitors, in recent years the Agencies have
brought a significant number of non-horizontal merger enforcement
actions that have resulted in merger abandonment and ordered
divestitures,\88\ and other mergers were abandoned or restructured
prior to legal action.\89\ The Commission also disagrees that potential
harm from foreclosure is uncommon or does not warrant robust scrutiny.
Empirical economic studies of vertical mergers find no basis to assume
that they are either procompetitive or anticompetitive in general.
Instead, each transaction must be examined on its facts and in the
context of the markets served by the merging parties. A review of
twenty-nine recent studies of vertical integration reports that
fourteen studies found some evidence of competitive harm, while
fourteen found some evidence of benefits.\90\ The same review also
evaluated two frequently cited surveys of vertical integration and
found that the subjects and methods used limit any conclusions that can
be drawn for antitrust policy purposes.\91\
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\88\ Illumina, 88 F.4th at 1048, 1059; FTC v. Tempur Sealy
Int'l, Inc., 4:24-cv-02508 (S.D. Tex. filed July 2, 2024)
(complaint); In re Lockheed Martin Corp., No. 9405 (F.T.C. Jan. 25,
2022) (complaint alleging merger would enable missile systems
manufacturer to use control over missile propulsion systems to harm
rival defense prime contractors) (transaction abandoned); In re
Nvidia Corp., No. 9404 (F.T.C. Dec. 2, 2021) (complaint alleging
merger would give chip manufacturer the ability and incentive to use
control over microprocessor design technology to undermine
competitors) (transaction abandoned). For a compilation of the
Agencies' enforcement actions involving vertical mergers, see Steven
C. Salop & Daniel P. Culley, ``Vertical Merger Enforcement Actions:
1994-April 2020'' (Geo. L. Faculty Pub. & Other Works No. 1529,
2020), https://scholarship.law.georgetown.edu/facpub/1529/
(reporting 66 vertical matters over 26 years).
\89\ See, e.g., Press Release, U.S. Dep't of Justice,
``Antitrust AAG Kanter Statement After Adobe and Figma Abandon
Merger'' (Dec. 18, 2023), https://www.justice.gov/opa/pr/antitrust-aag-kanter-statement-after-adobe-and-figma-abandon-merger; Cat
Zakrzewski, ``Amazon ends $1.7B iRobot acquisition in rare victory
for tech regulators,'' Wash. Post (Jan. 29, 2024), https://www.washingtonpost.com/technology/2024/01/29/amazon-irobot-antitrust-europe/.
\90\ Marissa Beck & Fiona Scott Morton, ``Evaluating the
Evidence on Vertical Mergers,'' 59 Rev. Indus. Org. 273, 274 (2021)
(explaining many of the studies reviewed were not designed to assess
the net effect of vertical integration on welfare).
\91\ Id.
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The Agencies have an obligation to screen transactions for non-
horizontal effects, including the risk of post-merger foreclosure,
because the law clearly requires it. In 1950, Congress amended section
7 of the Clayton Act to expressly reach non-horizontal transactions to
combat ``the rising tide of economic concentration . . . [providing]
authority for arresting mergers at a time when the trend to a lessening
of competition in a line of commerce was still in its incipiency.''
\92\ The Supreme Court subsequently set forth frameworks for analyzing
vertical \93\ and other non-horizontal \94\ mergers to address concerns
about foreclosure.\95\ Relying on these precedents, the Agencies bring
enforcement actions against transactions that create a risk that the
merger will create a firm that may limit access to products or services
rivals use to compete.\96\ Several of these enforcement actions
resulted in the parties abandoning their merger plans in the face of
litigation. Just recently, the U.S. Court of Appeals for the Fifth
Circuit upheld the Commission's finding that Complaint Counsel carried
their initial burden of showing that Illumina's acquisition of Grail
was likely to substantially lessen competition in the U.S. market for
research and development of multi-cancer early detection tests and that
Illumina failed to establish cognizable efficiencies.\97\ The decision
is significant for its application of vertical theories of harm, as
well as its inclusion of products in the relevant market based on
precommercial activity.
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\92\ Brown Shoe Co. v. United States, 370 U.S. 294, 317 (1962);
Celler-Kefauver Antimerger Act of 1950, Pub. L. 81-899, 64 Stat.
1125 (1950).
\93\ Brown Shoe, 370 U.S. 294 (vertical merger violated section
7); see also Ford Motor Co. v. United States, 405 U.S. 562 (1972)
(same).
\94\ See FTC v. Procter & Gamble Co., 386 U.S. 568, 577-578
(1967) (product-extension merger violated section 7). See also
Fruehauf Corp. v. FTC, 603 F.2d 345 (2d Cir. 1979); U.S. Steel Corp.
v. FTC, 426 F.2d 592, 599 (6th Cir. 1970).
\95\ The Agencies' analyses of how vertical and other non-
horizontal transactions may harm competition are set forth in detail
in the recently revised Merger Guidelines. U.S. Dep't of Justice &
Fed Trade Comm'n, Merger Guidelines 5 (2023).
\96\ See, e.g., FTC v. Tempur Sealy Int'l, Inc., 4:24-cv-02508
(S.D. Tex. filed July 2, 2024) (complaint); In re Amgen, Inc, No.
9414 (F.T.C. Dec. 13, 2023) (consent order settling charges that the
acquisition would enable Amgen to leverage its large portfolio of
drugs to pressure insurance companies and PBMs into favoring
Horizon's monopoly products or disadvantaging rivals); In re
Lockheed Martin Corp., No. 9405 (F.T.C. Jan. 25, 2022) (complaint
alleging merger would enable missile systems manufacturer to use
control over missile propulsion systems to harm rival defense prime
contractors) (transaction abandoned); In re Nvidia Corp., No. 9404
(F.T.C. Dec. 2, 2021) (complaint alleging merger would give chip
manufacturer the ability and incentive to use control over
microprocessor design technology to undermine competitors)
(transaction abandoned); In re Microsoft Corp., No. 9412 (F.T.C.
Dec. 8, 2022) (complaint).
\97\ Illumina, Inc. v. FTC, 88 F.4th 1036, 1048, 1059 (5th Cir.
2023) (remanding to Commission to consider whether supply agreement
offered to rivals sufficiently mitigated merger's effect). See also
United States v. AT&T, Inc., 916 F.3d 1029, 1045 (D.C. Cir. 2019)
(vertical mergers can create harms beyond higher prices for
consumers, including decreased product quality and reduced
innovation).
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In the Agencies' experience, it can be difficult to detect whether
current or potential rivals of one merging party are dependent on the
other merging party for a key product, service, or route to market
necessary to compete. The Agencies currently do not receive sufficient
information in the HSR Filing to identify candidate ``related
products'' nor to assess the degree to which rivals may be dependent on
the related product.\98\ Accordingly, the Agencies are not well
positioned to conduct a robust initial screen for this significant
mechanism of competitive harm. Being able to quickly assess whether the
transaction presents a risk of foreclosure would permit the Agencies to
target their investigative resources most efficiently on those
transactions that are most likely to raise this competitive concern.
---------------------------------------------------------------------------
\98\ See U.S. Dep't of Justice & Fed Trade Comm'n, Merger
Guidelines 2.5 (2023).
---------------------------------------------------------------------------
As discussed in more detail below, the Commission has determined
that information that reveals existing supply relationships between the
merging parties or their rivals is necessary to fully account for the
potential that the transaction may create a firm that could limit
rivals' access to key products or services they need to compete in
violation of the antitrust laws. The Commission previously required
information about vendor-vendee relationships, but eliminated this
requirement when the reported information did not provide a sufficient
basis for that analysis such that the benefit to the Agencies did not
outweigh the burden of providing it.\99\ The Supply Relationships
Description in the final rule requires information that is specifically
targeted to identifying whether rivals may be dependent on the merged
firm for key inputs post-merger. Thus, the information is more relevant
to the Agencies' screening for such risks than prior vendor-vendee
information.
---------------------------------------------------------------------------
\99\ NPRM at 42196-97.
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Additionally, the final rule also contains new document
requirements that are intended to reveal any existing or future non-
horizontal business relationships that could give rise to risks from
foreclosure of rivals. For example, the buyer must indicate whether it
has existing contracts with the seller in broad categories that are
relevant to an initial antitrust assessment, such as leases, licensing
agreements, master service agreements, operating agreements or supply
agreements, or
[[Page 89230]]
any noncompete or non-solicitation agreements that might be affecting
current levels of competition. Filers with an existing business
relationship also will submit one year's worth of plans and reports
provided to a Chief Executive Officer or the Board of Directors that
analyze markets and competition pertaining to any product or service
both parties supply (including products or services in development).
Based on the Agencies' experience, these types of high-level business
documents can reveal whether and how the parties interact in the market
today to understand how the merger may affect market conditions more
broadly, including any risk of foreclosure that could harm other market
participants as well as competition overall. Finally, the expanded set
of transaction-related documents ensure that the Agencies receive key
documents that have been collected for the purposes of the deal but
have not yet been shared with the board of directors. In the Agencies'
experience, when there is an existing non-horizontal business
relationship between the parties, these documents often reference that
relationship and how it might be affected by the transaction, including
whether the parties believe that there are synergies or efficiencies
that may be gained.
4. Identifying Potential Law Violations Involving Innovation Effects,
Future Market Entry, or Nascent Competitive Threats
In markets where concentration is already great or trending in that
direction, a merger may be illegal if it eliminates ongoing innovation
efforts or the possibility that entry or expansion by one or both firms
would have resulted in new or increased competition.\100\ Relatedly,
the acquisition of a firm that represents a nascent competitive
threat--namely, a firm that could grow into a significant rival,
facilitate other rivals' growth, or otherwise spur more robust
competition in the future--may violate the antitrust laws.\101\
Concerns that a transaction may violate the antitrust laws by reducing
innovation efforts \102\ or eliminating a future competitor \103\ are
core to section 7's purpose to arrest the anticompetitive effects of
market power in their incipiency. Established incumbents may seek to
acquire a potential entrant or a nascent competitive threat in order to
eliminate beneficial future competition, especially at critical
junctures when the acquired firm is poised to introduce a disruptive
product.\104\
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\100\ United States v. Marine Bancorp, Inc., 418 U.S. 602, 630
(1974).
\101\ See FTC v. Procter & Gamble, 386 U.S. 568, 577-78 (1967).
See also United States v. El Paso Nat. Gas Co., 376 U.S. 651 (1964);
Polypore Int'l v. FTC, 686 F.3d 1208 (11th Cir. 2012) (acquisitions
that eliminate competitive threats violate section 7). Like the
Clayton Act, the Sherman Act bars a firm from gaining or maintaining
a monopoly position through anticompetitive conduct, including
acquisitions that exclude nascent or potential threats to its
dominance. See, e.g., United States v. Grinnell Corp., 384 U.S. 563
(1966) (acquisitions are among the types of conduct that may violate
the Sherman Act). Acquisitions by monopolists of nascent competitive
threats violate section 2 of the Sherman Act because they are
reasonably capable of contributing significantly to the defendant's
monopoly power. United States v. Microsoft Corp., 253 F.3d 34, 79
(D.C. Cir. 2001) (en banc) (per curiam) (Sherman Act does not allow
monopolists free reign to squash nascent, albeit unproven,
competitors at will).
\102\ For a discussion of how mergers may violate section 7 by
eliminating on-going innovation competition, see Note by the United
States to the OECD, The Role of Innovation in Enforcement Cases
(Dec. 5, 2023) (DAF/COMP/WD(2023)84), https://one.oecd.org/document/DAF/COMP/WD(2023)84/en/pdf.
\103\ See United States v. Falstaff Brewing Corp., 410 U.S. 526,
561-62 (1973) (Marshall, J, concurring). See also United States v.
Continental Can Co., 378 U.S. 441, 465 (1964) (fact that merging
parties were not direct competitors for all end uses at the time of
the merger may actually enhance the long-run tendency of the merger
to lessen competition).
\104\ See United States v. Visa Inc., No. 3:20-cv-07810 (N.D.
Cal. Nov. 5, 2020) (complaint) (transaction abandoned and case
dismissed) and Assoc. Attorney General Vanita Gupta, Remarks at
Georgetown Law's 15th Annual Global Antitrust Enforcement Symposium
(Sept. 14, 2021), https://www.justice.gov/opa/speech/associate-attorney-general-vanita-gupta-delivers-remarks-georgetown-law-s-15th-annual. See also supra note 15 (collecting studies).
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As noted in the NPRM, there has been tremendous growth in sectors
of the economy that rely on technology, such as pharmaceutical, medical
device, and digital markets. Given the dynamic nature of these markets
and the importance of acquisition strategies to success as well as
market growth and penetration, mergers and acquisitions in these
markets present a unique challenge for the Agencies. In particular, the
Agencies must closely examine mergers in these and other rapidly
evolving markets to account for the possibility that the merger may
violate the antitrust laws by eliminating a nascent competitor or
potential entrant, including the acquisition's effects on ongoing
innovation competition.\105\
---------------------------------------------------------------------------
\105\ FTC v. PPG Indus., Inc., 798 F.2d 1500, 1505-06 (D.C. Cir.
1986) (Bork, J.).
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Competition policy debates in Congress have increasingly focused on
markets that lack sufficient competition, especially in critical
technology sectors.\106\ Concerns about the role of certain dominant
companies have caused the Agencies to deploy additional resources to
counter the economic power of these firms, including through costly and
resource-intensive monopolization suits, some of which focus on the
harmful effects of their prior acquisitions.\107\ Both Agencies have
hired technologists and other experts to build their in-house capacity
to keep pace with developments in dynamic markets that are reliant on
emerging technology.\108\ The Agencies have also invested in better
understanding how dominant firms can use strategic acquisitions as part
of an interrelated course of monopolistic conduct. For example, the
Agencies have brought challenges alleging that firms have engaged in
``buy-or-bury'' strategies against actual or potential rivals.\109\ The
Agencies have also alleged that firms have attempted to buy or exercise
control of adjacent products or services that might be used to steer
customers to their other products or exclude competing platforms.\110\
These strategies can be very hard to detect because merger activity in
these sectors increasingly involves firms in business lines that
currently may not be related in a clearly horizontal or vertical way.
Without information that identifies products in development and the
firms' assessments of where potential competitive threats are likely to
emerge in the future, the Agencies have no basis to identify whether a
transaction may eliminate ongoing innovation competition, a potential
entrant, or a nascent competitive threat.\111\
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\106\ Majority Staff of H.R. Subcomm. on Antitrust, Com. & Admin
L. of the Comm. On the Judiciary, 116th Cong., Majority Staff Rep. &
Recommendations, Investigation of Competition in Digital Mkts. 38
(2020), https://democrats-judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf (hereinafter ``Investigation of
Competition in Digital Markets'').
\107\ FTC v. Facebook, Inc., 581 F. Supp. 3d 34, 40-42 (D.D.C.
2022); United States v. Google LLC, No. 1:23-cv-00108 at 31-35, 65-
68 (E.D. Va. filed Jan. 24, 2023) (complaint); United States v. Live
Nation Entertainment, Inc., No. 1:24-cv-03973 (S.D.N.Y. filed May
23, 2024); see also Klein v. Meta Platforms, Inc., No. 3:20-cv-8570
(N.D. Cal. filed Dec. 3, 2020).
\108\ See Note by the United States to the OECD, Theories of
Harm for Digital Mergers (June 16, 2023) (DAF/COMP/WD(2023)50),
https://one.oecd.org/document/DAF/COMP/WD(2023)50/en/pdf.
\109\ FTC v. Facebook, Inc., 581 F. Supp. 3d at 54.
\110\ United States v. Microsoft Corp., 253 F.3d 34, 73-74 (D.C.
Cir. 2001).
\111\ See United States v. Google LLC, No. 20-cv-3010, 2024 WL
3647498 (D.D.C. Aug. 5, 2024). (loss of nascent competitors is a
clear anticompetitive effect).
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When transactions involve firms whose premerger relationship is not
yet well established in the marketplace and is occurring outside the
public eye through ongoing product development efforts, the Agencies
cannot rely on the reporting of current overlapping revenues to spot
transactions that may
[[Page 89231]]
eliminate areas of emerging or potential competition.\112\ The Agencies
need a reliable factual basis for identifying transactions that create
this risk, which is not provided in the current Form. For instance, the
Agencies need information about products in development that are not
currently generating revenues, but that the filer expects will soon.
Because legal precedent makes clear that a merger that substantially
lessens competition for innovation or research and development violates
the law,\113\ the Agencies need information that will identify areas of
pre-revenue investments and competition. The Agencies also need
information that reveals the rationale for the transaction, including
whether the acquired firm is considered a nascent competitive threat,
and documents that reflect each firm's horizon-scanning for potential
acquisition targets. This information is known only to the parties and
is relevant to an initial assessment of whether the transaction may
violate the antitrust laws by eliminating a potential entrant or
nascent competitive threat.
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\112\ See Illumina, Inc. v. FTC, 88 F.4th 1036, 1049-51 (5th
Cir. 2023) (antitrust markets not limited to products that exist but
may include those that are anticipated or expected or encompass
research, development and commercialization of products in
development); FTC v. PPG Indus., Inc., 798 F.2d, 1500, 1504 (D.C.
Cir. 1986) (merging firms competed in evolving high technology
market at the request-for-proposal stage of product development).
\113\ See United States v. Anthem, Inc., 855 F.3d 345, 361 (D.C.
Cir. 2017) (threat to innovation alone is anticompetitive effect
from acquisition); Illumina, Inc. v. FTC, 88 F.4th 1036, 1051 (5th
Cir. 2023) (``Antitrust law does not countenance such a cramped view
of competition, particularly in a research-and-development
market.'').
---------------------------------------------------------------------------
Failure to account for the merger's potential impact on ongoing
innovation competition can have meaningful implications. Consumers and
businesses reap enormous benefits from the efficiency and convenience
brought about by significant innovations. According to Nobel Prize
winner Robert Solow: ``Technological progress, very broadly defined to
include improvements in the human factor, was necessary to allow long-
run growth in real wages and the standard of living.'' \114\ Courts,
academic literature and commenters confirm the importance of innovation
to growth in the economy and as a source of dynamism that can shake
loose entrenched incumbents.\115\ Acquisitions of innovator firms may
also deny the public the benefits of those investments in innovation,
including any future competition those investments may have unleashed,
if the acquirer does not make use of the discoveries \116\ or is able
to crowd out nascent competitors by foreclosing access to a key
input.\117\ The stakes are also high for innovators: startups may find
fewer investors and lower acquisition prices in sectors where the
expectation is that incumbents will ultimately identify and acquire any
promising innovation.\118\
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\114\ Robert Solow, ``Growth Theory and After,'' 78 Am. Econ.
Rev. 307, 313 (1988).
\115\ See Giulio Federico et al., ``Antitrust and Innovation:
Welcoming and Protecting Disruption,'' 20 Innovation Pol'y & Econ.
125, 128-29 (2020); C. Scott Hemphill & Tim Wu, ``Nascent
Competitors,'' 168 U. Pa. L. Rev. 1879, 1886 (2020).
\116\ See Hemphill & Wu, supra note 115, at 1893. See also Mark
Lemley & Andrew McCreary, ``Exit Strategy,'' 101 B.U. L. Rev. 1
(2020).
\117\ See Illumina v. FTC, 88 F.4th at 1053.
\118\ Sai Krishna Kamepalli et al., ``Kill Zone'' (Nat'l Bureau
of Econ. Rsch., Working Paper No. 27146, May 2020 rev. June 2022),
https://www.nber.org/papers/w27146.
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Comments from State antitrust enforcers supported proposals seeking
materials and information regarding potential or nascent entrants.
However, other commenters stated that the HSR Filing is not an
appropriate vehicle for advancing novel legal theories such as nascent
competition or research and development competition, and any related
revisions should be postponed until those theories are better
established in case law.
The Commission disagrees with commenters who suggested that
concerns about innovation competition, potential entrants, and nascent
threats are not well-grounded in existing law and economic learning.
The importance of scrutinizing mergers for potential effects on
innovation is well-documented.\119\ Economic evidence supports current
legal precedent. Research demonstrates a growing phenomenon of dominant
firms--buoyed by acquisitions--taking over industries.\120\ This is
particularly true in the tech industry, where the markets in which
digital platforms compete share several characteristics that tend
toward a single dominant firm.\121\ Sustained high economic profits
suggest that dominant firms in these concentrated sectors possess
substantial and durable market power.\122\ In addition, insufficient
competition and entry result in harms to investment and
innovation.\123\ For these reasons, economic research supports the
current legal framework, and reflects the need to carefully scrutinize
proposed transactions involving a dominant incumbent or monopolist
seeking to acquire a nascent threat or adjacent complement that could
someday challenge the incumbent's position.\124\
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\119\ See generally Carl Shapiro, ``Competition and Innovation:
Did Arrow Hit the Bull's Eye?,'' in The Rate and Direction of Econ.
Activity Revisited 389-400 (Josh Lerner & Scott Stern eds., 2012).
\120\ Carl Shapiro, ``Protecting Competition in the American
Economy: Merger Control, Tech Titans, Labor Markets,'' 33 J. Econ.
Perspectives 69 (2019).
\121\ Stigler Comm. On Digital Platforms, Final Report 7-8
(2019), https://www.chicagobooth.edu/-/media/research/stigler/pdfs/digital-platforms-committee-report-stigler-center.pdf (explaining
network effects, returns increasing with scale, low marginal costs,
high returns on amassing user data, and low distribution costs
underlie trend toward monopoly).
\122\ Shapiro, supra note 120, at 70.
\123\ Stigler Comm. On Digital Platforms, supra note 121, at 31.
\124\ Cunningham et al., supra note 15 (presenting empirical
evidence that pipeline drug program is less likely to be developed
when acquired by firm with overlapping existing product with
significant market power); Stigler Comm. On Digital Platforms, supra
note 121, at 81, 88; Shapiro, supra note 120, at 75; Michael L.
Katz, ``Big Tech mergers: Innovation, competition for the market,
and the acquisition of emerging competitors,'' 54 Info. Econ. &
Policy 100883 (2021).
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Going back many years, the Agencies have successfully challenged
several mergers that would have eliminated a potential entrant or
nascent competitive threat. These enforcement actions include the
acquisition of a pipeline firm or product that, once launched, would
compete directly with the incumbent merging party,\125\ as well as the
acquisition of a firm with products already on the market that,
although small, was poised to add features or capabilities in the
future that could render it a closer and more formidable competitor
than it is today.\126\ Other transactions challenged by the Agencies
involved the acquisition of a firm whose current market share
understated its future competitive significance because it did not
account for new innovations, business strategies, or other
factors.\127\ Mergers that impact future competition between products
or services that have not yet been developed can also violate the
antitrust laws.\128\
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\125\ See, e.g., In re Sanofi Corp., No. 9422 (F.T.C. Dec. 11,
2023) (complaint) (transaction abandoned); United States v. Visa
Inc., No. 3:20-cv-07810 (N.D. Cal. Nov. 5, 2020) (transaction
abandoned); FTC v. Mallinckrodt ARD Inc. (f/k/a Questcor Pharms.,
Inc.), No. 1:17-cv-120 (D.D.C. Jan. 30, 2017) (consent decree
ordered license and $100 million equitable monetary relief); United
States v. Westinghouse Air Brake Techs. Corp., No.1:16-cv-02147
(D.D.C. Oct. 26, 2016) (consent decree ordered divestiture); In re
Thoratec Corp., No. 9339 (F.T.C. July 28, 2009) (transaction
abandoned); In re Inverness Med. Innovations, Inc., No. C-4244
(F.T.C. Dec. 23, 2008) (Commission order requiring divestiture and
other conditions).
\126\ FTC v. PPG Indus., Inc., 798 F.2d 1500, 1505-06 (D.C. Cir.
1986) (Bork, J.). See also In re Illumina, Inc., No. 9387 (F.T.C.
Dec. 17, 2019) (complaint) (transaction abandoned).
\127\ United States v. Novelis, Inc., No. 1:19-cv-02033 (N.D.
Ohio Aug. 26, 2020) (arbitration-ordered divestiture); In re The
Procter & Gamble Co., No. 9400 (F.T.C. Dec. 8, 2020) (complaint)
(transaction abandoned); In re CDK Global, Inc., No. 9382 (F.T.C.
Mar. 19, 2018) (complaint) (transaction abandoned).
\128\ See, e.g., PPG Indus., Inc., 798 F.2d at 1505-06. See also
United States v. Bayer AG, No. 1:18-cv-01241 (D.D.C. Feb. 8, 2019)
(consent decree ordered divestiture); Press Release, U.S. Dep't of
Justice, ``Applied Materials Inc. and Tokyo Electron Ltd. Abandon
Merger Plans After Justice Department Rejected Their Proposed
Remedy'' (Apr. 27, 2015), https://www.justice.gov/opa/pr/applied-materials-inc-and-tokyo-electron-ltd-abandon-merger-plans-after-justice-department; In re Nielsen Holdings N.V., No. C-4439 (F.T.C.
Feb. 28, 2014) (Commission order requiring divestiture).
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[[Page 89232]]
A number of commenters opposed changes contained in the proposed
rule over concerns that they would disproportionally impact small
innovation companies and startups, which rely on venture capital and
acquisitions to sustain their business model. One commenter stated that
preventing such exit strategies would make it difficult for startups to
obtain early-stage funding, reducing both the number and vitality of
these innovative firms. Several cautioned the Commission to avoid
increasing the burden and risk associated with the acquisition of
startups, which they stated would damage the dynamic U.S. tech
innovation system. Another stated that acquisitions that increase
concentration can still be procompetitive and drive dynamic efficiency.
As the discussion above clearly demonstrates, acquisitions
involving nascent or potential competitors as well as those that impact
innovation competition may violate the antitrust laws. The Commission
disagrees with commenters that contend that these types of acquisitions
should be subjected to a more permissive standard or that the Agencies
are singling them out for closer scrutiny. The Agencies routinely
review acquisitions of and by innovative companies and apply the same
legal standard to those mergers as any other acquisition. When the
Agencies challenge these mergers, they are held to the same liability
requirements necessary to establish a violation of section 7. However,
as discussed above, there is a gap in the current information
requirements that undermines the Agencies' ability to determine whether
a transaction would eliminate nascent or future competition. To detect
those types of acquisitions and to assess whether they violate the
antitrust laws, the Agencies need information regarding these forms of
ongoing or emerging competition, even if some commenters disagree with
the law as applied by the courts in this area.
The Commission acknowledges that the sale of a business to an
incumbent may represent a valuable exit strategy for startups. But when
such exits are effectuated by a dominant firm to absorb a future or
emerging competitor, the overall effect may be to reduce innovation and
violate the law.\129\ In fact, antitrust enforcement can drive
innovation and growth by ensuring that market outcomes are determined
through competition rather than left to the decisions of a dominant
incumbent who can on its own determine the fate of innovative companies
and the future of competition. The history of U.S. antitrust
enforcement contains many examples of how government action was
required to unleash the forces of competition and innovation, creating
new opportunities for investments and startups.\130\ Recent research
suggests that existing firms may be acquiring innovative capacity not
for the purpose of advancing those discoveries but rather to shelve
those discoveries, leading to a reduction in innovative output and
eliminating an independent source of future competition.\131\ Two
individual commenters shared their experiences with acquisitions that
have had that effect:
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\129\ See Lemley & McCreary, supra note 116 (exit by acquisition
leads to concentration in the tech industry and short-circuits the
development of truly disruptive new technologies that have
historically displaced incumbents in innovative industries).
\130\ See Giovanna Massarotto, ``Driving Innovation with
Antitrust,'' Promarket (Apr. 10, 2024) https://www.promarket.org/2024/04/10/driving-innovation-with-antitrust/.
\131\ See Cunningham et al., supra note 15. See also Florian
Sz[uuml]cs, ``M&A and R&D: Asymmetric Effects on acquirers and
targets?'' 43 Rsch. Pol'y 1264 (2014); Carmine Ornaghi, ``Mergers
and innovation in big pharma,'' 27 Int'l J. Indus. Org. 70 (2009);
Justus Haucap et al., ``How mergers affect innovation: Theory and
evidence,'' 63 Int'l J. Indus. Org. 283 (2019) (showing a reduction
in innovation competition post-merger).
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I work in the software industry and despite the constant
talk of ``innovation,'' I have seen many mergers that eliminate new
product development. Mergers/acquisitions often consist of a company
acquiring a product and immediately discontinuing either the acquired
product or their own competing product. Most engineers I know want to
develop new products and many mergers stop this from happening.\132\
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\132\ Comment of Darryl Pretto, Doc. No. FTC-2023-0040-0434.
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I work in the tech industry for a large technology firm.
It's disgusting that our philosophy is now to buy other companies and
never grow organic products because it is too hard. There's no
innovation anymore it is simply make enough money to buy out the actual
innovators in an industry. Any new startup is now faced with a massive
hill to climb as getting VC money is paramount, but then the moment you
do well your VC's will just sell to the highest bidder. This is
stagnating tech, and you won't see the effects for some years down the
road when 5 tech companies are left in this country. We need tighter
oversight on mergers . . . .\133\
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\133\ Anonymous Comment, Doc. No. FTC-2023-0040-0600.
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In light of all these considerations, the Commission believes this
rulemaking strikes the right balance that permits the Agencies to
evaluate transactions for their potential effects on innovation while
not standing in the way of acquisitions and other investments that do
not present antitrust risks that need to be addressed prior to
consummation. The critical task for the Agencies is to identify which
transactions may substantially lessen competition or tend to create a
monopoly, prior to consummation and before the possibility of future
competition is snuffed out.\134\ The Commission is not subjecting
acquisitions of startups or innovative firms to heightened scrutiny, as
some commenters suggest. Rather, the Agencies are modernizing premerger
requirements in light of the changes in M&A activity for all
transactions that must be reported under the HSR Act, including those
involving innovative firms.\135\ However, the final rule has been
adjusted to lessen the burden on the targets of acquisitions generally.
Moreover, many of the new requirements focus on increasing visibility
into complex entities and therefore would not be applicable to the
relatively straightforward structures of many startup companies.
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\134\ See Cristina Caffarra et al., ```How Tech Rolls:'
Potential Competition and `Reverse' Killer Acquisitions,'' 2 CPI
Antitrust Chron. 13, 15 (May 2020).
\135\ According to a recent study, investment in U.S. startups
continues to grow each year, reaching a combined deal value of
$165.8 billion for 12,235 such deals in 2020. See Gary Dushnitsky &
D. Daniel Sokol, ``Mergers, Antitrust, and the Interplay of
Entrepreneurial Activity and the Investments That Fund It,'' 24
Vand. J. Ent. & Tech. L. 255, 271 Table 1 (2022). The authors note
that a case-by-case analysis of particular deals allows for a more
nuanced approach to address particular potentially problematic deals
in such settings. Id. at 277-78. See also D. Daniel Sokol, ``Merger
Law for Biotech and Killer Acquisitions,'' 72 Fla. L. Rev. Forum 1,
8 (2020) (explaining that innovation effect is fact-dependent).
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The Commission notes that many acquisitions of startups and small
innovator firms are not reportable and thus are not subject to
antitrust scrutiny prior to consummation. In September 2021, the
Commission released its findings from an inquiry into past acquisitions
by the largest technology platforms that did not require reporting
under the HSR Act.\136\ Launched in
[[Page 89233]]
February 2020, this inquiry analyzed the terms, scope, structure, and
purpose of exempted transactions by five large technology companies:
Alphabet, Inc., Amazon.com, Inc., Apple Inc., Facebook, Inc., and
Microsoft Corp. The study covered ten years of acquisitions (from
January 1, 2010 to December 31, 2019) and found that the companies
collectively made 819 acquisitions that were not reported under the HSR
Act.\137\ None of these acquisitions was filed under HSR, although many
of them were concentrated in just a few categories of technology, such
as mobility, application software, and internet content and
commerce.\138\
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\136\ See Press Release, Fed. Trade Comm'n, ``FTC Staff Presents
Report on Nearly a Decade of Unreported Acquisitions by the Biggest
Technology Companies'' (Sept. 15, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/09/ftc-staff-presents-report-nearly-decade-unreported-acquisitions-biggest-technology-companies.
\137\ See Fed. Trade Comm'n, Non-HSR Reported Acquisitions by
Select Technology Platforms, 2010-2019: An FTC Study 10-11 Fig. 1
(2021), https://www.ftc.gov/system/files/documents/reports/non-hsr-reported-acquisitions-select-technology-platforms-2010-2019-ftc-study/p201201technologyplatformstudy2021.pdf (hereinafter ``Non-HSR
Reported Acquisitions''). Data supplied by commenter Engine confirms
that the vast majority of startup acquisitions are valued below $50
million, meaning that they are rarely reported to the Agencies in
advance. See Comment of Engine, Doc. No. FTC-2023-0040-0681,
appendix B at 16.
\138\ Non-HSR Reported Acquisitions, supra note 137, at 27-35.
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This study provided other insights into these companies' practices
and acquisition strategies, including how they structured acquisitions
and how these acquisitions fit into the companies' overall business
strategies.\139\ For instance, not only were many of the acquisitions
``small'' in deal value (i.e., under the various HSR reporting
thresholds), they were also ``young,'' with nearly 40 percent of the
acquisitions involving target firms that were less than five years
old.\140\ Most of the acquisitions involved the buyer taking control of
the acquired assets or entity, although there were also a significant
number of investments that resulted in the large company holding a
minority interest in the target firm.\141\ Moreover, over three-
quarters of the transactions included non-compete clauses for founders
and key employees of the acquired entities, with relatively small
variation in the percentage of transactions with non-compete clauses
across the five respondents. \142\ Together, these findings indicate
that during the study period, these five companies acquired many small,
nascent firms operating in related business lines and their founders
and other key employees agreed to refrain from continuing their own
efforts to innovate outside the company for some period of time. While
the study focused on transactions that were not reportable under the
HSR Act, the information collected from these tech companies provided
the Commission with insight into information that is available to
parties in all types of acquisitions but that is not required by the
current Form and Instructions.
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\139\ Other competition enforcement agencies around the world
conducted similar studies involving acquisitions of digital platform
companies. Id. at 2 n.6.
\140\ Id. at 23-26.
\141\ Id. at 15.
\142\ Id. at 21-22.
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In light of the benefits to the public from preventing mergers that
violate the antitrust laws by reducing innovation competition or
eliminating a potential entrant or nascent threat, the Commission has
determined that the Agencies need certain additional information with
the HSR Filing to conduct an initial antitrust assessment prior to
consummation. In the Agencies' experience, it is necessary to obtain
this type of information directly from the filing parties because
typically their plans regarding future products or business lines are
not public.
Several new information requirements in the final rule are aimed at
providing the Agencies with sufficient information to determine if the
transaction is likely to raise concerns about potential, emerging, or
nascent competition. For instance, the new Overlap Description and
Supply Relationships Description directly address the scope of existing
and emerging competition between the parties. In particular, the
Overlap Description requires filers to identify their own products and
services, including those that are pre-revenue, that compete with the
products and services of the other party that are known to the
filer.\143\ This information will provide a basis for the Agencies to
know that there are areas of emerging and direct competition beyond
existing products or services, including important ongoing innovation
competition. The Overlap Description also requires filers to produce
measurement information for products or services not yet generating
revenue, or those whose performance is not measured by revenue, such as
projected revenue, estimated volume, or any other applicable
performance metric. This change recognizes the importance of capturing
the competitive significance of nascent or emerging products and
services.
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\143\ As explained in section VI.I., the parties should not
exchange information for the purpose of responding to the
Competition Descriptions.
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The final rule also requires the buyer to indicate whether there
are any existing contracts between the parties, including non-compete,
non-solicitation, or licensing agreements, which would alert the
Agencies to any limits on future competition that are created by these
agreements, especially when the buyer is not acquiring all of the
acquired entity. The existence of non-compete or non-solicitation
agreements can be especially useful in revealing that the parties
consider themselves to be `in competition' with one another, now or in
the future, such that there is value in contracting away the ability to
compete for or solicit business or workers. In addition, the Supply
Relationships Description requires information for products, services,
or assets (including data) that the other party or any other business
uses or could use to compete. This forward-looking assessment, based on
each filer's business experience, would reveal whether there are future
uses of either party's products that could give rise to concerns about
non-horizontal effects from the transaction. The inclusion of data as a
potentially key asset is purposeful, given the competitive significance
of data access for effective competition in so many modern
markets.\144\
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\144\ See FTC v. IQVIA Holdings Inc., No. 1:23 Civ. 06188
(S.D.N.Y. Dec. 29, 2023) (order granting preliminary injunction on
horizontal theories of harm without addressing FTC allegations that
the acquisition would allow IQVIA to foreclose other industry
participants from accessing its data as a key input for healthcare
professional programmatic advertising).
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Similarly, new document requirements contained in the final rule
are aimed at revealing each firm's assessment of market conditions and
horizon-scanning for competitive threats. For instance, the final rule
requires a broader search for documents that evaluate or analyze the
transaction to include not only those provided to board members but
also to the person who has primary responsibility for supervising the
deal. These documents, along with certain ordinary course plans and
reports shared at the highest level of management described above and
in section VI.G.2., will reveal additional information about how each
filer views the competitive landscape more broadly, including in ways
that may impact current or future competition. Together, these
documents may signal whether either party has identified emerging
threats to competition--from the other party or from firms not involved
in the transaction--that would impact the Agencies' assessment of
whether the transaction may violate the antitrust laws.
As discussed above in section II.B.1., new information contained in
the
[[Page 89234]]
Minority Shareholders or Interest Holders and Officers and Directors
sections will provide a basis for the Agencies to identify any existing
or potential management relationships between the acquiring person and
target, including through entities or individuals who can influence
decision-making of the acquiring person post-merger. These
relationships can be especially concerning if used to gain access to
non-public information about future plans or investments in products-
in-development when those same individuals also have interests in
competitively relevant businesses.
Finally, the final rule collects additional information about the
acquisition rationale of the buyer to assist the Agencies in
understanding the purpose of the transaction. For example, the final
rule requires the buyer to describe any rationale for the transaction
and to indicate any document submitted with the HSR Filing that
confirms or discusses that rationale. These answers will provide
context for the Agencies' initial antitrust assessment through a deeper
understanding of what purpose the buyer has for engaging in a
transaction that is large enough to require premerger review. In
addition, the final rule for the first time requires the seller to
report prior acquisitions in the same or related lines of business,
which would provide a basis for the Agencies to better assess whether
the transaction implicates emerging, nascent, or potential competition,
especially through the combined effects of roll-up or serial
acquisition strategies or ``killer'' acquisitions in which assets were
purchased but not used as a means of eliminating a competitor.
5. Disclosing Roll-Up or Serial Acquisition Strategies
Another trend in M&A activity has been the rise of serial
acquirers, firms that engage in strategic acquisitions in the same
industry, often ``rolling up'' many small competitors in the same or
adjacent markets to establish a large, sometimes dominant,
position.\145\ Serial acquisition strategies have been subject to
antitrust scrutiny for over 100 years.\146\ In the seminal merger case,
United States v. Philadelphia National Bank, 374 U.S. 321 (1963), the
Supreme Court noted that both the buyer and the seller had previously
acquired many other independent banks,\147\ driving a trend toward
concentration that rendered their merger suspect.\148\ Given the
popularity and prevalence of these serial acquisition strategies in
recent years, especially in healthcare and technology markets, this
trend has attracted the attention of academics and policymakers
alike.\149\ A pattern or strategy of buying up smaller competitors or
firms in the same or related lines of business can lead to harm of the
same magnitude and type as mergers of larger or established firms, but
serial acquisitions are less likely to attract the attention of
enforcers until the strategy is identified. A series of small
acquisitions can lead to consolidation within an industry, often
without ever triggering the obligation to report these acquisitions
under the HSR Act. This strategy has been particularly prevalent in
healthcare markets involving private equity buyers.\150\
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\145\ NPRM at 42202 n.62 (citing Gerry Hansell et al., ``Lessons
from Successful Serial Acquirers: Unlocking Acquisitive Growth,''
Boston Consulting Grp. (Oct. 1, 2014), https://www.bcg.com/publications/2014/mergers-acquisitions-unlocking-acquisitive-growth); ``Stealth Consolidation,'' supra note 18.
\146\ See, e.g., United States v. Grinnell Corp., 384 U.S. 563,
576, 578, 580 (1966); Standard Oil Co. v. United States, 221 U.S. 1,
31-42 (1911); United States v. Am. Tobacco Co., 221 U.S. 106, 157-60
(1911). See also Note by the United States to the OECD, Serial
Acquisitions and Industry Roll-ups (Dec. 6, 2023) (DAF/COMP/
WD(2023)99), https://one.oecd.org/document/DAF/COMP/WD(2023)99/en/
pdf (discussing the history and roots of antitrust enforcement
against anticompetitive serial acquisitions). Serial acquisition
strategies may also violate section 2 of the Sherman Act when a firm
with monopoly power relies on acquisitions, among other conduct, to
acquire or maintain its monopoly. See Credit Bureau Reps., Inc. v.
Retail Credit Co., 358 F. Supp. 780 (S.D. Tex. 1971), aff'd, 476
F.2d 989 (5th Cir. 1973); United States v. Jerrold Elecs. Corp., 187
F. Supp. 545 (E.D. Pa. 1960).
\147\ See United States v. Phila. Nat'l Bank, 374 U.S. 321, 331
(1963) (PNB previously acquired nine independent banks while Girard
acquired six).
\148\ Id. at 367 (evidence of several remaining competitors
insufficient to rebut inherently anticompetitive tendencies of high
post-merger market shares, in light of strong trend toward mergers,
including those of the defendants).
\149\ See Investigation of Competition in Digital Markets, supra
note 106, at 24-25.
\150\ Richard M. Scheffler et al., Am. Antitrust Inst.,
``Soaring Private Equity Investment in the Healthcare Sector:
Consolidation Accelerated, Competition Undermined, and Patients at
Risk'' 8-16 (May 18, 2021), https://publichealth.berkeley.edu/wp-content/uploads/2021/05/Private-Equity-I-Healthcare-Report-FINAL.pdf. The Commission recently hosted a public workshop to
discuss the growing body of economic research examining the role of
private equity investment in health care markets. Fed. Trade Comm'n,
Private Capital, Public Impact: An FTC Workshop on Private Equity in
Health Care (Mar. 5, 2024), https://www.ftc.gov/news-events/events/2024/03/private-capital-public-impact-ftc-workshop-private-equity-health-care.
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Often the Agencies are not able to detect these strategies until it
is too late, after the serial acquirer has established a dominant
position and is able to exercise market power to the detriment of
market participants. For instance, in September 2023, the FTC charged
U.S. Anesthesia Partners, a for-profit corporation, with a multi-year
anticompetitive scheme to consolidate anesthesia practices in
Texas.\151\ This lawsuit, which is pending in Federal court in Texas,
alleges that the company acquired over a dozen anesthesiology practices
in Texas to eliminate competition and create a single dominant provider
with the power to demand higher prices.
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\151\ FTC v. U.S. Anesthesia Partners, Inc., No. 4:23cv3560
(S.D. Tex. Sept. 21, 2023) (complaint).
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The Commission is aware of the impact of serial acquisitions based
on its experience with the dialysis industry, which is an area in which
economic research has documented adverse effects from serial
acquisitions. Throughout the 2000s, the Commission reviewed a series of
large acquisitions by DaVita, the largest U.S. provider of life-
sustaining treatments for end stage renal disease patients. In 2006, in
conjunction with DaVita's $3.1 billion acquisition of rival Gambro
Healthcare, Inc., the Commission required DaVita to divest 69 dialysis
clinics in 35 markets across the United States to resolve charges that
the acquisition violated section 7. In 2011, DaVita sought to acquire
rival DSI for $689 million, and the Commission required divestitures to
preserve competition for dialysis services in 22 local markets. Then in
2017, the Commission ordered DaVita to divest seven clinics in New
Jersey and Dallas to proceed with its $358 million acquisition of Renal
Ventures. During roughly the same period, the Commission also reviewed
a series of acquisitions by Fresenius, the other leading U.S. provider
of dialysis services, and required significant divestitures to maintain
competition.\152\
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\152\ See In re Fresenius AG, No. C-4159 (F.T.C. July 5, 2006)
(decision and order requiring divestiture of ninety-one clinics and
financial interests in twelve more); In re Am. Renal Assocs. Inc.,
No. C-4202 (F.T.C. Oct. 23, 2007) (consent order terminating
purchase agreement for five clinics and closure of three additional
clinics); In re Fresenius Med. Care AG, No. C-4348 (F.T.C. May 25,
2012) (decision and order requiring divestiture of sixty dialysis
clinics).
---------------------------------------------------------------------------
Notwithstanding these enforcement actions, the dialysis industry
has experienced growing concentration, mostly as a result of
acquisitions that were not reportable under the HSR Act. According to
one 2020 study, there were more than 1,200 acquisitions of independent
dialysis facilities over a 12-year period, resulting in DaVita and
Fresenius operating more than 60 percent of all clinics
nationwide.\153\ The study concluded that these changes in
[[Page 89235]]
ownership resulted in higher prices, lower levels of service, and worse
outcomes for patients.\154\ One commenter stated that, based on his
research, merger enforcement against reportable acquisitions prevented
illegal consolidation 95 percent of the time, while the many non-
reportable acquisitions of dialysis clinics were blocked only 5 percent
of the time. He contended that these `stealth' acquisitions accounted
for much of the increase in within-market concentration.\155\
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\153\ Paul J. Eliason et al., ``How Acquisitions Affect Firm
Behavior and Performance: Evidence from the Dialysis Industry,'' 135
Q. J. Econ. 221, 222 (2020) (from 1990 to 2020, the share of
independent dialysis facilities fell from 86% to 21%).
\154\ Id. at 223.
\155\ See Comment of Thomas Wollmann, Doc. No. FTC-2023-0040-
0680 at 1 n.2 (citing to Thomas G. Wollmann, ``Stealth
Consolidation: Evidence from an Amendment to the Hart-Scott-Rodino
Act,'' 1 a.m. Econ. Rev.: Insights 77-94 (2019) and Thomas G.
Wollman, ``How to Get Away with Merger: Stealth Consolidation and
Its Effects on US Healthcare'' (Nat'l Bureau of Econ. Rsch., Working
Paper No. 27274, May 2020 rev. Mar. 2024), https://www.nber.org/papers/w27274).
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In light of the failure of prior interventions to stem the adverse
consequences of roll-up acquisitions in this industry, when DaVita in
2022 sought to buy 18 clinics in a non-HSR-reportable transaction, the
Commission unanimously voted to require DaVita not only to divest three
clinics but also to obtain prior Commission approval before buying any
new ownership interest in dialysis clinics in Utah.\156\ The Commission
determined that imposing a prior approval obligation was appropriate in
light of the company's history of attempting anticompetitive
transactions that do not trigger a notification under the HSR Act.\157\
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\156\ In re DaVita Inc., No. C-4677 (F.T.C. Oct. 25, 2021)
(decision).
\157\ See Fed. Trade Comm'n, Statement of the Commission on Use
of Prior Approval Provisions in Merger Orders (Oct. 25, 2021),
https://www.ftc.gov/system/files/documents/public_statements/1597894/p859900priorapprovalstatement.pdf.
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The Commission has also imposed prior notice or prior approval
provisions on another serial acquirer, JAB Consumer Partners, a private
equity firm that has made several significant acquisitions in the
emergency and specialty veterinary services markets across the United
States. JAB is the parent company of two large veterinary clinic
chains, Compassion-First Pet Hospitals and National Veterinary
Associates Inc., that have been built through a series of acquisitions.
In 2020, Compassion-First bought NVA for $5 billion, and the Commission
required JAB to divest clinics in three local markets.\158\ In June
2022, Compassion-First/NVA acquired Sage Veterinary Partners for $1.1
billion, and the Commission required divestitures in three additional
local markets.\159\ The Commission also determined that, in light of
JAB's ongoing acquisition strategy, it would require prior approval and
prior notice requirements on JAB's future acquisitions of specialty and
emergency veterinary clinics.\160\ Later in 2022, when JAB also sought
to acquire another veterinary chain with significant competitive
overlap in four geographic markets, the Commission again required
divestitures and prior approval requirements in the affected local
markets for emergency and specialty veterinary services markets.\161\
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\158\ In re Agnaten SE, No. C-4707 (F.T.C. Apr. 9, 2020)
(decision and order).
\159\ In re JAB Consumer Partners SCA SICAR, No. C-4766 (F.T.C.
Aug. 2, 2022) (decision and order).
\160\ The Commission's order requires JAB to obtain prior
Commission approval before acquiring a specialty or emergency
veterinary clinic within twenty-five miles of any JAB clinic in
California or Texas, and prior notice to the Commission thirty days
prior to a similar acquisition anywhere in the United States that is
not required to be reported under the HSR Act. Id. (decision and
order).
\161\ In re JAB Consumer Partners SCA SICAR, No. C-4770 (F.T.C.
Oct. 10, 2022) (decision and final order).
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But resorting to imposing prior approval obligations after an
industry has already experienced significant concentration due to roll-
up strategies is suboptimal. A central purpose of the HSR Act is to
allow the Agencies to arrest trends toward concentration through
effective premerger review. For any reportable transaction under the
HSR Act, the Agencies have an obligation to determine whether the
transaction is one of a series of acquisitions that could lead to harm
in the affected markets. Information about each party's prior
acquisitions will provide a basis for the Agencies to assess this risk
to competition during their initial antitrust assessment for any
reportable transaction.
Several commenters supported the need for more information related
to prior acquisitions, including a group of State antitrust enforcers.
One commenter noted that the private equity industry pioneered and
perfected the serial `roll-up' acquisitions that were too small to
attract antitrust agency attention but nonetheless amassed considerable
market power over time. The same commenter pointed out that private
equity firms use these add-on buyout deals to purchase multiple
competitors of an existing portfolio company or expand their geographic
reach to create a much bigger player in an industry--and that this
strategy can in aggregate substantially lessen competition or tend to
create a monopoly. Another commenter raised similar concerns that the
business strategy of making a series of small acquisitions--whether an
intentional tactic to avoid regulatory scrutiny or not--has become
concerningly common in recent decades and led to many consolidated
industries. An individual commenter shared their experience with the
broader impact of rollup acquisitions on local communities:
As the wife of a small business owner and member of a
community, I'm dismayed at seeing how many small local and regional
businesses have disappeared after becoming the target of mergers and
rollups. Those businesses--funeral homes, hospice care, newspapers,
hardware stores, coffee shops, veterinarians--were [] an important part
of the community. Now it is nearly impossible to start local businesses
in those sectors and turn any sort of profit while competing with PE
backed rollups.\162\
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\162\ Comment of Nora Johnson, Doc. No. FTC-2023-0040-0618.
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Other commenters stated that the proposed changes are unnecessary
because they lack sufficient justification, are out of step with their
view of case law and market realities, and do not seem to have a strong
factual basis. One commenter stated that the proposal to expand the
lookback period for prior acquisitions would invite the Agencies to
scrutinize long-consummated deals, including those that the HSR Act
were never intended to capture. Some raised concerns that the proposed
changes will substantially increase the burden of reporting on prior
acquisitions beyond what is currently required for the HSR Form.
Another stated that the costs of the proposed changes regarding prior
acquisitions far outweigh the potential benefit that information about
immaterial prior transactions could provide to the evaluation of the
transaction. One commenter stated that requiring disclosure of non-
reported transactions will reduce investments in startups.
The Commission has determined that, to detect whether serial or
roll-up acquisition strategies have changed the market dynamics such
that the transaction under review could have widespread harmful effects
that will be hard to undo, the Agencies need additional information
about prior acquisitions, including from the acquired firm. Knowing
each party's record of prior acquisitions in the same business lines
will allow the Agencies to understand the long-term competitive
strategy for the transaction at issue, including whether it is one in a
series of prior or planned acquisitions in the same industry and
whether the
[[Page 89236]]
transaction is a merger of ``consolidators.'' The additional
information would also permit the Agencies to better identify
transactions whose effects should not be viewed in isolation but rather
as a pattern of consolidation.\163\
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\163\ See Brown Shoe Co. v. United States, 370 U.S. 294, 334
(1962).
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The Commission has always required information about prior
acquisitions in the HSR Filing to help identify strategies aimed at
gaining market share through acquisitions rather than internal
expansion or more vigorous competition, and the Commission disagrees
that it is outside its rulemaking authority under the HSR Act to
require filers (including the target) to report prior acquisitions in
the same or related business lines even if they were not previously
reported to the Agencies for premerger review. The final rule contains
modest expansions of this long-standing requirement, to better account
for the increased number of firms engaged in roll-up strategies.
Nonetheless, the final rule does not contain certain expansions
suggested in the proposed rule, such as eliminating the $10 million
exception or expanding the lookback period from 5 to 10 years in
response to comments that providing this level of information about
prior acquisitions would be costly and burdensome. The modest expansion
of this information requirement should provide the Agencies with a more
complete record of consolidation in the relevant business lines that
has been driven by the merging parties in order to identify when a
reported transaction is the latest in a series of acquisitions, and
thus one that may violate the antitrust laws.
As noted elsewhere, the Agencies remain committed to identifying
consummated mergers that have resulted in harm and to take steps to
unwind them as resources permit. But regardless of the legality or
reportability of any particular prior acquisition, the fact that it
occurred and involved the same business lines under review is directly
relevant to whether the reported transaction may violate the antitrust
laws, including through a series of mergers that ``convert an industry
from one of intense competition among many enterprises to one in which
three or four large concerns produce the entire supply.'' \164\ For
these reasons, the Commission has determined there is a need to collect
information about prior acquisitions from the seller as well as the
buyer. The cost of complying with this requirement should be minimal
except in instances where the seller has made many acquisitions in the
same or related business lines, in which case the information may prove
highly relevant to Agency review.
---------------------------------------------------------------------------
\164\ Id. (quoting S. Rep. 81-1775, at 5 (1950) and citing H.R.
No. Rep. 81-1191, at 8 (1949)).
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Other new requirements in the final rule will also help the
Agencies identify these roll-up strategies. In particular, the Overlap
Description will provide an alternative basis for identifying product
or service market overlaps for which prior acquisitions should be
reported. Information about the buyer's acquisition rationale will
reveal the purpose of the transaction, including whether is it part of
a strategy of pursuing transactions in similar business lines. The new
requirement to submit a small set of business plans and reports shared
with the highest levels of management that discuss market shares,
competition, competitors, or markets of any product or service that is
provided by both the acquiring person and acquired entity may reveal
whether there are other acquisition targets identified by either the
acquiring or acquired person.
III. Statutory Authority and Economic Analysis
The HSR Act directs the Commission, with the concurrence of the
Assistant Attorney General and consistent with the purposes of the Act,
to issue rules requiring the submission of documentary material and
information relevant to a proposed acquisition as is ``necessary and
appropriate to enable [the Agencies] to determine whether such
acquisition may, if consummated, violate the antitrust laws.'' \165\
The HSR Act was enacted to assist the Agencies in enforcing other
provisions of the Clayton Act, and to give the FTC and the Department
of Justice a tool--premerger notification--to identify problematic
mergers and acquisitions before they are consummated and a short period
of time to complete their analysis.\166\ The statute grants the
Commission explicit authority to require the submission of documents
and information the Agencies determine are necessary and appropriate to
identify proposed acquisitions that may result in an antitrust
violation.\167\
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\165\ 15 U.S.C. 18a(d)(1).
\166\ PhRMA, 790 F.3d at 199, 206.
\167\ Id. at 199, 201, 205.
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In the administrative law context, the Supreme Court has held that
Congress' use of terms such as ``appropriate'' or ``reasonable'' in a
statute authorizing agency rulemaking gives the agency ``flexibility''
to regulate.\168\ As the Supreme Court has explained, ``[o]ne does not
need to open up a dictionary in order to realize the capaciousness of
this phrase. In particular, `appropriate' is the classic broad and all-
encompassing term that naturally and traditionally includes
consideration of all the relevant factors.'' \169\ The phrase ``leaves
agencies with flexibility,'' although ``an agency may not entirely fail
to consider an important aspect of the problem.'' \170\ In at least
some contexts, courts have held that ``necessary and appropriate''
requires consideration of a rule's costs and benefits.\171\
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\168\ Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244
(2024).
\169\ Michigan v. EPA, 576 U.S. 743, 752 (2015) (citation and
internal quotation marks omitted).
\170\ Id. (citation and internal quotation marks omitted).
\171\ See id.; Mex. Gulf Fishing Co. v. U.S. Dep't of Commerce,
60 F.4th 956, 965 (5th Cir. 2023) (finding that the necessary and
appropriate standard at a minimum requires that a rule's benefits
reasonably outweigh its costs).
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The Commission is not convinced that Congress intended the words
``necessary and appropriate'' to require a cost-benefit analysis in
this context. Had Congress intended to require the Commission to
consider costs and benefits, it could easily have done so.\172\
Instead, it gave the Commission broad authority to establish
requirements it deems necessary and appropriate for determining whether
a proposed acquisition may violate the antitrust laws during premerger
review, and even gave the Commission express authority to define
statutory terms. Nonetheless, in the particular circumstances of this
rule, the Commission has considered the reasonableness of requiring
additional information in the HSR Filing in light of the statutory
scheme established by Congress to more effectively prevent undue
consolidation that violates the antitrust laws, including the costs and
the benefits of the final rule. The Commission has evaluated, on the
one hand, the benefits to the Agencies, the parties, third parties and
the public in making premerger review more efficient and effective by
obtaining information necessary to properly assess the competitive
effects of proposed acquisitions; and on the other hand, the need to
reduce unnecessary burden, costs, and delay on filers and the
transactions they hope to pursue in a manner consistent with the
[[Page 89237]]
mandatory premerger notification regime of the HSR Act.
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\172\ See Chamber of Com v. Sec. Exch. Comm'n., 412 F.3d 133,
142 (D.C. Cir. 2005) (statute requires SEC to consider whether rule
will promote efficiency, competition, and capital formation which
requires a consideration of the costs of the conditions imposed by
the rule).
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In determining what information is necessary and appropriate to
determine whether a reported transaction merits the issuance of Second
Requests, the Commission also draws on the Agencies' decades of
experience reviewing filings and responding to informal requests for
guidance.\173\ This operational experience informs the Commission's
assessment of the existing rules' shortcomings and supports its
decision that it is necessary and appropriate--and consistent with the
text and purpose of the HSR Act--for the Agencies to require the
merging parties to provide sufficient information to enable the
Agencies to conduct a preliminary assessment of the risk that the
filed-for transaction may violate the antitrust laws, particularly
where some information is available only from the parties.
---------------------------------------------------------------------------
\173\ See PhRMA, 790 F.3d at 210 (the Commission may provide the
factual predicate for a finding through its cumulative experience
and resulting expertise).
---------------------------------------------------------------------------
After careful consideration of the public comments as well as the
costs and benefits of the proposed changes, the Commission has
determined to adopt a modified version of the information requirements
proposed in the NPRM. As modified, the final rule will facilitate the
provision of relevant documentary materials and information that allow
the Agencies to assess whether a proposed acquisition may violate the
law within the statutory period available for their initial review
while minimizing the cost and burden of producing such materials as
much as practicable.
The following analysis considers the potential economic effects
that may result from the final rule consistent with the Commission's
statutory power to obtain information necessary and appropriate to
conduct an effective premerger review, including the benefits and costs
to market participants. In conducting this assessment, the Commission
has identified existing costs to filers, the Agencies, and third
parties that could be avoided by adjusting the information requirements
for HSR Filings. Avoiding such costs would generate benefits for
filers, the Agencies, and third parties in addition to broader public
benefits of effective premerger screening to identify potentially
unlawful mergers prior to consummation.
The Commission believes that the final rule will improve the
efficiency of the premerger review process and help the Agencies
identify transactions that may violate the antitrust laws along all
parameters of potential harm, but not all of these benefits can be
quantified. Wherever possible, the Commission quantifies the likely
economic effects of its final rule. However, some economic effects are
inherently less conducive to sound quantification either due to the
lack of reliable data or the lack of a well-established economic
methodology that would provide estimates or ranges of costs. For
example, producing quantitative estimates of certain costs and benefits
would require numerous assumptions to generate a behavioral forecast of
how parties contemplating an acquisition and other affected third
parties would respond to the rule, and how those behavioral responses
would in turn affect the overall cost of compliance and the merger
review process. In addition, some factors determining certain economic
effects of the rule are transaction-, firm- and industry-specific and
thus inherently difficult to quantify. Even if it were possible to
calculate a range of potential quantitative estimates for these
effects, the range would be so wide as to not be informative about the
magnitude of the associated benefits or costs. Where sound economic
methodology is not available to measure particular benefits or costs,
the Commission addresses those qualitatively.\174\ In sum, to show the
connection between the facts found and the agency's decision, the
Commission provides, where feasible and appropriate, a quantified
estimate of the economic effects of the final rule, and a qualitative
description of the benefits and costs.
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\174\ See Chamber of Com v. Sec. Exch. Comm'n., 85 F.4th 760,
768 (5th Cir. 2023) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). See also
id. at 773-74 (explaining that securities law provisions providing
rulemaking authority do not require the agency to conduct a
quantitative inquiry to ascertain the economic effects of a rule,
that the agency could instead rely on a qualitative assessment of
the rule's economic implications, and that the agency can determine
the analysis that most effectively reflects the economic
consequences of its rule) (citation omitted); All. For Fair Bd.
Recruitment v. Sec. Exch. Comm'n., 85 F.4th 226, 263 (5th Cir. 2023)
(agency's analysis of unquantifiable benefits sufficiently supports
a rule as long as it provides an adequate explanation for its
determination, and agency need not support its analysis with hard
data where it reasonably relied on intangible benefits that were
difficult to quantify) (citations omitted); Mex. Gulf Fishing., 60
F.4th at 965-66 (a necessary-and-appropriate condition does not
require applying a strict cost-benefit analysis but simply a showing
that expected benefits are reasonably related to anticipated costs)
(citations omitted).
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A. Statutory Authority and Congressional Intent
The HSR Act provides that the Commission ``shall require'' that
premerger notifications be in such form and contain such documentary
material and information relevant to a proposed acquisition as is
necessary and appropriate to enable the Agencies to determine whether
such acquisition may, if consummated, violate the antitrust laws.\175\
Thus, the HSR Act explicitly requires the Commission, with the
concurrence of the Assistant Attorney General, to determine what types
of documents and information are required to conduct an initial
assessment of antitrust risk. Mandatory premerger review strengthens
merger enforcement by giving the Agencies a fair and reasonable
opportunity to detect and investigate large mergers before
consummation.\176\ The ability to spot ``problem areas'' during the
initial screen is the key feature of the HSR Act that converts merger
enforcement from ineffective ex-post litigation to expeditious and
effective premerger proceedings.\177\
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\175\ 15 U.S.C. 18a(d)(1).
\176\ H.R. Rep. No. 94-1373, at 5 (1976).
\177\ Id. at 10-11 (chief virtue of the Act is to help eliminate
endless post-merger proceedings and replace them with far more
expeditious and effective premerger review generating considerable
savings; if the initial notification form reveals `problem areas,'
the government can request additional data during the initial 30-day
period).
---------------------------------------------------------------------------
To that end, Congress passed the HSR Act to provide the Agencies
with advance notice of planned acquisitions and an opportunity to
challenge such acquisitions as unlawful prior to consummation. The
overall intent was to avoid lengthy, costly post-consummation
enforcement that is ineffective at preventing undue concentration and
permits an illegal acquisition to cause harm until unwound:
The problem this bill cures is startlingly simple, but it goes
to the very foundations of our merger law. Under present law,
companies need not give advance notification of a planned merger to
the Federal Trade Commission and the Department of Justice. But if
the merger is later judged to be anticompetitive, and divestiture is
ordered, that remedy is usually a costly exercise in futility--
untangling the merged assets and management of the two firms is like
trying to unscramble an omelet.\178\
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\178\ 122 Cong. Rec. 25051 (1976) (remarks of Rep. Rodino).
Premerger review was not the only tool given the Agencies to rectify
the inadequacy of post-consummation merger enforcement. In 1973,
Congress amended the FTC Act to authorize the Commission to seek
injunctions in Federal court in recognition of the inadequacy of
post-consummation divestitures. See FTC v. H.J. Heinz Co., 246 F.3d
708, 726 (D.C. Cir. 2001) (Section 13(b) of the FTC Act reflects
congressional recognition that divestiture is an inadequate and
unsatisfactory remedy in a merger case, citing 119 Cong. Rec. 36612
(1973)). The inability of the Commission to obtain injunctive relief
sooner to prevent widespread harm from mergers was a widely
acknowledged shortcoming of its agency design. See, e.g., FTC v.
Dean Foods Co., 384 U.S. 597, 606 n.5 (1966) (experience shows that
the Commission's inability to unscramble merged assets frequently
prevents entry of an effective order of divestiture).
[[Page 89238]]
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As noted by the Antitrust Modernization Commission (AMC)--a special
body commissioned by Congress in 2002 to conduct a comprehensive review
and make recommendations for revisions to U.S. antitrust laws--the HSR
Act addressed the defects of post-consummation merger enforcement,
which ``could neither fully compensate society for the interim loss of
competition, nor fully restore a competitive market structure,
particularly if the companies had already integrated their productive
assets, or `scrambled the eggs.' '' \179\ Congress also intended to
avoid deterring or impeding the consummation of the vast majority of
acquisitions and therefore fashioned a regime that reflected ``a
careful balancing of the need to detect and prevent illegal mergers and
acquisitions prior to consummation without unduly burdening business
with unnecessary paperwork or delays.'' \180\
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\179\ Antitrust Modernization Comm'n, Rep. & Recommendations 155
& n.21 (2007), https://govinfo.library.unt.edu/amc/report_recommendation/toc.htm (citing H.R. Rep. No. 94-1373 at 7-11)
(hereinafter ``AMC Report''). The Antitrust Modernization Commission
was created pursuant to the Antitrust Modernization Commission Act
of 2002, Pub. L. 107-273, 116 Stat. 1856, Div. C., Title I, Subtitle
D (2002). The AMC was charged with examining whether there was a
need to modernize the antitrust laws and to identify and study
related issues; to solicit views; and to evaluate proposals for
change. The AMC provided its Report and Recommendations to Congress
and the President on April 2, 2007, and was terminated on May 31,
2007, having completed its statutory duties.
\180\ S. Rep. No. 94-803, at 65 (1976).
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The Agencies have administered the premerger notification program
required by the HSR Act for more than 45 years, and the Commission has
engaged in numerous rulemakings to change the information requirements
for premerger notification in response to changes in market realities.
Although many commenters object in whole or in part to the proposals
contained in the NPRM, several conceded that some updates to the Rules
are reasonable or justified by increasingly complex markets. Others
commended the Commission for undertaking a periodic review of its
rules. Even so, some argue that the Commission lacks the authority to
make any changes to its current process that would increase the burden
or delay HSR-reportable transactions, asserting that Congress intended
to reduce costs and delay and to focus the Agencies' scrutiny on only
the largest corporate transactions. The Commission disagrees with
certain commenters that the Commission lacks the authority to adjust
information requirements over time to make premerger review efficient
and effective for the purpose of detecting potentially illegal mergers
in light of changing market conditions.
Given the number of comments that assert that the proposed rule
violated the intent of the HSR Act, the Commission responds first to
these broad objections. The Commission also responds to assertions that
it has failed to properly weigh the benefits and costs of changing the
notification requirements in light of the statutory premerger scheme.
As an initial matter, the Commission disagrees that avoiding
potential cost or delay to those involved in dealmaking is the primary
focus of the HSR Act. The legislative history and plain text of the HSR
Act make clear that the goal of establishing a premerger review regime
was not to minimize the number of transactions that are reviewed by the
Agencies or to reduce the delay for reported transactions below the
statutory obligations.\181\ In fact, it is clear that Congress
explicitly contemplated that a mandatory premerger notification regime
would impose burdens on merging parties. Prior to the passage of the
HSR Act, parties were free to merge without providing any notification
and without any delay, which led to concerns that the Agencies were
practically unable to block or unwind illegal transactions.\182\
Congress determined that new and meaningful requirements were necessary
to achieve the overarching Congressional goal of promoting vigorous and
effective enforcement of the antitrust laws:
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\181\ Efforts to require premerger notification date back to
1908. Leading up to the passage of the HSR Act, the Commission
regularly urged Congress to pass legislation that would require
advance notice for acquisitions. For a short time, the Commission
relied on its authority under section 6 of the FTC Act to require
merging parties to file special reports 60 days prior to
consummation in certain industries, such as food distribution and
cement. None of these programs required the parties to stay their
merger plans. After passage of the HSR Act, the Commission
discontinued reliance on special reports for prior notice of pending
mergers. See Kelly Signs, ``Milestones in FTC History: HSR Act
launches effective premerger review,'' Fed. Trade Comm'n Competition
Matters blog (Mar. 16, 2015), https://www.ftc.gov/enforcement/competition-matters/2015/03/milestones-ftc-history-hsr-act-launches-effective-premerger-review.
\182\ See S. Rep. No. 94-803, at 64 (1976).
Amended Section 7 has failed to achieve its objectives--not
because of its substantive standards, but because of the lack of an
effective mechanism to detect and prevent illegal mergers prior to
consummation. . . . The Committee believes that [premerger
notification] represents a careful balancing of the need to detect
and prevent illegal mergers and acquisitions prior to consummation
without unduly burdening business with unnecessary paperwork or
delays . . . Complex mergers or acquisitions of the kind encompassed
within this subsection generally require a great deal of prior
planning, and this provision will provide the Government appropriate
opportunity to evaluate the legality of significant business
behavior at the most propitious moment for all parties, with the
least possible disaccommodation.\183\
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\183\ Id. at 63-66. See also id. at 9-10.
When setting up the premerger notification program, the Commission
rejected assertions that the term ``notification'' implies only a
minimal burden for the initial HSR Filing. Some commenters at the time
maintained that the initial notification should do little more than
inform the Agencies of the participants to the transaction, the
projected date of consummation, and other noncontroversial and
generally uninformative data, leaving a fuller information demand to
the Second Request. The Commission disagreed that the HSR Act should be
read this way, stating that this position is contrary to the statutory
text and fundamentally misconceives the amount of information necessary
to make even a tentative determination whether a transaction may
violate the antitrust laws.\184\ The Commission explained that the HSR
Filing should contain information necessary and appropriate for an
effective premerger notification program.\185\ The Commission reasoned
that requiring perfunctory information in the HSR Filing would not
fulfill the statutory provision and would result in more Second
Requests that would extend the average waiting period under the HSR
Act.\186\ Then and now, to fulfill the purpose of premerger review,
there must be sufficient information provided in an HSR Filing to
determine whether to issue Second Requests and what information those
requests would seek. Consistent with Congress' expectations that HSR
Filings would consist of data and documents reasonably available to
filing companies, such as the information and documents they relied
[[Page 89239]]
on when contemplating the deal,\187\ the final rule seeks information
that is readily available to the parties to fill information gaps that
the Agencies have identified in the current HSR Form.
---------------------------------------------------------------------------
\184\ 43 FR 33450, 33519-20 (July 31, 1978).
\185\ Id. The Commission also rejected suggestions that it make
certain burdensome requests optional for the parties, finding that
such an approach would undermine the usefulness of the second
request mechanism, hinder the Agencies in their efforts to carry out
their congressionally mandated review, and be administratively
unworkable. Id. at 33520.
\186\ Id. at 33520. See also 42 FR 39040, 39043 (Aug. 1, 1977).
\187\ 122 Cong. Rec. 30877 (1976) (remarks of Rep. Rodino).
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As discussed above, information reported in the current HSR Form is
not sufficient due to differences in corporate structure and investment
activity as well as profound changes in economic activity. In this
rulemaking, the Commission is responding to these changes and how they
have affected the Agencies' ability to conduct premerger screening in
light of today's market realities. The Agencies need information to be
able to spot all types of potential harm and the Commission has
determined that the information requirements contained in the final
rule are necessary and appropriate to conduct effective and efficient
premerger screening and avoid even greater costs associated with
collecting additional information through issuing more Second Requests.
Without sufficient information available in the HSR Filing on the first
day of the statutory review period, the Agencies cannot fulfill their
mandate to identify and prevent illegal mergers or avoid potentially
costly and protracted investigations.
Several commenters suggested that because Congress recently
authorized the collection of additional information relating to foreign
subsidies, that is the only information the Commission has the
authority to collect.\188\ The Commission disagrees that in passing
this new requirement, Congress intended to repeal or in any way limit
the Commission's statutory authority under 15 U.S.C. 18a(d) to impose
other reporting requirements that are necessary and appropriate to
determine whether the transaction may violate the antitrust laws.
Indeed, the Commission is relying on its section 18a(d) authority to
require the submission of information related to foreign subsidies in
the final rule. The other changes contained in the final rule are a
reasonable exercise of the Commission's rulemaking authority to require
information that is necessary and appropriate for detecting problematic
mergers during the initial waiting period of the HSR Act. The final
rule updates the premerger notification regime based on the Agencies'
experience in reviewing thousands of HSR Filings each year and in light
of observable changes in market dynamics, contemporary investor
behavior, investment arrangements, and acquisition strategies, as
discussed in section II.B. above.
---------------------------------------------------------------------------
\188\ See Consolidated Appropriations Act, 2023, Public Law 117-
328, 136 Stat. 4459 (2022).
---------------------------------------------------------------------------
Some commenters suggested that the Commission lacks authority to
make changes to the notification requirements because doing so
increases the likelihood that the Agencies will subject more
transactions to close scrutiny or seek to block them as illegal, and
that this increased scrutiny will disincentivize dealmaking. This line
of argument is contrary to the purpose of the HSR Act and the final
rule.
Congress passed the HSR Act to create an effective mechanism to
detect, deter, and prevent large transactions that violate the
antitrust laws. The inadequacy of current notification requirements may
encourage parties to enter into unlawful transactions due to the low
risk of premerger detection.\189\ One commenter supporting the need for
change noted that the gaps created by the existing HSR Form and
Instructions make it possible for anticompetitive mergers to go through
unnoticed. Parties considering a merger are aware of this, so under the
current system, parties are likely more willing to consider or attempt
a merger that would be more obviously unlawful under a more rigorous
disclosure regime. To the extent that one effect of the final rule
would deter unlawful dealmaking, that effect is clearly consistent with
Congress' intent that mandatory premerger review more effectively
prevent illegal mergers.\190\ Filing parties cannot claim an interest
in inadequate detection or in avoiding an in-depth antitrust
investigation that may lead to a court injunction blocking the merger
because these concerns directly contravene U.S. law. Based on statutory
text and clear Congressional intent, the Commission must ensure that
HSR notification requirements enable the Agencies to detect the
potential for harm before the harm occurs; that is the purpose of
premerger review. When the Agencies' ability to detect the violation is
compromised by inadequate disclosures in the HSR Filing, the Commission
must use the authority expressly conferred by Congress to adjust the
Agencies' detection tools to fulfill the purpose of premerger review.
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\189\ See ``Stealth Consolidation,'' supra note 18.
\190\ See S. Rep. No. 94-803, at 65 n.28 (the purposes
underlying enactment of section 7 of the Clayton Act could have been
accomplished if premerger notification had been enacted when
originally proposed, and that if it had the economy would be less
concentrated.).
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Other commentors suggested that the Agencies' infrequent challenges
to consummated mergers, including those reported but not challenged
prior to consummation, are proof that the Agencies are not ``missing
deals'' that cause harm. But given the significant effort required to
unwind completed mergers, the frequent lack of information about the
effects of consummated mergers, and the limited resources the Agencies
have available to devote to all types of merger enforcement, in
addition to their other statutory responsibilities,\191\ the relatively
low number of challenges to consummated mergers does not indicate that
the current information requirements for premerger screening are
sufficient to detect illegal deals. The Agencies must make difficult
decisions about how to use their resources to address consummated
mergers that may be causing real and ongoing harm while also working to
fulfill their obligations to conduct a robust premerger screening of
reported transactions. The critical task of screening reported
transactions for antitrust risks can be especially challenging during
times of peak M&A activity. See Figure 1.
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\191\ In addition to merger enforcement, both Agencies
investigate and challenge anticompetitive conduct that may violate
the antitrust laws. The Antitrust Division has sole responsibility
to prosecute criminal violations of the antitrust laws, while the
Commission has authority under section 5 of the FTC Act (15 U.S.C.
45) to challenge unfair methods of competition beyond the scope of
the Sherman or Clayton Acts. In addition, the Commission's budget
supports its consumer protection work, which is devoted to stopping
unfair or deceptive acts or practices that violate the FTC Act as
well as enforcement of more than 80 other statutes. See generally
Fed. Trade Comm'n, ``Legal Library: Statutes,'' https://www.ftc.gov/legal-library/browse/statutes.
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According to one commenter whose members have been directly
affected by consolidation in the retail food sector, third parties
sometimes alert the Agencies to competitive issues, but that may not
occur until after the waiting period has expired or the deal has been
consummated. This commenter noted that these untimely scenarios are
exactly the opposite of the HSR Act's legislative intent and force the
Agencies and courts into a precarious position to preserve competition
or obtain effective remedies. Congress certainly did not provide
immunity for reported mergers that are not challenged prior to
consummation (as most jurisdictions do) \192\ so it is not a binary
choice for the
[[Page 89240]]
Agencies to ``act or stand down'' on a reported merger. But once a
merger is consummated (whether reported in advance or not), the
Agencies face decisions about the significant costs of mounting a
merger challenge to unwind the deal as well as the opportunity costs of
doing so. Given the limited resources the Agencies have to devote to
merger enforcement, the Agencies will often focus on enforcement of
reported mergers due to these opportunity costs.\193\
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\192\ See The Merger Control Review Preface, x (Ilene Knable
Gotts, ed., 14th ed., 2023) (in most jurisdictions, a transaction
that is not notified is not subject to review or challenge by the
competition authority), https://www.wlrk.com/webdocs/wlrknew/AttorneyPubs/WLRK.28469.24.pdf. Canada recently extended its
lookback period from one year to three years for non-notified
transactions but left unchanged the one-year limitation to challenge
notified transactions. See Competition Bureau Canada, ``Guide to the
June 2024 amendments to the Competition Act'' (June 25, 2024),
https://competition-bureau.canada.ca/how-we-foster-competition/education-and-outreach/guide-june-2024-amendments-competition-act.
\193\ See Zarek Brot-Goldberg, et al., ``Is There Too Little
Antitrust Enforcement in the US Hospital Sector?'' (U. Chi., Becker
Friedman Inst. for Econ. Working Paper No. 2024-59, May 2024)
(forthcoming, Am. Econ. Rev.: Insights), https://bfi.uchicago.edu/working-paper/is-there-too-little-antitrust-enforcement-in-the-us-hospital-sector/ (FTC is intervening in the most anticompetitive
transactions but not preventing a significant number of hospital
mergers that nonetheless cause harm).
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The legislative record leading to the HSR Act is replete with
references to the costs, delays, and ineffectiveness of relying on
post-consummation enforcement to interdict mergers that may cause harm
in their incipiency.\194\ In the Agencies' experience, unwinding
illegal consummated mergers continues to be a costly exercise, and
there remain significant delays in obtaining effective relief through
unwinding. A merged firm has strong incentives to delay the outcome,
and Commission orders requiring divestiture of acquired assets are
often appealed, further deferring relief.\195\ Moreover, smaller or
seemingly inconsequential acquisitions can later be revealed as
potentially illegal exclusionary conduct when they are used by firms
with dominant market positions to maintain or extend a monopoly in
violation of section 2.\196\ There are enormous costs and delays
associated with prosecuting section 2 cases involving the largest
companies in the world to unwind harmful acquisitions.\197\
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\194\ See H.R. Rep. No. 94-1373, at 7-10 (1976).
\195\ See, e.g., Illumina, Inc. v. FTC, 88 F.4th 1036 (5th Cir.
2023); ProMedica Health Sys., Inc. v. FTC, 749 F.3d 559 (6th Cir.
2014), cert. denied, 575 U.S. 996 (2015); Polypore Int'l, Inc. v.
FTC, 686 F.3d 1208 (11th Cir. 2012).
\196\ See supra note 107 (collecting cases).
\197\ The Commission filed its monopolization complaint against
Facebook (now Meta) on December 9, 2020, and was joined by a
coalition of forty-six States, the District of Columbia and Guam.
See Press Release, Fed. Trade Comm'n, ``FTC Sues Facebook for
Illegal Monopolization'' (Dec. 9, 2020), https://www.ftc.gov/news-events/news/press-releases/2020/12/ftc-sues-facebook-illegal-monopolization. The FTC is seeking a permanent injunction that
would, among other things, require the divestiture of previously
acquired assets. As of September 27, 2024, the parties have
concluded pretrial discovery; a trial date has not been set.
---------------------------------------------------------------------------
In mandating government review of acquisitions prior to
consummation, Congress intended for the Agencies to avoid these types
of protracted antitrust cases when possible. Instead, Congress
envisioned that merger enforcement would occur mostly through a system
of premerger review, even at the cost of requiring premerger review for
many mergers that may not ultimately warrant an in-depth investigation
let alone a challenge in court.\198\ The Commission has determined that
imposing some limited additional upfront costs on filers so that they
submit sufficient information to allow the Agencies to conduct the
mandatory initial antitrust review fulfills the Agencies' statutory
responsibilities and should be weighed against the benefit of avoiding
large expensive antitrust actions required to unwind illegal
acquisitions that were not detected at the screening phase.
Importantly, the final rule imposes fewer information requirements on
transactions that are reportable but have low antitrust risk while
seeking the most information from those transactions most likely to
require in-depth review at the screening phase. Otherwise, the
consequences of poor detection are improperly shifted to those harmed
by illegal consummated mergers--which is plainly at odds with the
purpose of the HSR Act.
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\198\ The Agencies can and do challenge reportable mergers after
the expiration of the waiting period. See, e.g., Chi. Bridge & Iron
Co. N.V. v. FTC, 534 F.3d 410 (5th Cir. 2008); United States. v.
Parker Hannifin Corp., No. 17-cv-01354 (D. Del. Sept. 26, 2017)
(complaint). See also Note by the United States to the OECD,
Investigations of Consummated and Non-Notifiable Mergers (Feb. 25,
2014) (DAF/COMP/WP3/WD(2014)23), https://one.oecd.org/document/DAF/COMP/WP3/WD(2014)23/En/pdf (discussing Agencies' challenges of
consummated mergers); Menesh S. Patel, ``Merger Breakups,'' 2020
Wisc. L. Rev. 975, 990 (2020) (observing that, since 2001, the
Agencies have challenged at least four mergers that previously
underwent HSR review). Because of the confidentiality protections
afforded HSR filings, market participants are often not aware of the
merger or the timing of the expiration of the statutory waiting
periods. See Comment of Strategic Org. Ctr., Doc. No. FTC-2023-0040-
0708 at 3 (urging public notice of the date of HSR filings and the
identity of the filers so that interested and affected parties can
contact the Agencies during the initial review period). Many
investigations of consummated mergers, including reported but not
challenged transactions, are initiated after market participants
reach out to the Agencies about the observed effects of the merger.
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The benefits of stopping an illegal merger before it happens can be
significant, especially for those who would bear the consequences of
harm induced by the merger. The chart below collects estimates of
avoided harm due to likely price changes for affected products or
services in cases litigated by the Agencies and accepted by Federal
courts as a basis for enjoining illegal mergers in recent years.
[[Page 89241]]
[GRAPHIC] [TIFF OMITTED] TR12NO24.035
In addition to merger-induced price effects, which can vary widely
due to differences in the economic size of the relevant markets
affected by the merger, there can also be harm to customers from the
loss of non-price competition. For example, the court found that
JetBlue's anticipated reconfiguration of Spirit's aircraft would result
in a decrease in the number of seats available on JetBlue flights of
more than 6,100,000 per year.\199\ These types of effects reduce output
and result in a welfare loss due to the exercise of market power. In a
vertical merger context, the Fifth Circuit affirmed the Commission's
findings that Illumina's acquisition of Grail lessened competition via
a different mechanism: the potential foreclosure of a key input by the
sole supplier would lead to chilled investment by firms reliant on
those inputs for their own competitive success.\200\
---------------------------------------------------------------------------
\199\ United States v. JetBlue Airways Corp., No. 1:23-cv-10511
at 43 (D. Mass., Jan. 16, 2024) (Findings of Fact and Conclusions of
Law).
\200\ Illumina, Inc. v. FTC, 88 F.4th 1036, 1055 (5th Cir.
2023).
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Moreover, merger retrospectives document merger-induced effects
such as increased prices and decreased product quality or availability
across a range of industries.\201\ Given the significant economic costs
imposed on market participants harmed by an illegal consummated merger,
the Agencies will continue to challenge consummated mergers when
practical and as resources permit. But relying on post-consummation
merger enforcement to correct for information deficiencies in the HSR
Form is contrary to Congressional intent that premerger review be used
to stop illegal mergers before they occur.
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\201\ See generally Vivek Bhattacharya et al., ``Merger Effects
and Antitrust Enforcement: Evidence from US Consumer Packaged
Goods'' (Nat'l Bureau of Econ. Rsch., Working Paper No. 31123, Apr.
2023, rev. June 2024), https://www.nber.org/papers/w31123 (studying
fifty mergers in the consumer-packaged goods industry and finding
that, on average, these mergers raised prices by 1.5 percent and
decreased quantities sold by 2.3 percent); Daniel Hosken et al.,
``Do Retail Mergers Affect Competition? Evidence from Grocery
Retailing,'' 27 J. Econ. & Mgmt. Strategy 3 (2018) (finding that the
majority of grocery mergers in highly concentrated markets resulted
in price increases of more than 2 percent); John E. Kwoka, Jr.,
Mergers, Merger Control, and Remedies: A Retrospective Analysis of
U.S. Policy 110-11 (2014) (providing a meta-analysis of
retrospective literature, finding that more than 80 percent of
mergers resulted in price increases and the mean price increase was
5.88 percent across all studied transactions); Orley C. Ashenfelter
et al., ``Did Robert Bork Understate the Competitive Impact of
Mergers? Evidence from Consummated Mergers,'' 57 J. L. & Econ. S67
(2014) (reviewing prior retrospectives and concluding that mergers
in oligopolistic markets can result in economically meaningful price
increases, as 36 of 49 studies surveyed found evidence of merger-
induced price increases); Leemore Dafny et al., ``Paying a Premium
on Your Premium? Consolidation in the US Health Insurance
Industry,'' 102 a.m. Econ. Rev. 1161 (2012) (examining healthcare
mergers and finding the mean increase in local market HHI during the
studied period raised premiums by roughly 7 percent); Orley
Ashenfelter & Daniel Hosken, ``The Effect of Mergers on Consumer
Prices: Evidence from Five Mergers on the Enforcement Margin,'' 53
J. L. & Econ. 417 (2010) (examining a set of mergers that were
unchallenged by the government and finding that the majority
resulted in a significant increase in consumer prices in the short
run); Thomas Koch & Shawn W. Ulrick, ``Price Effects of a Merger:
Evidence from a Physicians' Market,'' 59 Econ. Inquiry 790 (2021)
(concluding that a merger of orthopedic physicians' practices
increased prices to some payors by ten to twenty percent while
prices in nearby areas not affected by the merger remained
unchanged); Zack Cooper et al., ``The Price Ain't Right? Hospital
Prices and Health Spending on the Privately Insured,'' 134 Q. J.
Econ. 51 (2019) (examining 366 hospital mergers and finding that
prices increased by over six percent when merging hospitals were
geographically close); Prager & Schmitt, supra note 83 (examining
hospital mergers and finding reduced wage growth when merger
significantly increases concentration).
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1. Congress Determined Which Acquisitions Must Bear the Costs
Associated With Premerger Review
Congress determined that the burden of premerger review should
apply, regardless of antitrust risk, to a small subset of mergers where
that burden would not be so great in comparison to the size of the deal
and the size of the parties involved. Because the final rule does not
require reporting for any additional transactions, it maintains the
balance struck by Congress that only some mergers be subject to
mandatory premerger review.
Congress incorporated several features in the HSR Act to lessen the
burden on dealmaking, especially for small business and small
transactions.\202\ For instance, the HSR Act as first passed in 1976
contained three specific requirements that determined reportability for
a planned transaction: the acquiring person is engaged in interstate
commerce (the commerce test); one of the parties was worth at least $10
million and the other worth at
[[Page 89242]]
least $100 million (the size-of-person test); and as a result of the
transaction, the acquiring person would hold at least 15 percent or $15
million of the acquired entity (the size-of-transaction test). These
thresholds were adopted in response to concerns that requiring
reporting for all mergers would unduly affect capital markets.\203\ The
size-of-person test was seen as especially important to limit the
impact of premerger reporting on small businesses:
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\202\ The Senate version of the premerger notification bill
would have given the Commission authority to require reporting from
additional ``small'' mergers, but the House bill and the final law
did not include this provision. 122 Cong. Rec. 30877 (1976).
\203\ See S. Rep. No. 94-803, at 65-66 (1976).
Approximately the largest 700 U.S. companies meet the $100
million jurisdictional requirement. Although $100 million companies
account for roughly 40 percent of mergers and acquisitions, Title
V's dual requirement of (i) a $100 million acquiring company, and
(ii) a $10 million acquired company would have required such 30-day
notification, over the past 5 years, in less than 100 acquisitions
per annum. With this limitation, the Committee sought to include
within the ambit of the premerger notification provision primarily
those mergers or acquisitions that were most likely to have a
substantial effect on competition. That is not to say that smaller
mergers may not run afoul of the Clayton Act. To include the bulk of
the approximately 3,000 mergers that would have occurred annually in
the course of the past several years would, however, in the
Committee's judgement, impose an undue and unnecessary burden on
business.\204\
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\204\ Id. at 66.
Together, these criteria were designed to focus mandatory premerger
review on the largest transactions and limit the number of transactions
that would have to be reported to the Agencies. See Table 1 (on average
16.5% of mergers reported during FY 2018 to FY 2022).
During the 1990s, several years of intense M&A activity drove
merger filings ever higher, so that by FY 2000, the Agencies reviewed
over 4,900 reported transactions.\205\ This dramatic increase in HSR
filings led to calls for Congress to amend the HSR Act to reduce its
broad sweep, and to especially address its impact on small businesses.
In response, Congress made several changes in 2000 to reduce the number
of transactions subject to reporting: (1) increased the size-of-
transaction threshold from $15 million to $50 million and required the
Commission, starting in 2005, to adjust the thresholds in the HSR Act
annually based on changes in the gross national product; (2) eliminated
the 15 percent size-of-transaction threshold, making $50 million (as
adjusted) an absolute floor; and (3) eliminated the size-of-person test
for larger transactions, making transactions valued in excess of $200
million (as adjusted) reportable without regard to the size of the
parties.\206\ Today, as a result of these adjustments and with annual
indexing, HSR filings are required for only a small fraction of overall
merger activity in the United States. See Table 1.
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\205\ Fed. Trade Comm'n & U.S. Dep't of Justice, Annual Report
to Congress Pursuant to Subsection (j) of Section 7A of the Clayton
Act, Hart-Scott-Rodino Antitrust Improvements Act of 1976 1 (Twenty-
Third Report) (FY 2000).
\206\ Public Law 106-553, 114 Stat. 2762 (2000) (codified at 15
U.S.C. 18a(a)). See also 146 Cong. Rec. S11872 (daily ed. Dec. 15,
2000) (statement of Sen. Kohl) (exempting small transactions from
premerger review will significantly lessen regulatory burdens and
expenses imposed on small businesses). This legislation also
provided the Agencies more time to review materials submitted in
response to a Second Request, extending the second waiting period
under the HSR Act from 20 to 30 days after substantial compliance.
See 15 U.S.C. 18a(e)(1)(A). See Fed. Trade Comm'n & U.S. Dep't of
Justice, Annual Report to Congress Pursuant to Subsection (j) of
Section 7A of the Clayton Act, Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (Twenty-Fifth Report) appendix A (FY 2002)
(from FY 2000 to 2002, reported transactions dropped from 4,926 to
1,187).
---------------------------------------------------------------------------
Many commenters pointed out that the Congress that enacted the HSR
Act envisioned the Agencies reviewing only 150 of the largest
mergers.\207\ In 1976 when the HSR Act was passed, 150 mergers
represented approximately 12.8 percent of M&A deal volume, given that
there were 1,171 completed acquisitions in 1976.\208\ Overall, the
burden imposed on M&A activity by the HSR Act is not that different
today than in 1976. See Table 1 (HSR reportable mergers on average 16.5
percent of M&A from FY 2018 to 2022). At the same time, the size of the
U.S. economy has grown exponentially: in 1976, the seasonally adjusted
U.S. Gross Domestic Product was $1.934 trillion; today it is over $28
trillion.\209\ From these figures, it appears that M&A activity, and
the economy in general, has not been affected by the obligations
imposed on those pursuing certain large acquisitions to submit to
mandatory premerger review.
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\207\ The prediction of 150 mergers turned out to be unrealistic
from the start. In just the first three months of the premerger
program, the Agencies received notifications for 292 transactions,
nearly double the expected amount. See Fed. Trade Comm'n, Second
Annual Report to Congress pursuant to Section 201 of Hart-Scott-
Rodino Antitrust Improvements Act of 1976 3 (FY 1978). In the first
full year of the HSR program, the Agencies received filings for 814
transactions. Fed. Trade Comm'n, Third Annual Report to Congress
pursuant to Section 201 of Hart-Scott-Rodino Antitrust Improvements
Act of 1976 3 n.4 (FY 1979). The Commission moved quickly to amend
the HSR Rules to exempt additional types of transactions to further
reduce the burden of the premerger reporting program. 44 FR 66781
(Nov. 21, 1979). See also David A. Balto, ``Antitrust Enforcement in
the Clinton Administration,'' 9 Cornell J. L. & Pub. Pol'y 61, 119-
20 (1999) (discussing two early HSR exemptions which resulted in
approximately 20% and 10% reductions in filings).
\208\ See Fed. Trade Comm'n, Statistical Report on Mergers and
Acquisitions 25 Table 10 (1978), https://www.ftc.gov/system/files/documents/reports/statistical-report-mergers-acquisitions-1978/statistical_report_on_mergers_aug1980.pdf. This number does not
include partial acquisitions which did not confer control on the
buyer.
\209\ U.S. Bureau Econ. Analysis, Gross Domestic Product
(updated Aug. 29, 2024) (retrieved from FRED, Fed. Reserve Bank of
St. Louis), https://fred.stlouisfed.org/series/GDP.
---------------------------------------------------------------------------
Moreover, Congress enacted several explicit statutory exemptions to
reduce the burden of reporting,\210\ and also authorized the Commission
to issue rules exempting persons and acquisitions that it deemed at the
time as posing little to no antitrust risk, which eliminated the burden
of reporting for many additional transactions.\211\ The Commission has
also faithfully implemented Congress' mandate to annually index the HSR
thresholds, which keeps premerger review limited to those acquisitions
Congress wants the Agencies to review prior to consummation.\212\
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\210\ See 15 U.S.C. 18a(c) and 16 CFR part 802.
\211\ See 15 U.S.C. 18a(d)(2)(B) and 16 CFR part 802. Several
commenters urge the Commission to engage in rulemaking to exempt
additional transactions from HSR filing obligations. These
suggestions are outside the scope of this rulemaking. Due to
deficiencies in the information currently collected in the Form, as
explained elsewhere in this document, the Commission is not able to
identify any additional types of transactions that could be exempted
at this time. Until the Commission has sufficient information to
provide a reasonable basis to exempt additional categories of
transactions from HSR reporting requirements, the Commission is not
in a position to reduce the total number of reported transactions.
As discussed in section VI.A.1.f., the Commission is excusing
certain types of transactions (select 801.30 transactions) from many
requirements of the final rule and has modified the proposed rule in
many places to apply only where certain conditions have been met.
\212\ To the extent that commenters suggest that the NPRM
expands reporting requirements for additional transactions, they are
wrong. Nor would changing the information requirements of the HSR
Filing affect the obligations of public companies to comply with
disclosure requirements of the Securities and Exchange Commission
(``SEC''). See Comment of Am. Sec. Ass'n, Doc. No. FTC-2023-0040-
0682 at 2.
---------------------------------------------------------------------------
Some commenters noted that the current process is inefficient
because of the over-inclusiveness of HSR reporting standards. They
pointed out that of all reported transactions, the Agencies issue
Second Requests in only 2 to 3 percent per year, suggesting that this
is a reason for the Commission to keep the status quo and not adopt any
adjustments to current information requirements.
The Commission believes that the low percentage of transactions
that have received Second Requests is not a reliable indicator that the
Agencies have achieved the goals of mandatory premerger review or that
the current
[[Page 89243]]
process is efficient in identifying problematic transactions and
effective in deterring illegal mergers. As discussed above in section
II.B., the Commission has identified significant deficiencies in the
information provided in the HSR Filing that prevent the Agencies from
assessing the potential harm presented by reportable transactions. In
light of these deficiencies, the number of mergers investigated through
the issuance of Second Requests is not instructive on whether the
Agencies are fulfilling their duty to the American public to screen
large mergers in advance of consummation. The Agencies must continue to
review reportable transactions to determine which ones warrant the
issuance of Second Requests regardless of, and despite, fluctuations in
the overall number of filings.
2. Delays Associated With Premerger Review Depend on Antitrust Risk
Congress also determined how much delay would be associated with
those transactions subject to mandatory premerger review, and this
rulemaking attempts to adjust the information required for premerger
screening in light of legislative intent to avoid delays for any deal
other than those with the highest antitrust risk. The main statutory
feature of the HSR Act is the suspensory waiting period, which requires
that the parties not consummate the proposed acquisition until the
prescribed waiting period has expired. For all transactions, the
statute limits that delay by keeping the waiting period short: 30 days
for most transactions and 15 days for those most at risk of not
happening at all due to delay, such as cash tenders and acquisitions of
assets out of bankruptcy. Congress determined to hold up cash tender
offers and the purchase of assets in bankruptcy only briefly due to
heightened concerns over timing. For cash tender offers, which do not
require consent of the target and can sometimes be actively opposed by
the target, Congress shortened the suspensory waiting period to 15 days
to balance premerger notice with the intent of the securities laws,
specifically the Williams Act, so as not to ``tip the balance'' in
favor of the incumbent management of the target firm.\213\ Similarly,
for acquisitions of assets subject to bankruptcy proceedings, Congress
understood that time is of the essence to prevent liquidation of
productive assets and applied the shortened 15-day initial waiting
period to these transactions as well. Congress thus recognized that a
particular subset of transactions require especially speedy review.
---------------------------------------------------------------------------
\213\ 122 Cong. Rec. 30877 (1976) (listing a number of defensive
actions the target could take to undermine the offer if it had
enough time, effectively denying shareholders of the target firm the
choice to accept the offer).
---------------------------------------------------------------------------
At the same time, Congress provided that the Agencies can extend
the waiting period for any type of reportable acquisition by requiring
the submission of additional information or documentary material in
response to a Second Request. The decision to issue Second Requests has
significant consequences for the transaction because if that happens,
the parties cannot consummate the transaction until 30 days after each
party has substantially complied with the Second Requests.\214\
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\214\ The Agency that issued the Second Requests can grant early
termination of the waiting period, permitting the parties to
consummate their proposed acquisition, or a Federal court may extend
the waiting period if the Agency applies for preliminary relief and
the court finds that the party has not substantially complied with
the information requirements of the HSR Act. 15 U.S.C. 18a(g)(2).
---------------------------------------------------------------------------
The Commission disagrees that the final rule entails any delay
beyond that which was expressly contemplated in the HSR Act. First, the
final rule does not extend the statutory waiting periods, which are
established by Congress.\215\ Second, Congress made clear that the
initial waiting period will commence once the Agencies have received a
completed Form, or a partially completed Form with a specific statement
of the reasons for partial non-compliance.\216\ Third, Congress
directed the Commission to devise and maintain a mandatory notification
program that would give the Agencies the information that is necessary
and appropriate to conduct an initial antitrust assessment during the
initial 15- or 30-day waiting period.
---------------------------------------------------------------------------
\215\ As discussed in section V.D. below, if the parties have
not executed a definitive agreement, the final rule requires that
they submit a document with the HSR Filing that contains sufficient
details of the transaction they intend to consummate. This may be
the executed preliminary agreement, or the agreement may be
supplemented by one additional dated document, such as a term sheet
or the latest draft agreement. While this new requirement may cause
some filers to delay notification compared to the current rules, the
Commission believes this change is necessary and the delay is
appropriate to avoid wasting the Agencies' time and attention on
deals that may never occur or are too hypothetical or lacking
material details to assess.
\216\ 122 Cong. Rec. 30876 (1976). The Commission does not
dispute that the HSR Act allows for substantial compliance with its
requirements. In response to such arguments, the sponsors dropped
the ``automatic stay'' provisions and adopted a requirement that
filers ``substantially comply'' with the Second Request so that
arguments that the parties had not fully complied could not hold up
the deal. Under 15 U.S.C. 18a(g)(2), a district court may extend the
statutory waiting periods of the HSR Act if filers fail to
substantially comply with the requirements of the HSR Act.
---------------------------------------------------------------------------
That said, the Commission does not question the need, when
appropriate, to minimize delay for notified transactions, especially
for non-problematic deals. In fact, the Commission believes that the
final rule may shorten the overall waiting period for a significant
number of transactions and perhaps even reduce the overall number of
delayed transactions. As discussed above, Congress determined that 30
days was the appropriate delay for the majority of reportable
transactions (other than cash tenders and acquisitions in bankruptcy),
regardless of their size or economic impact. It is a feature of the HSR
Act that an open market stock purchase by an individual can be subject
to the same 30-day initial waiting period as a multi-billion-dollar
merger of competitors operating in multiple local markets throughout
the country. Yet these two transactions present very different
antitrust risks.
In order to quickly dispense with those transactions that present
low risk of a law violation so as to focus on those with moderate to
high risk, the Agencies need more information in the HSR Filing. Any
time and effort the Agencies must spend collecting necessary
information that is not contained in the HSR Filing is time and effort
taken away from quickly determining which deals do not warrant an in-
depth investigation. Especially as it relates to cash tender
acquisitions--which are among some of the largest deals reviewed by the
Agencies over the years and yet are subject to a 15-day initial waiting
period--the short time given for the initial antitrust assessment
severely strains the Agencies' limited resources, especially during
periods of intense M&A activity. See Figure 1. But the statutory time
limit is absolute and if the Agencies do not issue Second Requests
before the end of the initial waiting period, the parties are free to
consummate the transaction.\217\ This is as Congress intended, but
Congress also gave the Commission the authority to determine the
necessary and appropriate information that must be included in HSR
Filings to make the
[[Page 89244]]
statutory scheme work--not for the purpose of minimizing delay but for
the purpose of enforcing the antitrust laws for the benefit of the
public. That is the problem this rulemaking addresses: by adjusting the
amount of information available to the Agencies on the first day of the
waiting period, the final rule makes possible quick but thorough
premerger review for all reportable transactions.
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\217\ As part of the 2000 amendments to the HSR Act, Congress
made plain that if the end of the waiting period falls on a
Saturday, Sunday, or legal public holiday, then the waiting period
is extended to the next day that is not one of those days. 15 U.S.C.
18a(k). This change was necessary to eliminate gamesmanship by
parties who timed their compliance so that the waiting period ended
on a weekend or holiday, effectively shortening the waiting period
to the previous business day. 146 Cong. Rec. S11872 (daily ed. Dec.
15, 2000) (statement of Sen. Kohl).
---------------------------------------------------------------------------
For many years, and mainly due to the lack of sufficient
information contained in HSR Filings, many filers and practitioners
have become accustomed to artificially lengthened waiting periods. In
2013, the Commission issued a rule that formalized a previously
informal process that offers filers the option to withdraw and refile
their filings without paying an additional filing fee. The option to
withdraw-and-refile was intended to benefit both the parties and the
Agencies by providing an additional 15- or 30-day waiting period for
the Agencies to review the transaction without issuing Second Requests
while seeking additional relevant information on a voluntary basis from
the merging parties or from third parties.\218\
---------------------------------------------------------------------------
\218\ 78 FR 10574, 10576 (Feb. 14, 2013).
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As shown in Table 3 below, the option to withdraw-and-refile has
been used with some frequency by filers to give the Agencies more time
to conduct an initial premerger assessment. Based on the Agencies'
review of their HSR-related investigations during the five-year period
of FY 2018 to 2022, parties withdrew their HSR filing and refiled in a
total of 546 transactions. In the majority of these extended
investigations, the Agencies determined not to issue a Second Request:
nearly two-thirds of the time, opting to withdraw and refile resulted
in the transaction closing at the end of the initial waiting period,
thereby avoiding the cost and burden of a Second Request investigation.
That is, once the filing parties submitted information beyond what was
submitted with the HSR Form, the investigating Agency was able to
determine that the transaction did not warrant Second Requests.
[GRAPHIC] [TIFF OMITTED] TR12NO24.036
While the parties can rely on the option to withdraw and refile as
an ad hoc tactic to avoid the issuance of Second Requests, the
Agencies' experience illustrates in a very tangible way the
inefficiencies associated with the current HSR Form. Over the five
years sampled, an average of 73 transactions each year (546 in total)
were delayed by an additional 30 days and filers were burdened by
having to submit additional materials on a voluntary basis even though
the investigation did not lead to the issuance of Second Requests.
These delays impose costs on the parties and the Agencies, as well as
third parties contacted during the extended initial review period.
Moreover, getting more time to review the transaction does not
address the information deficiencies outlined above and addressed by
the final rule. While serving as an existing work-around to give the
Agencies more time to collect additional information not contained in
the HSR Filing, the option to withdraw-and-refile is a poor substitute
for having the necessary information submitted with the HSR Filing for
several reasons. First, the current information requirements leave
important gaps, as detailed above in section II.B., leading staff to
flag filings for no-action when in fact they may warrant a closer
review.\219\ In practical terms, the HSR Filing must contain sufficient
information from the filers to allow the Agencies to spot transactions
that may warrant follow up. Merely adding time on the clock does not
fill the information gaps identified above.
---------------------------------------------------------------------------
\219\ See supra note 24 (citing research finding that
consummated hospital mergers that received early termination
resulted in the largest average percentage price increase).
---------------------------------------------------------------------------
Second, withdraw-and-refile is optional for filers and thus is not
a tool the Agencies can rely on to collect more information when
needed. While parties may decide to delay their transaction to lower
the chances of receiving a Second Request, in many instances the
parties do not withdraw and refile precisely because they fully expect
to receive Second Requests. When the parties do withdraw and refile,
the Agencies spend considerable time waiting for answers to key
questions; in any event, having more time is not the same as having the
information needed to conduct an initial antitrust assessment. The
Agencies' experience is that these voluntary submissions are often late
or incomplete. When the information arrives near the end of the
extended waiting period, there is often not enough time to review and
verify the information. As a result, investigations that are extended
through a withdrawal and refile are costly in time and effort for both
Agency staff and the parties: extra time does not always translate to
collecting the right information to make the initial determination
whether the transaction should be fully investigated through the
issuance of Second Requests.
Finally and most importantly, a filer's submission of any
additional information beyond what is required for an HSR Filing is
voluntary. Given that the Agencies have no ability to demand compliance
with voluntary requests, there is an overwhelming incentive for filers
to prioritize the collection and submission of information suggesting
that there is no competitive problem, rather than supplying the
necessary information in an objective and neutral manner. Thus, while
the agency may receive additional relevant information on a voluntary
basis, it remains extremely challenging for the Agencies to both review
and verify this information in whatever short period of time is
available to decide whether to issue Second Requests.
Expending so many resources on withdraw-and-refile investigations
is
[[Page 89245]]
inefficient both for the parties and the Agencies and is a source of
undue delays for many deals every year, because having more time is not
a substitute for having sufficient and reliable information provided on
a mandatory basis on the first day of the waiting period. The
Commission believes that requiring more information in the HSR Filing
through a final rule that is focused on surfacing competition problem
areas will reduce the need for extended withdraw-and-refile
investigations for a significant number of transactions that do not
require Second Requests.
Expanding the information that filers are required to provide
upfront has certain benefits for filers and gives full effect to the
purpose of a very short initial waiting period: because the information
will be available to the Agencies on the first day of the initial
waiting period, this will reduce delays for deals that do not receive
Second Requests but nonetheless are delayed because staff must collect
information from third parties or public sources, including when the
parties withdraw and refile their HSR Filing. In addition, having this
information upfront may allow Agency staff to narrow the areas of focus
to only those business lines that require further investigation.\220\
Based on the Commission's experience, the additional information will
allow the Agencies to significantly reduce burdens on filing parties in
many circumstances.
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\220\ As discussed elsewhere, the Commission did not consider
any ``burden'' associated with better detection of illegal mergers.
Identifying additional transactions for investigation and possible
challenge is a benefit of effective and efficient premerger review.
---------------------------------------------------------------------------
Moreover, the additional information required by the final rule
addresses the fundamental information asymmetry that currently exists
between what the parties know about their business and what information
they are required to reveal to the Agencies in the HSR Filing. Shifting
the burden of information collection from the Agencies to the filing
parties minimizes the burden on Agency staff to collect basic business
information about the filers from other sources, such as their
customers or other market participants, or from public sources, which
may not surface key confidential business information known only to the
parties. It also minimizes the burden on those third parties. This
basic business information is relevant to the Agencies' antitrust
assessment and often comes in late in the initial waiting period close
to when the Agencies need to determine whether to issue Second
Requests.
Moreover, certain information is most readily and reliably
available from the parties to the transaction. Although Agency staff
collect relevant information from other sources including third parties
during the initial waiting period, the benefit of getting this
information from the filing parties is that it is likely more accurate
and up-to-date and therefore more reliable for the purpose of quickly
conducting a premerger assessment of antitrust risk. Obtaining basic
business information about the operations of the filing parties
secondhand from third parties and public sources is no substitute for
getting that information directly from the parties themselves. The
parties will have the most reliable and relevant information necessary
to conduct a preliminary assessment of the transaction during the
initial waiting period.
Having reliable and accurate information directly from the entity
most likely to have it reduces overall information-collection costs and
delays. That is just good government, according to some members of
Congress: ``Requiring transacting parties to provide regulators with
the information necessary to examine a proposed merger is a commonsense
way to save taxpayer dollars and enable antitrust enforcers to fulfill
their congressional mandate and protect consumers, the economy, and
national security.'' \221\
---------------------------------------------------------------------------
\221\ Comment of Sen. Elizabeth Warren et al., Doc. No. FTC-
2023-0040-0711 at 5.
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To further reduce delays for transactions that pose little or no
antitrust risk based on information contained in the HSR Filing, the
statute also provides the Agencies with the discretion to grant an
early termination of the initial waiting period, reducing the statutory
15- or 30-day delay to something less.\222\ For many years, the
Agencies routinely granted early termination to those filers that
requested it.\223\ Contrary to the assertions of some commenters, the
Commission reviews the information provided in every filing (typically
two filings per transaction) \224\ to ensure compliance with the
requirements of the HSR Act and to conduct a preliminary assessment of
antitrust risk. The decision to grant discretionary termination of the
waiting period prior to the statutory deadline is the result of staff
review of the information contained in the HSR Filing, a determination
that takes time, knowledge of the HSR Rules, and often additional
research from public sources to ensure that there is little to no risk
that the transaction requires additional investigation prior to
consummation. There is also the additional time spent coordinating both
Agencies' conclusions as well as processing the granting of early
termination through publication in the Federal Register.\225\
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\222\ 15 U.S.C. 18a(b)(2).
\223\ Not all parties request early termination; whether to
request early termination is solely at the discretion of the filing
parties. Because the Agencies are required to make public grants of
early termination through publication in the Federal Register, some
filers may prefer not to have their acquisitions made public in this
way.
\224\ As reflected in appendix A of the Annual HSR Reports, the
Agencies typically receive two filings for each transaction, one
from the acquiring person and one from the acquired person. In FY
2022, the Agencies reviewed 6,288 filings for 3,152 reported
transactions. Fed. Trade Comm'n & U.S. Dep't of Justice, Hart-Scott-
Rodino Report, Fiscal Year 2022 appendix A (FY 2022).
\225\ Commission staff take seriously the statutory obligation
not to disclose information about an HSR Filing. Because the
granting of early termination requires public notice in the Federal
Register and is often the first indication that a proposed
acquisition is in the works, staff must take great care to avoid
mistakes when processing these requests.
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Prioritizing staff resources to reduce delays through early
termination over the identification of problematic deals became
impractical during the latest surge in HSR-reportable transactions,
beginning in the fall of 2020 when the Agencies were faced with an
unprecedented increase in merger filings.\226\ As reflected in Figure 1
above, the number of HSR-reportable transactions spiked in FY 2021,
resulting in more than twice the number of filings as compared to the
prior year. Given the time and effort required to collect additional
information during the initial waiting period--information that is not
contained in the current Form but that bears directly on whether the
Agencies should conduct a more in-depth investigation or grant early
termination--the Agencies temporarily suspended the granting of early
termination, first briefly in order to adjust to the challenges of
processing premerger filings during the COVID-19 pandemic, and then
again due to a surge in merger filings.\227\
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\226\ Fed. Trade Comm'n & U.S. Dep't of Justice, Hart-Scott-
Rodino Annual Report, Fiscal Year 2021 appendix B (FY 2021)
(reporting monthly HSR filings for FY 2012 to FY 2021). See
Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly
Slaughter Regarding the FY 2020, Hart-Scott-Rodino Annual Report for
Transmittal to Congress (Nov. 8, 2021) (``FY 2020 HSR Statement''),
https://www.ftc.gov/system/files/documents/public_statements/1598131/statement_of_chair_lina_m_khan_joined_by_rks_regarding_fy_2020_hsr_rep_p110014_-_20211101_final_0.pdf.
\227\ See Press Release, Fed. Trade Comm'n, ``FTC, DOJ
Temporarily Suspend Discretionary Practice of Early Termination''
(Feb. 4, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/02/ftc-doj-temporarily-suspend-discretionary-practice-early-termination.
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As an additional measure, the Commission determined that it would
[[Page 89246]]
provide notice to filers whose deals could not be adequately screened
during the initial waiting period, warning them that although the
waiting period had expired, the transaction remains subject to
antitrust challenge under section 7.\228\ In the Commission's view,
these pre-consummation warning letters are consistent with the
legislative intent that lack of agency action prior to the expiration
of the initial 15- or 30-day waiting period does not bar the Agencies
(or other enforcers of the Clayton Act such as States or private
parties) from later challenging the notified transaction. That is,
premerger review provides the Agencies with the opportunity to
investigate and challenge suspect transactions as violative of section
7; it does not require nor allow the Agencies to determine that the
merger does not or would never violate section 7.
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\228\ See FY 2020 HSR Statement, supra note 226.
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These recent adjustments to the Agencies' premerger review process
reflect the burdens on Agency staff to triage filings during the very
limited statutory period allowed for the initial review, which
underscores the need for additional information at the outset of the
initial waiting period. Even for those transactions in which the
parties give the Agencies additional time by withdrawing and refiling
their notification, relying on voluntary submissions has not been
sufficient to overcome the lack of relevant information needed to
conduct a robust screening for a significant number of deals.
As several commentators noted, it is appropriate that the Agencies,
who have the responsibility to identify which transactions should be
challenged, address the significant information asymmetry between the
parties and the Agencies by collecting more information from the
parties upfront. The Commission agrees. The Commission has determined
that the information deficiencies of the current reporting requirements
are imposing undue delay on those transactions that the Agencies
determine do not require intervention prior to consummation. The final
rule addresses these inefficiencies by shifting more of the costs of
information acquisition to the merging parties, both because they are
the most reliable and ready sources for that information and to reduce
the costs and delays associated with information acquisition from other
sources, including third parties. The Commission believes that the
final rule represents a reasonable adjustment to the information
requirements for premerger notification that will reduce the number of
transactions that are delayed beyond the initial review period.
3. The Purpose of the HSR Form Versus Second Requests
Several commenters asserted that if the Agencies need more
information, they should issue more Second Requests as an alternative
to issuing this final rule, because that is the mechanism Congress gave
the agencies to collect more information. Commenters also compared the
requirements of the proposed rule to those contained in a Second
Request, asserting that this rulemaking would inappropriately convert
the HSR Filing into the equivalent of a Second Request in terms of
scope and burden. As discussed below, the Commission disagrees with
these commenters. Congress gave the Agencies a mandate to collect
information that is necessary and appropriate in the HSR Filing to
determine whether the reported transaction may violate the antitrust
laws, which would justify the burden (on both the parties and the
Agency) associated with issuing Second Requests. The purpose of
requiring an HSR Filing is to give the Agencies time and information to
conduct mandatory premerger screening. The purpose of issuing Second
Requests is to conduct an in-depth review of other information and
documentary materials that would allow the Agency to determine whether
to challenge the transaction prior to consummation. The Commission has
concluded that the final rule more appropriately reflects the purpose
of the statutory scheme, which requires the information from all filers
that is necessary for premerger screening but requires extensive
information in response to a Second Request (which today, often
represents millions of documents and terabytes of data) only from those
filers whose transactions warrant an in-depth antitrust investigation.
Thus the final rule is a reasonable exercise of the Commission's
rulemaking authority to address the information deficiencies identified
in section II.B. rather than rely on the extraordinarily costly
alternative of using Second Requests to address those deficiencies.
Commenters point to research that indicates there is a high
probability that a transaction will be challenged if the Agencies issue
Second Requests and suggest that this means that Second Requests are
the most reliable tool for the Agencies to identify potentially harmful
deals. But a close read of the study cited by commenters reveals that
there are reasons to question the conclusions commenters have drawn
from the low number or high through-rates of Second Requests. Billman
and Salop examined the Agencies' enforcement record and calculated that
for those transactions that receive a Second Request, 28 percent are
cleared as proposed.\229\ Billman and Salop also report that the
percentage of Second Request investigations has fallen over time, from
about 3.49 percent in 2001 to 2.92 percent in 2020. These figures are
consistent with information reported by the Agencies in annual HSR
Reports.\230\ In their report, Billman and Salop contend that the
reason behind the falling number of Second Requests is limited agency
resources, not diminishing antitrust risk due to mergers:
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\229\ Logan Billman & Steven C. Salop, ``Merger Enforcement
Statistics: 2001-2020,'' 85 Antitrust L. J. 1, 6 (2023).
\230\ See appendix A of HSR Annual Reports, available at Fed.
Trade Comm'n, Annual Reports to Congress Pursuant to the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, supra note 56.
The agencies issue so few second requests because they have been
budget constrained during this entire period. Under these
circumstances, the agencies must engage in a type of triage process.
Being limited in the number of second requests they can issue and
cases that they can afford to litigate in court, the agencies target
only the limited number of most problematical looking mergers for
second requests. Not surprisingly, they generally discover evidence
of potential anticompetitive effects. And not surprisingly, the
firms generally consider the validity of the concerns, and most are
then willing to accept a consent decree or abandon the transaction.
Indeed about 26% (i.e., 254/969) of the firms that receive second
requests choose to abandon the transaction even before a complaint
is issued.\231\
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\231\ Billman & Salop, supra note 229, at 7.
The Commission is well aware of the challenges of fulfilling its
mission to prevent harmful mergers with existing resources. Fully
resourcing the Commission's competition mission--especially merger
review--has been an ongoing challenge. For instance, the Commission's
headcount remains well below what is needed in light of the volume and
complexity of proposed deals. Over the past ten years, the absolute
number of HSR filings has nearly doubled, while the number of FTC
employees assigned to competition work has remained nearly flat. As a
result, the Commission has been forced to make difficult triage
decisions and forgo potentially worthy investigations.\232\ Moreover,
funding
[[Page 89247]]
levels for the antitrust agencies has not kept pace with the impressive
growth of the U.S. economy: according to one report, from 2010 to 2019,
U.S. GDP increased 37 percent but appropriations for the Antitrust
Division and the FTC increased only 3 percent.\233\
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\232\ See Statement of Chair Lina M. Khan, joined by
Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro M.
Bedoya Regarding the FY 2022 HSR Annual Report to Congress (Dec. 21,
2023). https://www.ftc.gov/system/files/ftc_gov/pdf/StatementofChairKhanJoinedbyComm%27rSlaughterandComm%27rBedoyareFY2022HSRAnnualReport.pdf.
\233\ Michael Kades, ``The state of U.S. federal antitrust
enforcement,'' Wash. Ctr. Equitable Growth 22-23 & Fig. 12 (Sept.
17, 2019), https://equitablegrowth.org/research-paper/the-state-of-u-s-federal-antitrust-enforcement/?longform=true.
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Commenters who supported expanded information requirements
suggested that limited resources justify this rulemaking, while those
opposed claimed that resource limitations are the real source of
underenforcement of the antitrust laws, a problem that will not be
solved by adding burdensome new information requirements. Whatever the
funding levels, the Agencies must deploy their resources to be good
stewards of public funds and make resource allocation decisions to
pursue their mutual mission to enforce the antitrust laws for the
benefit of the public. The Commission has concluded that regardless of
resource levels, it is critical to the task of detecting illegal
mergers that the HSR Filing contain sufficient information for an
effective premerger antitrust assessment of the transaction rather than
relying on issuing more Second Requests to compensate for information
deficiencies in the HSR Filing.
The Commission has determined there are several reasons why issuing
more Second Requests is not a reasonable alternative to address the
information gaps discussed in section II.B. above. First, without the
additional information required by the final rule, the Agencies would
continue to struggle to uncover key facts necessary to determine
whether to issue Second Requests for reported transactions that warrant
in-depth review. The Agencies are currently making these assessments
and relying on Second Requests when necessary, but they are doing so
knowing that there are deficiencies in the information currently
collected on the HSR Form, resulting in significant extra effort to
generate sufficient information to make that determination prior to the
expiration of the initial waiting period. In light of the deficiencies
in the information currently collected that are discussed in section
II.B., the Commission has determined that the status quo does not
permit the Agencies to fulfill their statutory mandate to identify
those transactions that warrant the issuance of Second Requests.
Second, issuing more Second Requests is an extremely costly
alternative to the final rule. The costs, burdens, and delay associated
with Second Requests--for both the parties and the Agencies--are well
documented. In 2000, Congress amended the HSR Act to provide for an
optional internal review process for Second Request recipients to
object to the breadth and cost of complying with those requests \234\
and requiring the Agencies to conduct ``an internal review and
implement reforms of the merger review process in order to eliminate
unnecessary burden, remove costly duplication, and eliminate undue
delay, in order to achieve a more effective and more efficient merger
review process.'' \235\ Yet despite Agency reforms to reduce burdens
and costs, \236\ the AMC noted the widespread belief that complying
with a Second Request imposed significant costs. The AMC cited a survey
conducted by the Antitrust Section of the American Bar Association
which reported that, on average, investigations during the second
waiting period took seven months and resulted in median compliance
costs of $3.3 million.\237\ A more recent survey conducted in 2014 by
the Mergers & Acquisitions Committee of the ABA reported that average
cost of compliance with a Second Request was $4.3 million among
respondents.\238\ Another study shows that Second Requests impose
significant delays and risks, even for deals that are ultimately not
challenged by the Agencies, increasing the time required for premerger
review from an average of 98 days (3.3 months) for acquisitions that do
not receive a Second Requests to 237 days (7.9 months) from
announcement to closing.\239\
---------------------------------------------------------------------------
\234\ 15 U.S.C. 18a(e)(1)(B).
\235\ Id. sec. 18a(e)(1)(B)(iii).
\236\ See Prepared Statement of the Fed. Trade Comm'n Before the
Comm. on the Judiciary, Subcomm. on Antitrust, Competition, and
Small Bus. and Consumer Rights, United States Senate Concerning An
Overview of Fed. Trade Comm'n Antitrust Activities 3 (Sept. 19,
2002), https://www.ftc.gov/sites/default/files/documents/public_statements/prepared-statement-federal-trade-commission-overview-enforcement-antitrust-laws/020919overviewtestimony.pdf. In
2002, the Commission's Bureau of Competition issued Guidelines on
Merger Investigations, which eliminated some of the more onerous
requirements of compliance. See Debbie Feinstein, ``A fine balance:
toward efficient merger review,'' Fed. Trade Comm'n Competition
Matters blog (Aug. 4, 2015), https://www.ftc.gov/enforcement/competition-matters/2015/08/fine-balance-toward-efficient-merger-review.
\237\ AMC Report, supra note 179, at 163. The AMC noted that the
survey's value was limited due to reliance on a non-scientific,
self-selected sample of only twenty-three responses, and that the
median values for most measures of cost were much lower than the
means, suggesting the average values were influenced by a few very
high observations. Id.
\238\ Peter Boberg & Andrew Dick, ``Findings from the Second
Request Compliance Burden Survey,'' Vol. XIV No. 3 Threshold:
Newsletter of the Mergers & Acquisitions Comm. 26, 37 (Summer 2014)
(A.B.A. Antitrust L. Sec.). In about one-third of these
investigations, parties had withdrawn and refiled their
notification, indicating that the strategy was not always effective
in avoiding a Second Request. This is consistent with the
Commission's assessment of withdraw and refile data, reflected in
Table 3 supra.
\239\ Jana Fidrmuc et al., ``Antitrust merger review costs and
acquirer lobbying,'' 51 J. Corp. Fin. 72, 73 (2018).
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The Commission has determined that the final rule is a better
regulatory alternative than issuing more Second Requests because the
final rule provides the Agencies with the information necessary for an
efficient and effective premerger assessment and to determine which
reportable transactions warrant the issuance of Second Requests. The
Commission considers the costs that would be associated with issuing
more Second Requests as an alternative to the final rule to be
unnecessary and unjustified. By relying on only the information
contained in current HSR requirements and issuing more Second Requests,
the Agencies would be imposing these significant costs on deals that
are even more ``on the margin'' than the ones that are currently
identified for a Second Request investigation. Issuing more Second
Requests without adjusting the information in the HSR Filing would most
likely result in significant costs for additional transactions and
undue delay for even more deals that are not ultimately challenged in
court.
More importantly, without addressing the information deficiencies
outlined in section II.B., the Agencies would miss certain transactions
that warrant further review. For these transactions, which are
currently not subject to Second Requests, the costs of complying with
the additional information requests for the HSR Filing are justified by
the enhanced ability of the Agencies to detect the potential for the
transaction to violate the antitrust laws. In other words, the final
rule makes it more likely that the transactions that present the most
significant risk violating the antitrust laws, and therefore most
clearly warrant the costs and delays associated with an in-depth
investigation, are those that will receive Second Requests.
As an added benefit, the additional information contained in the
HSR Filing will allow the Agencies to focus their investigation on
those aspects of the transaction that create antitrust risk, and
[[Page 89248]]
minimize ``overly broad'' Second Requests, which can also impose
unnecessary costs and delays. Specifically, the final rule provides the
Agencies with the information that is necessary to make the critical
decision whether and how to burden the filers and the Agencies with the
costs and delays associated with an in-depth investigation of the
reported transaction.
Indeed, one goal of this rulemaking is to reduce the number of
Second Request investigations that do not lead to an enforcement
action. Imposing substantial costs in addition to undue delay on
transactions that are unlikely to face a court challenge is the wrong
response to the information deficiencies outlined in section II.B. The
Commission has determined that imposing minimal additional costs on all
filers to properly conduct premerger screening will likely reduce the
number of transactions that receive a Second Request but do not face a
court challenge, a very significant benefit to filers. The Commission
expects that, on balance, the final rule will reduce the number of
unnecessary or overly broad Second Requests and that this outcome is
consistent with the statutory scheme created by Congress.
Much of the increased cost of a Second Request investigation (for
both the parties and the Agencies) is due to the increasing complexity
of merger litigation, and including the costs associated with post-
complaint discovery. Federal judges overseeing merger trials routinely
remark on the scope and effort of proving and refuting the facts needed
to assess whether a proposed transaction violates the antitrust
laws.\240\ The Agencies' costs in litigating these cases have also
increased significantly in recent years, especially the cost of hiring
outside experts to support the litigation.\241\ To a large extent, the
scope and burden of a Second Request is driven by the growing need for
data and other evidence required to make an informed decision whether
to devote scarce resources to a particular case in light of the
likelihood that the agency can establish liability under section 7 of
the Clayton Act.
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\240\ See, e.g., FTC v. Peabody Energy Corp., 492 F. Supp. 3d
865, 874 (E.D. Mo. 2020); FTC v. Staples, Inc., 190 F. Supp. 3d 100,
110 (D.D.C. 2016); FTC v. Sysco Corp., 113 F. Supp. 3d 1, 15 (D.D.C.
2015); United States v. JetBlue Airways Corp., cv-23-10511 (D. Mass.
Jan. 16, 2024).
\241\ See Letter from Lina M. Khan, Chair, Fed. Trade Comm'n to
Rep. Thomas P. Tiffany 5-6 (Nov. 3, 2023) https://www.ftc.gov/system/files/ftc_gov/pdf/2023.11.3_chair_khan_letter_to_rep._tiffany_re_merger_challenges.pdf
(citing expert witness costs related to merger enforcement in
Federal court).
---------------------------------------------------------------------------
Of the commenters objecting to the proposed rule, some argued that
the final rule would collapse the distinction between the notification
form and a Second Request. The Second Request is the Congressionally
mandated tool for the collection of additional information to determine
whether to challenge the transaction prior to consummation. The
Commission states that it is not its intention in any way to require in
the initial notification all the information that may be necessary to
determine whether to file a complaint alleging an antitrust violation.
Instead, the final rule ensures that the Agencies have the information
necessary to identify those transactions that require the issuance of
Second Requests, a decision that must be made prior to the expiration
of the statutory waiting period. The Commission disagrees that the
final rule requires anything near the amount of data and documents
sought in Second Requests, which are tailored for each recipient. For
example, the Commission's Model Second Request requires the submission
of all documents related to pricing for any relevant product for the
last three years \242\ and the Department of Justice's Model Second
Request requires the submission of each database or data set containing
a range of information about the relevant product.\243\ That level of
detail and analysis is not required by the final rule and is not
warranted in an HSR Filing. In the final rule, the Commission has
identified the information that the Agencies need to conduct a
preliminary screen for antitrust risks. A Second Request represents a
whole different level of detail and analysis, one much more aligned
with determining whether there are facts sufficient to establish to a
court that the merger may substantially lessen competition or tend to
create a monopoly.
---------------------------------------------------------------------------
\242\ See Fed. Trade Comm'n, Bureau of Competition, Model Second
Request Specifications 8 (rev. Jan. 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/Final-Rev-Model-Second-Request-01-26-2024.pdf.
\243\ U.S. Dep't of Justice, Model Second Request, Specification
2, https://www.justice.gov/atr/file/706636/dl.
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As discussed in section III.A., the Commission believes that it is
consistent with the statutory premerger regime to collect certain
critical information directly from those involved in the transaction
and to have that information available on the first day of the initial
waiting period. The Commission believes that it is well within its
statutory authority to require minimally sufficient information in the
HSR Filing that is necessary and appropriate to screen each reported
transaction for antitrust risk without resorting to issuing more Second
Requests to require information that is not currently submitted with
the HSR Form.
Moreover, the Commission believes that Second Requests should
continue to be reserved for those transactions more likely to violate
the antitrust laws and to result in measurable harm if not blocked
prior to consummation. Issuing more Second Requests as a remedy for
deficient HSR Filings imposes opportunity costs on the Agencies,
diverting resources that could be used to address other potential
violations of the antitrust laws. Moreover, as discussed above, one
potential benefit of the final rule is that it may reduce the number of
Second Requests or limit their scope. Issuing more Second Requests runs
counter to that goal and would also impose significant additional costs
on the Agencies, the filing parties, and third parties. In the words of
one commenter: ``These proposed changes exemplify good government. They
would save regulators valuable time and resources in evaluating merger
proposals, making the agency's processes more efficient.'' \244\
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\244\ Comment of SEIU, Doc. No. FTC-2023-0040-0699 at 2.
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In sum, in adopting this final rule, the Commission believes that
it has identified the specific additional information that, in the
Agencies' experience, is most relevant to determining whether to issue
Second Requests or narrow their scope. Moreover, as detailed below in
sections IV. through VI., the Commission has made significant
modifications in the final rule to better balance the need for
additional relevant information while avoiding undue delay and cost
where the likely benefit to the Agencies is low, especially for those
deals that they can quickly determine are not likely to violate the
antitrust laws. The Commission believes that the final rule, as
modified, would better address the information deficiencies outlined
above as compared to other available regulatory options such as relying
on more Second Requests.
The Commission has also considered whether to rely on the expanded
use of voluntary supplemental submissions from the parties, including
as part of a pull-and-refile investigation, as an alternative to the
final rule. See section III.A.2. But this alternative does not address
the information deficiencies that this rulemaking has identified with
[[Page 89249]]
the current information requirements. Without the collection of
information related to the antitrust risks identified in section II.B.,
the Agencies lack a basis to identify the need for additional voluntary
submissions from the parties. The Agencies are already relying on
supplemental submissions from a large number of filers, often resulting
in the parties withdrawing and refiling their notification. See Table
3. Routinely requiring voluntary submissions from even more filers as
an alternative to obtaining needed information in the HSR Filing would
impose unnecessary burden and delay on filings that are not currently
flagged for follow up.
Based on the Agencies' experience of conducting premerger review
for over four decades, the Commission identified the additional data
and documents that, if submitted with the HSR Filing, would reduce
delays and burdens associated with information-gathering during the
initial waiting period and satisfy the Agencies' mandate to conduct a
premerger assessment of each reported transaction. To that end, the
final rule targets information that is likely already available to
filers, such as documents related to the transaction, as well as
historical data and documents about their business, including ordinary
course business plans and reports. The final rule marries descriptive
responses with documents submitted with the HSR Filing, providing the
Agencies with a holistic view of the operations of each party,
including any existing business relationships that would be affected by
the transaction. Overall, the final rule aligns the information
requirements of the HSR Filing with the Agencies' task of identifying
transactions that may violate the antitrust laws. For many of the new
requirements, parties only have to respond if they identify an existing
business relationship (e.g., one party is the other party's competitor
or supplier). Based on the Agencies' experience, parties in most cases
do their own assessment of the antitrust risk associated with the
planned transaction before submitting an HSR Filing and will therefore
already have relevant information about any existing business
relationship. In short, the Commission has calibrated the HSR Filing's
reporting requirements so that the filing contains sufficient
information for the Agencies to determine whether the transaction is
one that is likely to raise antitrust concerns. The Commission believes
that the final rule is well within the authority given to it by
Congress to implement a notification scheme that minimizes costs and
delays associated with mandatory premerger review and yet generates the
benefits of preventing illegal mergers prior to consummation.
B. Major Questions Doctrine
Two commenters suggested that the proposed rule implicates the
major questions doctrine.\245\ The Commission disagrees. According to
the Supreme Court, the major questions doctrine is implicated in
``extraordinary cases . . . in which the history and the breadth of the
authority that the agency has asserted, and the economic and political
significance of that assertion, provide a reason to hesitate before
concluding that Congress meant to confer such authority.'' \246\
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\245\ One commenter also argues that the Commission's rule runs
afoul of the non-delegation doctrine. The Commission disagrees.
First, the Commission's rule has no bearing on the authority
Congress delegated to the Commission when it passed the HSR Act.
Second, Congress' delegation of rulemaking authority to the
Commission does not run afoul of the non-delegation doctrine. The
non-delegation doctrine is based on the Supreme Court's
interpretation of Article I, Section 1 of the Constitution, which
vests all legislative powers in Congress. The Court has interpreted
this clause to mean that Congress cannot delegate its legislative
power to another branch of government without supplying an
intelligible principle. See J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 409 (1928); Gundy v. United States, 139 S. Ct.
2116, 2129 (2019). Congress provided several intelligible principles
in the HSR Act to guide the Commission's exercise of authority. For
instance, it directed the Commission to require notification in such
form and contain such documentary material and information relevant
to a proposed acquisition as is necessary and appropriate to enable
the Agencies to determine whether the acquisition may, if
consummated, violate the antitrust laws. Congress also stated that
the Commission may define terms and exempt classes of persons,
acquisitions, transfers, or transactions not likely to violate the
antitrust laws from the reporting requirements.
\246\ West Virginia v. EPA, 597 U.S. 697, 721 (2022) (cleaned
up); see also Biden v. Nebraska, 143 S. Ct. 2355, 2372 (2023).
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This rulemaking does not involve a major question as the Supreme
Court has used that term. The final rule merely updates the disclosure
requirements for acquisitions that already are required to submit to
mandatory premerger notification. As reflected in Table 1, transactions
reported under the HSR Act constitute only a fraction of the total
number of mergers and acquisitions that occur each year in the United
States. Congress has determined that most acquisitions should not be
subject to premerger review, and this rule does not impact them.
Considerations of history and breadth also demonstrate that the
final rule does not involve a major question. The breadth of the
Commission's authority here ``fits neatly within the language of the
statute. . . .'' and is well established.\247\ The Commission has clear
congressional authorization to issue rules and a long history of
exercising its authority to promulgate HSR Rules under section 18a(d).
The Commission has made both substantive and ministerial amendments to
the rules dozens of times to improve the program's effectiveness and to
adjust the reporting requirements to keep pace with market
realities.\248\ Requiring
[[Page 89250]]
information necessary and appropriate to determine whether a
transaction, if consummated, may violate the antitrust laws is
certainly a ``tool'' in the Commission's ``toolbox,'' given the
Commission's history of taking action against anticompetitive
mergers.\249\ Since 1977, the Commission and the Antitrust Division of
the Department of Justice have published an annual report outlining
their efforts to protect competition by identifying and investigating
mergers and acquisitions that may violate the antitrust laws.\250\
These reports demonstrate that premerger notification and merger
enforcement is an area that falls squarely within the Commission's
``wheelhouse.'' \251\
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\247\ Biden v. Missouri, 595 U.S. 87, 93 (2022).
\248\ See 43 FR 33450 (July 31, 1978) (publishing final rules
for premerger notification); 44 FR 66781 (Nov. 21, 1979) (increasing
minimum dollar value exemption contained in 16 CFR 802.20); 45 FR
14205 (Mar. 5, 1980) (replacing requirement that certain revenue
data for the year 1972 be provided in the Notification and Report
Form with a requirement that comparable data be provided for the
year 1977); 48 FR 34427 (July 29, 1983) (amending premerger
notification rules to clarify and improve the effectiveness of the
rules and of the Form and reduce the burden of filing notification);
50 FR 46633 (Nov. 12, 1985) (revising Form at 16 CFR part 803
appendix); 51 FR 10368 (Mar. 26, 1986) (same); 52 FR 7066 (Mar. 6,
1987) (amending rules to reduce cost of complying with the rules and
to improve the program's effectiveness); 52 FR 20058 (May 29, 1987)
(amending definition of the term ``control'' as it applies to
partnerships and other entities that do not have outstanding voting
securities); 54 FR 21425 (May 18, 1989) (interim rule codifying
practices that make public administrative grants of early
termination of the waiting period through means other than
publication in the Federal Register); 55 FR 31371 (Aug. 2, 1990)
(revising revenue reporting); 60 FR 40704 (Aug. 9, 1995) (same); 61
FR 13666 (Mar. 28, 1996) (defining or creating exemptions to
filing); 63 FR 34592 (June 25, 1998) (exempting divestitures
pursuant to consent agreements); 66 FR 8680 (Feb. 1, 2001) (interim
rule implementing changes to the HSR Act); 66 FR 23561 (May 9, 2001)
(interim rule revising revenue reporting); 66 FR 35541 (July 6,
2001) (implementing May 9, 2001 interim rule with slight changes);
67 FR 11898 (Mar. 18, 2002) (amending certain exemptions); 67 FR
11904 (Mar. 18, 2002) (clarifying); 68 FR 2425 (Jan. 17, 2003)
(same); 70 FR 4988 (Jan. 31, 2005) (amending the premerger
notification rules to reflect adjustment and publication of
reporting thresholds required by the 2000 amendments to section 7A
of the Clayton Act, 15 U.S.C. 18a); 70 FR 11502 (Mar. 8, 2005)
(amending rules to address treatment of corporations, partnerships,
limited liability companies and other types of non-corporate
entities and the application of certain exemptions); 70 FR 73369
(Dec. 12, 2005) (amending Form and Instructions to relieve some of
the burden of complying with Items 4(a) and (b) and specifying that
notifications in certain types of transactions expire after eighteen
months if a second request remains outstanding); 70 FR 77312 (Dec.
30, 2005) (requiring that 2002 revenue data, identified by the 2002
NAICS, be provided in response to certain items on the Form); 71 FR
35995 (June 23, 2006) (allowing submission of notification and
report forms electronically via the internet); 76 FR 42471 (July 19,
2011) (implementing changes to streamline the Form, adding Items
4(d), 6(c)(ii) and 7(d) to capture additional information that would
significantly assist the Agencies in their initial review,
addressing omissions from 2005 rulemaking involving unincorporated
entities); 78 FR 41293 (July 10, 2013) (setting forth the procedure
for voluntarily withdrawing an HSR filing, establishing when an HSR
filing will be automatically withdrawn if a filing publicly
announcing the termination of a transaction is made with the SEC,
and setting forth the procedure for resubmitting a filing after a
withdrawal without incurring an additional filing fee); 78 FR 68705
(Nov. 15, 2013) (defining and applying the concepts of ``all
commercially significant rights,'' ``limited manufacturing rights,''
and ``co-rights'' in determining whether the rights transferred with
regard to a patent or a part of a patent in the pharmaceutical
industry constitute a potentially reportable asset acquisition under
the Act); 81 FR 60257 (Sept. 1, 2016) (allowing DVD submissions and
clarifying the Instructions to the Form); 82 FR 3212 (July 12, 2017)
(amending the Form); 83 FR 32768 (July 16, 2018) (amending rules for
clarity, allowing use of email, and updating Instructions); 84 FR
30595 (June 27, 2019) (requiring use of 10-digit codes based upon
the North American Product Classification System in place of the 10-
digit codes based upon the North American Industry Classification
System); 88 FR 5748 (Jan. 30, 2023) (amending the Rules to conform
to the new filing fee tiers enacted by the Merger Filing Fee
Modernization Act of 2022, 15 U.S.C. 18b); 89 FR 7609 (Feb. 5, 2024)
(amending Parts 801 and 803 of the Rules to make ministerial changes
required to reflect the annual adjustment of the filing fee
thresholds and amounts required by 2022 Amendments).
\249\ West Virginia v. EPA, 597 U.S. at 730.
\250\ See Fed. Trade Comm'n Annual Reports to Congress Pursuant
to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, supra
note 56 (collecting reports).
\251\ Biden v. Nebraska, 143 S. Ct. 2355, 2382 (2023) (Barrett,
J., concurring).
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Even if the final rule could be characterized as implicating a
major question, the HSR Act provides ``clear congressional
authorization'' for the rule.\252\ Congress spoke clearly when it
granted the Commission authority to determine the form and content of
premerger notifications as necessary and appropriate to enable the
Agencies to determine whether a proposed acquisition may, if
consummated, violate the antitrust laws,\253\ and the final rule falls
squarely within that delegation of authority. The Commission is asking
filers to provide information necessary to evaluate whether a
transaction may violate the antitrust laws. This information is missing
from the current filings, and it is appropriate that filers, who are in
the best position to report basic information about their own
businesses, provide that information. The rule updates are necessary
and appropriate for the Commission to accomplish the goals Congress set
out for it: effective premerger review as a tool to prevent illegal
mergers prior to consummation and fully enforce the antitrust laws'
proscription against undue concentration. And just recently, Congress
increased the requirements of the premerger notification program by
requiring the Commission to collect information about foreign subsidies
in order to use this data as part of the Agencies' premerger
review.\254\ Congress has left it to the Commission to ``fill up the
details'' based on the many clear principles articulated in the HSR Act
\255\ and in furtherance of sound and effective enforcement of the U.S.
antitrust laws. Accordingly, even if the major questions doctrine
applies, the Commission's authority to issue the final rule is clear.
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\252\ West Virginia v. EPA, 597 U.S. at 723-24.
\253\ 15 U.S.C. 18a(d)(1).
\254\ See Merger Filing Fee Modernization Act of 2022, 15 U.S.C.
18b (requiring the Commission to promulgate a rule requiring HSR
filings to include information on subsidies received from certain
foreign governments or entities that are identified as foreign
entities of concern).
\255\ Gundy v. United States, 139 S. Ct. 2116, 2136 (2019)
(Gorsuch, J., dissenting) (quoting Wayman v. Southard, 23 U.S. 1,
31, 43 (1825)).
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C. Benefits and Costs of the Final Rule
The final rule is intended to address existing information
deficiencies in the current HSR Rules so the Agencies can identify
transactions that may violate the antitrust laws during the short
period of mandatory premerger review provided in the HSR Act. The
Commission has determined that the status quo is insufficient because
it leaves information gaps that prevent the Agencies from efficient and
effective premerger screening to identify which transactions require
in-depth review. The final rule also addresses significant information
asymmetries between the parties and the Agencies by shifting more of
the costs of information acquisition to the parties, who are most
familiar with their business operations and structure and who are
pursuing the transaction under review. The Commission has considered
alternatives to the final rule that would rely on other regulatory
options, including the Short Form Alternative discussed in section
III.E., and has determined that those alternatives offer different
tradeoffs between benefits and costs. The Commission believes that the
final rule has the best balance of benefits and costs within the
statutory scheme of the HSR Act because it imposes less delay and is
less costly than issuing more Second Requests, and it imposes less
delay and provides more certainty regarding the completeness of the
information than relying on more extensive voluntary submissions of
information. Moreover, the final rule is superior to the short form
alternative, an option suggested by commenters and discussed below in
section III.E., because the Commission lacks a basis at this time to
identify a set of transactions that should be eligible for short form
treatment using the current information requirements. Most importantly,
none of the other alternatives close the information gaps identified in
section II.B. to permit the Agencies to effectively and appropriately
identify a subset of filings for which Second Requests are warranted
and to make critical resource decisions, preventing the Agencies from
fulfilling their mandate to conduct a premerger antitrust assessment of
reported transactions.
Given that the final rule is the best of the available
alternatives, the Commission now addresses comments on whether it is a
reasonable exercise of the Commission's statutory authority to adopt
the final rule to enable the Agencies to determine whether an
acquisition may, if consummated, violate the antitrust laws in
fulfillment of their premerger review obligations under the HSR Act.
1. Benefits
The Commission has determined that, due to evolving commercial
realities, the current information requirements for the HSR Form and
Instructions are not delivering the benefits of mandatory premerger
review as contemplated by Congress. As discussed in section II.B.,
changes in M&A activity, corporate structures, and investment
strategies have exposed significant information gaps that undermine the
Agencies' ability to efficiently and effectively identify transactions
that may violate the antitrust laws during the initial 30-day waiting
period based on information contained in the current HSR Form. As a
result, the Agencies lack sufficient information about the parties and
transaction to conduct an initial antitrust assessment for all types of
potential harm that could occur due to the merger. Moreover, these
changes have amplified information asymmetries between what the parties
know about their business activities and how the Agencies collect the
information necessary to decide whether to issue Second Requests. The
Commission has determined that to realize the benefit of detecting
illegal mergers prior to
[[Page 89251]]
consummation through mandatory premerger review, the Agencies need more
information relevant to the antitrust risk of reportable acquisitions
in the HSR Filing.
The Commission has considered the extent to which the final rule
furthers the Congressional goal of preventing illegal mergers prior to
consummation through mandatory premerger review. The benefit of having
sufficient information in the HSR Filing to screen for all types of
antitrust risks derives from several sources:
(1) the non-consummation of harmful mergers that otherwise would
not have been caught during premerger screening, whose harm continues
unless and until the merger is unwound and competition in the affected
market is restored, if it can be restored at all;
(2) the reallocation of staff hours from attempting to collect
additional necessary information from the parties on a voluntary basis
and reduced uncertainty that delay and insufficiency create for
resource allocation decisions;
(3) the reallocation of staff hours from collecting additional
necessary information from third parties regarding the parties'
business operations;
(4) the reduction in burden required for third parties to respond
to the Agencies' outreach to provide information known to the filing
parties, but not currently required by the Form;
(5) improvements in premerger screening through
(i) more accurate identification of transactions requiring in-depth
review;
(ii) the reduction in the number of HSR Filings withdrawn and
refiled for the purpose of allowing Agency staff to collect and review
more information from the parties;
(iii) reduction in delays associated with HSR Filings, including
those that are withdrawn and refiled but do not receive Second
Requests;
(iv) the narrowing of issues required to properly focus any in-
depth review, including through the issuance of more targeted and less
burdensome Second Requests;
(v) the reduction in the number of Second Request investigations
that do not ultimately result in enforcement or voluntary
restructuring; and
(6) a more efficient allocation of resources devoted to merger
enforcement, including by avoiding expensive and time-consuming
litigation to unwind consummated mergers that cause harm but were not
identified under the current rules.
Consistent with Congressional intent, all of these benefits accrue
to the American public in the form of reductions in the harmful effects
of illegal consummated mergers, including price increases or reductions
in output, reductions in quality and innovative activity, lower wages,
and other effects, and more effective use of public resources devoted
to antitrust enforcement. Other market participants that would
otherwise be harmed by an illegal merger also benefit from improved
detection that leads to enforcement that prevents or neutralizes the
harm from that merger.
Many of these benefits cannot be quantified, or quantification
cannot be done with a high degree of reliability. Where the Commission
is unable to estimate a benefit quantitively, it provides a qualitative
description of the benefit using the best available methods,\256\ and
in light of the purpose of mandatory premerger review. Based on its
experience gathered over decades of premerger review of transactions
reported under the HSR Act, the Commission considered the following
benefits that would derive from the final rule as compared to the
status quo.
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\256\ See generally Anthony E. Boardman et al., Cost-Benefit
Analysis: Concepts and Practice 44 (5\th\ ed. 2018); Office of
Management and Budget, Circular A-4 at 5 (Nov. 9, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf.
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a. Detecting Additional Harmful Mergers
Section 7 of the Clayton Act prohibits an acquisition where the
effect of such acquisition may be to substantially lessen competition
or to tend to create a monopoly. Acquisitions that have these effects
deprive the public of the benefits of competition, which include lower
prices, improved wages and working conditions, higher quality and
resiliency in the supply chain, and more innovation and choice, among
other benefits. section 7 of the Clayton Act was designed to arrest
anticompetitive tendencies in their incipiency,\257\ and mandatory
premerger review gives the Agencies time and information to assess
whether a reported transaction may violate the antitrust laws and seek
to block it in Federal court prior to consummation. While it is
difficult to calculate with precision the likely ill effects of an
acquisition before it happens, Table 2 above contains estimates of
potential harm from mergers in cases that were litigated by the
Agencies in recent years, representing a range of outcomes from mergers
that were not consummated as a result of premerger review and a
subsequent Agency enforcement action. For any particular illegal
merger, the potential for harm may be small or large and depends on
many factors, including the size of the companies involved, the
geographic scope of their operations, the number of customers they
serve, and the value of their products. Many of the benefits of
competition that may be lost due to a merger are more difficult to
quantify, such as the loss of innovation competition or degradation in
the quality of products or services offered. Thus, the magnitude of the
anticompetitive effect of any particular merger that would have
occurred but for the Agencies' intervention is imprecise at best and
does not capture the full impact of the loss of dynamic and beneficial
competition now and in the future.
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\257\ See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294,
318 nn.32-33 (1962); see also United States v. AT&T, Inc., 916 F.3d
1029, 1032 (D.C. Cir. 2019); Saint Alphonsus Med. Ctr.-Nampa v. St.
Luke's, 778 F.3d 775, 783 (9th Cir 2015); Polypore Int'l., Inc. v.
FTC, 686 F.3d 1208, 1213-14 (11\th\ Cir. 2012); FTC v. IQVIA
Holdings Inc., No. 1:23 Civ. 06188 (S.D.N.Y. Dec. 29, 2023).
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In connection with their enforcement and reporting mandates, the
Agencies also provide public estimates of the average consumer savings
resulting from antitrust enforcement, including mergers that the
Agencies challenge in an enforcement action (which include negotiated
settlements requiring divestitures or transactions that are
restructured prior to consummation). These estimates are contained in
each agency's budget justification submitted to Congress.\258\ Table 4
below summarizes the Agencies' estimates of harms to consumers and
other market participants that would have occurred in the affected
markets but for the agency's antitrust enforcement action. These
savings reflect all civil antitrust enforcement activities, which
include merger enforcement.
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\258\ The Agencies provide annual budget justifications to
Congress which contain these estimates. See Fed. Trade Comm'n,
``Budget, Performance, and Financial Reporting,'' https://www.ftc.gov/about-ftc/budget-strategy/budget-performance-financial-reporting (collecting reports) and U.S. Dep't of Justice, ``Budget
and Performance,'' https://www.justice.gov/doj/budget-and-performance (collecting reports).
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[[Page 89252]]
[GRAPHIC] [TIFF OMITTED] TR12NO24.037
The Agencies' estimates of consumer savings in Table 4 are
calculated based on the relevant product and geographic markets that
were alleged (or would have been alleged) in either a litigation or
settlement complaint. However, sometimes litigation or settlements do
not address the full scope of the Agencies' competitive concerns. Due
to various reasons (resource constraints, investigative efficiency,
litigation strategy, etc.), a complaint may, for example, exclude
certain markets of concern or theories of harm. When such a merger is
blocked or abandoned in its entirety, any expected harm is avoided in
all implicated markets and for all theories of harm. In those cases,
limiting the calculations to just those markets and theories that would
have appeared in a filed complaint further understates the full scope
of consumer benefit.\259\ These calculations also do not include less
quantifiable harms that are avoided through antitrust enforcement, such
as reduced innovation or quality.
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\259\ Most calculations seek to use quantification tools that
align theories of harm being pursued, but not all theories are
associated with readily available tools. Thus, for some merger wins,
the Agencies' estimates of consumer savings will not reflect the
full scope of theories due to the challenges of quantification. This
is most relevant for coordinated effects; when a merger raises both
unilateral and coordinated effects concerns, the calculations put
forward will often reflect only the unilateral concerns (due to the
greater availability of unilateral merger simulation tools) but not
a robust estimation of additional harm arising from the threat of
increased coordination.
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The Commission believes that the enhanced ability of the Agencies
to detect illegal mergers under the final rule will result in similar
benefits to additional consumers and other market participants that
would have been affected by an illegal merger but for the enhanced
detection made possible by the final rule. In addition to these
benefits, the final rule permits the Agencies to fulfill their
statutory mandate to conduct premerger review for the purpose of
preventing illegal mergers prior to consummation, which is a key
competition policy directive that undergirds our nation's reliance on
open and competitive markets to drive innovation and economic growth.
b. Avoidable Costs and Delays Arising From Insufficient Information on
the HSR Form
To understand the inefficiencies created by inadequate information
in the current HSR Filing, the Agencies conducted a review of the
effort required to collect additional information beyond what is
contained in the HSR Filing for investigations that did not result in
an enforcement action.\260\ The Agencies examined all HSR Filings in FY
2021, when they received 7,002 HSR Filings for an associated 3,520
transactions.\261\ The Agencies identified those transactions for which
either Agency opened an investigation that did not result in (1) an
action brought in Federal court to block the transaction, (2) a
negotiated settlement with divestitures, or (3) the transaction being
abandoned or restructured as a result of one agency's antitrust
investigation.\262\ On the basis of this review, the Agencies
determined that they conducted 100 investigations in FY 2021 for which
they collected information from non-public sources but that did not
result in an enforcement action, referred to here as ``no-action
investigations.'' \263\ Investigational costs associated with these no-
action investigations are one product of inefficiencies created by
insufficient information in the HSR Filing because they create
unnecessary burdens for the parties, the Agencies, and third parties
that could be avoided if the HSR Filing contained sufficient
information to determine that the transaction is not one that requires
challenge via litigation prior to consummation. In addition to the
benefits of improved detection outlined above, these benefits represent
opportunity costs for Agency staff (who would spend their time on other
tasks if not collecting necessary information for transactions that do
not warrant enforcement action prior to
[[Page 89253]]
consummation), as well as burdens and costs for the parties and third
parties who respond to staff inquiries designed to collect the
information necessary to conduct a premerger assessment of a reported
transaction.
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\260\ The Agencies selected FY 2021 for this effort because of
the large number of reportable transactions that year, 3,520, which
provided for a robust data set. The Agencies have no basis to
believe that the mergers that occurred in that year were different
in any material way from the mergers that occurred in other years
and so consider them to be representative of HSR-reportable merger
activity in general.
\261\ Fed. Trade Comm'n & U.S. Dep't of Justice, Hart-Scott-
Rodino Annual Report, Fiscal Year 2021 appendix A (FY 2021). As
appendix A n.1 notes, there are typically two filings for each
transaction, one from the acquiring person and one from the acquired
person.
\262\ These criteria are the ones used by the Agencies to report
publicly on their merger enforcement activities.
\263\ In FY 2021, the Agencies took action against 32
transactions. See Fed. Trade Comm'n & U.S. Dep't of Justice, Hart-
Scott-Rodino Annual Report, Fiscal Year 2021 appendix A (FY 2021) at
2. The Agencies provide data on HSR reportable mergers on a fiscal
year basis, but enforcement decisions may occur in a fiscal year
after the transaction was first reported. As a result, the number of
enforcement actions reported in the annual HSR reports are not
necessarily related to the transactions that are reported for that
fiscal year. For this exercise, the Agencies tracked the outcomes of
transactions that were reported to the Agencies in FY 2021 but
decisions about those transactions may have occurred in the
following fiscal year.
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In the 100 no-action investigations, staff contacted at least one
third party, with an average number of 18 third-party interviews per
investigation. Each of these interviews required significant time from
these third parties to identify the knowledgeable personnel in the
related business operations, and prepare for questions in advance of
talking to Agency staff. While some third parties rely on in-house
counsel to help prepare for these interviews, some retain outside legal
counsel who have experience with antitrust investigations. The
Commission lacks a reliable methodology to calculate or estimate the
costs borne by third parties to provide necessary information relevant
to the Agencies' initial antitrust assessment. The Commission believes
that it is appropriate to shift some of this information-gathering
burden to the merging parties and away from other market participants--
including customers who may suffer harm if the merger is consummated--
who currently absorb this burden due to deficiencies in the existing
HSR Form. The final rule realigns the burden of providing necessary
information toward the parties themselves and away from other third-
party companies, including smaller entities who are saddled with
unexpected compliance and legal costs solely because they operate in
the same or adjacent business lines as the merging parties. As a
result, the Commission anticipates a reduction in third parties' costs
from adopting the final rule.
Moreover, given the effort that is required to obtain this
information from third parties, there is often a delay in collecting
critical business facts until late in the initial waiting period, near
the time when a decision must be made about issuing Second Requests. As
discussed above, additional information from the parties and third
parties that is submitted on a voluntary basis often arrives late in
the review period. These delays contribute to additional avoidable
costs through the issuance of Second Requests that might have been
avoided or that were not tailored to areas of competitive concern due
to insufficient information in the HSR Filing.\264\
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\264\ For any investigation that results in Second Requests,
staff spends a significant amount of time during the initial 30-day
waiting period trying to identify the areas of a potential antitrust
violation. Both Agencies make public their Model Second Requests.
See supra notes 242-43. Starting from these models, staff customize
each request by identifying areas of existing competition and
modifying the terms to fit the particular industry dynamics,
products and services, or geographic reach.
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One source of delay is the parties' voluntary decision to withdraw
and refile their HSR Filing. In 53 of the 100 no-action investigations,
the parties voluntarily withdrew and refiled their HSR Filings, which
restarted the initial waiting period and gave Agency staff additional
time to conduct the review. As discussed above, the Commission believes
that most of the investigations in which the parties withdraw and
refile their HSR Filings are the result of the parties' concern that
the Agency may issue Second Requests when they are not warranted or
that the Agency will issue a Second Request that is too broad. As Table
3 shows, when the parties withdrew and refiled, they avoided Second
Requests nearly 70 percent of the time in the period FY 2018 through FY
2022. For the remaining 30 percent, the additional time allowed the
parties to engage in additional advocacy to avoid or potentially narrow
any Second Requests. For withdraw and refile transactions that avoid
Second Requests altogether, there is unnecessary delay and uncertainty
that could be avoided if the information required to make a no-action
decision was provided sooner, including with the HSR Filing.
But for transactions that receive Second Requests, the delay can be
substantial; seventeen of the 100 no-action investigations referenced
above involved a Second Request. The decision to issue Second Requests,
which requires approval from Agency leaders,\265\ has significant
consequences. As discussed in section III.A.3., the costs and delays
associated with Second Requests are substantial, and for any no-action
Second Request investigation, those burdens may be avoided if
sufficient information were available at an earlier time in the
investigation, including in the HSR Filing. For the Agencies, there are
significant consequences as well. A Second Request investigation
requires a team of lawyers, economists, and support staff. The broader
the scope of the investigation (e.g., covering many different products
or many different geographic areas), the more staff must be assigned.
As a result, avoiding unnecessary or unfocused Second Requests would
provide a benefit to the parties, the Agencies, and any third parties
contacted during the investigation.
---------------------------------------------------------------------------
\265\ For the Commission, the Chair issues the Second Requests;
for the Antitrust Division, that determination is made by the
Assistant Attorney General. 15 U.S.C. 18a(c)(1)(A).
---------------------------------------------------------------------------
Based on this experience, the Commission believes that the final
rule will provide a substantial benefit to the Agencies, the parties,
and third parties by reducing the number of Second Requests issued or
narrowing the scope of any Second Request. A more efficient process
that better identifies transactions that do not require additional
investigation benefits parties as well.
Many commenters asserted that the Commission failed to take into
account the increased burden on staff of reviewing additional
information in HSR Filings. Several stated that given the purportedly
huge volume of materials generated by the new requirements, especially
the expanded document demands, Agency staff would be overwhelmed,
thereby undermining effective screening even for deals they could
evaluate with current information requirements. One commenter estimates
that the proposed rule would result in over 177,000 additional staff
hours (100 full-time attorneys) needed to review the information
contained in the revised HSR Filing. On the other hand, other
commenters asserted that the proposed changes would modernize the
premerger process to better account for the evolving complexities of
today's mergers and address potential shortcomings of past merger
review that have become clearer in retrospect.
Based on its own experience and in light of the significant
reductions contained in the final rule as compared to the proposed
rule, the Commission believes that the additional information required
by the final rule would result in an overall reduction in the number of
staff hours spent collecting additional information from all sources,
including the parties, as well as a reduction in associated burdens of
reviewing and processing that information. For example, while Agency
staff may need to review the transaction documents and additional
information submitted with an HSR Filing, they would spend less time on
more costly and time-consuming tasks such as conducting independent
research or outreach to third parties, preparing voluntary information
requests, reviewing additional information submitted by the parties,
drafting Second Requests, reviewing voluminous submissions from the
parties in response to those requests, and preparing internal reports
and memoranda for review by managers. The Commission also acknowledges
that it may incur minimal additional administrative and support system
costs associated with the revised HSR Form,
[[Page 89254]]
such as technology costs to process and host additional documents and
filings. Overall, however, the work of Agency staff will be more
efficient and effective as they will be able to more readily and
accurately identify those transactions that pose a risk that they may
violate the antitrust laws.
In sum, under the existing HSR reporting requirements, inadequate
information in the HSR Filing leads to significant time and effort for
Agency staff, third parties, and merging parties even for transactions
that do not warrant a legal challenge. These costs (and associated
delays) represent an opportunity for the Agencies to realize benefits
from the enhanced information requirements contained in the final rule
by (1) streamlining the Agencies' internal processes and resources
devoted to merger review; (2) reducing costly delays for certain
parties whose deals are eventually consummated; and (3) reducing the
burden on third parties to collect information for premerger screening.
By requiring more of the information to be collected upfront from the
parties as part of the HSR Filing, the final rule will reduce some of
the costs and effort currently associated with premerger review for
transactions that the Agencies ultimately determine do not require
enforcement action.
The Commission acknowledges that for some filings, Agency staff
will still engage in some of these activities to verify the information
in the HSR Filing and reach out to stakeholders who may be affected by
the transaction. However, the Agencies will not need to spend as much
time and resources to acquire the basic business information about the
parties and the transaction that is needed to evaluate the antitrust
risk, because more of that basic information will now be contained in
the HSR Filing. The reduction in those information-acquisition costs
will allow resources to be redeployed to other critical tasks of the
Agencies, such as investigating other mergers (including consummated
mergers) or other antitrust violations. In addition, any reduction in
the costs and burdens imposed on third parties during no-action
investigations is a direct benefit of the final rule.
2. Costs
The Commission anticipates that the incremental costs attributable
to the final rule will primarily fall on individuals and companies who
must make HSR Filings because they are a party to a reportable
transaction. The final rule may have effects on other individuals or
companies who are considering a reportable transaction but do not
eventually pursue one, although these costs will be indirect and hard
to quantify. This indirect effect does not include those potential deal
partners who decide not to pursue an unlawful transaction because the
final rule decreases the likelihood that it will go undetected. That
is, any improvement in the Agencies' ability to detect potentially
illegal mergers is a benefit of the final rule and cannot reasonably be
viewed as imposing unnecessary or unreasonable costs on parties
contemplating a reportable transaction. The final rule may also impose
additional costs on the Agencies to ensure compliance and review
additional information contained in the HSR Filing, although these
costs will be more than offset by other reductions in costs, as
discussed above.
For those individuals and companies that must submit an HSR filing,
the burden of complying with the final rule will primarily consist of
the additional cost of completing and submitting an HSR Filing to the
Agencies. This includes internal costs (for employees tasked with
collecting and reviewing relevant information as well as in-house
compliance attorneys and other non-legal support staff) and external
costs (including outside experts hired to assist in preparing the HSR
Filing such as counsel expert in HSR rules or other tasks that filers
chose to outsource to a third-party service provider). The majority of
filers hire experienced attorneys who are familiar with current HSR
Rules. The Commission expects that filers will continue to do so and
that those professionals (and other legal and technical support staff)
will require some additional time to prepare filings.\266\ Current
requirements also require knowledgeable personnel from the filing
entity to collect and prepare data and documents for the Filing, and
the Commission expects that these individuals will expend some
additional time and effort to comply with the final rule.
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\266\ The Agencies receive a small number of filings from
companies or individuals who do not hire attorneys to prepare their
HSR Form.
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The Commission anticipates that the final rule will result in
incrementally higher direct costs for all filers.\267\ As discussed
above, some of these information acquisition costs are currently borne
by third parties and the Agencies and will now be borne directly by the
filers themselves. Incremental direct costs associated with the final
rule will be borne primarily by those UPEs (and the entities they
control) that must submit an HSR Filing, though some portion of the
costs may be borne by officers or directors of entities within the
acquiring person that will have to provide information to the acquiring
person related to other entities for which they serve as officers and
directors to complete the HSR Filing.\268\ Direct costs vary depending
on a number of factors that are different for each reportable
transaction: the type of interest being acquired; the complexity of the
transaction; the complexity of the UPE and its related entities and
investors; the scope and number of existing business relationships
between the merging parties; whether the filer is the acquiring or the
acquired person; and the size and scope of each filer's business
operations. Generally, costs are lower for simple transactions (such as
for open market purchases of stock or conversion of stock options), for
acquisitions of non-controlling stakes, and for acquisitions of control
where the merging parties do not have an existing business
relationship. Costs are highest for strategic acquisitions of a
competitor or of a key supplier or customer where the Agencies must
engage in a thorough review and are more likely to engage in an in-
depth investigation including through the issuance of Second Requests.
The key variable that is likely to determine the monetary impact of the
final rule on any particular filer is the level of the antitrust risk
associated with the reported transaction. The Commission believes that
this outcome is consistent with the legislative intent in imposing
mandatory premerger review as a means of preventing illegal mergers
prior to consummation.
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\267\ As compared to the current rules, the proposed rule
contained modifications that eliminated certain information
requirements that the Commission has determined no longer provide a
benefit for premerger screening. These reductions in burden are
incorporated in the final rule and are reflected in the analysis of
incremental costs associated with the final rule.
\268\ Sometimes, the parties will allocate the costs associated
with premerger review between them by contract. These provisions are
typical for strategic acquisitions where the parties expect some
level of antitrust scrutiny and often require the acquiring party to
compensate the acquired party for costs related to the HSR Filing as
part of the purchase price. In conducting its cost assessment, the
Commission has assumed that each filer is responsible for its own
costs.
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The Commission expects that the incremental increase in costs
associated with the final rule will be most significant for the first
HSR Filing prepared by a given filer because there will be costs
associated with becoming familiar with the new reporting Form and
Instructions and to gather the required information about the filer's
operations. In addition, the Commission believes that some filers (or
their counsel) will find it efficient to
[[Page 89255]]
automate some portion of the reporting process, which will increase the
burden of the first filing. For any subsequent HSR filing related to
another acquisition, these repeat filers will incur lower costs because
some of this prior work will not be necessary to the extent that they
made investments to put processes in place to maintain or automate the
collection of relevant business information. In other words, any
estimated incremental costs are expected to decline over time.
Nothing in this rulemaking affects the filing fees for making an
HSR Filing, which are mandated by Congress and adjusted by the
Commission annually.\269\ While the final rule does not alter these
HSR-related costs, recent congressional changes in these fees use an
approach that takes into account the size of the reportable transaction
and the size of the parties involved. Last year, Congress revised the
schedule of HSR filing fees, creating a new fee structure with five
tiers, which increased fees for some transactions while reducing them
for others.\270\ Specifically, the new fee structure lowered fees for
some mergers valued under $500 million and increased fees for
transactions valued at $1 billion and more. Prior to this law, HSR
filing fees had a three-tier structure, with thresholds adjusted every
year. The purpose of creating a new five-tier fee structure was two-
fold: to provide the Agencies with additional resources to review
mergers and enforce the antitrust laws, and to better reflect that
reviews of larger mergers generally consume more Agency resources.\271\
Effective February 28, 2023, the Commission implemented the new fee
levels, and on March 6, 2024, the Commission published the adjusted
fees for 2024.\272\
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\269\ Each year, the thresholds that determine reportability
under the HSR Act are adjusted based on changes in the gross
national product, 15 U.S.C. 18a note, while filing fees are adjusted
in line with the Consumer Price Index, Public Law 117-328, 136 Stat.
5967-68, Div. GG, Title I, sec. 101.
\270\ Public Law 117-328, 136 Stat. 5967, Div. GG, Title I.
\271\ H.R. Rep. No. 117-493 pt. 1, at 3-5 (2022).
\272\ See Fed. Trade Comm'n, ``New HSR thresholds and filing
fees for 2024,'' Fed. Trade Comm'n Competition Matters blog (Feb. 5,
2024), https://www.ftc.gov/enforcement/competition-matters/2024/02/new-hsr-thresholds-filing-fees-2024.
[GRAPHIC] [TIFF OMITTED] TR12NO24.038
The Commission has identified significant deficiencies in existing
information requirements, and those gaps are hindering the Agencies'
ability to obtain key facts needed for an initial assessment of whether
the transaction may violate the antitrust laws and to determine whether
to issue a Second Request. See section II.B. Congress authorized the
Commission to issue rules to collect information that is necessary and
appropriate for the Agencies to conduct premerger review within the
statutory time frame. The final rule requires filers to gather
information relevant for screening the transaction and results in
relatively higher costs for those reported transactions that are more
likely to pose competition issues, including transactions with complex
party or deal structures, or transactions involving two entities with
many overlapping business operations or existing business relationships
in the supply chain, or transactions in which the parties have a
history of acquisitions in the same business lines. This is consistent
with the HSR Act's focus on the largest transactions, which are often
the most complex, and the overall intent to reduce cost and delay for
reportable transactions other than those that may violate the antitrust
laws.
As discussed in more detail in section V.D., the Commission
believes that most filers will not experience delays because the final
rule requires collection of business information that should be readily
available or collected as part of each filer's due diligence efforts
related to the transaction. Filers who would prefer to submit a letter
of intent or other preliminary agreement that is no longer compliant
with the final rule may need to come to an agreement on more details of
the planned-for transaction. But the Commission has determined that
this represents less than 10 percent of current filers, meaning that
most parties are already coming to agreement on the key terms that are
required by the final rule even if their transaction documents are
referred to as a letter of intent.
a. Calculation of Direct Costs
To estimate the potential increase in direct costs for filers
attributable to the changes in the final rule, the Commission
calculated the average compliance burden by conducting a survey of
experienced HSR attorneys who now work for the Agencies. See section
VIII. That survey revealed a range of estimated costs for each new
information requirement in the final rule. These estimates include the
amount of additional time required from a variety of knowledgeable
individuals, including, for example, HSR specialists at law firms hired
to prepare the Filing as well as individuals associated with the UPE
who collect and verify the business information and responsive
documents, as well as costs associated with any outside vendors hired
to complete the HSR Filing, such as data vendors.
As explained in section VIII., the Commission estimates that the
amendments contained in the final rule would increase the time required
for a filer to prepare an HSR Filing, on average, 68 hours, resulting
in
[[Page 89256]]
additional costs of approximately $39,644 per filing on average.\273\
The Commission believes that this level of direct costs is small in
relation to other merger costs. Indeed, these total costs are small in
relation to the value of the deals that must be reported under the Act.
The current minimum size for a reportable transaction is $119.5
million; as outlined in section VIII, for FY 2023, the Commission
estimates that the total direct costs associated with the final rule
would have been only slightly more than the value of a single
reportable transaction. Moreover, the Commission believes that these
direct costs may be overstated and should decline over time as parties
and their lawyers become more familiar with the requirements of the
final rule. Finally, these direct costs do not take account of the
substantial benefits to the Agencies, the parties, and third parties
generated from a more efficient premerger review process that shifts
some of the burden of information collection and reporting away from
third parties to merging parties and allows the Agencies to obtain
critical business facts earlier in the initial waiting period, which in
turn helps mitigate avoidable costs associated with Second Requests
that might have been avoided or that were not tailored to areas of
competitive concern due to insufficient information in the HSR Filing.
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\273\ As further described in section VIII, the Commission
estimates the range at 10 to 121 additional hours, or approximately
an additional $5,830 to $70,500 per filing, with the highest costs
borne by the acquiring person in a transaction with overlapping
products or supply relationships in the target's industry.
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In addition, the costs associated with completing an HSR Filing are
often minimal compared to other fees associated with mergers and
acquisitions. Based on publicly available data, the 20 largest M&A
transactions during 2021 and 2022 ranged in size from $1.44 billion to
over $70 billion, with average deal size of $10.6 billion.\274\ Using
the current Congressionally mandated HSR filing fees associated with
deals of this size, the average HSR filing fee for these transactions
would be $1,198,500, ranging from $415,000 to $2,335,000. For 18 of
these deals, the fees paid by the target to financial advisors are
available from public sources. These fees varied considerably, ranging
from $800,000 to $96 million. In 14 out of these 18 cases, the fees
paid by the targets to just their financial advisors were more than ten
times the estimate by one commenter of the average total cost per
filing for completing the HSR Form ($437,314) \275\ and in five cases,
fees to financial advisors were more than 100 times of that estimate.
In any of these cases, financial adviser fees are several multiples of
the estimated average new costs associated with the final rule of
$79,288 per transaction ($39,644 + $39,644) based on the Commission's
estimates. See section VIII. These advisor fees are instructive in
demonstrating that HSR filing fees and HSR-related transaction costs
for most transactions do not comprise a significant share of total
transaction costs and therefore would have minimal impact on costs of
dealmaking across the economy.\276\
---------------------------------------------------------------------------
\274\ See ``Deal Analytics,'' Bloomberg L. (last viewed Apr. 3,
2024) (Prologis Inc.'s June 13, 2022 acquisition of Duke Realty
Corp. (advisor fees over $135M); Thermo Fisher's Apr. 15, 2021
purchase of PPD Inc. (advisor fees over $70M); sale of Twitter Apr.
25, 2022 (advisor fees over $50M)). See also Comment of U.S. Chamber
of Com., Doc. No. FTC-2023-0040-0684 at 20-21 & Fig. 3.
\275\ Comment of U.S. Chamber of Com., Doc. No. FTC-2023-0040-
0684.
\276\ In conjunction with the passage of the Merger
Modernization Act, the Congressional Budget Office estimated the
budgetary impact of changing merger filing fees for transactions
reported under the HSR Act. CBO estimated that the bill H.R. 3843
(which reflected fee levels that were eventually enacted) would
increase HSR filing fees by $1.4 billion over the 2023-2027 period.
Cong. Budget Office, Cost Estimate, H.R. 3843, Merger Filing Fee
Modernization Act of 2021 3 (Sept. 27, 2022), https://www.cbo.gov/publication/58527. CBO estimated that the aggregate cost of the
private-sector mandate would be about $325 million in each of the
first five years. Id.
---------------------------------------------------------------------------
Another survey of middle-market investment bankers, brokers and
other advisors reports that merger advisory fees for deals valued up to
$150 million come in the form of retainers, monthly or hourly charges,
or success fees, which are paid if the deal closes.\277\ For deals in
the $100 to $150 million range, namely those most likely to be
reportable under the HSR Act, success fees paid to financial advisors
represented 1 to 2 percent of deal value, or $1,500,000 to $3,000,000
for a $150 million deal. As with higher valued transactions, the other
merger-related costs for transactions on the lower end of HSR
reportability dwarf the costs associated with the final rule.
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\277\ Firmex, M&A Fee Guide 22/23 (N. Am. ed., 2022-23).
---------------------------------------------------------------------------
One commenter commissioned a report (``the Kothari Report'') that
projected that the direct cost of the proposed changes may be nearly
seven times greater than the Commission estimated for the proposed
rule, after accounting for both direct monetary costs and further costs
to the economy.\278\ The Kothari Report critiqued the Commission's
methodology of calculating direct costs in the NPRM's PRA analysis in
several respects. The Commission considered these comments and those of
other commenters and, as discussed in section VIII, made adjustments to
its cost estimate methodology for the final rule.
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\278\ Comment of U.S. Chamber of Com., Doc. No. FTC-2023-0040-
0684 at 21. Professor Kothari's report is attached as an annex to
this comment. See id. at 54-85 (hereinafter ``Kothari Report'').
---------------------------------------------------------------------------
As a result, the Commission disagrees that the final rule will
impose the level of costs presented in the Kothari Report for several
reasons. First, the Commission made significant modifications to all
aspects of the proposed rule in response to concerns raised in this
report and in other comments. As a result, the estimates contained in
the Kothari Report reflect costs for a very different rule, one that
the Commission has determined not to adopt. The Kothari Report relied
on a survey of experienced practitioners and so did the Commission. The
survey of practitioners relied on in the Kothari Report estimated that
the proposed rule would require an additional 242 hours of time from
outside counsel and internal personnel. While the Commission's estimate
was much lower, that comparison is no longer relevant because the
Commission is not adopting the rule it proposed. Instead, the
Commission is adopting a rule that is substantially more modest in
scope, one that aligns compliance costs as much as practicable with the
risk that reported transaction is one that requires a closer look.
Moreover, even if the Commission's estimate of the economic impact
of the proposed rule was flawed, the Commission made improvements to
the methodology it used to estimate the additional effort that will be
required of filers to comply with the final rule. As discussed in
section VIII, the Commission has accounted for the same costs in its
own estimates, such as the time required from outside counsel, in-house
counsel, and business personnel as well as costs associated with other
services such as data vendors. The Commission believes that its
estimates of the economic impact of the final rule are reliable and
sufficient for it to determine that the final rule is a reasonable
exercise of its rulemaking authority even if it imposes modest costs on
overall dealmaking and in light of the benefits of the final rule for
efficient and effective detection of illegal mergers via mandatory
premerger review.
Much of the difference between the Commission's estimate and the
one contained in the Kothari Report is attributable to the higher
hourly rate applied to the required hours, which the Kothari Report
suggests is more likely
[[Page 89257]]
$936 per hour, and a category of ``other'' costs that is nearly one-
third of the total projected costs. The Commission believes that its
estimates of incremental costs associated with the final rule are more
consistent with the range of filings and filers based on its experience
receiving thousands of filings every year and the merger investigations
conducted by the Agencies. See section VIII. The Commission has no
basis to inflate the overall costs associated with the final rule
beyond what was estimated by those with experience filling out HSR
Forms for a variety of filers and transactions. As with prior
rulemakings, if the Commission determines that certain requirements in
the final rule are not generating a benefit to the Agencies'
preliminary antitrust assessment in light of the associated costs, the
Commission can consider adjusting those requirements in future
rulemakings.
The Commission acknowledges that the incremental costs associated
with this rulemaking are more material than its prior rulemakings,
which frequently reduced the burdens associated with submitting an HSR
Form. In fact, the current Form is very similar to the original 1978
version in its scope and content. But the cumulative effect of the
economy-wide changes described in section I. have seriously undermined
the Agencies' ability to engage in extensive fact-gathering to
compensate for deficiencies in the HSR Form. The effort required by the
Agencies to conduct premerger review in today's economy threatens to
render the process ineffective for its specific purpose--detecting and
preventing illegal mergers before they cause harm that cannot be
undone. The status quo does not allow the Agencies to quickly identify
which transactions may violate the antitrust laws, causing them to
spend too much time on ones that likely do not while at the same time
lacking sufficient information to identify ones that do. With this
rulemaking, the Commission is updating the Agencies' tools for
detecting illegal mergers during premerger review to match the size and
complexity of reportable transactions, restoring rigor and efficiency
to the task of premerger review.
The Commission disagrees with other assertions made in the Kothari
Report or finds them unpersuasive and not entitled to significant
weight. The report focuses on the small number of transactions that
receive a Second Request and ignores the benefits to filers from the
Agencies reviewing and dispensing with non-problematic transactions
with greater efficiency and assurance than before. The Kothari Report
also ignores the benefits to the public from the Agencies' ability to
more effectively identify and investigate potentially problematic
transactions based on the availability of better initial information
about potential competitive harms. The Commission discusses these and
other benefits of the final rule in section III.C.1.
b. Other Costs Not Attributable to the Final Rule
Commenters raised concerns that the proposed rule would lead to
other costs for those seeking to engage in M&A activity. The Kothari
Report predicted that the proposed rule would so increase the costs of
M&A that it would reduce the number of mergers, including ones that
would be beneficial for consumers, innovation, investors, and the
economy. Other commenters similarly argued that the Commission's
objective is to stop all mergers by making them too costly to pursue.
The Commission disavows any intention to stop all mergers by imposing
unreasonable costs on those that are subject to premerger review and
disagrees that the final rule will have this effect. Moreover, the
commenters provided only speculation that the proposed rule would deter
or delay some deals merely by increasing the costs associated with
making an HSR Filing as compared to other factors that more directly
affect M&A activity, such as interest rates. In the absence of actual
data from commenters, the Commission must make a predictive judgment
based on the evidence available to it.\279\ As noted in section
III.C.1., the evidence available to the Commission indicates that the
Agencies' antitrust enforcement saves consumers and other market
participants billions of dollars a year, and in light of known
information deficiencies outlined in section II.B., there are strong
indications that closing known information gaps will allow the Agencies
to better identify additional transactions that may also violate the
antitrust laws if consummated. The final rule does not impose new
incremental costs that could plausibly deter beneficial or
competitively benign acquisitions, particularly after the additional
revisions narrowing the requirements in the final rule are taken into
account.
---------------------------------------------------------------------------
\279\ See, e.g., Huawei Techs. U.S., Inc. v. FCC, 2 F.4th 421,
454 (5th Cir. 2021) (``Huawei does not object to specific cost
calculations such as these but to the agency's failure to consider
additional, difficult-to-measure costs about which the FCC lacked
hard data, such as `the broader economic costs of depriving
Americans of access to Huawei's market-leading technology.' The
agency's decision to base its analysis instead on the replacement
cost estimates before it does not render its analysis
unreasonable.''); FCC v. Prometheus Radio Project, 592 U.S. 414, 427
(2021) (``The APA imposes no general obligation on agencies to
conduct or commission their own empirical or statistical studies. .
. . In the absence of additional data from commenters, the FCC made
a reasonable predictive judgment based on the evidence it had.'').
---------------------------------------------------------------------------
Relatedly, other commenters raised arguments about additional macro
impacts of expanding information requirements for HSR Filings, such as
concerns about the impact on institutional investors, including retail
investors, by indirectly impacting the performance of investment
portfolios. Some said they were concerned generally about the chilling
effect on M&A. Others raised concerns that changing the status quo
would create market uncertainty, citing increased market, labor, and
operational volatility. Several of these commenters raised specific
concerns that acquisitions in their particular sector were typically
not challenged or even reviewed closely by the Agencies. Concerns about
disproportionate impact for certain sectors or types of filers are
addressed in section III.D. below.
The Kothari Report states that delays caused by the additional time
that will be required to prepare a HSR filing could kill deals and lead
parties to abandon transactions. It also stated that delay breeds
uncertainty in product, labor, and capital markets, enabling
competitors to raid customers and staff, and that delay would lead to
lost economic efficiencies that are realized through mergers. For these
propositions, the Kothari Report cites an advisory committee report by
the U.S. Department of Justice issued in 2000. While that committee
report explains how delays can influence pending mergers, the cited
portion is discussing international jurisdictions that do not impose
strict timelines or which have prolonged agency investigations into
mergers \280\--this rule does not contemplate either. In addition, as
discussed above, the final rule will allow the Agencies to reduce the
number of Second Requests or narrow their scope, significantly reducing
delays in many instances.
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\280\ Int'l Competition Pol'y Advisory Comm., Final Report to
the Attorney General and Assistant Attorney General for Antitrust
Ch. 3 (2000), https://www.justice.gov/atr/final-report.
---------------------------------------------------------------------------
Moreover, the Commission disagrees that any delays and incremental
costs associated with an HSR Filing could have a significant impact on
overall M&A activity. Deal volumes fluctuate, often substantially, from
year to year, and these fluctuations are reflected in the number of HSR
Filings received by the Agencies. But these fluctuations are
attributable to many economic factors,
[[Page 89258]]
including the cost of capital. Research relied on by one commenter
provides evidence that a major driver of uncertainty in M&A activity
generally is stock market volatility.\281\ This is consistent with the
Agencies' experience. Figure 1 reflects the volatility of HSR-
reportable transactions, and the Commission believes that much of this
volatility is attributable to changes in interest rates and other macro
factors that drive M&A activity generally, unrelated to premerger
review or the specific information collected in an HSR Filing.
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\281\ Comment of U.S. Chamber of Com., Doc. No. FTC-2023-0040-
0684 (Kothari Report ] 57 n.46, citing Vineet Bhagwat et al., ``The
Real Effects of Uncertainty on Merger Activity,'' 29 Rev. Fin.
Studies 3000-34 (2016)).
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The Kothari Report also asserted that M&A activity is beneficial to
the economy, and that any potential delay or chilling of acquisitions
due to the final rule would lead to significant loss of value creation.
But the evidence cited to support these concerns is inapposite. For
instance, a paper cited for support that acquired plants become more
productive points to credit spreads and aggregate market valuation as
being major drivers for merger activity.\282\ Similarly, another source
relied on a stylized, theoretical model of mergers that does not
provide any empirical evidence about the benefits of M&A, applying the
theoretical model to a situation where there is no M&A at all to
calculate the benefits of M&A.\283\ There is no reason to believe that
the final rule will significantly chill M&A activity. Furthermore, in
the model, the author finds that preventing a small fraction of deals
over $1 billion has little effect on aggregate efficiency, and that due
to the inefficiencies in the M&A market, a policy of blocking a fixed
number of deals regardless of antitrust concerns can improve aggregate
outcomes. Thus, the paper actually demonstrates that preventing some
deals can improve economic performance. The paper does not provide a
basis for the Commission to conclude that changes of the magnitude
contained in the final rule threaten economic efficiencies gained
through M&A activity generally.
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\282\ Comment of U.S. Chamber of Com., Doc. No. FTC-2023-0040-
0684 (Kothari Report at 24 n.47, citing Vojislav Maksimovic et al.,
``Private and Public Merger Waves,'' 68 J. Fin. 2177-2217 (2013).
\283\ Id. (Kothari Report at 25 n.49, citing Joel M. David,
``The Aggregate Implications of Mergers and Acquisition,'' 88 Rev.
Econ. Studies 1796-18 (2021)).
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Another paper cited in the Kothari Report, which purports to
support the proposition that any discouragement of pending mergers
results in significant value loss, is not on point.\284\ First, this
final rule is not intended to and should not discourage mergers--the
final rule merely requires companies who are already submitting HSR
Filings to submit more information with their filings. In the paper's
survey of past empirical assessments of mergers, it highlights evidence
that mergers that create market power yield no better performance, and
sometimes worse. That assessment is wholly consistent with the
Commission's efforts in this final rule: to collect information that
better allows Agency staff to identify potentially anticompetitive
mergers. The Kothari Report mischaracterizes this study as supporting
the value of all mergers. In fact, the author concludes that mergers
are not universally accretive in value, stating: ``[T]he buyer in M&A
transactions must prepare to be disappointed. It is also true that most
transactions are associated with results that are hardly consistent
with optimistic expectations. Synergies, efficiencies, and value-
creating growth seem hard to obtain. It is in this sense that deal
doers' reach exceeds their grasp.'' \285\ Last, it should be noted the
study is dated 2002, and the latest mergers it analyzes are from 1999,
whereas the Commission crafted this final rule to address changes it
has observed in more recent transactions that reflect current
dealmaking dynamics discussed in section II.B.
---------------------------------------------------------------------------
\284\ Id. (Kothari Report at 26 n.52, citing Robert F. Bruner,
``Does M&A Pay? A Survey of Evidence for the Decision-Maker,'' J.
Applied Fin. 48-68 (Spring/Summer 2002)).
\285\ See Bruner, supra note 284, at 65.
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Indeed, one goal of this rulemaking is to ensure that any benefits
from M&A are realized as quickly as possible and that the costs of
anticompetitive mergers do not materialize. The Commission acknowledges
that there are benefits generated from M&A activity generally, and that
those benefits flow broadly throughout the economy. But the Agencies
are not tasked with determining whether an acquisition is
``beneficial'' in any sense. The challenge given to the Agencies by
Congress is to distinguish which acquisitions, among the many thousands
they review each year, may violate U.S. antitrust law. For this task,
they need certain facts that would reveal potential antitrust risks.
For instance, event studies may indicate that M&A can result in
significant value creation, but these outcomes may be the result of
genuine synergies or they can also occur due to the anticompetitive
creation of market power.\286\ This highlights the very purpose of
mandatory premerger review: to subject a certain number of larger
acquisitions to a quick and thorough antitrust review prior to
consummation solely for the purpose of identifying the few that need
in-depth investigations. Throughout the history of the HSR Act, the
Agencies have investigated just a small fraction of deals through the
issuance of Second Requests. The Commission believes that the final
rule will render premerger review more effective and efficient in
identifying those mergers that may lead to anticompetitive harm, and
that the small incremental costs and delays associated with the final
rule are necessary and appropriate and consistent with the scheme
established by Congress.
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\286\ W. Kip Viscusi et al., Economics of Regulation and
Antitrust 217-18 (5th ed. 2018) (horizonal mergers raise the
possibility of creating market power and the possibility of
achieving socially beneficial cost savings).
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Moreover, to the extent these concerns arise from a belief that
disclosure of additional relevant information to the Agencies will mean
that a reported transaction is more likely to be challenged or
investigated, that outcome fulfills the purpose of premerger review. As
discussed above, to the extent that the HSR Act itself requires
reporting for a large number of transactions that may never violate the
antitrust laws, that has always been a feature of HSR premerger
notification. Congress recently reaffirmed that particular tradeoff by
imposing new disclosure requirements for foreign subsidies on all
filers while not adjusting existing filing obligations.
In light of these considerations, the Commission does not believe
that the final rule will have an undue effect on dealmaking, including
by discouraging transactions that have little or no antitrust risk. The
expected costs of this final rule are very small relative to the
overall value of reportable transactions, the level of M&A activity in
the United States, and the size of the overall economy. The benefits of
the final rule are expected to be proportional to reductions in the
errors in detection of illegal mergers that this final rule addresses.
Each year, the Agencies review reported transactions with an
aggregate dollar value of nearly $2 trillion, on average.\287\ Yet this
is just a fraction of the level of M&A activity in the United States:
as reflected in Table 1, over 80 percent of mergers completed in the
United States are not reported to the Agencies. The costs associated
with the
[[Page 89259]]
final rule are very small in comparison to the U.S. economy, which was
valued at nearly $28 trillion in 4Q 2023.\288\ Any improvement in the
Agencies' ability to detect illegal mergers prior to consummation will
lead to benefits that will help reduce antitrust harm from illegal
mergers and improve the efficiency and effectiveness of premerger
review. The greater the improvement in detection and in avoiding the
costs and burdens of acquiring information from sources other than the
parties, the greater the benefits. The Commission expects that the
costs from the final rule will be so small in relation to the total
value of reported transactions, to the level of U.S. M&A activity in
general, or to the U.S. economy that there will be negligible indirect
effects, if any, on dealmaking, innovation, investments, and growth.
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\287\ See HSR Annual Reports for FY 2014 through 2023, available
at Fed. Trade Comm'n, Annual Reports to Congress Pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, supra note 56.
\288\ U.S. Bureau Econ. Analysis, Gross Domestic Product
(updated Aug. 29, 2024) (Q2 2024 $28,652,337,000,000) (retrieved
from FRED, Fed. Reserve Bank of St. Louis), https://fred.stlouisfed.org/series/GDP.
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Nonetheless, the Commission has narrowed its proposals so that the
final rule limits the incremental costs for filers as much as
practicable while still generating additional information that is
critical for the initial antitrust assessment in light of changes in
market realities and information gaps outlined in section II.B. The
need to modernize premerger review to adjust to market changes is
compelling, and the Commission is acting within its statutory mandate
to determine what information is required to conduct premerger
screening that is appropriate in the modern economy.
The Kothari Report also commented that there is additional
uncertainty for potential filers arising from the Agencies turning away
from the decades of practice under the current rules. Any change brings
with it some level of uncertainty and will require adjustment by all
those involved. As with other adjustments to the HSR rules in the past,
the Commission's PNO staff will be providing guidance and assistance to
filers who have questions about the final rule. But the Commission
believes that the uncertainty related to the new rule is a short-term
issue that will be resolved after the final rule goes into effect. The
commenters are overstating the effect of uncertainty on the economy.
Not only are these concerns temporary; they ignore the greater benefits
of a more efficient premerger review process that may result in a
faster resolution of some deals, including by reducing the number of
Second Requests and narrowing others. The goal of this rulemaking is to
provide sufficient information so that the Agencies can quickly and
confidently distinguish those transactions that present little or no
risk that they may violate the antitrust laws, and identify those
transactions that require a more searching investigation. As discussed
above, the Commission believes that the final rule will reduce the
delays that are attributable to information deficiencies.
Moreover, the Commission disagrees that the final rule will lead to
greater uncertainty about the outcome of the Agencies' premerger
review. This rulemaking does not (and cannot) affect the ultimate
determination of whether a transaction violates the antitrust laws. A
Federal court will make that determination for any transaction that the
Agencies or others seek to block prior to consummation under prevailing
legal standards.\289\ Any ``uncertainty'' about the eventual outcome of
premerger review is directly related to whether the merger violates the
antitrust laws and whether the Agencies are able to detect that risk
when conducting a premerger assessment. Premerger review is simply the
tool Congress gave to the Agencies to detect those mergers that may
violate the law so that the Agencies can take steps to prevent their
consummation. On the margin, the Commission believes that the final
rule will reduce uncertainty about the outcome by providing more
transparency to the parties (and the public) about the information the
Agencies rely on to make their assessment that a transaction may
violate the antitrust laws. To the extent that the commenters are
concerned that disclosing more information reveals a risk to
competition that the current rules do not, that additional
``uncertainty'' is a benefit of the final rule as a result of improved
detection and possibly greater deterrence achieved through more
effective premerger review.
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\289\ In the Agencies' experience, when faced with an imminent
or pending legal challenge to the legality of the transaction, many
parties chose to abandon their merger plans rather than incur the
additional legal costs associated with defending an injunction
action in Federal court. This decision is solely in the discretion
of the parties and reflects their assessment of litigation risks.
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It is not feasible to design premerger review requirements to only
apply to those mergers that will be found to violate the antitrust
laws, because there are too many variables that weigh in that outcome.
Establishing that a merger may substantially lessen competition or tend
to create a monopoly is highly fact-dependent exercise. The final rule
represents a reasonable reflection of the Congressional policy to
screen those mergers in advance to discover the few that may cause
lasting harm throughout the economy and that should be blocked prior to
consummation. The Commission has determined that the current HSR
reporting requirements are not sufficient for the critical task of
premerger review in light of changes in the economy and in M&A
activity.\290\
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\290\ As discussed in section III.E., other countries have
adopted other procedures to review proposed and consummated mergers.
---------------------------------------------------------------------------
Some commenters argued that the proposed rule's expansion of
reporting requirements would negatively impact investments in biotech
innovation, or deny startups or other innovative companies an exit
strategy. Others asserted that the acquisition of a small company by a
larger one can create efficiencies by bringing together two entities
that specialize in activities in which they have a comparative
advantage or provide assistance necessary to bring discoveries to
market. One study cited by a commenter estimates that it costs
approximately $2.6 billion to develop and bring a new drug to
market.\291\ Another commenter noted that startups operate on tight
budgets and that exits, most often facilitated by an acquisition,
provide liquidity, enable capital flows through the startup ecosystem,
and give startups incentives to innovate. The Commission recognizes
these possible benefits and does not seek to deny them to small
companies or others, nor does it believe that the HSR reporting
requirements in this final rule will have any of these negative effects
on the opportunities for small or startup companies to exit via lawful
acquisitions. As noted in section II.B.4., many acquisitions of
startups and small innovator firms are not reportable. For those
acquisitions that Congress has determined are large enough to be
reportable, the long-term benefits, both monetary and non-monetary,
well outweigh the incremental costs associated with the final rule. Not
surprisingly, acquisitions of this type (and others) declined in 2023
due to higher interest rates. Nonetheless, the Commission does not
believe that small companies are so short-sighted that they will forgo
benefits of a negotiated exit acquisition where the expected benefits
dwarf HSR filing costs.
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\291\ Comment of Biotech. Innovation Org., Doc. No. FTC-2023-
0040-0706 at 7 n.16 (citing Joanna Shepherd, ``Consolidation and
Innovation in the Pharmaceutical Industry: The Role of Mergers and
Acquisitions in the Current Innovation Ecosystem,'' 21 J. Health
Care L. & Pol'y 1, 16 (2018)).
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Moreover, the Commission cannot ignore that certain acquisitions
may also reduce innovation and harm
[[Page 89260]]
competition in violation of the antitrust laws, particularly when
dominant firms use acquisitions to acquire nascent threats. One
commenter acknowledged that an environment where a few large companies
dominate is undesirable, and another noted that smaller companies have
flexibility, the ability to pivot in response to new evidence, and a
willingness to accept risk that is rare in larger firms. While
acquisitions of small firms by large firms can be beneficial, when they
substantially lessen competition or tend to create a monopoly, they can
be detrimental to innovation and growth. For these reasons, and as
discussed in section II.A., Congress tasked the Agencies with carrying
out premerger review. The Agencies would be remiss if they did not
fulfill that task by ensuring that the HSR reporting requirements are
attuned to the risk that large firms are buying up smaller firms in
order to eliminate nascent and potential threats. For any negotiated
exit acquisition that must be reported under the HSR Act, the
incremental costs imposed by the final rule are justified by the
benefit to the Agencies and the public of assessing the risk that the
acquisition may violate the antitrust laws.
To be clear, not all exit partners are denied to small firms due to
antitrust scrutiny; it is only those whose acquisition would violate
the antitrust laws. For instance, when a large incumbent seeks to
acquire a smaller company that constitutes a nascent threat or an
actual or potential competitor, the Agencies may challenge that merger.
But in the Agencies' experience, a startup firm deemed valuable by a
dominant incumbent also enjoys other exit options. For example, the
Commission recently challenged the proposed acquisition of a license to
an innovative, early-phase candidate drug treatment for Pompe disease
by the company with the only FDA-approved treatments for the
disease.\292\ The parties abandoned the transaction after the
Commission authorized a lawsuit to block the deal; within five months
the innovator company had found an alternative partner, negotiated a
new agreement, completed antitrust review, and closed the deal.
Moreover, the terms of the new deal appear largely equivalent to what
the innovator had negotiated with the incumbent.\293\ In other words,
if the acquisition of a startup by a dominant incumbent carries a risk
that the Agencies may determine that the transaction is one that may
violate the antitrust laws, it is likely that there are other buyers
that do not create those risks and any of those buyers present a viable
exit strategy via acquisition.
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\292\ In re Sanofi Corp., No. 9422 (F.T.C. Dec. 11, 2023)
(complaint alleging Sanofi's proposed acquisition of an exclusive
license to Maze Therapeutics' pipeline Pompe therapy would have
eliminated nascent threat to Sanofi's monopoly) (transaction
abandoned).
\293\ Compare Press Release, Maze Therapeutics, ``Maze
Therapeutics Announces Exclusive Worldwide License Agreement with
Sanofi for MZE001, an Oral Substrate Reduction Therapy for the
Treatment of Pompe Disease'' 1-2 (May 1, 2023), https://mazetx.com/wp-content/uploads/2023/04/Maze-Therapeutics-Press-release-MZE001-license-Final-.pdf (proposed license included $150 million upfront
cash and equity investment, the possibility of another $600 million
in development, regulatory, and commercial milestone payments, plus
further royalties), with Press Release, Shionogi & Co., ``Shionogi &
Co., Ltd. and Maze Therapeutics, Inc. Announce Exclusive Worldwide
License Agreement for MZE001, a Novel Therapeutic Candidate for the
Treatment of Pompe Disease'' 1 (May 10, 2024), https://mazetx.com/wp-content/uploads/2024/05/CONFIDENTIAL_Project-Magenta-Press-Release_Final-FINAL.pdf ($150 million upfront fee, plus development,
regulatory, and commercial milestones, plus further royalties).
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The Commission disagrees with the suggestion that incremental
changes in the information requirements for HSR Filings could have a
chilling effect in sectors that are especially acquisitive. One
commenter stated that in 2022 alone, 16,464 U.S.-based VC-backed
companies received $240.9 billion in funding, yet when these
transactions were reportable they were rarely investigated. Unless the
new information requirements in the final rule reveal that a reported
transaction may violate the antitrust laws, the Commission expects M&A
activity in these sectors to continue to be subject to other economic
forces that will determine their viability or profitability.\294\
Similarly, claims that an industry or sector is ``unconcentrated'' are
unavailing. The Agencies must conduct a fact-specific, case-by-case
assessment of market dynamics to determine whether any particular
relevant market affected by the merger is concentrated, and that
assessment is typically left to an in-depth investigation after the
issuance of Second Requests. Although the Agencies routinely decline to
investigate transactions where there are many remaining competitors
post-merger, this is a decision made after assessing relevant facts
about the transaction including those contained in the HSR Filing, and
is not based on an advance determination that certain sectors are
``unconcentrated.''
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\294\ See, e.g., Press Release, Nat'l Venture Cap. Ass'n, ``NVCA
2024 Yearbook: Charting the New Path Forward for Venture Capital''
(Apr. 9, 2024) (noting that the U.S. venture capital investment
ecosystem is still the envy of the world.), https://nvca.org/press_releases/nvca-2024-yearbook-charting-the-new-path-forward-for-venture-capital/.
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The Commission has taken into account the additional costs imposed
on small and innovative companies, as well as those that operate in
sectors where the Agencies have historically not engaged in merger
enforcement. As discussed in section II.B.5., the emergence of
strategic buyers engaged in serial acquisition strategies raises the
possibility that some sectors that were not concentrated in the past
are becoming more concentrated, especially through transactions that
are not subject to premerger review. Thus, the Agencies should not rely
on assumptions about historical levels of concentration when conducting
premerger review of a reportable transaction in those sectors. By
requiring information about prior acquisitions of both the buyer and
target, the Agencies are given better information about the current
competitive landscape so that they can make more accurate assessments
about the potential effect of the filed-for transaction.
To the extent possible, the Commission has imposed as few
additional requirements as is practicable in light of the benefits
derived from more effective premerger review. If, based on experience
of collecting new information, the Commission finds that some
requirements generate less-than-expected benefits to the Agencies, it
can eliminate those requirements in future rulemakings. In many prior
rulemakings, the Commission adjusted its rules to reduce the burden on
filers after experience revealed that the information did not provide
the hoped-for benefit to the Agencies sufficient to justify the costs
to filers of providing the information.\295\
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\295\ See, e.g., 76 FR 42741 (July 19, 2011) (elimination of
requirement to provide Base Year in Item 5); 81 FR 60257 (Sept. 1,
2016) (elimination of requirement to explain valuation of the
transaction).
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3. Adjustments Made to the Final Rule To Align Costs With Antitrust
Risk
Since establishing a premerger notification program pursuant to the
HSR Act, the Agencies have relied on information contained in HSR
Filings to conduct their initial premerger review. However, in light of
the information gaps identified in section II.B., the Commission has
determined that the current requirements are not sufficient for that
task and determined to reset the baseline requirements for all filers
to fill these information gaps. As a result, the final rule eliminates
some requirements that are contained in the current Form, and requires
each filers to submit some
[[Page 89261]]
information that is not currently required or certify that the request
does not apply to its operations.
After careful consideration of the comments that identified aspects
of the proposed rule that would be a source of significant costs for
filers if adopted, the Commission made significant modifications to the
final rule as compared to the proposed rule. In several instances, the
Commission determined that the costs of a particular proposed
requirement outweighed the benefits and chose not to adopt those
provisions as part of the final rule. For other proposals and where
possible, the Commission has tailored each information request
contained in the final rule to reduce the cost of compliance for filers
yet generate the information that is necessary and appropriate for the
Agencies to conduct a premerger assessment of the transaction. See
sections IV to VI. Overall, the final rule balances the cost of
collecting additional information in the HSR Filing in light of the
benefits of obtaining additional information that is relevant to the
Agencies' premerger antitrust risk assessment, and aligns those costs
in proportion to the antitrust risk associated with the transaction
under review. As a result, the final rule is a reasonable exercise of
the Commission's authority to require information that is necessary and
appropriate to determine whether an acquisition may, if consummated,
violate the antitrust laws. The additional information required by the
final rule will close information gaps described in section II.B. and
address information asymmetries by shifting the burden of collecting
necessary information about the transaction and the business of the
filers from the Agencies and third parties to filers.
To make these modifications to align costs and benefits, the
Commission relied on the following tools and approaches it has used
when exercising its HSR rulemaking authority over the last forty-six
years and consistent with the statutory scheme. In addition to the
features of the HSR Act described in section III.A. above that treat
different filers differently (e.g., requiring notification from
acquirers but not the acquired person for cash tender offers in order
to start the waiting period and exempting certain types of acquisitions
entirely), the Commission has administered HSR reporting requirements
over the years in a flexible way to minimize the burden on each filer
and each type of transaction as much as practicable. Thus, contrary to
the assertions of several commenters, the reporting requirements of the
HSR Act have never been a ``one-size-fits-all'' reporting scheme
because different filers face different burdens for complying with
applicable reporting requirements. Rather, the HSR Form and
Instructions have relied and will continue to rely on an IF/THEN format
that excuses certain filers from information requirements based on
answers provided to other requirements. For instance, several current
information requirements need only be answered if the filer reports
that it generates revenues in the same NAICS \296\ code as the other
party to the transaction. The final rule expands the existing IF/THEN
format as the primary means of mitigating the costs of reporting
certain new information in a way that, as much as practicable, aligns
the information with the antitrust risk associated with the
transaction, resulting in higher costs for those transactions most
likely to require close scrutiny by the Agencies to determine if they
may violate the antitrust laws.
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\296\ The North American Industry Classification System is the
standard used by Federal statistical agencies in classifying
business establishments for the purpose of collecting, analyzing,
and publishing statistical data related to the U.S. business
economy. See U.S. Census Bureau, North American Industry
Classification System (rev. Sept. 10, 2024), https://www.census.gov/naics/.
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As summarized above in section I. and explained in further detail
in section VI., the Commission has also eliminated several information
and document requirements and reduced the scope of many others as
compared to the proposed rule to align the cost of reporting to the
antitrust risk associated with each transaction. First, the Commission
has eliminated in toto the proposals that would have imposed
significant costs as compared to the benefits, such as those requiring
filers to provide employee information, geolocation information, the
identity of other interest holders or board observers, or draft
versions of submitted documents. Second, the Commission created a new
category of filings, select 801.30 transactions, for which the costs of
complying with the final rule will be minimal as compared to current
requirements. Next, the final rule imposes relatively fewer new
reporting requirements on acquired persons, reducing their costs as
compared to the acquiring person, which is the party pursuing the
transaction that requires HSR reporting, and will operate the acquired
interests post-consummation. The Commission has also reduced the burden
on filers by limiting the lookback periods for several categories of
information and created de minimis exclusions where appropriate.
Finally, the Commission will continue to allow filers to rely on good
faith estimates or answer in the negative to confirm that certain
information does not exist. For instance, for a transaction in which
there are no existing overlaps or supply relationships responsive to
the final rule, filers can indicate that there are no such overlaps or
relationships, although there may be costs for the filer associated
with verifying that response.
The Commission also relies on definitions and clarifications to
reduce or eliminate filing obligations or to reduce uncertainty
regarding compliance. For instance, the Act applies to a wide variety
of acquisitions; as a result, the Commission has provided definitions
and guidance over the years to maximize compliance. Sometimes this
results in certain transactions not being reported or reducing
reporting requirements for certain types of transactions. The final
rule contains several new definitions that are intended to reduce
uncertainty and costs, and improve compliance.
Select 801.30 Transactions
As part of the Commission's effort to reduce the cost of the final
rule, the Commission has created a new category of transactions,
defined as ``select 801.30 transactions,'' that will have minimal
reporting requirements, including a few of the new information
requirements required by the final rule. Where the Commission has not
excused requirements, it believes that the burden of compliance will be
low because parties to select 801.30 transactions generally have less
complex internal structures, do not hold significant stakes in similar
companies, and have not generated the types of documentation the Form
and Instructions generally require. As a result, the Commission expects
that responses to the remaining requirements for these types of
transactions will generally be short, and may just confirm that the
parties do not have responsive material. However, for those
transactions in which select 801.30 filers incur additional costs from
complying with the final rule, there will be a benefit to the Agencies
in learning about potential competitive issues that are not revealed by
the current information requirements, especially the new information
related to other entities between the UPE and acquiring or acquired
person.
For select 801.30 transactions, filers are excused from the
following information requirements:
i. Transaction Rationale
ii. Transaction Diagram
iii. Plans and Reports
iv. Transaction Agreements
v. Overlap Description
[[Page 89262]]
vi. Supply Relationships Description
vii. Defense and Intelligence Contracts
Additionally, even where select 801.30 transactions are not
expressly excused from responding, there are many items for which the
Commission believes the response will be ``none'' because of the nature
of the transaction or of the parties.
Less Information From the Acquired Person
The final rule also seeks to reduce costs by tailoring information
requests to each party's role in the transaction. Because the buyer
(the acquiring person) will have a larger stake in or control of the
target (the acquired entity or assets), and often will be operating the
assets or business acquired post-consummation, more information is
needed from acquiring persons than acquired persons. The acquiring
person is more likely to have certain types of information relevant to
the Agencies' enforcement analysis, such as the transaction's
structure, information about other minority holders who might have
managerial control or influence, and overlapping officers and directors
who could affect competitive decision-making after consummation. This
approach reflects the more limited time the seller has had to consider
the implications of the planned transaction, and to a lesser extent,
the seller's less-honed strategic assessments of competitive
opportunities. In addition, for certain information, such as a
transaction diagram, the Agencies only need one response, and it is
appropriate to place the cost of providing this information on the
acquiring person and not require the acquired person to provide
duplicative information.
Consistent with these considerations, the final rule excuses the
acquired person from certain additional information requirements that
apply to acquiring persons. In the final rule, acquired persons are
excused from the following requirements:
i. Minority Shareholders, other than those that will roll over to the
acquiring person
ii. Ownership Structure Description and Chart
iii. Reporting of Officers and Directors
iv. Identification of International Antitrust Notification
v. Transaction Diagram
vi. Identification of Other Agreements Between the Parties
Balanced against these reductions in burden, the final rule does
require the acquired person to report prior acquisitions for the first
time, for the reasons explained in sections II.B.5. and VI.J.4.
IF/THEN Format
Certain information requirements of the final rule are only
applicable to filers who provide a positive response to other
information requirements. That is, the final rule reflects an IF/THEN
format by requiring some information only if filers have provided other
information first. For example, many information requirements do not
require a response if the filer indicates that there is no reported
overlap or supply relationship between the merging parties. This is a
main feature of the current HSR Form, and the Commission expands that
approach in the final rule to closely align the information
requirements with the risk of a law violation the transaction presents,
resulting in an IF/THEN format that adjusts the cost of complying based
on the existing competitive relationship of the parties to the
transaction.
Importantly, information that is critical to identifying
competitive overlaps or areas of premerger competition justifies a
higher cost of collection and reporting.\297\ Examples include
reporting revenues for identified overlaps by geographic location so
that the Agencies have some basis to screen overlapping products for
local market impacts.\298\ Even if there is some additional cost
associated with collecting this information, a notification form that
does not contain such information would be unreliable for detecting the
risk that the transaction would cause harm to competition at the State
or local level. Limiting the requirement to provide certain information
only if both parties generate revenues in the same or similar business
lines (as reflected in overlapping NAICS code reporting or the
descriptive responses) or only if the parties operate in the same areas
of the country is a powerful limitation aimed at generating information
that bears directly on the question whether the transaction involves
direct competitors. For any transaction that does not have these
overlaps, there is no burden associated with answering questions that
depend on the reporting of such overlaps other than certifying that
such overlaps do not exist. In the final rule, the following
information requirements are dependent on the identification of an
existing overlap or a supply relationship:
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\297\ In the initial rulemaking implementing the HSR premerger
program, the Commission proposed to require the reporting of
revenues by Standard Industry Classifications (SIC) codes. Many
commenters complained about the costs associated with providing this
information. But the Agencies needed to establish some system for
reporting overlaps. This provides an early example of the Commission
determining that, where the information is essential to enforcement
of the antitrust laws, the costs associated with collecting and
reporting that information is justified by the benefits in light of
other available options.
\298\ The Agencies rely on analytical tools to identify an area
of effective competition, often by defining a relevant antitrust
market. A relevant antitrust market comprises both product (or
service) and geographic elements. See U.S. Dep't of Justice & Fed.
Trade Comm'n, Merger Guidelines 4.3 (2023) (describing the
information and analysis used by the Agencies to define markets for
the purpose of antitrust analysis). For screening purposes, the
Agencies may conclude that the parties to the transaction do not
serve the same set(s) of local customers if there is reliable
information in the HSR Filing that indicates that they generate
revenues in different locales even if they supply the same product
or service.
i. Overlap Description
ii. Supply Relationships Description
iii. Officers and Directors (acquiring person only)
iv. Plans and Reports
v. Prior Acquisitions
vi. State and Street-Level Reporting of Geographic Market Information
vii. Author information for submitted documents
viii. Defense and Intelligence Contracts
Limited Lookback Periods
The Commission also relies on limited lookback periods to collect
the most recent and reliable information and data related to the risk
of a law violation. For example, filers are only required to submit the
most recent annual reports and annual audit reports. This type of
limitation is intended to focus on more recent economic activity and
reduce the cost associated with collecting potentially less probative
or out-of-date historical data. As discussed below in section VI., the
Commission has reduced the lookback periods for some information
requirements as compared to the proposed rule to reduce compliance
costs and focus the information requirements on the most recent and
probative data needed for premerger screening. In other places, the
Commission has identified a fixed reporting period to limit the
information filers must gather to prepare the HSR Filing and provide
certainty for filers about what is required. For example, as compared
to the proposed rule, the final rule contains shortened lookback
periods for the following information:
i. Overlap Description
ii. Supply Relationships Description
iii. Officers and Directors
iv. Transaction Rationale
v. Minority Shareholders
vi. Prior Acquisitions
[[Page 89263]]
De Minimis Exclusions
The Commission also relies on de minimis exclusions to excuse the
reporting of otherwise relevant information that might be costly to
collect. De minimis exclusions can sometimes require extra effort by
filers, because filers must evaluate whether the information is above
or below the de minimis threshold. In the Commission's experience, it
can sometimes take less time for filers to collect and report all
responsive information than to report less information after conducting
the assessment required to eliminate de minimis amounts. In deciding
whether to add de minimis exclusions, the Commission carefully weighed
the additional costs for filers to determine what information falls
below the de minimis thresholds and can therefore be excluded, as
compared to the costs of collecting all responsive information. The
final rule contains new de minimis exclusions for certain information
in the following requirements:
i. Supply Relationships Description
ii. Prior Acquisitions
iii. Defense and Intelligence Contracts
Voluntary Information
Finally, one new information request is not strictly required by
the final rule, but filers may provide it on a voluntary basis. As part
of the HSR Form, filers may agree to waive the confidentiality
protections of the HSR Act to permit the Agencies to share HSR
materials with other enforcers in order to facilitate cooperation
during any investigation of the transaction. Such a waiver would be
beneficial for the Agencies, and the filer may want to provide it as a
way to limit the need to produce multiple or duplicative data sets and
documents to other enforcers that are investigating the transaction,
thereby reducing its overall regulatory compliance costs. Filers may
view this as a benefit and therefore may grant a waiver even though
their HSR Filing would be compliant with the final rule without it.
Non-Compliance Statement
In addition to these limits, the Act allows for incomplete answers
with a statement of the reasons for non-compliance, and the Commission
has the discretion to permit filers to rely on good faith estimates or
no answer at all. If the filer is unable to answer any question fully,
it must provide the information that is available and provide a
statement of reasons for non-compliance as required by Sec. 803.3,
which is intended to reduce disagreements between filers and PNO
staff.\299\ Where exact answers cannot be given, filers are allowed to
enter best estimates, while indicating the source or basis of the
estimate, and marking the information with the notation ``est'' to any
item where data are estimated. Finally, filers already routinely
indicate under the current rules that certain required information is
not applicable given the type of transaction being reported, and filers
will continue to be able to do so under the final rule.
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\299\ The submission of the statement of reasons for
noncompliance is not intended to be a substitute for compliance with
the notification obligation but it serves two salutary purposes: (1)
reducing disagreement between the Agencies and the filer, and (2)
providing a basis for any civil penalty proceeding that may be
brought under 15 U.S.C. 18a(g)(1). See 122 Cong. Rec. 29342 (1976);
see also 43 FR, 33450, 33508-09 (July 31, 1978).
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Summary of Requirements Based on Transaction Type
In the final rule, the Commission has employed all of these
techniques to align the cost of complying with the final rule in light
of the benefit to the Agencies, filers, and the public of the Agencies
having the information on the first day of the statutory review period
to conduct their preliminary antitrust assessment. The chart below
summarizes the different information requirements of the final rule for
the acquiring person and the acquired person for three distinct types
of transactions: (1) select 801.30 transactions, (2) those transactions
that will have no NAICS or described overlaps or supply relationships;
and (3) transactions that report a NAICS or a described overlap, or a
supply relationship, which includes transactions with significant pre-
merger competitive interaction between the filers (for example a
company acquiring one of its principal competitors or suppliers).\300\
The chart indicates which type of filer will not provide this
information because it is not required by the final rule. As depicted
in this chart, the final rule creates different information
requirements for different types of filers and different types of
transactions, resulting in a range of costs associated with filing that
are directly proportional to the complexity of the deal, corporate
structure, and most importantly the risk of law violation.
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\300\ These three scenarios were used to calculate costs for the
Paperwork Reduction Analysis, discussed below in section VIII.
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[[Page 89264]]
[GRAPHIC] [TIFF OMITTED] TR12NO24.039
D. Disproportionate Impact on Certain Sectors
Here the Commission addresses arguments that the final rule would
have a disproportionate impact on certain sectors as part of its
consideration of how the benefits and costs associated with the final
rule are distributed among various groups.\301\
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\301\ See generally Boardman et al, supra note 256, at 506;
Executive Order 12866 directs agencies when designing regulation to
``consider incentives for innovation, consistency, predictability,
the costs of enforcement and compliance (to the government,
regulated entities, and the public), flexibility, distributive
impacts, and equity.'' E.O. 12866 Sec. 1(b)(5) (1993).
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Small Businesses
Several commenters are concerned about the additional costs
associated with the final rule for small businesses who are parties to
a reportable transaction, stating that the proposed rule would
disproportionally affect small businesses because they would be less
equipped than larger businesses to cover the additional costs.
Commenters said that these additional costs would not only deprive
small businesses of funds that are needed for operations or innovation,
they might also slow or deter dealmaking involving small businesses
altogether. On the other hand, an individual commenter explained that
the proposed rule would help small businesses who have been affected by
mergers.
The Commission addresses concerns about undue costs throughout this
final rule, making many adjustments to limit the costs of complying for
those filers who do not have complex corporate structures or extensive
business lines, including small businesses. In section IX., the
Commission certifies that the final rule will not have a significant
economic impact on a substantial number of small entities as that term
is defined by the Small Business Administration (``SBA''). HSR
reporting requirements apply to very few small businesses. Congress
adjusted the statute in 2000 to require annual indexing of reporting
thresholds so as to minimize the effect of inflation that would
otherwise require more reporting for small businesses and small
transactions, and nothing in the final rule changes which acquisitions
are subject to premerger review. See section III.A.1.
In fact, the Commission believes that many small entities will
benefit from the final rule. As noted by one commenter, the goal of
antitrust enforcement is to strike the right balance: too little
enforcement could allow some companies to gain an unfair advantage,
while too much enforcement risks driving up compliance costs and
undermining legitimate efforts to compete. The Supreme Court has
explained that Congress designed section 7 of the Clayton Act to
``prevent economic concentration in the American economy by keeping a
large number of small competitors in business,'' \302\ and to retain ``
`local control' over industry and the protection of small businesses.''
\303\ As a result, a merger of two small companies that allows the
combined entity to compete more effectively with larger rivals may be
unlikely to violate the antitrust laws. In contrast, the legislative
history of the Clayton Act reveals Congress was very much concerned
with, and sought to prevent, acquisitions involving large companies
buying smaller or up-and-coming rivals that would otherwise cease to be
independent businesses.\304\ By making possible more effective and
efficient premerger review of HSR-reportable transactions, the final
rule will facilitate effective enforcement of the antitrust laws, which
in turn will preserve opportunities for small businesses to thrive in
markets that are not dominated by much larger competitors.
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\302\ United States v. Von's Grocery Co., 384 U.S. 270, 275-76
(1966) (also noting that undue concentration drives small businesses
out of the market).
\303\ Brown Shoe Co. v. United States, 370 U.S. 294, 316 (1962).
\304\ United States v. Aluminum Co. of America, 377 U.S. 271,
281 (1964).
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In passing the HSR Act, Congress made plain that it was not
interested in burdening mergers between two small companies with
premerger review, since small businesses generally do not present the
same risks of anticompetitive effects as do larger businesses. To that
end, the HSR Act specifically exempts certain smaller companies from
its reach. But it is not possible to say that all transactions
involving small businesses carry little or no antitrust risk, whether
they are
[[Page 89265]]
reported or not. When they are required to be reported, the Agencies
are obligated to conduct a premerger assessment. Therefore, it is
appropriate for the Agencies to receive information from even small
businesses that are a party to a reportable transaction to determine
whether those transactions may violate the antitrust laws.
Based on the Commission's experience, deals of any size can present
significant antitrust risk. The American Antitrust Institute analyzed
historical data about HSR filings from 1985 to 2020 and prepared a
chart that reflects the percentage of Second Request investigations to
transactions by deal value.\305\ This data shows that while
transactions valued at under $100 million rarely receive Second
Requests, a not insignificant number of transactions in the $100 to
$150 million range do. This confirms the Agencies' experience that
although many deals that are subject to an in-depth investigation
involve large companies, especially on the buyer side, it is not
possible to ignore that some transactions that involve small businesses
also violate the antitrust laws.\306\ And of course, the Agencies are
also attentive to small-value acquisitions that cause harm even if they
were not subject to premerger review and seek to unwind them as
resources and precedents allow.\307\
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\305\ See Diana L. Moss, Am. Antitrust Inst., ``What Does the
Billion-Dollar Deal Mean for Stronger Merger Enforcement?'' 3 Fig. 2
(Sept. 20, 2022), https://www.antitrustinstitute.org/wp-content/uploads/2022/09/AAI_Billion-Dollar-Mergers_9.20.22.pdf.
\306\ See, e.g., United States v. Neenah Enterprises, Inc., No.
1:21-cv-02701 (D.D.C. Oct. 14, 2021) (complaint) ($110 million asset
purchase); In re Global Partners LP, No. C-4755 (F.T.C. Mar. 2,
2022) (decision and final order) ($151 million acquisition); In re
ANI Pharmaceuticals, Inc., No. C-4754 (F.T.C. Jan. 12, 2022)
(decision and final order) ($210 million acquisition); United States
v. Grupo Verzatec S.A. de C.V., No. 1:22-cv-01401 (N.D. Ill. Mar.
17, 2022) (complaint) ($360 million acquisition). Note that the
value of the transaction is considered by some filers to be
confidential information and is not always disclosed in public
filings. See FTC v. IQVIA Holdings Inc., No. 1:23-civ-06188
(S.D.N.Y. Dec. 29, 2023); In re Lifespan Corp., No. C-9406 (F.T.C.
Feb. 17, 2022) (complaint).
1 See, e.g., In re The Golub Corp., No. C-4753 (F.T.C. Jan. 20,
2022) (decision and final order) (divestiture of 12 supermarkets);
United States v. B.S.A. S.A., No. 1:21-cv-02976 (D.D.C. Mar. 15,
2022) (divesture of two business lines).
\307\ See, e.g., Polypore Int'l, Inc. v. FTC, 686 F.3d 1208
(11th Cir. 2012); In re Otto Bock HealthCare N. Am., Inc., No. 9378
(F.T.C. Dec. 1, 2020).
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As modified, however, the final rule imposes lower costs on
transactions involving independent small businesses, as they typically
involve fewer business lines and less complex corporate structures.
Typically, the larger the company, the more extensive and complex its
business lines. Many of the changes in the final rule are designed to
allow the Agencies to quickly understand complicated entities and the
businesses that they have connections to. These changes generally will
not impact small business. Further, where possible, the final rule
imposes less burden on sellers (the acquired person), which tend to be
smaller in size than buyers.\308\ In effect, the final rule imposes
costs on filers that are commensurate with the antitrust risk presented
by the transaction: those with low risks (e.g., simple corporate
structures, few lines of business or no preexisting commercial
relationship with the other party) have the lowest costs. Wherever
practicable, the Commission took into account the burden across smaller
businesses who may engage in competitively benign transactions and has
adjusted the final rule in several significant ways to mitigate this
burden. For example, the Commission has excluded select 801.30
transactions from certain requirements, eliminated other proposed
requirements, and modified other proposed requirements as described
throughout this final rule. The Commission believes that this approach,
which is focused on antitrust risk and not necessarily business size,
nonetheless minimizes the costs for small businesses involved in
transactions subject to mandatory premerger review consistent with the
statutory scheme.
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\308\ See Fed. Trade Comm'n & U.S. Dep't of Justice, Hart-Scott-
Rodino Annual Report, Fiscal Year 2022, Tables VI through IX (FY
2022).
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Startups
A number of commenters expressed the view that the requirements of
the proposed rule would deter innovation by denying startup firms an
exit path; they observed that many startups plan for eventual
acquisition, and this strategy drives investment that allows the firm
to grow. Commenters stated that any change to the status quo will upset
this balance. Others observed that acquisitions by large, established
firms play a crucial role as an exit strategy for startups securing
venture capital, which is an important source of funding in many
sectors, including tech. Some of the same commenters, however,
acknowledged the valuable role startups play by challenging established
incumbents. Various commenters made nonspecific objections to increased
burdens imposed upon startups by the proposals in the proposed rule.
Startup companies are not unique to particular industries but
represent an important business model throughout the U.S. economy. For
any transaction that does not present facts indicating it may violate
the antitrust laws--including those involving startups--the minimal
additional burden of disclosing more information is justified by the
Agencies' need to conduct a thorough review in light of the information
gaps discussed in section II.B. Where those facts are absent, there
should be no additional delay or additional risk of detection for those
transactions. Given the small incremental costs associated with the
final rule relative to other M&A costs and the potential magnitude of
returns from an exit sale of a successful startup, HSR compliance costs
would not plausibly factor into the ex ante investment decision. To the
extent that the final rule requires additional disclosures regarding
the business lines of startups, that burden is not different from those
imposed on established businesses in the same sector. Moreover, the
Commission has no basis to excuse startup companies from complying with
the final rule; it is not the case that they always or mostly present
no antitrust risk. See sections II.B.4. and III.C.2.
Private Equity and Other Types of Investments
The Commission received several comments from groups representing
investors raising concerns about the burden of gathering the
information for the proposed rule as well as the burden of having to
disclose the new information. One commenter asserted that certain
proposed requirements would be particularly onerous for transactions
involving private equity and venture capital, such as the expanded
lookback period, information regarding limited partnerships, more
information about prior acquisitions, the identities of past and
present members of boards of directors, and disclosure of the buyer's
prior acquisitions. Another commenter said that the burden of the
information requirements would affect the efficiency of transactions
and introduce more uncertainty and risk into the deal process, which
would adversely impact returns for investors. Another noted that the
burden of the proposed information requirements would, among other
effects, make capital markets less efficient, resulting in a
significant impact on its members and the thousands of pensioned
workers, retirees, universities, and other investors who rely upon
them. The Commission discusses these concerns elsewhere and has
concluded that the incremental costs associated with the
[[Page 89266]]
final rule are small relative to the value of the transaction and the
costs of other merger-related fees. As noted throughout this final
rule, the Commission has taken many steps to reduce the burden on all
types of filers as compared to the proposed rule, including investors.
The same commenter who mentioned the effect on capital markets also
noted that the HSR-reportable transactions in which its members engage
often do not pose competitive risk. These are transactions in which the
acquiring persons are investment groups, trusts, or other financial
vehicles or are providing securities, commodities contracts, and other
financial investments or related advice. According to this commenter,
its members rarely, if ever, have horizontal or even vertical
relationships with the issuers whose securities they acquire. Rather,
the kinds of HSR-reportable transactions in which its members engage
are not mergers or acquisitions but the acquisition of minority
positions, for instance, when concentrated funds make large purchases
due to sizeable investor inflows, when benchmark-relative funds make
large purchases due to index rebalancing, or when managers shift
portfolios into highly liquid names in anticipation of redemptions or
in connection with wind-downs.
This and other comments generally reflect three different types of
concerns: potential burdens for investors that must make HSR filings,
potential burdens for minority investors in entities that have to make
HSR filings (but have no HSR filing obligation themselves), and
potential burdens related not to filing out the Form, but to potential
enforcement actions to block the transaction that may arise from the
Agencies having more complete information. The Commission addresses
each below.
As a starting point, the Commission emphasizes that the final rule
does not change who must file \309\ and the HSR Act and Rules exempt
passive investments of 10% or less,\310\ or 15% or less for
institutional investors.\311\ The final rule does not alter the
analysis regarding passive investments and therefore the final rule has
no impact on investors who hold passive investments \312\ unless these
investors acquire more of a company than these significant ``investment
only'' exemptions permit and are, as a result, required to report their
investments for premerger review. As a result, many of the types of
investors discussed in the comments will not have HSR filing
obligations for their transactions, and thus would not be required to
fill out the Form that is the subject of the final rule.
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\309\ One commenter suggests that the proposed rule would result
in an increase in filings among investors. Comment of TIAA, Doc. No.
FTC-2023-0040-0691 at 3. The Commission disagrees.
\310\ 15 U.S.C. 18a(c)(9); 16 CFR 802.9.
\311\ 15 U.S.C. 18a(c)(11); 16 CFR 802.64.
\312\ Some commenters discussed shareholder engagement
encouraged by the SEC. See, e.g., Comment of Managed Funds Ass'n,
Doc. No. FTC-2023-0040-0651 at 8. The Commission notes that the SEC
is a different agency with a different law enforcement mission.
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Some investors will have filing obligations either because they
will hold a stake that provides them with the ability to direct or
influence the management of the company in which they are investing
(i.e., above the 10% and 15% exemptions), or because they do not intend
to be merely passive investors. In these instances, the Act treats them
as any other acquiring person and the Agencies use the Form to screen
for potential competitive effects. Until now, though, the Agencies have
received less information about transactions where private equity and
other types of investors are involved because the current Form does not
require sufficient information to explain the often complex structures
and relationships between different entities that are within the
acquiring or acquired person. The final rule intends to close these
information gaps and focuses on information that should be within the
records of the acquiring or acquired person.
Further, the Commission acknowledges that investors can have
different motivations in making acquisitions. Some do not seek to
control or influence the companies in which they invest, but rather
only seek a desired rate of return. In contrast, others seek positions
with significant management rights or stakes that result in control of
or influence in the target business. The Commission has sought to
tailor the requirements of the final rule to illuminate those factors
that could give rise to competitive concerns while minimizing
additional costs for those investors that do not seek to participate in
or influence decision-making of entities related to the acquiring
entity or other entities within the buyer that are in the same industry
as the target. As a result, the Commission has made significant changes
as compared to the proposed rule, declining to adopt many of the
proposed changes and significantly tailoring others. The Commission has
also introduced the concept of select 801.30 transactions, which it
anticipates will capture the transactions of many investors that do not
seek to influence, direct, or manage the companies in which they
invest. See section VI.A.1.f. The Commission has relieved such
transactions from many of the new requirements, which it anticipates
will mitigate the potential burden of providing information for many
investors who do have to file.
As to investors that do not have HSR filing obligations but hold
minority interests in entities that do, the final rule does require
additional information about some minority investors if those
investments are in entities controlled by the acquiring person that are
either related to the transaction or operate in the same industry as
the target. However, as described in section VI.D.2.a., the burden of
providing this information rests on the acquiring person, not on those
minority investors. Their presence as an investor should be known to
the filer because the filer controls the entity, and when revealed in
the HSR Filing, will provide information that will assist the Agencies
in determining whether those investors also hold interests or have
relationships with entities related to the target.
Additionally, the Commission modified the proposed rule to scale
back requirements that would have broadly required disclosure of the
limited partners of certain entities. As discussed below, the
Commission has limited the final rule to require identification of only
those limited partners that have certain rights related to the board of
directors or a similar body. When required, this information is limited
to providing the legal and business name of the minority investor, its
address, and the percentage the investor holds in the entity controlled
by the acquiring person. In most instances, the Commission believes
this information should be available in the records of the acquiring
person. When it is not, the Commission has explained that the acquiring
person can note that the information is not available and why. The
final rule does not create an obligation for the acquiring person to
request this information from its minority investors. Therefore, the
final rule imposes no burden on such minority investors in filling out
the revised Form. Investors that do not have HSR Act filing
obligations, but hold minority interests in entities that do, will not
have any new obligations to either make filings or provide information
for the filings of entities in which they have minority holdings.
Several commenters raised concerns that the additional information
requirements for funds, especially those managed by activist investors,
would
[[Page 89267]]
have a detrimental impact on these investors as a result of the
disclosure of the information itself. They pointed to the disclosure of
the interests and rights of limited partners as creating disincentives
for shareholder engagement or as undue interference in the market for
corporate control. Another commenter stated that disclosure
requirements may deter investments in private equity firms, potentially
reducing the flow of capital to small- and medium-sized businesses.
The final rule does not target information specific to any type of
investor. But if an investor holds a small but significant stake (five
percent or more) or plays a role in the acquiring person's decision-
making, the Commission believes that disclosure of these interests is
justified by the Agencies' need to know about such investments to
conduct premerger screening. As discussed in section II.B.1. and
section VI.D.1.d.ii, there have been significant changes in the number
and breadth of investment companies managing portfolios that include
investments in companies with competitively significant relationships.
Due to these changes and others, the Commission has determined that the
Agencies need more information about minority holders between the UPE
and the acquiring person, as well as information about those who serve
as officers and directors and who will be involved in decision-making
after the transaction is consummated. Many commenters specifically
objected to providing any information about limited partners, noting
that the existence of significant management rights such as board seats
or board approval rights, is ``atypical.'' The final rule has been
modified to require disclosure only of these types of limited partner
situations, which should mitigate these concerns.
Another commenter said that having to disclose the required
information would deter investment in in certain types of investment
vehicles because of the exposure of proprietary contractual information
and Personally Identifiable Information (PII) about every facet of the
M&A process. This commenter noted, for instance, that the requirement
to provide a term sheet or draft agreement reflecting sufficient detail
about the proposed transaction when filing on the basis of a
Preliminary Agreement would expose details about transactions that
could undermine competition in the industry and harm returns to LPs. In
addition, this commenter stated that the requirement for PE firms to
submit a narrative describing the justification for certain
transactions would impinge on the proprietary information that PE firms
exchange with target companies and their consultants.
As noted above and elsewhere, the Commission has made significant
changes as compared to the proposed rule, and the changes in this final
rule should address many of this commenter's concerns. That said, the
Commission believes the commenter has overread the Commission's intent.
The purpose of the final rule is to provide the Agencies with more
information on those factors that could give rise to competitive
concerns, not to expose every facet of the M&A process or investor
strategy. The required information does not require social security
numbers, addresses or other sensitive PII. Moreover, the final rule
requires the disclosure of additional information to the Agencies, not
to the public or third parties, and the confidentiality of the
information provided to the Agencies as part of the HSR filings process
is protected by statute, specifically 15 U.S.C. 18a(h).
Finally, as described in section VI, the final rule will provide
the Agencies with more transparency into what the acquiring person
holds and whether any person or entity that has influence over the
acquiring person is also involved in the business of the target.
Specifically, the Commission has not limited the information required
about the acquiring person even in the case of select 801.30
transactions. As stated in the NPRM and throughout this final rule, the
Commission believes this information is critical to the Agencies'
initial review and the benefit for robust premerger screening justifies
the burden of disclosing the information because it may identify an
existing business relationship between the acquiring person and target
(via common investors or shared managers) that are otherwise not
revealed in the HSR Filing.
The Commission disagrees with comments that identify increased
transparency about the filed-for transaction itself (and not the
specific burden of collecting and providing the information) as a
cognizable burden associated with the final rule. The purpose of the
final rule is to require information that allows the Agencies to
accomplish the task assigned to them by Congress: to determine whether
the acquisition subject to the Act, if consummated, may violate the
antitrust laws. Suggestions that increased transparency would endanger
certain filed-for transactions implicitly indicate that the current
Rules have led to under-enforcement of the antitrust laws. Any burden
related to deal uncertainty that might arise from increased
transparency is not a burden related to compliance with the HSR Act and
the final rule, but rather is tied to whether the transaction itself
may violate the antitrust laws.
Biopharmaceuticals
Two commenters from the biopharmaceutical sector suggested that
several requirements of the proposed rule would disproportionately
burden biopharmaceutical firms and transactions. They pointed to the
burden of identifying information related to products in early stages
of clinical development, and stated that, because the Commission's 2013
rule specific to pharmaceutical license agreements increased the
universe of reportable transactions, any expansion of the Form
disproportionately burdens the pharmaceutical sector. One additionally
objected to providing information about employees, and the other
asserted disproportionate impact from providing information regarding
additional prior acquisitions because of the number of acquisitions in
this sector, and from disclosing officers and directors due to biotech
firms' dependence ``on a small cadre of qualified directors and
officers.'' Both commenters claimed the changes to the HSR Form and
Instructions will prolong the time required for HSR filing preparation
and agency review, resulting in delayed transactions.
The final rule does not target any information that is unique to
biopharmaceutical companies, and the Commission disagrees that the
additional information that would be sought from these companies is not
relevant. Where the final rule requires additional information from
biopharmaceutical companies, the cost of supplying that information is
justified by the benefit to the Agencies in having a more complete
understanding of the companies' existing business operations and their
business strategy, including prior acquisitions involving the same
business lines. For instance, many biotech and pharmaceutical companies
invest in extensive R&D pipelines, and the Agencies need information
about products in development to determine if the companies are current
competitors for innovation in a particular space to meet a particular
need, or if one or both merging parties are potential competitors for
any existing products.\313\ As the commenters
[[Page 89268]]
acknowledged, mergers, acquisitions, and exclusive licenses are
particularly prevalent in the pharmaceutical sector, where the business
model for new drug development centers around such transactions.
Similarly, the comparatively higher number of transactions occurring in
this sector can be expected to trigger a higher number of HSR Filings
and could require filers to disclose a greater number of prior
acquisitions. Even if biopharmaceutical companies have to report more
prior acquisitions, this disclosure is also justified because it is
relevant to determining whether there is a pattern of serial
acquisitions. The fact that sharing of officers and directors is more
common among companies in this sector means there is a greater need for
the Agencies to screen for related competitive problems.\314\
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\313\ See In re Sanofi Corp., No. 9422 (F.T.C. Dec. 11, 2023)
(complaint alleging Sanofi's proposed acquisition of an exclusive
license to Maze Therapeutics' pipeline Pompe therapy would have
eliminated nascent threat to Sanofi's monopoly) (transaction
abandoned); FTC v. Mallinckrodt ARD Inc. (f/k/a Questcor Pharms.,
Inc.), No. 1:17-cv-120 (D.D.C. Jan. 25, 2017) (complaint alleging
Questcor's acquisition of rights to pipeline competing drug
eliminated nascent threat and protected its monopoly ACTH drug H.P.
Acthar Gel) (consent decree ordered license and $100 million
equitable monetary relief); In re Thoratec Corp., No. 9339 (F.T.C.
July 28, 2009) (complaint alleging Thoratec's proposed acquisition
of HeartWare eliminated pipeline threat to Thoratec's left
ventricular assist device monopoly) (transaction abandoned).
\314\ Mark A. Lemley et al., ``Analysis of Over 2,200 Life
Science Companies Reveals a Network of Potentially Illegal
Interlocked Boards'' (Stan. L. & Econ. Olin Working Paper No. 578,
2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4253144.
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On the other hand, other information requirements have been
modified to reduce the costs for all types of filers, including those
in the biopharmaceutical sectors. For instance, the Commission declined
to adopt new information requirements related to employees, which
commenters asserted could impose significant costs on those in the
biopharmaceutical as well as other sectors. Overall, the impact of the
final rule is proportional to the number and characteristics of
transactions that occur in any given sector of the economy (including
biopharmaceuticals). To the extent that the revised Rules will result
in delayed transaction closings, the potential impact of incremental
delay is outweighed by the Agencies' statutory mandate to examine each
transaction for the potential for that it may violate the antitrust
laws. In other instances, the additional information may actually
reduce delay by permitting the Agencies to avoid issuing a Second
Request or issuing Second Requests that are more tailored to the
potential for competitive harm than would have been issued under the
existing reporting requirements.
In sum, the Commission has determined that the burden imposed on
this sector by the final rule is proportionate to the market realities
and complexities of these companies and the likelihood that any
transaction may require more in-depth antitrust review.
Hospitals
A national organization representing hospitals and several State
hospital associations stated that the proposed rule would have a
negative and wholly unnecessary impact on hospitals and health systems.
They asserted that the additional information required by the proposed
rule would not generate actionable information with respect to hospital
mergers. They objected to specific requirements, stating that reporting
prior acquisitions has no relevance in the context of hospital mergers,
or that it is inconceivable that a hospital-related merger could
plausibly harm competition in any labor market without also presenting
at least some competitive risk in a downstream market.
The Commission responds that the final rule does not target any
information that is unique to hospitals and health systems, and
disagrees that the additional information, when sought from hospitals,
is not relevant. For example, the commenters' suggestion that the
Agencies not screen for hospital labor competition issues is
inconsistent with growing empirical evidence of competitive harm to
labor markets from consolidation generally and from hospital mergers in
particular.\315\ Moreover, as discussed above, an empirical assessment
of the price effects of consummated hospital mergers reveals that there
are meaningful information gaps in the current requirements that led
the Commission to grant early termination of the waiting period for
hospital mergers that caused significant price increases.\316\
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\315\ Concurring Statement of Commissioner Rebecca Kelly
Slaughter and Chair Lina M. Khan, supra note 70, at 2 n.1; In re
Lifespan Corp., No. 9406 (F.T.C. Feb. 17, 2022) (complaint).
\316\ See supra note 24 and related text.
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As discussed, the final rule will exclude non-profit entities
organized for religious or political purposes from the specific
requirement to produce information disclosing officers, directors, and
members. This carve-out will likely encompass some healthcare
organizations, including certain religious-affiliated hospitals or
other provider groups. While these entities will not be required to
provide such information as a matter of course in the HSR Filing, it
can nonetheless be relevant in any in-depth investigation of the
transaction and may be sought from the parties at a later date.
Given the Commission's significant expertise and interest in
preventing hospital mergers that may violate the antitrust laws, the
final rule is appropriately focused on transactions that are most
likely to present antitrust risk. The Agencies have determined the
information sought by the final rule will close the information gaps
that now exist with regard to hospital and other healthcare
acquisitions. Moreover, because many hospital mergers are not
reportable under the HSR Act, several States have enacted premerger
notification laws for certain healthcare acquisitions, including those
involving hospitals, to prevent consolidation that may affect their
citizens directly. In light of all this evidence of a need for robust
screening in this critical sector, there is no basis to excuse
hospitals or health systems from any of the new requirements of the
final rule beyond the modifications that reduce costs on filers
overall, including on hospitals.
E. Regulatory Alternatives Considered
In addition to considering the costs and benefits of the final rule
as compared to the status quo, the Commission considered other
alternatives suggested by commenters.\317\ The first alternative is to
not finalize any modification to the current HSR Form and Instructions
and to issue more Second Requests when the HSR Filing is insufficient
to determine whether the proposed acquisition may violate the antitrust
laws. Relatedly, commenters suggested that the Commission maintain
current reporting requirements and make more extensive use of voluntary
submissions from the parties post-filing. These alternatives are
discussed above in section III.A.3. Another alternative suggested by
commenters is for the Commission to create two separate sets of
information requirements, one for acquisitions that present a low risk
of a law violation and therefore require less reporting (a ``short
form'') that would continue to report the information required by
current HSR rules and a second form for acquisitions that cannot be
considered low risk and that would contain all of the new information
requirements in the final
[[Page 89269]]
rule. Here the Commission discusses the relative merits of adopting
this alternative over the final rule.
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\317\ Executive Order 12866 requires an assessment of costs and
benefits of potentially effective and reasonably feasible
alternatives to the planned regulations and an explanation of why
the planned regulatory action is preferable to the potential
alternatives. E.O. 12866 sec. 6(a)(3)(C) (1993). As an independent
agency, the Commission is not subject to the requirements of this
executive order but nonetheless used the principles outlined there
to explain why the Agencies' chosen regulatory action is preferable
to potential alternatives.
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Several commenters suggested that the Commission consider creating
two separate sets of information requirements for notification, stating
that this approach is used by other jurisdictions to alleviate some
costs and delays associated with merger notification under their laws.
They asserted that it would be suitable for effective and efficient
premerger review under U.S. law.
As discussed above, the HSR Form is not ``one size fits all'' and
the costs of making an HSR Filing are unique for each transaction. In
this rulemaking, the Commission is publishing, for the first time,
separate Forms for the acquiring person and the acquired person. The
final rule has materially different requirements for each filing
person, and providing separate Forms allows for clearer instructions
(avoiding terminology in the proposed rule such as ``the acquired
person or acquired entity (as applicable)''). The Commission expects
that having two separate forms for each side of the transaction will
improve compliance and reduce errors for filers.
Moreover, while not styled as a ``short'' or ``long'' form, the
final rule reflects the Commission's consideration of each requirement
and makes clear where there is a need for the information for each type
of transaction. In particular, the IF/THEN structure of the information
requirements results in some filers responding to only a few
information requirements. As a result, in practice, there are
``shorter'' and ``longer'' versions of the forms depending on the type
of filer and the type of transaction under review. The Commission
determined that this approach better reflected the varying information
requirements the Agencies need in order to effectively and efficiently
analyze the broad spectrum of filers and transactions.
Most importantly, in its review of past filings, the Commission
found no set of objective criteria that would appropriately sort
transactions into one or more discrete categories for the development
of a single short form. Rather, the final rule adopts new information
requirements but imposes them differently to reflect each filer's role
in the transaction (acquirer versus acquired) and the relative
antitrust risk associated with the proposed transaction. Filers with
the highest information and document requirements are acquirers
pursuing the acquisition of a firm with whom they have extensive
existing business relationships or offer products or services in the
same industries that must be assessed prior to consummation.
For one category of transactions, select 801.30 transactions
(described in section VI.A.1.f.), the Commission has determined that
the Agencies need minimal additional information such that the final
rule should impose fewer new requirements. The Commission believes that
the few new information requirements for select 801.30 transaction are
justified in order to ensure that the Agencies conduct a premerger
assessment to determine that even these transactions do not present
risk of a law violation. Similarly, the Commission determined that
other characteristics justify a different and lighter burden, such as
whether the filing person is the buyer or the seller in the
transaction. Finally, many requirements are tied to the acquiring and
acquired person operating in the same industry or having a business
relationship. These questions would be inapplicable to many filers,
particularly activist, institutional, and retail investors, which
typically do not have controlling stakes in operating companies or do
not focus on a particular industry. As a result, the costs of complying
with the final rule are tailored to the risk of a law violation
associated with each transaction in a way that is similar to, but more
flexible than, the ``short form'' alternative. The size and complexity
of each party to the transaction, as well as the size and scope of
their respective business, vary widely across filings. As discussed in
section II.B., there are specific risks to competition that the current
information requirements do not disclose, making the final rule a
better alternative to achieve robust premerger screening even for
select 801.30 transactions as compared to a short form alternative.
In addition, the short form alternative is likely to create
uncertainty for filers that do not qualify for short form treatment but
whose deals would suddenly be viewed as ``not low risk.'' Having a
bifurcated system that targets some transactions as ``low risk'' is not
consistent with the statutory premerger scheme Congress created when it
determined that reporting would be required based on deal value
regardless of the risk of a law violation, with additional authority
for the Commission to exempt transactions that it has determined to
present little to no antitrust risk. At this time, the Commission does
not have a basis to conclude that the existing requirements continue to
be sufficient for any category of transactions.
The Commission believes that broadening the use of the HSR Form's
existing IF/THEN format so that the final rule aligns the cost of
complying with the associated antitrust risks of the transaction is the
most appropriate way to implement the premerger notification scheme
established by Congress. Congress has determined which transactions are
subject to premerger review, relying on deal value to determine
reportability. This criterion provides administrative clarity and
predictability for businesses. Some jurisdictions use market share or
revenue (``turnover'') thresholds to determine reporting or eligibility
for short form treatment. But in doing so, these regimes also typically
depend on the competition authorities to provide extensive guidance to
business, often prior to formal notification, regarding the proper
definition of markets. This may require an in-depth analysis of the
potential markets at issue and can delay formal notification.\318\
Congress has chosen to rely on an objective and administrable system of
reportability based on deal value and revenues for filers. Adopting a
different standard for determining eligibility for short form treatment
would require the Commission to engage in a separate and challenging
rulemaking to seek public comment on what types of thresholds should be
adopted that would be consistent with the premerger scheme Congress
adopted in the HSR Act. At this time, the Commission has determined
that one category of filings, select 801.30 transactions, will have
minimal additional information requirements as compared to the current
HSR Form and has made other modifications in the final rule to reduce
the costs for other types of filers and transactions as well.
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\318\ Relying on market share thresholds presents many
challenges, and several jurisdictions have replaced them with
thresholds that are easier to administer. In the early 2000s,
approximately half of the jurisdictions with merger control had
subjective notification thresholds such as market share but by 2010
more than forty percent of these jurisdictions had replaced their
subjective thresholds with objective, sales- or assets-based
thresholds.
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Although the short form alternative would save some filers
additional direct costs associated with making an HSR, the Commission
chose to adopt the final rule with modifications designed to reduce the
cost of filing as much as possible for all types of filings, including
those transactions that might be eligible for short form treatment. The
Commission believes that this approach reflects, to the extent
practicable, the antitrust risks associated with a variety
[[Page 89270]]
of filings, not just ones that could be eligible for short form
treatment. A final rule that reasonably balances the benefits to
Agencies' premerger review with the costs imposed on filers and others
is a reasonable exercise of the Commission's rulemaking authority under
the HSR Act and is consistent with the overall mandatory premerger
review scheme established by Congress. The Commission believes that the
final rule, with its tailored modifications based on the Agencies'
experience in reviewing thousands of transactions, will result in
minimal additional costs for certain filers and is preferable to
adopting and maintaining a short form.
Final Instructions and Changes From the Proposed Rule
IV. Part 801
A. Sections 801.1(d)(2): Ministerial Changes To Reflect Reorganization
of Form and Instructions
While the Commission will continue to use the same mechanism for
electronic filing, it has re-organized the Form and Instructions, as
discussed below in section VI. As a result, several ministerial changes
must be made to Sec. 801.1(d)(2). This section, which defines
``Associate'' and provides examples, currently refers to item numbers
used in the current Form and Instructions. The Commission adopts
revisions that align with the Form and Instructions as adopted in this
final rule.
Specifically, the definition of ``Associate'' and the related
examples refer to Items 6(c)(i), 6(c)(2), and 7. This information is
now required by the Minority-Held Entity Overlaps and Controlled Entity
Geographic Overlaps sections, which replace the previous item numbers.
The Commission, accordingly, modifies the Rule to reflect these
changes.
B. Section 801.1(r): Definitions of ``Foreign Entity or Government of
Concern'' and ``Subsidy''
On December 29, 2022, the President signed into law the
Consolidated Appropriations Act, 2023, which included amendments to the
HSR Act in the Merger Modernization Act. 15 U.S.C. 18b. The Merger
Modernization Act required the Commission, with concurrence of the
Assistant Attorney General, and in consultation with Chairperson of the
Committee on Foreign Investment in the United States, the Secretary of
Commerce, the Chair of the United States International Trade
Commission, the United States Trade Representative, and heads of other
appropriate agencies (``Relevant Agencies''), to promulgate a rule to
require persons making an HSR Filing to disclose subsidies received
from countries or entities that are strategic or economic threats to
the United States.
After conducting its own internal diligence to draft a rule and in
consultation with the Relevant Agencies on this topic, the Commission
proposed amending Sec. 801.1 to add proposed paragraphs (r)(1) and
(2), which define ``foreign entity or government of concern'' and
``subsidy,'' respectively.
The Commission received no objections to the proposed definitions
and received input that they appear to be a reasonable implementation
of the Merger Modernization Act. As such, the Commission adopts these
definitions as proposed.
V. Part 803
A. Sections 803.2, 803.5, and 803.10: Adoption of Electronic Filing
The Commission proposed amending Sec. Sec. 803.2(e) and (f);
803.5(a)(1) \319\ and (3) and (b); and 803.10(c)(1)(i) and (ii) to
eliminate references to paper and DVD filings and delivery to physical
offices. The Commission has been successfully accepting filings
electronically since March 17, 2020, as a result of the COVID-19
pandemic and resulting closures of Federal office buildings during the
COVID emergency. The Commission received only one comment on this
proposed change: One commenter noted that electronic filing is
generally preferable and less burdensome to filing by paper or DVD. The
Commission received no negative comments on the elimination of paper
and DVD filings. The Commission adopts this change as proposed, though,
as explained below, Sec. 803.2(e) and (f) have been redesignated as
(d) and (e), respectively.
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\319\ In making this change, the Commission also takes the
opportunity to correct the capitalization of ``act'' to lower case
to be consistent with the definitions and other usage of the term in
the Rules.
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Separately, the Commission noted in the NPRM that the Agencies were
developing a new e-filing platform that would eventually replace the
current mechanism for electronic filing. The same commenter stated that
before seeking to impose an e-filing requirement on all parties, the
FTC should provide further details regarding the proposed user
interface; the ability for users to collaborate on a single filing; the
ability of users to save, review, and edit; and how filing persons will
receive complete copies of filings as submitted. At this time, no
change has been made to the method for accepting filings. While the
Form and Instructions have been updated, filers will continue to use
the platform that has been in use since March 2020. The Commission
continues to develop a new interface for electronic filing and will, at
the appropriate time, issue a rulemaking that provides instructions and
access to the new e-filing platform in advance of its effective date.
B. Sections 803.2(b), (c), and (e); 803.9(c); and 803.12(c):
Ministerial Changes To Reflect Reorganization of Form and Instructions
and Clarification of Time Zone
As discussed above in section IV.B., several ministerial changes
must be made to the Rules to reflect the new organization of the Form
and Instructions. Existing Sec. Sec. 803.2(b), (c), and (e), and
803.9(c) all currently refer to item numbers used in the current Form
and Instructions. The Commission adopts revisions that align the
references in the Rules with the headings in the Form and Instructions
as adopted in this final rule.
Additionally, existing Sec. 803.2(b) of the Rules currently
explains what information needs to be provided by the acquiring and
acquired person for Items 5-8 of the current Form. As described below,
the Commission adopts separate instructions for the acquiring and
acquired person, making existing Sec. 803.2(b) unnecessary. For this
reason, existing Sec. 803.2(b) is being removed, and existing Sec.
803.2(c)-(f) are being redesignated as Sec. 803.2(b)-(e),
respectively. Further, existing Sec. 803.2(c) and (e) have references
to the current Form numbering and are being updated.\320\ Similar
ministerial changes are being made to Sec. Sec. 803.9(c) and
803.12(c). Finally the references to time in, redesignated Sec.
803.2(d) have been updated to specify Eastern Time, consistent with
other provisions of the Rules and with longstanding practice.
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\320\ For purposes of consistency and clarity, the Commission is
also making a ministerial change to Sec. 803.2 to explain that
documents must be provided by 5 p.m. Eastern Time. Because
electronic filing permits parties to submit documents from different
time zones, they will need clarity as to which time zone the
Commission is referencing in the rules. The Commission notes that
Sec. 803.10 already specifies that Eastern Time should be used when
determining the expiration of the waiting period as well as the date
of receipt of filings and it has long been the practice of the
Commission to use Eastern Time in applying this rule.
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C. Section 803.2: Requiring Separate Forms for Acquiring and Acquired
Persons
The Commission proposed amending Sec. 803.2(a) and deleting Sec.
803.2(b)(1)(v) so that filing persons that are both the acquiring and
acquired person are
[[Page 89271]]
required to submit separate Forms in each capacity. The Commission
proposed this change because, in its experience, filers that opt to
combine the information on a single Form often do not include
everything that is required and would be reported if they filed on
separate Forms. Such combined filings are also very confusing for the
Agencies to review. In contrast, when filers choose to submit two
separate Forms for such transactions, the filings provide all the
required information and in a much clearer format that allows the
Agencies to quickly understand how the transaction might change the
operation of the acquiring person post-acquisition.
The Commission received only one comment on this proposal, which
expressed support and noted that it will enhance the understanding of
the entire transaction. The Commission adopts the change as proposed
but replaces the word ``should'' with ``shall.''
D. Section 803.5(b): Requiring Detailed Letters of Intent, Draft
Agreements, or Term Sheets
The Commission proposed amending Sec. 803.5(b) to require filers
who have not executed a definitive transaction agreement to submit a
draft agreement or term sheet describing the transaction that is the
subject of the HSR Filing with sufficient detail to permit accurate
analysis.\321\ The Commission received numerous comments on this
proposal focused on the increased burden and delay for filing parties.
The Commission has adopted the proposal in the final rule with
modifications that respond to these concerns.
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\321\ NPRM at 42182.
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Although filers can currently file on the basis of preliminary
agreements, such as an indication of interest, letter of intent, or
agreement in principle (``Preliminary Agreements''), in the
Commission's experience, a small but significant minority
(approximately 10%) of filings made on the basis of Preliminary
Agreements do not contain enough information to permit the Agencies to
conduct an accurate determination of whether the contemplated
acquisition may violate the antitrust laws if consummated.\322\ In
addition, such filings may be made prior to significant negotiations or
due diligence and can be so lacking in specifics that they could force
the Agencies to expend resources on transactions too uncertain to merit
review.
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\322\ Some commenters assert that documents such as letters of
intent and preliminary agreements give the agencies enough
information to identify those transactions that require further
scrutiny. Based on its experience over forty-five years of reviewing
merger filings that include these Preliminary Agreements, the
Commission disagrees that they always provide sufficient
information, especially when filings are made prematurely, prior to
any significant due diligence.
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As discussed below, the Commission has determined that it is
necessary to assure that filings are not made prematurely--before the
scope of the transaction has been sufficiently determined and before
the parties have engaged in enough diligence such that consummation is
not merely hypothetical--and in contravention to the purpose of
requiring an affidavit stating that there is a good faith intent to
consummate the transaction. However, the final rule will not
specifically require term sheets or draft agreements for all
transactions where a definitive agreement has not been executed.
Rather, the Commission will continue to require filers to submit an
executed agreement but, if that agreement does not describe with
specificity the scope of the transaction that the parties intend to
consummate, filers must also submit an additional dated document, such
as a term sheet or draft definitive agreement, that does contain
sufficient details about the transaction that the parties intend to
consummate. This dated document can also take other forms; the title of
the document is not determinative.
One commenter sought clarity on what level of information would
constitute sufficient detail as required by the proposed rule,
including what types of terms that may still be subject to negotiations
would render a term sheet as an insufficient basis to submit an HSR
filing. The Commission agrees that the additional clarity suggested by
the commenter would be helpful in reducing uncertainty. The Commission
revises the Instructions accordingly, as noted in section VI.H.1., to
describe what would be sufficient. The Instructions state that the
transaction agreement or supplemental document should contain some
combination of the following terms: the identity of the parties; the
structure of the transaction; the scope of what is being acquired;
calculation of the purchase price; an estimated closing timeline;
employee retention policies, including with respect to key personnel;
post-closing governance; and transaction expenses or other material
terms. The Commission notes that these examples are meant to be
illustrative and not exhaustive. In contrast, indications of interest
or other agreements that merely indicate that the parties will commence
negotiations or begin diligence will not be sufficient.\323\
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\323\ Here is an example of the type of terms contained in
agreements that have been filed with an HSR Form and conformed to
existing requirements, but will no longer be accepted without filing
an additional document that provides the key terms of the agreement
once the final rule is effective: This letter agreement confirms the
good faith intention of Alpha (``Purchaser''), to consummate the
acquisition of Target, a corporation, from Beta (``Seller''), for in
excess of $119.5 million and less than $235 million, subject to the
terms of a definitive agreement to be negotiated and executed by
them with respect to such acquisition and the satisfaction of
conditions to be set forth therein. This letter agreement is non-
binding and subject to satisfactory completion of due diligence,
mutually acceptable definitive documentation to be negotiated
between Purchaser and Seller. Purchaser will pay all filing fees in
connection with all filings under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations
thereunder.
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Using the criteria adopted in the final rule, the Commission
analyzed all filings that contained Preliminary Agreements submitted in
FY 2021 to determine how many transactions would be impacted by the
final rule.\324\ Of the transactions that were submitted on the basis
of a letter of intent, term sheet, or similar document that was not a
definitive agreement, less than 10% did not provide the Commission with
a sufficient level of detail to assess the transaction. From this data,
the Commission believes that filing parties typically reach agreement
on key terms prior to filing, and there would be no additional cost to
them to comply with the final rule. Of those that do not reach such
agreement prior to filing, the Commission believes that antitrust
review is not warranted until such time as the parties have resolved
key aspects of the transaction, such as those described above, because
the transaction may never be consummated, or key terms may change in
ways that would affect the Agencies' initial review.
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\324\ The Commission reviewed transactions filed during FY 2021
due to the large number of filings received by the Agencies during
that fiscal year, which made for a robust data sample. See supra
note 260.
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The Commission believes the transaction agreement requirements of
the final rule represents a middle ground between a merely conceptual
deal and a ``ready to close'' deal. The Agencies need to know the key
terms of the transaction to determine whether it may violate the
antitrust laws if consummated. Given the short period of time given to
the Agencies to make that determination, it is necessary for the
transaction to be one that is likely to close. The Commission
acknowledges that even with this modification, the final rule may not
permit some parties to make an HSR Filing as early in their deal
process as is currently permitted. However, parties will be able to
file after they have agreed to material terms of the transaction even
if a final agreement has
[[Page 89272]]
not been executed. The Commission notes that for many filings that do
not contain an executed agreement today, the parties continue to
negotiate final terms. The Commission expects that after the final
rule, parties that have come to an agreement on key terms but have not
yet signed a definitive agreement will continue to work to an executed
agreement while the Agencies are conducting their antitrust review.
The transaction agreement requirements of the final rule are
necessary to address a real shortcoming of allowing notification on
Preliminary Agreements. As noted above, currently, some parties submit
a ``letter of intent'' that substantively only states that the two
parties have the good faith intent to consummate a transaction. Some
documents are labeled an ``expression of interest'' in a future
transaction that is similarly not specific. In the Agencies'
experience, such filings are often made prior to any significant due
diligence has begun and do not demonstrate that the parties have
considered or agreed to key terms that would be required for
consummation. Such filings require staff to dedicate time to collect
facts and make an initial determination of potential illegality for a
transaction that may never occur or without a sufficient basis to know
the full scope of what the parties may agree to in the future. As noted
in the original Statement of Basis and Purpose from 1978, because of
the time and resource constraints upon the agency staff, the Agencies
should not expend resources to review transactions so lacking in
specifics that they could be considered merely hypothetical.\325\
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\325\ 43 FR 33450, 33511 (July 31, 1978).
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The Commission has considered the additional effort required to
review transactions that are filed with Preliminary Agreements and has
determined that permitting filings on barebones agreements lacking
sufficient details about key terms is contrary to the overall intent of
the HSR Act. When a filing is made, triggering the initial waiting
period, staff must start their review of the transaction and decide
whether to issue Second Requests within the applicable statutory
waiting period (15 or 30 days). If key terms of the transaction have
not yet been established, staff may not have sufficient information to
determine the potential antitrust risks. Further, if the parties have
not yet begun robust negotiations or due diligence, the filing will not
contain documents that provide business assessments of the transaction
because such assessments have not been made. If the parties have not
yet analyzed the impact of the transaction, it is not appropriate for
the Agencies to begin such an assessment. This is particularly true if
such assessments or negotiations lead the parties to abandon the
transaction. In those cases, the Agencies will have needlessly spent
scarce resources and may have burdened third parties investigating the
transaction. Even if the parties do not abandon their transaction and
the reviewing agency issues Second Requests, these investigations are
often unnecessarily slowed down by the uncertainty surrounding the deal
terms. The Commission understands that filers are anxious to get their
HSR review completed so that it does not delay consummation of the
transaction. But putting the burden on the Agencies to conduct
antitrust assessments prematurely based on Preliminary Agreements that
lack specificity undermines the purposes of the HSR Act. In addition,
allowing notifications on mere expressions of interest in a future
transaction creates opportunities to file as early as possible knowing
that early filings put the Agencies at a disadvantage in conducting a
thorough review.
Commenters raised concerns that the delay associated with
negotiating additional deal terms would cause filers not to pursue
beneficial transactions. One commenter claimed that as time is often of
the essence in mergers, the result would be a significant chill on
mergers. Another commenter contended that the proposal would deter
investment in private equity and would increase costs that would likely
be passed down to limited partners. Another commenter claimed that the
Agencies failed to consider additional costs resulting from the
additional delays in the transaction timeline.
The Commission disagrees that requiring more detail about
transactions filed on Preliminary Agreements will chill M&A activity
generally or for any particular type of investment. First, based on the
Commission's review of filings detailed above, most reported
transactions already meet the requirements adopted in the final rule.
For those that do not, the Commission has identified a specific need
for more detail to ensure that the reported transaction is likely to
occur so that it is ripe for antitrust review. In addition, Congress
identified those transactions where time is of the essence--namely,
those that will be accomplished through a cash tender offer--and
provided for a very short 15-day initial waiting period. For these
transactions, the acquiring person does not need to file any agreement;
it merely attests that its intention to make the tender offer has been
publicly announced.\326\ For other transactions, the Agencies need some
basis to know that the reported transaction is one that is likely to
occur so that they do not begin an antitrust assessment before fully
understanding how the transaction will likely change the premerger
market dynamics. In the Commission's experience, when parties cannot
reach agreement on a few key terms within their desired timeline to
consummate the transaction, that is an indication that the deal is one
that is not likely to close or is likely to close on terms that are
very different from the ones in the Preliminary Agreements. Finally,
while the parties have an interest in starting the 30-day review period
as soon as possible so that it does not unnecessarily delay their deal,
the Commission has an obligation to review the transaction to determine
whether it may violate the antitrust laws, and cannot effectively do so
prematurely. The Commission believes that any delay associated with
filers complying with the transaction agreement requirements of the
final rule is necessary and justified by the benefits to the Agencies
and the public in avoiding premature review of reported transactions.
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\326\ 16 CFR 803.5(a)(2).
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Separate from the concerns about delay, one commenter expressed
concerns that, as drafted in the NPRM, the Instruction arguably
requires the production of the most recent draft agreement, even if a
term sheet was also provided. The final rule requires filers to analyze
the executed agreement to determine whether it provides sufficient
detail about the transaction. If that document does not, then filers
must provide one additional dated document that does sufficiently
describe the transaction. The same commenter also questioned the value
to the Agencies of receiving the most recent draft agreement, which
they state is often slanted to reflect the views of the most recent
party to circulate a draft and thus is not necessarily representative
of what the definitive agreement will ultimately become. If the most
recent draft agreement does not reflect the key terms of the
transaction, then some other document, such as a term sheet, should be
submitted. Otherwise, as described above, the filing may be premature.
Further, the Commission acknowledges that certain provisions of a draft
agreement that are not strictly necessary to understanding the
antitrust implications of a transaction may change, sometimes
substantially, and that the final definitive agreement is the most
probative. However, the Commission believes that not permitting
[[Page 89273]]
filing until a definitive agreement has been reached is not necessary
and could impose too great a cost due to the associated delays. The
Agencies have extensive experience with reviewing draft agreements and
find that even they can be probative. So long as the draft agreement
and the associated executed agreement comply with the transaction
agreement requirements of the final rule, the Commission will accept a
supplemental document that is in draft form.
The same commenter suggested revising proposed Sec. 803.5 to
change ``will be consummated'' to ``the parties intend to consummate.''
The Commission agrees that this change in wording better captures the
requirement for the parties to attest to their good faith intention to
proceed with the transaction based on the submitted document and will
add the phrase ``the parties intend to consummate'' to Sec. 803.5. The
Commission notes, however, that in order to satisfy the Act, parties
must file and observe the waiting period for the transaction that will
be consummated. Therefore, if there are material changes to the
transaction after filing, the parties must continue to notify the
Agencies so that they can determine whether an amended or new filing
may be required. The Commission thus adopts the proposed requirement to
submit a draft agreement or term sheet with the clarifications noted
above.
In sum, the Commission has determined that changes to Sec. 803.5
contained in the final rule are necessary and appropriate to prevent
the Agencies from reviewing transactions for which the merging parties
have not yet reached agreement on key terms. For premerger review to be
timely and effective, the Agencies need some assurance that the
transaction is likely to occur and that the scope of the transaction is
revealed in the transaction documents submitted with the HSR Filing.
The Commission has modified the final rule as compared to the proposal
for this requirement to reduce the cost and delay for filers as much as
practicable.
E. Section 803.8: Translation of Documents
The Commission proposed amending Sec. 803.8 to require submission
of English-language translations for all foreign-language documents
submitted with the notification. Under Sec. 803.8(a), filers currently
do not need to translate these materials for the initial filing, and
English-language outlines, summaries, extracts, or verbatim
translations need only be provided if they already exist. Section
803.8(b), in contrast, requires that all foreign-language documents
responsive to a Second Request be provided with English translations.
The Commission proposed combining Sec. 803.8(a) and (b) so that
proposed Sec. 803.8 would therefore be one paragraph requiring that
verbatim English translations be provided with all foreign-language
materials submitted as part of an HSR Filing or in response to a Second
Request. The Commission adopts this proposed change with a revision to
reduce potential confusion.
As explained in the proposed rule, when the Agencies receive key
documents, such as the transaction agreements, relevant financial
analyses or transaction-related assessments required by Item 4(c) with
no translation at all or with unhelpful English-language outlines,
summaries, or extracts, the Agencies are at a significant disadvantage
during the very short period provided for initial review. The
Commission received several comments on this proposal, principally
regarding the burden and overall need for the proposed translation
requirement. One commenter supported the proposed change, noting that
with the help of modern software the cost of producing English
translations should not be burdensome. The Commission agrees. As stated
in the proposed rule, the Commission believes that translation tools
available to the parties have become more abundant and these tools
provide many options for translation that should significantly reduce
the cost of providing translations. Moreover, it is important that the
parties themselves provide translations because they created the
documents at issue. The parties should ensure that translations are
faithful to the original documents, a task that the Agencies are unable
to complete, as they do not have the context or background to the
transaction or companies that would be necessary to identify material
errors. The Commission wants to avoid disputes over translations of
these complex business documents that the parties have not reviewed.
The Commission notes that not requiring English-language
translations from all entities, including foreign entities, under the
current rule puts the Agencies at a disadvantage when reviewing HSR
Filings with only foreign-language documents. This also creates an
advantage for non-U.S. firms (whose materials are most likely to be in
a foreign language). If key documents are not translated, the Agencies
cannot give the transaction the same level of rigorous review and
scrutiny as they do for transactions where all of the documents can be
reviewed starting on the first day of the waiting period. Translation
requires time that should not be taken from the short period available
to the Agencies for the initial review. Time spent translating
documents reduces the time available for more critical tasks, such as
assessing the antitrust risk of filed transactions.
To understand the potential costs associated with requiring
submitted documents to be translated, the Commission examined all HSR
filings submitted in FY 2021.\327\ Of the 7,002 HSR Filings that year,
only 40 contained documents submitted in a language other than English
and did not provide a translation. This represents fewer than 0.6
percent of filings that year. While the cost of providing translations
may increase the cost of making an HSR Filing for these particular
filers, the overall impact of this requirement is limited.
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\327\ As noted above in footnote 260, the Agencies selected FY
2021 for this effort because of the large number of reportable
transactions that year, 3,520, which provided for a robust data set.
For these transactions, there were 7,002 filings, roughly two per
transaction. See Fed. Trade Comm'n & U.S. Dep't of Justice, Hart-
Scott-Rodino Annual Report, Fiscal Year 2021 appendix B (FY 2021).
---------------------------------------------------------------------------
Beyond the issue of increased cost, some comments questioned the
need to include translations with HSR Filings, especially for
transactions that do not raise competitive concerns. The Commission
disagrees that translations of submitted documents are not necessary
for the Agencies to complete their analysis or that they are useless to
the Agencies. The foreign-language versions of the documents are
required by the Rules because they are responsive to specific
information requests. As stated in the NPRM, the Agencies receive HSR
Filings that contain only foreign-language versions of key materials,
such as the transaction agreements submitted in response to current
Item 3(b) of the Form, the relevant financials submitted in response to
current Item 4(b), and the documents submitted in response to current
Items 4(c) and 4(d) of the Form. These are the very documents that
allow the Agencies to conduct a preliminary review of HSR Filings for
compliance with filing requirements and to determine whether the
transaction may violate the antitrust laws. Other filers submit these
same types of documents in a form that staff can quickly review. Not
being able to review these key materials on the first day of the
waiting period puts the Agencies at a material disadvantage during
their initial review.
After carefully considering the objections in the comments, the
Commission continues to believe requiring translations of foreign-
[[Page 89274]]
language documents with HSR Filings is necessary and appropriate for
the Agencies' premerger assessment, and notes that such translations
may be especially important for those transactions that report foreign
subsidies.\328\ Despite the cost to filing parties, translations permit
staff to review transactions and determine whether they require further
investigation on the basis of the materials contained in the HSR
Filing. With this cost in mind, the Commission invited commenters to
suggest other alternatives that might achieve the Commission's goal of
being able to understand and assess foreign-language documents while
lessening the cost for filing parties and received a range of potential
modifications to the proposal. One commented suggested that the
requirement to provide verbatim translations should be limited to only
final documents, not draft versions. As noted in section VI.G.1.b., the
Commission has not adopted the proposal to require drafts, so no
translations will be required for such documents in connection with the
submission of the Form.
---------------------------------------------------------------------------
\328\ NPRM at 42182-83.
---------------------------------------------------------------------------
Commenters also proposed requiring only general summaries in
English in lieu of verbatim translations, or permitting a filing party
to produce a better-quality translation within a reasonable time period
if the Agencies request them. The Commission acknowledges these
suggestions but does not believe either presents a viable alternative
to the version of Sec. 803.8 contained in the final rule. General
summaries do not provide the Agencies with a complete, detailed picture
of the transaction. The Agencies' preliminary analysis of transactions
often relies upon a nuanced and thorough reading of documentary
attachments, and general summaries may not include facts or
descriptions that the Agencies find relevant. The ability to require a
better-quality translation within a reasonable time period after the
submission of the HSR Filing will mean the Agencies must depend on
filing parties to respond; this would likely delay Agency review within
the already time-constrained initial waiting period. The time saved by
the parties in preparing a summary in lieu of a translation is
outweighed by the benefit to the Agencies of having a version of the
underlying document available at the beginning of the waiting period.
Given the importance of having translations of key documents, the
Commission adopts the proposed changes to Sec. 803.8 but deletes the
reference to ``understandable.'' The Commission believes this word is
superfluous when used in conjunction with ``accurate and complete'' and
may introduce confusion. Section 803.8 does not require any particular
method of translation but specifies that, whatever translation method
the parties choose, all verbatim translations must be readily
understood, materially accurate, and complete. One commenter suggested
revising the instructions to state explicitly that the submission of
machine translations is acceptable. The Commission declines to state
this explicitly and notes that in complying with the requirement to
provide translations, parties must certify that translations are
materially accurate even if they do not identify how they were created.
In sum, the Commission has determined that the translation
requirement contained in the final rule is necessary and appropriate to
enable the Agencies to quickly review submitted documents with English
translations that have been certified as accurate.
F. Section 803.10: Commencement of Waiting Periods
The Commission proposed amending Sec. 803.10(c)(1)(i) to clarify
that filings made electronically are to be credited as received by the
Agencies on the date filed if: (i) the electronic submission is
complete by 5 p.m. Eastern Time; and (ii) such date is not a Saturday,
Sunday, legal public holiday (as defined in 5 U.S.C. 6103(a)), or the
observed date of such legal public holiday. This change codifies the
current policy, and no comments were received. The Commission adopts
this change as proposed.
G. Section 803.12: Information To Be Updated With Refiling
The Commission proposed amending Sec. 803.12(c) to specify what
updates would be required to the acquiring person's filing if the
acquiring person chose to withdraw its HSR Filing and refile it. This
procedure for voluntary withdrawal and refiling permits the acquiring
person to restart the initial waiting period, providing the Agencies an
additional 15 or 30 days (depending on the transaction type) to review
the transaction without issuing a Second Request, as long as certain
conditions are met. Currently, the rules require updates to Items 4(a),
4(b), 4(c), and 4(d). The NPRM proposed changes to Sec. 803.12(c)
including: eliminating the requirement to provide updated financials,
currently required by Items 4(a) and (b); requiring updated
Transaction-Related Documents with the updated HSR Filing; requiring
updated transaction agreements; and requiring updated information about
subsidies from Foreign Entities of Concern. The Commission adopts the
proposed change with modifications to reflect ministerial changes to
the names of sections of the Form.
The Commission received one comment on this proposal that noted
that the proposal would impose a significant additional burden on the
merging parties by requiring them to conduct a new search for
Transaction-Related Documents with an expanded set of custodians.
According to this commenter, it would also discourage the parties' use
of pulling and refiling, and divert agency resources away from the
review of other reported transactions.
Parties who withdraw and refile under Sec. 803.12(c) must already
search for new documents responsive to current Items 4(c) and 4(d). The
basic requirement to search for new Transaction-Related Documents
remains largely the same with the addition of only a single new
custodian (the supervisory deal team lead, as defined) and a
clarification that versions sent to any member of the board of
directors (or similar body for non-corporate entities) are responsive
and should not be treated as draft documents. The search required is a
limited one, reaching back at most to the 15 or 30 days since the
original filing was made. The Commission notes that these newly created
documents and updated agreements are material to the Agencies'
evaluation of the transaction and the determination of whether to issue
a Second Request. Additionally, a change in information about subsidies
may also be material and, until the Agencies have more experience with
receiving this information, as required by Congress, parties must also
provide updates to this item. The Commission therefore adopts the
proposal with changes made to the names of the sections in the Form and
Instructions.
VI. Part 803 Appendix A and Appendix B
Below, the Commission describes the changes to the appendices to
Part 803, the Form and the Instructions. As discussed in section V.A.,
the Commission will continue to use the same electronic filing
mechanism that has been in place since March 2020. Therefore, the
Commission now provides a Form which will be available on the FTC's
website in Microsoft Word format to collect the information required by
the Instructions. Additionally, as discussed in section V.B., separate
forms will be required for
[[Page 89275]]
parties that are filing both as acquiring and acquired persons for
related transactions. As a result, and to aid parties in understanding
which provisions are applicable to acquiring persons and which are
applicable to acquired persons, the Commission has now provided
separate Instructions and Forms for acquiring and acquired persons.
This change has also allowed the Commission to simplify the language of
some of the instructions, such as by defining ``target'' to include all
acquired entities or assets and eliminating use of phrases such as
``acquiring person or acquired entity as appropriate'' that were
included in the draft instructions. Other ministerial changes to aid
readability of the Instructions are also noted below.
For ease of reference, the Commission includes the following
materials regarding the adopted Instructions and Form:
An outline of the organization of the Form and
Instructions,
A chart that identifies proposed new locations of the
current Items of the Form and Instructions, including whether
substantive changes are adopted, and
A chart of the new categories of required information.
These materials appear immediately below.
Instructions Outline
General Instructions and Information
Fee Information
General Information
Ultimate Parent Entity Information
[cir] UPE Details
[cir] Acquiring Person or Acquired Entity Structure
[cir] Additional Acquiring Person Information (Acquiring Person Only)
Transaction Information
[cir] Parties
[cir] Transaction Details
[cir] Transaction Description
[cir] Additional Transaction Information
[cir] Joint Ventures (Acquiring Person Only)
[cir] Business Documents
[cir] Agreements (Acquiring Person Only)
Competition Descriptions
[cir] Overlap Description
[cir] Supply Relationships Description
Revenues and Overlaps
[cir] NAICS Codes
[cir] Controlled Entity Geographic Overlaps
[cir] Minority-Held Entity Overlaps
[cir] Prior Acquisitions
Additional Information
[cir] Subsidies from Foreign Entities or Governments of Concern
[cir] Defense or Intelligence Contracts
[cir] Voluntary Waivers
Certification
Affidavits
BILLING CODE 6750-01-P
[[Page 89276]]
[GRAPHIC] [TIFF OMITTED] TR12NO24.040
[[Page 89277]]
[GRAPHIC] [TIFF OMITTED] TR12NO24.041
BILLING CODE 6750-01-C
A. General Instructions and Information
The Commission proposed creating a General Instructions and
Information section within the proposed Instructions that largely
parallels the General section of the current Instructions but is
significantly reorganized and includes a ministerial change to clarify
what information is found on the PNO website. Within the proposed
General Instructions and Information section, the Commission proposed
substantive changes to the following sections: Definitions,
Identification of the Filing Person, Responses, and Translations. As
discussed below, the Commission adopts some of the changes as proposed,
adopts others with modification, and does not adopt others. In
addition, in order to effectuate separate, tailored Forms and
Instructions for the acquiring and acquired person, and to enhance
clarity, the Commission adopts certain ministerial changes discussed
below.
1. Definitions and Explanation of Terms
a. Economic Research Service's Commuting Zones
The Commission proposed adding a definition for Economic Research
Service's Commuting Zones to facilitate responses to proposed
requirements related to labor markets. The Commission received several
comments on the Economic Research Service's Commuting Zones, and all
cited the burden of this proposal. Many noted that the U.S. Department
of Agriculture
[[Page 89278]]
has not updated these metrics since 2012, which makes them unreliable
as a basis for determining the geographic scope of labor markets. As
the Commission is not adopting the information requirements for
employees in the final rule (see section VI.I.3.), the Commission does
not adopt this definition.
b. Fee Information
The Commission adopts a ministerial change related to this item. As
a result of the new fee structure mandated by Congress in the Merger
Modernization Act, the fee information description now refers to the
adjusted fees and fee tiers.
c. North American Product Classification System Data
The Commission proposed eliminating the reporting of 10-digit North
American Product Classification System (``NAPCS'') based codes, and, as
a result, proposed deleting the NAPCS definition from the proposed
Instructions. The Commission received one comment on the elimination of
the NAPCS definition; the comment supported the proposed streamlining
of manufacturing revenue reporting. The Commission adopts this change
as proposed. See section VI.J.1. for further discussion on the
elimination of NAPCS-based codes.
d. Notification Thresholds
The Commission adopts a ministerial change related to this item.
Currently, the section entitled ``Thresholds'' discusses filing fee and
notification thresholds as a single item. With the fee changes that
were enacted in the Merger Modernization Act, these are now separate
thresholds. As discussed in section VI.A.1.b., ``Fee Information''
discusses the fee tiers. The definition of ``Notification Thresholds''
now discusses only the notification thresholds that are defined in
Sec. 801.1(h).
e. Standard Occupational Classification
The Commission proposed adding a definition for Standard
Occupational Classification (``SOC'') codes to facilitate responses to
proposed requirements related to labor markets. As the Commission is
not adopting information requirements for employees in the final rule
that would require reporting on this basis (see section VI.I.3.), the
Instructions do not contain a definition for SOC codes.
f. Select 801.30 Transactions
As discussed in section III.C., the Commission received many
comments that objected to the burden of the new requirements as
proposed. Among the objections were claims that the proposed
requirements reached transactions that typically were not investigated
by the Agencies, that the burden of the new requirements could slow the
pace of some transactions and deter others, and that the burden would
fall not just on acquiring persons but on target companies that did not
initiate or consent to the transaction. One commenter urged the
Commission to exempt from HSR reporting requirements certain
transactions that the Agencies rarely challenge, including acquisitions
of voting securities that do not transfer control of the target
company. The Commission acknowledges these comments, and while it
disagrees that there is any category of transaction for which all of
the adopted proposals should not apply, it does agree that exempting
certain transactions from some of the new requirements will not inhibit
the Agencies' ability to understand the transaction and determine that
it warrants further investigation. To that end, the Commission limits
the amount of information required for the notification of certain
transactions subject to Sec. 801.30 that also meet specific
conditions.
Section 801.30(a), first promulgated by the Commission in the
original rules, defines certain types of transactions in which the
consent of the acquired person may not be required.\329\ These
transactions include acquisitions made on the open market, via tender
offers, through the exercise of warrants or options, or through the
conversion of non-voting securities. The involvement of the acquired
person varies across these transactions. In some instances, such as an
investor acquiring voting securities on the open market, the acquired
person does not have to agree to the transaction and may not even have
knowledge of it. In others, the acquiring and acquired person both
assent to the deal. For example, some transactions are effectuated by a
tender offer or the acquisition of purchases on the open market or from
third parties--making Sec. 801.30 applicable--but are also subject to
an agreement between the acquiring and acquired person.
---------------------------------------------------------------------------
\329\ 16 CFR 801.30(a); see also 43 FR 33450, 33483 (July 31,
1978).
---------------------------------------------------------------------------
When the agreement of the acquired person is not required in a
transaction, the Commission believes that certain requirements of the
final rule are unlikely to provide information necessary to determine
whether that transaction may violate the antitrust laws. Several
commenters agreed that in such transactions the target in particular
would not be able to provide the new information required in the final
rule in the short time they have to make their filing. Further, in such
transactions, the acquired person may not know that it has a filing
obligation until the acquiring person has filed and will have limited
time to prepare its filing. For this select set of transactions, the
Commission has determined that it is not necessary to collect certain
information, particularly in light of the costs that would be imposed
on these types of filings which often carry low antitrust risk.
Therefore, the Commission, adapting suggestions from the comments,
introduces and defines the term ``select 801.30 transactions.'' Select
801.30 transactions are those transactions that do not result in the
acquisition of control to which Sec. 801.30 applies and where there is
no agreement or contemplated agreement between any entity within the
acquiring and acquired person. An example of a select 801.30
transaction includes an acquisition of voting securities on the open
market via a national exchange by an investor that has no other ties to
the issuer and which acquisition does not result in the acquisition of
control. Additionally, select 801.30 transactions include acquisitions
resulting from a traditional executive compensation arrangement where
the executive exercises contractual benefits pursuant to a compensation
package to acquire voting securities and nothing more.
In addition to excluding transactions in which there is an
agreement between the acquiring and acquired person, the definition of
``select 801.30 transactions'' excludes transactions that would result
in the acquiring person obtaining control, as defined by the Rules, of
the acquired entity or where the acquiring person has obtained or will
obtain certain rights related to the board of directors, general
partner, or management company of an entity within the acquired person.
These excluded transactions are likely to require a more thorough
review for potential antitrust risk, and therefore it is necessary and
appropriate for the Agencies to receive some additional information
related to them as contemplated in this rulemaking. The Commission uses
the term ``select 801.30 transaction'' throughout the discussion below,
and transactions that meet the definition will not be required to
respond to certain items as part of the Commission's efforts to limit
costs to filing parties in response to the comments. See Figure 3.
[[Page 89279]]
g. Supervisory Deal Team Lead
As discussed in section VI.G.1, the Commission proposed that, in
addition to requiring documents prepared by or for officers and
directors in response to current Item 4(c), filing persons must also
submit transaction-related documents prepared by or for supervisory
deal team lead(s). This proposal targeted documents authored by or for
the person who functionally led the deal team even if not an officer or
director. In the Agencies' experience with Second Request responses,
these documents often include information that would have been highly
relevant to the Agencies' analysis of the transaction during the
initial waiting period to determine whether Second Requests should
issue and what additional information they should seek. The Commission
adopts this definition to limit the proposal to a single individual and
provide clarity regarding identification of the appropriate individual.
The proposed rule noted that the identification of any supervisory
deal team lead would not be based upon title alone and that this
addition would require the filing person to determine the individual or
individuals who functionally lead or coordinate the day-to-day process
for the transaction at issue. A supervisory deal team lead need not
have ultimate decision-making authority but would have responsibility
for preparing or supervising the assessment of the transaction and be
involved in communicating with the individuals, such as officers or
directors, who have the authority to authorize the transaction. In the
proposal, any such individual(s) might be the leader(s) of an
investment committee, tasked with heading the analysis of mergers and
acquisitions, or otherwise given supervisory capacity over the flow of
information and documents related to transaction.
The Commission received many comments on its proposal to require
current 4(c) documents from the supervisory deal team lead(s). Several
comments noted that the proposed Instructions do not offer a definition
of supervisory deal team lead(s) and that the proposed rule's
description of the term was vague, ambiguous, and subjective, leaving
filers uncertain which individuals must be searched in addition to
officers and directors. One comment stated that the term was neither
defined nor self-explanatory, and the proposal's descriptions of what
constitutes a supervisory deal team lead(s) offers two separate
standards. Yet another comment noted that the description could
potentially describe a company's entire corporate development team.
Concerns about the meaning of the term ``supervisory deal team
lead'' led a number of commenters to propose a definition. One
commenter suggested limiting supervisory deal team lead to the senior
most member of the corporate development deal team responsible for
driving the strategic vision and assessment of the deal, who would not
otherwise qualify as an officer or director. Another commenter
suggested it should be the most senior member of a filing party's deal
team responsible for the company's strategic vision and who otherwise
would not qualify as a director or officer. Also, another commenter
offered that supervisory deal team lead(s) should be expressly defined
to mean the individual with primary responsibility for supervising the
assessment of the transaction, and that it should only be one person.
The Commission acknowledges that a definition of supervisory deal
team lead in the Instructions would help filers accurately identify the
appropriate individual to be searched for responsive materials. The
Commission notes that many of the comments' proposed definitions
provided useful contours to help define the term. As discussed above,
certain commenters suggested a definition that the relevant individual
have responsibility for business strategy associated with the
transaction under review. The Commission agrees that centering the
definition on the ``primary responsibility'' for the strategic
assessment of the deal will help identify the correct individual.
The Commission also agrees that the definition should focus on one
supervisory deal team lead to mitigate any confusion or uncertainty
raised in the comments about having two or three supervisory deal team
leads. As discussed in section VI.G.1., several commenters also raised
concerns with the burden associated with collecting documents from
additional custodians, particularly if multiple individuals fulfilled
that role.
The Commission therefore adopts a new definition for ``supervisory
deal team lead'' as the individual who has primary responsibility for
supervising the strategic assessment of the deal, and who would not
otherwise qualify as a director or officer. This definition focuses on
the one person who oversees the strategic assessment of the transaction
and it should mitigate the concerns of some commenters that the term is
so vague that it might introduce uncertainty as to when the initial HSR
waiting period begins. These commenters explained their concern that
Agency staff may become aware of another employee who would better
constitute a supervisory deal team lead than the individual selected by
the filer and reject the filing. In response to comments that requiring
filers to select a supervisory deal team lead will allow the Commission
to reject filings, the Agencies will continue to rely on filers to
certify to their good faith belief in completing and certifying to the
accuracy of the filing, and the Agencies will continue to rely on that
good faith. In the situation where the only individuals supervising the
strategic assessment of the deal are already either an officer or
director, filers can state that this is the case and identify an
officer or director as the supervisory deal team lead.
h. Target
For additional clarity in the instructions, the Commission
introduces and defines the term ``Target'' as a ministerial change. The
target includes all entities and assets to be acquired by the acquiring
person from the acquired person and eliminates the need to use the
inadvertently confusing phrase ``the acquired entity(s) or assets''
throughout the Instructions. The Commission notes, however, that the
Instructions do continue to use ``acquired entity(s)'' in certain
instances where a question may not be relevant to the acquisition of
assets.
i. Year
As part of the Commission's effort to add more clarity to the
Instructions, the Commission makes a ministerial change to the
definition of ``most recent year'' found in the definition of ``year''
to make clear that the ``most recent year'' is the most recently
completed calendar or fiscal year. This is the current intent of the
definition and consistent with the guidance that has been given
informally and with how filing persons complete the form and provide
information.
2. Filing as an Acquiring and Acquired Person
As discussed in section V.C., the Commission adopts the proposed
changes to Sec. 803.2 such that filing persons will be required to
submit separate forms when filing as an acquiring and acquired person.
Additionally, the Commission has created separate, tailored Forms and
Instructions for the Acquiring and Acquired Person. Since filers will
choose the appropriate Form for the filing, the Commission adopts the
ministerial change to eliminate the question, currently Item 1(c),
asking the
[[Page 89280]]
filing person to identify whether the filing is being made as an
acquiring or acquired person.
3. Responses
In the new Responses section, the Commission proposed setting out
the specifics of how filers would provide the information responsive to
the proposed new questions. The revisions included eliminating
instructions regarding filings made on paper or DVD, see above at
section IV.A; the Commission adopts these changes as proposed. The
proposed responses section also described the information that filing
persons would need to provide in a log of responsive documents and
descriptive responses to be submitted with an HSR Filing. This
information would have generally been the same as the information
currently required for documents submitted in response to Items 4(c)
and 4(d) of the current Form, with two proposed expansions. The first
would have required the filing person to identify the request(s) to
which the document would be responsive. The second would have required
the identification of the individual within the acquiring or acquired
person who supervised the preparation of documents prepared by third
parties, or for whom the document was prepared. The Commission adopts
the proposal with modifications to reflect the layout of the Form and
to reduce the burden for transactions that do not have either a NAICS
overlap, see section VI.J., or overlap or supply relationship
identified in the Competition Descriptions, see section VI. I.
The Commission received two comments regarding the new Responses
section, both of which focused on the proposed requirement for filing
persons to provide the name, title, and company of the individuals
within the filing person who supervised the preparation of third-party
documents or for whom the documents were prepared. One commenter
expressed concern that the proposal could put certain fund employees at
risk of violating their nondisclosure agreements with target companies.
Another commenter noted that there is minimal if any value to the
Agencies having this information for every single reportable
transaction, but collecting and filing a comprehensive list of all the
people who may have supervised the creation of these documents will
require many hours of work.
The Commission acknowledges the cost but disagrees that this
information is not valuable or informative. In the Agencies'
experience, knowing the authors of documents assists in the evaluation
of the documents as well as any subsequent investigation by providing
context regarding who was involved in the preparation of the document.
Currently, the Agencies do not receive this context for documents
prepared by third parties. Therefore, for documents prepared by third
parties, such as consultants or bankers, the Commission adopts the
proposal for the filing person to identify the individual or
individuals who supervised the production of such documents, or for
whom the document was prepared. This information will not be required
for documents that were provided to the parties without solicitation,
or for documents provided to the acquiring or acquired person by the
other party.
As part of the Commission's overall effort to reduce the burden on
filing parties, the Commission has revised the proposal to only require
authors (or the individuals that supervise the creation of documents)
for filings in which there are NAICS overlaps, or overlaps or supply
relationships identified in the Competition Descriptions. For those
transactions where such an overlap or supply relationship has been
identified, filers will be required to provide the same author
information as is currently required for documents responsive to Items
4(c) and 4(d), as well as the individuals within the filing person who
supervised the preparation of third-party documents or for whom the
documents were prepared. The Commission notes that these third-party
documents are already required. The additional information is related
to the identification of the individuals within the acquiring or
acquired person, so no new non-disclosure risks should result from the
requirement. Finally, because the Form requires identification of the
file name for each document submitted, the ``Responses'' section does
not require a document log. A privilege log will still be required.
4. Translations
As noted in section V.E., the Commission amends Sec. 803.8 to
require the filing person to submit English translations of all
foreign-language documents. The Instructions also reflect this change.
5. Non-Compliance
While the Commission does not make any changes to the explanation
of ``non-compliance,'' it does emphasize that if the filer is unable to
answer any question fully, it is required to provide the information
that is available and provide a statement of reasons for non-compliance
consistent with Sec. 803.3 and as permitted by the HSR Act.\330\
Further, where exact answers cannot be given, filers are allowed to
enter best estimates, while indicating the source or basis of the
estimate and marking the information with the notation ``est'' for any
item where data are estimated. The Commission routinely accepts filings
and commences waiting periods for filings that avail themselves of this
procedure. For example, publicly traded filers are often unable to
identify with certainty their minority shareholders, and instead
provide information that has been filed with the SEC. The Commission
did not propose any changes to this Instruction and does not change it
now.
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\330\ 15 U.S.C. 18a(b)(1)(A)(ii).
---------------------------------------------------------------------------
B. Fee Information
Although the Commission proposed moving the filing fee information
to the Transaction Information section of the proposed Instructions, in
the final Form and Instructions, filing fee information will instead be
collected in its own section. The Form also includes new areas for
filing persons to indicate whether the fee is being paid by more than
one entity, and if so, how much each entity will pay. Additionally, the
Commission adopts a ministerial change to eliminate the need to provide
Taxpayer Identification or Social Security Numbers and the name of the
institution, such as the bank, from which the fee will be paid. The
Commission has determined that it no longer needs this information to
identify filing fees, and parties therefore no longer need to provide
it.
C. General Information
The General Information section of the Form and Instructions
requires filing persons to indicate whether the transaction is a post-
consummation filing, cash tender offer, or bankruptcy, and whether
early termination of the transaction is requested--information that is
currently collected on the first page of the Form. The Commission did
not propose and does not adopt any material changes to these items.
D. Ultimate Parent Entity Information
1. UPE Details
The UPE Details section of the Form and Instructions requires
information about the UPE of the acquiring or acquired person,
including contact information, financial documents, and information
about certain minority shareholders or interest holders. Much of this
information is currently required by Items 1, 4(a) and (b), and 6(b).
The Commission proposed (1) requiring
[[Page 89281]]
contact information for the individual to whom Second Requests should
be sent; (2) clarifying the instructions related to the provision of
financial documents for natural person UPEs; (3) requiring filers to
stipulate that the appropriate size of person threshold is met, if
applicable; (4) identifying additional minority holders of entities
within the acquiring person; and (5) reducing the types of minority
holders of the acquired entity that must be reported. As discussed
below, the Commission adopts some of these proposals without change and
some with modification.
a. Contact Information
The Commission proposed that all filers, not just foreign filers,
must identify the individual to whom Second Requests should be
addressed. The Commission received no comments on this change and
adopts it as proposed.
b. Annual Report and Audit Reports of the UPEs
This section requires information currently required by Items 4(a)
and 4(b) as it pertains to the UPE of the acquiring or acquired person.
Annual and audit reports of other entities within the acquiring and
acquired person are required by the Acquiring and Acquired Person
Structure section, as discussed in section VI.D.2.b. The Commission
proposed clarifying the current instructions regarding which annual
reports and audit reports are required from natural person UPEs. The
Commission makes no change to the instruction that natural person UPEs
should not produce any personal balance sheets or tax returns. Since
natural persons should not provide personal financial information, no
information should be provided in the UPE section. The Commission did
not propose and does not make any change to the annual or audit reports
required of the UPE of the acquiring or acquired person.
The Commission did propose clarifications regarding what other
annual and audit reports entities within the same person as natural
person UPEs must provide. This proposed clarification is discussed in
section VI.D.2.b.
c. Size of Person Stipulation
The Commission proposed adding an item on the Form that would allow
filers to stipulate that the size of person test is met (at the
appropriate dollar amount) or indicate that the size of person test is
not applicable. The Commission received no comments on this change and
adopts it as proposed.
d. Minority Shareholders or Interest Holders
The Commission proposed a Minority Shareholders or Interest Holders
section to require identification of minority interest holders of
certain entities within the acquiring person and the acquired entities.
Currently, Item 6(b) requires acquiring persons to identify minority
holders of 5% or more but less than 50% of the acquiring entity and the
UPE of the acquiring person (or, for natural person UPEs, the highest-
level entities they control). Acquired persons are required to report
such minority holders of the acquired entity. For UPEs of the acquiring
person, acquiring entities, and acquired entities that are limited
partnerships, only disclosure of the general partner is currently
required.
The Commission proposed several changes to require additional
information about the identity of minority holders, as well as
identification of additional minority interest holders by the acquiring
person, but potentially fewer by the acquired person. First, the
Commission proposed requiring disclosure of the ``doing business as''
or ``street name'' of minority investors that are related to a master
limited partnership, fund, investment group, or similar entity. Second,
the Commission proposed to expand the entities for which the acquiring
person must identify certain minority interest holders to include
entities related to the acquiring entity. Third, the Commission
proposed requiring the identification of certain minority holders of
limited partnerships, rather than just the general partner. Finally,
the Commission proposed limiting the minority interest holders that
acquired persons would need to identify. The Commission adopts the
first two proposals without change but modifies the limited partners
that need to be identified, as discussed below.
(i) Provision of ``Doing Business As'' or ``Street Names''
First, the Commission proposed that the acquiring person provide
the doing business as or ``street name'' of minority investors that are
related to master limited partnerships, funds, or investment groups.
The Commission did not receive comments on this specific proposal but
did receive comments to similar proposed requirements in other areas of
the Instructions. Objections in these other sections generally focused
on the lookback period and the burden of searching for all names that
were potentially used by a business. In this section, the Commission
did not propose a lookback period, but instead proposed requiring only
the current name of the related master limited partnership, fund,
investment group, or similar entity.
The Commission continues to believe that this information should
not be costly for filers. In many cases, communication between the
acquiring person and the investor will include this information. For
example, though the minority investor may be RANDOMNAME, LLC, the
acquiring person regularly communicates with INVESTMENT GROUP and sends
information related to the investment in care of that business.
However, if this information is not known to the acquiring person, it
can so note in a statement of non-compliance.
The task of screening transactions for potential competitive
effects is stymied when filers provide only legal names, which are
often unrelated to the name by which the public knows the business.
Knowing the d/b/a or street name of the entities involved in the
transaction allows staff to use public resources to gather additional
information, for example through internet searches or look-ups using
commercial services relied on by the Agencies to provide industry data.
Because of the value to the screening process, the Commission adopts
this requirement as proposed.
(ii) Identification of Additional Minority Investors in the Acquiring
Person
The Commission next proposed two changes that could increase the
number of minority investors the acquiring person would need to
identify: First, it proposed that the acquiring person be required to
report holders of 5% or more but less than 50% of (1) the acquiring
entity, (2) any entity directly or indirectly controlled by the
acquiring entity, (3) any entity that directly or indirectly controls
the acquiring entity, and (4) any entity within the acquiring person
that has been or will be created in contemplation of, or for the
purposes of, effectuating the transaction. Second, it proposed that
filing persons report holders of 5% or more but less than 50% of
limited partnerships, in addition to the general partner.\331\
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\331\ This change also relieved natural person UPEs from the
obligation to identify minority shareholders of all top-level
entities, instead only requiring identification for entities related
to the transaction.
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Comments on these two proposed changes were similar and often
intertwined. One commenter urged the Agencies to collect the proposed
new information and stated that the ownership structure resulting from
the
[[Page 89282]]
transaction may change the parties' incentives to compete, enhance the
acquirer's ability to influence decision making through changes in
voting interests or governance rights, or facilitate the sharing of
competitively sensitive information between rivals. Two others also
supported the proposal, with each noting the various potential
anticompetitive impacts of minority interests. Specifically, one
commenter stated that these new requirements would address complex
corporate structures, which may obscure potentially significant
relationships. The other commenter also supported providing more
information about shareholders, particularly since the current Form and
Instructions can treat portfolio companies of private equity funds as
independent from each other and their management companies.
Broadly, critics of these proposed changes expressed concerns about
the burden of collecting the requested information. Additional
criticisms included objections to the five percent threshold for
identification, with commenters stating that the interests of such
minority investors may be wholly unrelated to the notified transaction,
or less likely to result in a substantial lessening of competition.
Concerns were also raised about confidentiality and disclosure, noting
the Commission's prior consideration of the fact that the identity and
investment level of limited partners is often highly confidential when
it decided in 2011 not to require disclosure of limited partners.
Commenters further speculated that requirements to disclose the
identity of additional minority investors could create a chilling
effect on fundraising and deals. Finally, commenters stated that such a
decrease in fundraising and deal volume could affect smaller
businesses, pension plans, endowments, charitable foundations, and
activist investors, among others. Each of these objections is discussed
below.
(a) Identification of Minority Holders of Additional Entities
Regarding the first proposal to expand the entities for which
minority holders must be identified, the Commission notes that until
2011 acquiring persons were required to report minority holders of 5%
or more for all corporate entities within the acquiring person that had
assets of $10 million or greater. As part of the 2011 rulemaking, the
Commission determined that this broad requirement, which could reach
entities within the acquiring person that had no nexus to the reported
transaction, was not essential to an initial review of the
transaction.\332\ Through this change, the Commission expanded the
requirement to include identification of minority holders of non-
corporate entities, but it limited the obligation for the acquiring
person to the identification of minority holders of only the acquiring
UPE and the acquiring entity. As a result, the Agencies receive
information about what entities have a ``seat at the table'' in the
case of very simple corporate structures where the acquiring person UPE
directly controls the acquiring entity without any intermediary
entities, or where intermediary entities are wholly owned by the
acquiring person, without the acquiring person providing information
about entities unrelated to the transaction.
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\332\ 75 FR 57110, 57118 (Sept. 17, 2010); 76 FR 42471, 42472
(July 19, 2011).
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Since 2011, however, the Commission has learned through experience
that many acquiring persons have more complex structures that include
many entities between the UPE and acquiring entity that are not wholly
owned but that are related to the acquiring entity. For example, ``A''
plans to acquire a target and will bring in ``B'' as a co-investor. The
UPE of ``A'' creates (or already has) a number of intermediary entities
within its person to effectuate the transaction. ``B'' does not invest
in either the UPE of ``A'' or the entity that will make the
acquisition, but rather in one of these intermediary entities.
Currently, as illustrated in Figures 4 and 5a, when ``A'' makes its
filing, it is not required to disclose the co-investment of ``B'' so
long as the investment is below 50%. The current focus on just the UPE
and the acquiring entity deprives the Agencies of key information about
individuals and entities that may have influence, or even management or
operational oversight, over entities related to the transaction and
could make or influence competitively important decisions post-
acquisition.
[[Page 89283]]
[GRAPHIC] [TIFF OMITTED] TR12NO24.042
[[Page 89284]]
[GRAPHIC] [TIFF OMITTED] TR12NO24.043
As discussed in section II.B.1., and illustrated in Figure 5a,
individuals or entities that have significant rights or holdings in
entities related to the acquiring entity may also take active positions
in or exert control over competitively significant businesses,
including competitors, and the disclosure of these relationships could
surface antitrust risks that require the Agencies' attention during the
initial antitrust review. Because information that reveals whether
there are existing investment relationships between the acquiring
person and the target is necessary and appropriate for the Agencies'
initial antitrust review, the Commission adopts this change as
proposed. As a result, as shown in Figure 5b, the Agencies will receive
the information necessary to determine whether the acquisition of the
target by the acquiring entity may violate the antitrust laws.
[[Page 89285]]
[GRAPHIC] [TIFF OMITTED] TR12NO24.044
In objecting to these proposals, commenters stated that
identification of these additional minority holders would be
burdensome. The Commission notes that, rather than merely reviving an
expansive requirement to disclose all the minority investors of
entities within the acquiring person, it proposed a more tailored
instruction to require disclosure only of the entities related to the
transaction. Given this limitation and the information gaps caused by
vast changes to the M&A landscape discussed in section II.B.1., the
Commission believes that the identification of the minority holders of
the entities that are related to the transaction is necessary and
appropriate and should be contained in an HSR Filing. Further, if the
acquiring person does not have knowledge of the identity of the
minority investors, it can so indicate and explain, just as acquiring
persons currently do when the minority investors of the UPE or
acquiring entity are unknown.\333\ For example, acquiring persons that
have publicly traded UPEs routinely note that they do not have
information about minority holders beyond what is reported to the SEC.
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\333\ See also the discussion of non-compliance in section
VI.A.5.
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One commentor stated that the ``direct or indirect'' and ``control
or controlled by'' language was broad and would require substantial
time and resources to navigate. The Commission disagrees and notes that
this requirement does not require a broad analysis of various theories
of control but rather requires a determination of ``control'' as
defined by Sec. 801.1(b). The proposed instruction stated that the
controlling relationship can be either direct or indirect to make clear
that the requirement was not limited to entities just one level above
or below the acquiring entity. For example, in a common scenario
involving multiple shell entities, the acquiring UPE controls an
intermediary entity that controls an intermediary entity that controls
the acquiring entity, as shown in Figure 6a below. The Instructions
contained in the final rule require disclosure of minority holders of
five percent or more of each of those intermediary entities, subject to
the limitations on disclosure of limited partners discussed below in
section VI.D.1d.ii., as shown in Figure 6b. Control is a long-standing
concept in the Rules, and the determination of control in this context
is consistent with control determinations that filers need to make for
a variety of items currently included in the Form and Instructions.
The Commission received suggestions to change the existing five
percent threshold but declines to adopt this change. Because of the
complexity of investment structures, minority investors with even low
equity stakes can have formal rights to direct or influence the
strategic decisions of the company, informal channels to exert
influence, or the right to obtain sensitive business information about
the entity in which they are invested. Further, as illustrated in
Figures 6a and 6b, investment groups may be broken up
[[Page 89286]]
across multiple entities that are, for HSR purposes, separate
persons.\334\ These types of organizations can take active positions in
multiple companies in the same or related industry, a trend that the
Commission and commenters have observed. As a result, the Agencies need
to know who these investors are in order to determine whether the
acquiring person has connections to the target's business that could
have competitive effects.
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\334\ In 2020, the Commission proposed changing the HSR Rules to
require aggregation of such interests when determining whether a
filing must be made. 85 FR 77053 (Dec. 1, 2020). The Commission has
not adopted any of those proposals. This more modest proposal to
identify minority shareholders does not create any new obligations
to file but does provide the Agencies with the identity of funds and
other investors that hold, or will hold, interests in entities
related to the acquiring entity through multiple HSR persons,
allowing for further investigation as warranted.
[GRAPHIC] [TIFF OMITTED] TR12NO24.045
[[Page 89287]]
[GRAPHIC] [TIFF OMITTED] TR12NO24.046
The Commission disagrees with the commenters' assertions that this
information is not necessary to assess the competitive effects of the
filed for transaction and is beyond the authority of the Commission. As
discussed in section II.B.1., that analysis requires the Agencies to
understand the scope of the acquiring person's involvement in the
business of the target. Minority holders of entities within the
acquiring person that are related to the acquiring entity may have the
ability to influence decision-making of the acquiring entity and target
post-acquisition. Therefore, they are functionally ``in the deal'' and
their existing business relationships are relevant to a thorough
antitrust analysis of the transaction. The increasing complexity of
corporate structures and investment vehicles has increased the number
of transactions with these types of minority interest holders, and the
Commission has determined that the Agencies need to update the
information requirements to keep pace with these changes.
The Commission finds the additional critiques of the proposal
unpersuasive as well. The Commission addresses arguments about chilling
deal volume and investment levels in section III.C.2. above. As to
commenters opposing this particular change to the Instructions, the
Commission is unaware of any evidence that fundraising or deal volume
was negatively affected during the period prior to 2011 when HSR rules
required broader disclosure of minority investors, nor that such
activity increased when the requirement was dropped. Given the many
other factors that influence the level of investment and M&A activity
generally, the Commission believes it is unlikely that the disclosure
of minority holdings in parties involved in reportable transactions has
any measurable effect on dealmaking or investment levels.
Further, commenters objecting to the Agencies' need for
identification of additional minority interest holders also offered
contradictory critiques, with some stating that the Commission did not
identify transactions where the minority interest holders were relevant
to the competition analysis, and others stating the fact that the
Commission offered two examples demonstrated that the current Form and
Instructions provided the Agencies with sufficient information. First,
cases cited in the NPRM provide examples of enforcement actions brought
by the Agencies on various legal theories and fact patterns and do not
necessarily reflect cases that were discovered through the HSR process.
Second, the need for this information is obvious and its relevance
plain: the Agencies need to know who will be making decisions for the
combined entity post-acquisition. For example, the hypotheticals
discussed above demonstrate that existing information gaps in the
current Form leave the Agencies without enough information to even know
to ask additional questions about additional individuals and entities
within ``A.'' In the hypotheticals above, ``B'' could hold up to a
49.9% stake in an entity related to the transaction and functionally
jointly control the acquiring entity along with ``A.'' Or ``B'' could
hold only 5% but have ancillary rights or outsized influence over the
operations of the acquiring entity (and thus the target after
consummation). Or ``B'' could be its own person for HSR purposes, but
one of several related entities that each has a minority interest that,
when aggregated, account for a significant, or even majority, stake in
the acquiring entity. In any of these scenarios, as well as many
others, the identity of the minority interest holder would be critical
to understanding the competitive implications of the transaction.
Though the filing requirement falls on ``A,'' ``B'' has a seat at the
table, and the Agencies must be able to investigate whether ``B'' has
ties
[[Page 89288]]
to the business of the target. If the Agencies are not alerted to the
existence of ``B'' on the Form, there is no ability to screen for
potential issues that arise from ``B's'' involvement in both the
acquiring entity and, upon consummation, the target.
Regarding concerns about privacy, the Commission notes that the
contents of HSR filings are confidential.\335\ Unlike requirements for
disclosure made by private parties or government rules promulgated to
require public disclosure, information included in HSR filings is
protected by statute. Additionally, disclosure of minority investors,
other than limited partners, which are discussed below, is already
required by the current Form. The proposal to require identification of
additional minority investors, including some limited partners, is an
incremental expansion of what is currently required (and for corporate
entities, less than what was required under the HSR Rules from 1978 to
2011). Additionally, the Agencies often require disclosure of an even
broader group of minority investors, including limited partners, in
response to a Second Request, as discussed in more detail below. The
proposed requirements, therefore, did not introduce any new privacy
concerns, and commenters did not offer any evidence that the current
disclosure rules have created any substantive issues related to
privacy.
---------------------------------------------------------------------------
\335\ 15 U.S.C. 18a(h).
---------------------------------------------------------------------------
The Commission further notes that the proposed requirements do not
require the acquiring person to ask the minority investors for any
information. Therefore, completion of the Form itself should impose no
burden on the minority investors themselves. Only if the identity of
the minority investor reveals a competitively relevant connection and
an investigation is opened would the investor potentially have any
cost. These costs are not imposed by the information requirements of
Form and Instructions but rather by a potential investigation or
enforcement action for a violation of the antitrust laws. Disclosure of
an existing business or financial relationship in an entity that is
engaging in an HSR-reportable transaction is not an improper burden and
allows the Agencies to fulfill their statutory mandate to scrutinize
every filing to determine whether it may violate the antitrust laws.
(b) Identification of Limited Partners
In addition to increasing the number of entities for which minority
shareholders would need to be identified, the Commission also proposed
requiring the identification of minority investors of limited
partnerships that held 5% or more, in addition to the general partner.
Filing persons are currently only required to identify the general
partners of limited partnerships, but not limited partners, regardless
of the percentage held. After considering the comments received
regarding this proposal, the Commission adopts a modified requirement
to identify only the general partner and limited partners that have
certain rights related to the board of directors (or similar bodies) of
entities related to the acquiring entity.
The current requirement to identify only the general partner of
limited partnerships, and not its minority investors, was based on the
understanding that limited partners had no control over the operations
of the fund or portfolio companies.\336\ As discussed above and in
section II.B.1., the operations and investments of limited partnerships
and limited partners cannot be easily generalized. Though some argue
that limited partners may have limited influence over investment or
operational decisions, this is not universally true. Limited
partnerships often file for acquisition of control of entities.
Investment groups, which utilize limited partnerships, often make
investments in specific industries, leaving open the possibility that
there is a competitive relationship between these investments and the
target of the filed-for transaction.
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\336\ 75 FR 57110, 57118 (Sept. 17, 2010) (proposed rule),
adopted 76 FR 42471 (July 19, 2011).
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Further, the Commission has learned through its work that limited
partnerships are not exclusively used as vehicles for diffuse groups of
passive investors to invest their capital. Instead, some limited
partnerships function as aggregation vehicles that allow private equity
or other investor groups to direct the strategic business decisions of
the portfolio companies in which they invest. The decision to organize
as a limited partnership rather than an LLC or incorporated entity may
be driven not by how the entity will function in the marketplace but by
other factors, such as tax and liability.
The scenario in Figure 7a illustrates how the current Form and
Instructions' lack of information about limited partnerships can affect
a preliminary antitrust assessment. ``A'' and ``B'' form a new limited
partnership that will be an acquiring person. ``A'' and ``B'' will each
hold 49.9% of this entity and will have rights related to the board (or
similar bodies) of entities related to the transaction. The remaining
0.2% will be held by the general partner. Pursuant to the current
Instructions, this newly formed acquiring person would not be required
to provide any information other than the name and address of its
general partner when making a filing for a reportable transaction.
[[Page 89289]]
[GRAPHIC] [TIFF OMITTED] TR12NO24.047
Compounding the difficulty in understanding the scope of the
acquiring person's relationships, A Investment Group and B Investment
Group may have used a code name for the transaction, such as ``Project
Alpha,'' and also used that code name to name the newly created entity.
In this scenario, the Agencies could receive a filing from Alpha Fund,
L.P., that only discloses that it has a general partner, Alpha GP, L.P.
There is no requirement that Alpha Fund, L.P. disclose that A
Investment Group and B Investment Group each hold nearly 50% and will
effectively co-own and manage the target after consummation. A Fund I
or B Fund I could be head-to-head competitors of the target (or control
competitors of the target) or have some other competitively significant
relationship with the target. But the current Form would not make the
Agencies aware of their significant stake in Alpha Fund, L.P. As shown
in Figure 7b, the final rules address this by requiring the
identification of A Fund I and B Fund I (and their affiliations with A
Investment Group and B Investment Group, if known to UPE), allowing the
Agencies to research whether the transaction may violate the antitrust
laws.
[GRAPHIC] [TIFF OMITTED] TR12NO24.048
The Commission notes, as did one commenter, that in some instances
the Agencies may receive some disclosure through the reporting of
associate overlaps in current Items 6(c)(ii) or 7(b)(ii) and 7(d).
However, many
[[Page 89290]]
investment groups are set up such that the associate definition, which
focuses on entities, does not apply, even though the same individuals
may be managing multiple funds. The Commission considered changing the
definition of associates but determined that, at this time, it would be
less complex and less burdensome on filers to merely require the
identification of certain limited partners, which the Commission
believes will allow the Agencies to use other sources to conduct a
preliminary assessment of the competitive implication of these minority
holders. If this proves to be insufficient, the Commission may revisit
the requirements in future rulemakings.
Despite the need for identification of some limited partners, the
Commission understands that there are still many limited partners who
are essentially ``silent'' investors that do not participate in
management decisions. They hold only financial interests for the
purpose of earning a return on their investment and do not hold
additional rights or participate in the governance or business
operations of the limited partnership or the investments of the limited
partnership. Therefore, the Commission adopts an incremental change for
the identification of limited partners, implementing in part the
suggestion of one commenter to require only limited partners that have
certain rights related to the board of directors or similar bodies of
entities related to the acquiring entity.\337\ The hypothetical in
Figure 8a shows a structure where the UPE of the acquiring person is a
limited partnership in which its limited partners do not have any
rights related to the board of directors or similar bodies of any of
the UPE, Acquiring Entity, or either of the two Controlled entities
between them. Additionally, UPE controls a limited partnership in which
B Fund, an active co-investor for the transaction, has made its
investment. Currently, UPE is only required to disclose its general
partner.
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\337\ Comment of Dechert, Doc. No. FTC-2023-0040-0659 at 11
(commenting that it is not clear why a broad requirement to disclose
all limited partners who hold interests of five percent or more is
necessary to identify a potential competitive concern irrespective
of such limited partners' ability or inability to participate in the
management or control of the applicable fund, general partner, or
acquired business).
[GRAPHIC] [TIFF OMITTED] TR12NO24.049
As shown in Figure 8b, the final rules would not require the
disclosure of the ``Outside Investor Limited Partners'' because none
has any rights to the board or similar body of an entity related to the
acquiring entity. In contrast, UPE would need to disclose that B Fund
is a limited partner of the Controlled entity as well as the general
partners of UPE and Controlled LP.
[[Page 89291]]
[GRAPHIC] [TIFF OMITTED] TR12NO24.050
In the Commission's experience, competitive concerns that arise
from limited partners holding interests in the acquiring person most
frequently stem from those limited partnerships that act as vehicles
for investor groups to manage, direct, or influence the portfolio
companies in which they invest. The Commission has determined that it
is not necessary to know the names of limited partners that do not also
have certain management rights and the final rule does not require
disclosure of their minority interests.
The Commission expects that this modification will address concerns
of commenters that disclosing limited partners would require investment
firms to renegotiate agreements with limited partners. As discussed
above, there is no restriction on the Agencies' ability to require
disclosure of the identity of limited partners today during an in-depth
investigation of the transaction. As a result, limited partners should
be aware that their holdings may be relevant to an antitrust review of
any transaction involving one of their investments. Indeed, the
Commission has brought enforcement actions against acquisitions
involving minority holdings of limited partners in competing
businesses.\338\ As the agencies charged with enforcing the antitrust
laws, the Agencies have the authority to investigate the commercial
dealings of limited partners for potential law violations regardless of
any private agreements that promise non-disclosure. Therefore, any
deficiency in agreements to permit disclosure to government agencies
already exists. Further, if disclosure is the source of the Agencies'
being made aware of a potential competitive concern with the
transaction, any cost to the limited partner related to the completion
and submission of the HSR Filing is justified because the information
is necessary to determine whether the transaction may violate the
antitrust laws. Nonetheless, the Commission has modified the
requirement to reduce the type of limited partners that must be
disclosed, focusing only on those with the ability to participate in
management or control. On this basis, filers can exclude limited
partners who serve as passive investors, who are essentially the
customers of private investment firms, according to one commenter. To
the extent that these limited partners do not participate in the
management of the filing person, they need not be disclosed as a
minority holder.
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\338\ See, e.g., In re Red Ventures Holdco, LP, No. C-4627
(F.T.C. Nov. 3, 2017) (overlapping limited partnership holdings
violated section 7); In re TC Group, L.L.C., No. C-4183 (F.T.C. Mar.
16, 2006) (acquisition involving minority stake giving two private
equity investors seats on the boards of competitors).
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(iii) Limiting Requirements for Acquired Persons
Finally, the Commission proposed limiting the reporting
requirements for the acquired person. Currently, the acquired person
must identify the name and headquarters address of all holders of 5% or
more but less than 50% of the acquired entity, along with the
percentage held. If the acquired entity is a limited partnership, only
identification of the general partner and its headquarters address is
required. The Commission proposed limiting this requirement to minority
holders of the acquired entity that would hold an interest after that
consummation or would receive an interest in another entity within the
acquiring person as a result of the transaction. However, the proposed
requirements to identify certain limited partners also applied to the
acquired person, if the minority investors will stay with the target
post-acquisition. The Commission adopts this proposal with
modification.
The proposed limitation to identify only minority interest holders
of the target that will remain invested after consummation is intended
to reduce the cost of complying with the final rule for the acquired
person. The Commission has determined that the identity of any minority
interest holder of the target that will cease to be involved with the
target or acquiring person post consummation has limited relevance to
understanding who could influence decision-making of the business post-
[[Page 89292]]
acquisition. The Commission adopts this portion of the proposed rule.
It modifies the proposed instruction to reflect the modification it
adopts for the identification of limited partners, as described above.
Thus, the final rule will require the acquired person to only identify
minority holders of 5% or more if such holder will continue to be
invested in the target or will acquire an interest in an entity within
the acquiring person. If the target is a limited partnership, only
limited partners (1) that hold 5% or more in the acquiring entity, (2)
will continue to hold an interest in the acquired entity, or acquire an
interest in the acquiring person, after the transaction is consummated,
and (3) will have that have certain rights related to the board of
directors or similar bodies of entities related to the acquiring entity
will need to be identified. If the acquired person does not have this
information, it can so note in an endnote.
The Commission also notes that one commenter focused on the
requirement to identify roll-over investors, stating it would be a new
burden that would discourage continued post-transaction investment. The
Commission disagrees with this assessment. Currently, the acquired
person already must identify all 5%-49.9% holders of the acquired
entity, including roll-over investors. Further, the Commission once
again notes that the amount of information required is limited; only
the name of the minority interest holder (and the name of the master
limited partnership, fund, or investment group, if applicable), its
headquarters address, the name of the acquired entity it holds an
interest in, and the percentage held must be disclosed.
2. Acquiring Person and Acquired Entity Structure
The Acquiring and Acquired Person Structure sections of the Form
and Instructions require the reporting of information currently
required by Items 1(f), 4(a) and (b), and Item 6(a). The Commission
proposed that filing parties provide more information about the
structure of the acquiring person and acquired entity, as well as the
names under which they do business. The Commission also proposed a
clarification regarding annual reports and audit reports of natural
person UPEs. As discussed below, the Commission adopts some of these
proposals without change and some with modification.
a. Entities Within the Acquiring Person and Acquired Entity
This section contains information currently required by Items 1(f)
and 6(a) of the current Form. The Commission proposed requiring filing
persons to organize the list of controlled entities by operating
company or business, and, for each such operating company or business,
the Commission proposed that filers identify the name(s) by which the
company or business does business, as well as any name(s) by which it
formerly did business within the three years prior to filing. The
Commission adopts the proposal with modification.
The Commission received several comments opposed to this proposal.
One commenter stated that the Agencies do not need to know the
relationships between and among all related entities for its initial
review of the HSR filing. The commenter asserted that the majority of
covered entities will likely have no overlapping activities with the
acquired company, and thus learning about them adds no value to the
Agencies' initial screen. The Commission disagrees that the Agencies do
not need this information and that it adds no value to the initial
screen. This is the very information that allows the Agencies to
understand what businesses are involved in the reported transaction.
The Commission does, however, make several modifications to these
proposals that should reduce the cost of providing this information.
The Commission adopts the proposal to require DBA names but does not
adopt the proposal to adopt ``formerly known as'' (FKA) names. One
commenter noted the difficulty of providing ``doing business as'' names
for filing parties that do not maintain such records, but the
Commission believes these DBA names will be of great value to the
Agencies in the initial waiting period. Businesses create (or change)
DBA names for a variety of reasons and may be required to register
these names with State or local authorities. One commenter objected to
the three-year period, and, as part of its overall efforts to reduce
costs associated with an HSR Filing, the Commission eliminates this
lookback so that filing parties must only provide this information as
it stands at the time of filing.
Another commenter recommended that for executive compensation
transactions the filing persons be permitted to dispense with the
requirement to report ``doing business as'' names, assuming certain
conditions are met. They stated that these transactions are unlikely to
generate meaningful antitrust issues but that requiring prior business
names will add materially to the burden on the acquired side without a
corresponding benefit. The Commission agrees and as part of its overall
effort to reduce cost, adopts the modification to allow both filing
parties in select 801.30 transactions (which include those related to
executive compensation) to provide this information as kept in the
ordinary course without DBA names.
Finally, one commenter noted that the proposed rule appears to use
the terms ``operating business,'' ``operating entity,'' and ``operating
company'' interchangeably. The commenter requested clarification of the
definitions or adoption of one term for consistency. The Commission
agrees that using these three terms interchangeably is confusing and
thus adopts ``operating business'' to capture entities that comprise
distinct operations. Under this modification, filing parties need to
organize their response by operating business(es) whether they are
corporations, non-corporate entities, or assets that function as an
operating business.
In sum, the Commission adopts modifications that require filing
persons, except for those in select 801.30 transactions, to organize
controlled entities at the time of filing by operating business and,
for each such operating business, identify the name(s) by which the
operating business does business. For example, a fund must organize its
response by portfolio company(s), and a conglomerate must organize its
response by business(es).
b. Annual Report and Audit Reports
Information for this section is currently required by Items 4(a)
and (b). The Commission proposed clarifying the current instructions
regarding which annual reports and audit reports are required from
natural person UPEs. Currently, natural person UPEs, in lieu of
personal financial documents, must produce financial documents for the
highest-level entity(s) within their person. In addition, natural
person UPEs must produce the same additional reports that non-natural
person UPEs must produce: for acquiring persons, the reports of the
acquiring entity(s) and any entity controlled by the acquiring person
whose dollar revenues contribute to an NAICS overlap; and for acquired
persons, the reports of the acquired entity(s). The Commission proposed
new language to make this requirement clearer and the Commission adopts
this change with modification.
The Commission received one comment that supported the proposal.
Another commenter suggested two
[[Page 89293]]
revisions to the proposed Instructions. This commenter first suggested
that for natural person UPEs who filed as acquired persons, the
instructions should only require the most recent annual reports for the
highest-level entity the Natural Person controls that includes the
assets or entities being sold. Second, as a general matter, the
commenter stated that persons filing notification should not be
required to provide annual reports for entities that have less than $10
million in total assets, unless that entity's revenues contribute to a
competitive overlap between the parties.
In considering the two suggested revisions in this comment, the
Commission agrees that it is sufficient for the UPE of the acquired
person to provide financial reports for only the highest-level entities
that control the acquired entity, as appropriate, in lieu of providing
personal financial documents. The Commission also has determined that
this limitation is appropriate for acquiring persons with natural
person UPEs as well. Therefore, the Commission adopts this suggestion,
and natural persons, in lieu of providing personal financial
statements, will need only provide financial reports for the highest-
level entities that control the acquiring entity or acquired entity, as
appropriate. The financial information for these highest-level entities
should be provided in this section and not the UPE Details section, as
discussed in section VI.D.1.
The Commission declines to adopt the suggestion that persons filing
notification should not be required to provide annual reports for
entities that have less than $10 million in total assets, unless that
entity's revenues contribute to a NAICS overlap or any overlap
identified in the Overlap Description. ``The person filing
notification'' is a defined term for the purpose of the Instructions
and is limited to the UPE. Therefore, other than for natural persons,
the proposed Instructions only require reports from the UPE and, for
the acquiring person, acquiring entity(s) and entities that contribute
to a NAICS overlap, and for the acquired person, the acquired
entity(s), which is consistent with the current requirement. The
Commission finds these reports valuable, regardless of whether those
entities have $10 million in assets.
3. Additional Acquiring Person Information
The Commission proposed requiring additional information about the
acquiring and acquired person. These proposals included a description
of the ownership structure of the acquiring person and acquiring entity
as well as an organizational chart if the acquiring person UPE is a
master limited partnership or fund, information about other types of
interest holders that may exert influence over the acquiring person,
and the identification of officers, directors, and board observers of
the acquiring person and acquired entity. As discussed below, the
Commission adopts some of the items as proposed, adopts some of the
proposals as modified, and does not adopt others.
a. Ownership Structure
The Commission proposed that acquiring persons provide a
description of the ownership structure of the acquiring entity and, for
fund or master limited partnership UPEs, an organizational chart
sufficient to identify and show the relationship of all the entities
that are affiliates or associates. The Commission also proposed that
acquired persons describe the ownership structure of the acquired
entity.
The Commission did not receive any comments regarding the
requirement to provide a description of the acquiring and acquired
entities' ownership structure. The Commission believes that such
descriptions will provide information and nuance about ownership
structures that may not be clear from a simple list of minority
holders. Moreover, descriptive responses allow filers to offer
clarification about the structure, including whether the ownership
structure is subject to change between filing and consummation of the
transaction. As a result, the Commission adopts this item as proposed
for the acquiring person. However, this information is less relevant
from the acquired entity. As part of its efforts to reduce the cost
related to filing where possible, the Commission does not adopt the
proposal for the acquired person.
As for the proposed requirement for the acquiring person to provide
organizational charts, commenters noted that organizational charts are
not always kept in the ordinary course of business, and structures may
be so complex that they cannot be synthesized into a chart. The
Commission acknowledges that there may be some cost associated with
creating organizational charts just for the purpose of making an HSR
Filing and modifies this item to require charts that show the
relationship of entities that are affiliates or associates if such
charts exist, even if they were created for other purposes. The
Commission declines to adopt the suggestion to limit this requirement
to transactions where there is an identified NAICS or product or
service overlap. These charts are necessary for staff to understand the
totality of the transaction, including the role of key decision makers
and their responsibilities relative to the business lines under review.
The complex structure of investment entities is not adequately
captured by the current Form, and there is often no other source for
Agencies to learn of these relationships. Information about the
acquiring entity's ownership structure is therefore necessary and
appropriate for the Agencies to evaluate the transaction at issue. The
Commission has modified the proposal to limit the reporting costs by
requiring only the acquiring person to provide a description of its
ownership structure and to provide organizational charts only if they
exist.
b. Other Types of Interest Holders That May Exert Influence
The Commission proposed an Other Types of Interest Holders that May
Exert Influence section that would have required the acquiring person
to identify certain individuals or entities, beyond those with the
minority interests discussed above, that may have material influence on
the acquiring entity and entities related to it. These included certain
individuals or entities that (i) provide credit; (ii) hold non-voting
securities, options, or warrants; (iii) are board members or board
observers or have nomination rights for board members or board
observers; or (iv) have agreements to manage entities related to the
transaction. As discussed below, while understanding these
relationships can be very important in assessing the competitive
effects of certain transactions, the Commission has elected not to
adopt proposals (i), (ii), and (iv) at this time. As discussed in
section VI.D.3.c., the Commission adopts with modification the proposal
to require identification of officers and directors, which incorporates
some of proposal (iii).
The Commission received several comments in support of the proposed
change to disclose other types of interest holders. One commenter
stated that disclosure of these interest holders would be helpful to
close a loophole when the filing parties may have influence or joint
profit maximizing incentives with rivals. Another commenter noted that
the information would also enable the Agencies to assess conflicts of
interest or the potential for inappropriate sharing of competitively
sensitive information. Other comments highlighted the
[[Page 89294]]
importance of identifying situations in which a single creditor to
competing firms could have an incentive to facilitate their
coordination or collusion as well as situations in which a private
lender may assert control or an investor may have a dual role as
private provider of leveraged loans to finance buyouts.
The Commission also received several comments opposed to these
proposed changes. Critics noted that some of this information may not
be available at the time of filing or would be burdensome to collect
and report. Others questioned the utility of the information. Another
commenter noted that it will not be readily apparent whether identified
entities or individuals have overlaps, supply, or other relationships
relevant to the target.
In regards to identifying certain creditors, commenters stated that
in the vast majority of credit arrangements, the creditor's rights and
financial incentives are distinctly different than those of equity
holders and that many creditors are unable to control investment
decisions. In addition, one commenter observed that these disclosure
requirements could impede access to credit, which would seriously
impact private equity as its deals frequently rely on third-party
financing. Several commenters also expressed concern about the burden
of identifying and describing complex credit arrangements, particularly
for infrequent filers.
Regarding the proposed requirement related to non-voting
securities, options, or warrants, one commenter questioned the
necessity of the information to examine the anticompetitive effects of
any proposed transaction, noting that, in exempting acquisitions of
non-voting securities from filing, Congress must have concluded, based
on the legislative history, that such acquisitions pose no
anticompetitive threat. No specific comments were received with respect
to the proposed requirement to identify individuals or entities that
have agreements to manage entities related to the transaction.
The Commission disagrees with assertions that information about
individuals or entities that can influence the acquiring person through
mechanisms such as credit relationships, non-voting interests, or
management contracts is not relevant to the assessment of the
competitive effects of a reported transaction. Further, the Commission
notes that the HSR Act specifically defines voting securities as
securities which at present or upon conversion entitle the holder the
right to vote for the board of directors.\339\ Nevertheless, the
Commission acknowledges that the mechanisms of influence or managerial
control are often bespoke and vary from entity to entity. The proposed
rule was intended to sweep broadly but in a manner that was
straightforward and relatively uncomplicated for filers to navigate.
The comments raised issues that warrant further consideration. Given
the other proposals that the Commission does adopt, particularly
identification of additional minority interest holders, information
about officers and directors of entities related to the acquiring
entity, and the collection of additional documents, the Commission has
decided not to adopt the proposals related to credit relationships,
non-voting securities, and management agreements at this time. If these
additional requirements still leave significant gaps in information
that impede the Agencies' ability to screen for transactions that
warrant additional investigation, the Commission may revisit these
proposals in future rulemakings.
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\339\ 15 U.S.C. 18a(b)(3)(A).
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c. Officers and Directors
The Commission proposed adding a section that would have required
the identification of the officers, directors, or board observers (or
in the case of unincorporated entities, individuals exercising similar
functions) of all entities within the acquiring person and acquired
entity. Further, the proposal required for those individuals, the
identity of other entities for which those individuals currently serve,
or within the two years prior to filing had served, as an officer,
director, or board observer (or in the case of unincorporated entities,
roles exercising similar functions). After consideration of the
comments and in light of the varied roles that religious or political
non-profit organizations can play, the Commission has determined to
narrow this requirement to (1) eliminate reporting related to board
observers; (2) limit reporting to certain entities within the acquiring
person (including officers and directors of the acquired entity who
will continue to hold one of these positions post-consummation, if the
acquiring person has filed for the acquisition of control); (3) only
require identification of officers or directors that serve in those
roles at the target or entities that are in the same industry as the
target; and (4) exempt any non-profit entity organized for a religious
or political purpose, even if that entity carries on substantial
commerce, as described below.
Several commenters wrote in support of the proposal, recognizing
the value to the Agencies' understanding of the ownership and
management structure of companies involved in the transaction. One
commenter stated that common board members at intermediate levels of
ownership can influence competition directly. Another commenter also
noted that private equity minority investment interests can confer
rights to appoint board members or allow board observers that create
anticompetitive opportunities to exert coordinated market power. This
comment further explained that some entities place the same person on
several boards to coordinate business strategies across those entities
even where they hold only minority positions. The Commission agrees
that, due to the influential impact that officers and directors can
have on competitive decision-making of entities within the acquiring
person, this information is relevant to the Agencies' initial antitrust
assessment of the acquiring person's acquisition of interests in the
target. The same commenter recommended that the Commission require
disclosure of board membership information for any prior acquisitions
identified in the HSR Filing. Because this requirement has been
designed to identify potential competitive concerns between acquiring
person and target at the time of filing and going forward, the
Commission declines to expand the final rule to require this historical
information.
However, the majority of the comments related to this proposal
suggested significant modifications, either by eliminating the
requirement in its entirety or acknowledging the relevance of the
information but urging revisions to more narrowly tailor the
requirements to achieve the Agencies' objectives. Critics across both
of these groups raised some common issues.
Some commenters questioned the Commission's authority to require
information on common officers and directors in an HSR Filing to
enforce section 8 of the Clayton Act, pointing to the absence of any
reference to section 8 or interlocking directorates in the HSR Act or
in the Commission's original Statement of Basis and Purpose issued with
the final HSR rules in 1978. A law firm commenter stated that
legislative statements support that Congress disavowed any intention
that premerger notification be used to allow the accumulation of
information on businesses for general enforcement purposes, and the
commenter asserted that the HSR Act is concerned only with potential
violations of section 7. Another commenter wrote that even if it was
appropriate to enforce section 8 using the HSR Act process, the
[[Page 89295]]
proposed instructions went beyond the text of section 8 by requiring
information about unincorporated entities as well as historical
information.
Additionally, several commenters questioned the Commission's legal
basis for the requirement to report officers and directors. For
example, one commenter stated that this requirement had no bearing on
the antitrust analysis of transactions under section 7 and that the
NPRM does not provide evidence that the Agencies have missed
anticompetitive interlocks due to lack of information in HSR Forms. One
commenter stated that the NPRM does not identify any cases where a
court stated that this information has relevance for review under
section 7 of the Clayton Act.
The Commission disagrees that the identity of officers and
directors is immaterial to an analysis of whether an acquisition may
violate section 7. As described in sections II.B.1 and VI.D.1.d.ii, and
elsewhere, the structures of entities have become more complex,
allowing for the levers of influence and managerial control to be
distributed through a variety of mechanisms beyond controlling equity
stakes, or even minority equity stakes. The important role of board
members in particular has been recognized in court cases and the focus
of consent decrees to resolve competitive issues.\340\
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\340\ See, e.g., In re Red Ventures Holdco, LP, No. C-4627
(F.T.C. Nov. 2, 2017) (complaint) (overlapping limited partnership
holdings that provided board seats violated section 7); In re TC
Group, L.L.C., No. C-4183 (F.T.C. Mar. 16, 2006) (complaint)
(acquisition involving minority stake giving two private equity
investors seats on the boards of competitors); In re Time Warner
Inc., No. C-3709 (F.T.C. Sept. 12, 1996) (analysis to aid public
comment) (walling off two individuals and one entity to prevent them
from influencing officer, directors, and employees of competitor and
its day-to-day operations). See also cases cited in section II.B.1.
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Further, contrary to assertions that the HSR Act limits the
Agencies to evaluating whether a notified transaction may violate
``Section 7,'' the HSR Act explicitly directs the Agencies to
promulgate rules necessary and appropriate to determine whether a
notified acquisition may, if consummated, violate the ``antitrust
laws.'' \341\ The HSR Act amended the Clayton Act, and the term
``antitrust laws'' is defined in the Clayton Act to include the Sherman
Act and the Clayton Act, including section 8's prohibition on
interlocking directorates.\342\ As discussed in the NPRM, when the
Agencies do become aware of existing or potential interlocks created by
a reported transaction, they typically seek to remediate them
consistent with the Agencies' enforcement authority and before
consummation of the transaction. Counter to suggestions that the
proposal sought to create a ``dossier'' on the filing parties for
general enforcement purposes, this information is relevant to enforcing
the antitrust laws with respect to the transaction under review.
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\341\ See 15 U.S.C. 18a(d)(1).
\342\ See 15 U.S.C. 12.
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Moreover, while a notified transaction could create a violation of
section 8 as described in the NPRM, the same competitive concerns that
underpin section 8 are also relevant to whether a transaction would
violate section 7. In fact, as highlighted by some commenters, section
8 does not necessarily cover all officer and director relationships
that may give rise to competition issues. But that does not mean that
these relationships are benign or that they do not create the same
opportunities or incentives to coordinate competitive decision-making,
for example, if the CEO or director of the acquiring entity serves as a
member of the board of a rival of the target. In this scenario, section
8's thresholds for strict liability may not capture this relationship,
but it would be relevant to analysis under section 7, particularly in
nascent markets where one of the entities involved does not meet the
minimum sales trigger for application of section 8.\343\ That risk
alone is relevant to the Agencies' assessment of whether the
transaction is likely to substantially lessen competition or tend to
create a monopoly in violation of section 7, regardless of whether the
interlock is of the type that violates section 8. It is in part because
the Agencies cannot rely on section 8 compliance to capture all
relationships that create interlocks between entities with competitive
relationships that the Commission proposed the new section.\344\
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\343\ Section 8 of the Clayton Act, 15 U.S.C. 19, prohibits,
with certain exceptions, one person from serving as an officer or
director of two competing corporations if two thresholds are met.
Competitor corporations are covered by section 8 if each one has
capital, surplus, and undivided profits aggregating more than
$10,000,000 with the exception that no corporation is covered if the
competitive sales of either corporation are less than $1,000,000. In
accordance with section 8(a)(5), the Commission adjusts these
thresholds annually based on changes in gross national product. The
thresholds in effect for 2024 are $48,559,000 and $4,855,900
respectively. 89 FR 3926 (Jan. 22, 2024).
\344\ Commenter International Bar Association notes that
beginning in September 2023, the European Union requires merging
parties to provide information on any current interlocking
directorships, and that Brazil requires similar information for both
fast-track and regular notifications. See Comment of Int'l Bar
Ass'n, Doc. No. FTC-2023-0040-0687 at 16-17. While this is not a
basis for the final rule, the Commission notes that this information
is relevant to competition issues examined in other jurisdictions.
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Currently, the Agencies cannot screen for these relationships
unless they are mentioned in the transaction documents submitted with
the HSR Filing, and often they are not. This information is often not
publicly available from any source other than the filers. As explained
in the NPRM, information on the identity of officers and directors will
help the Agencies identify potential anticompetitive harms that may
arise from the proposed transaction.
Additionally, identification of these individuals will assist the
Agencies in determining whether the filers have had an opportunity to
improperly share confidential information or integrate their businesses
before the HSR Act's waiting period expires. For the Agencies to
conduct a thorough premerger review, the business operations of the two
filing entities must maintain their premerger competitive status quo
until the HSR waiting period expires. When the Agencies are aware that
there are common officers and directors, they may investigate whether
there are on-going communications or interactions affecting the
premerger competitive status quo, for example, by interfering with the
other filer's competitive decision-making or placing executives from
one entity into management positions at the other.\345\ The Commission
believes that information about these relationships is relevant to
ensuring that the parties are complying with the requirements of the
HSR Act to hold their operations separate and continue to compete until
the expiration of the waiting period. This is true regardless of the
antitrust risk presented by the transaction or the possibility that
these relationships are improper interlocks; parties must wait until
the waiting period has expired to begin integrating operations.
Violations of the
[[Page 89296]]
stay provisions of the HSR Act are subject to civil penalties.\346\
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\345\ The Agencies' concern about premature coordination between
merging firms, referred to as ``gun jumping,'' dates back many
decades, and they have brought enforcement actions for violations of
the HSR Act, as well as other antitrust laws that prohibit
competitors from acting jointly prior to consummation of any
acquisition. See also Note by the United States to the OECD,
Suspensory Effects of Merger Notifications and Gun Jumping (Nov. 27,
2018) (DAF/COMP/WD(2018)94), https://www.ftc.gov/system/files/attachments/us-submissions-fjun-2010-present-other-international-competition-fora/gun-jumping_united_states.pdf. For a discussion of
cases prior to 1995, see Mary Lou Steptoe, Acting Dir., Bureau of
Competition, Fed. Trade Comm'n, Prepared Remarks Before A.B.A. Sec.
Antitrust L. Spring Meeting, 1994 WL 642386 (Apr. 7, 1994).
\346\ 15 U.S.C. 18a(g)(1). See, e.g., United States v. Legends
Hospitality Parent Holdings, LLC, No. 1:24-cv-5927 (S.D.N.Y. filed
Aug. 5, 2024) (seeking civil penalties for obtaining beneficial
ownership of acquired person prior to expiration of HSR waiting
period); United States v. Duke Energy Corp., No. 17-cv-00116 (D.D.C.
Apr. 7, 2017); United States v. Input/Output, Inc., No. 1:99-cv-
00912 (D.D.C. May 13, 1999).
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Two commenters objected to requiring board observer information as
outside the scope of section 8 and not related to the Agencies'
antitrust assessment of the transaction. The Commission is aware that
board observers do not have the same rights and duties as officers or
directors. Comments submitted in response to the Commission's December
2020 Advance Notice of Proposed Rulemaking stated that individuals
serving as board observers typically receive the same information as
the board of directors but there may be ways to exclude them from
reviewing privileged or competitively sensitive information.
Consequently, the Commission views the risks of sharing competitively
sensitive information or changing competitive decision making via board
observers to be lower than the risk present with officers and
directors. As a result, the Commission agrees that the need for
information about board observers is not as great at this time for the
purpose of the Agencies' premerger risk assessment, and the final rule
does not require filers to identify individuals who have these rights.
In addition to comments related to the authority \347\ and purpose
of the proposed rule, several commenters raised concerns about the
burden of collecting this information, especially historical
information about individuals no longer serving in one of these roles,
noting that it has little relevance and would be burdensome to collect.
One commenter suggested that the requested information on officers and
directors be limited to any positions they currently serve or expect to
serve in the future. Another comment agreed, noting that current and
expected future overlaps are relevant for assessing interlocking
directorships and coordinated effects, but that detailed and historic
information across all entities of the company has minimal relevance to
the antitrust assessment of a particular transaction. Citing practical
concerns, another comment noted that there should be no requirement to
collect post-departure information from former personnel.
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\347\ Comment of A.B.A. Antitrust L. Sec., Doc. No. FTC-2020-
0086-0015 at 10 (board observers generally receive the same
information that a director would except when there are conflict-of-
interest issues or when the information concerns competitively
sensitive topics); Comment of Comput. & Commc'ns Indus. Ass'n, Doc.
No. FTC-2020-0086-0002 at 11 (board observers are usually entitled
to the same information as board directors although companies have
more leeway to exclude observers from privileged or competitively
sensitive information).
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Other commenters stated that the burden of collecting any
information about officers and directors was not justified by the
benefit to the Agencies' review of any reported transaction. Some cited
the higher burden of this requirement for large companies. For
instance, one commenter noted that, in some instances, the individuals
that would be identified would not be relevant to the Agencies'
premerger review because, for small subsidiaries within a large
entity's corporate structure, an officer might be someone who merely
drew up the paperwork forming the entity whose role would not be
relevant to the Agencies' antitrust assessment. Another suggested
limiting this requirement to certain revenue thresholds or entities
with overlaps or other relationships.
Additional commenters objected to having to report information
regarding any individual's board membership or other association. They
raised concern that this requirement could sweep in memberships with
religious, political, or other non-commercial groups. One commenter
stated that some of these individuals do not want to share information
about their membership in certain organizations. The Commission has no
intention of forcing disclosure in the HSR Filing of any officers or
members of the governing board of non-commercial entities, or other
non-profit entities with a religious or political purpose. The Form and
Instructions that are part of this final rule counsel filers not to
report any individual's role as a director, officer, or member of a
non-profit entity organized for a religious or political purpose, even
if that entity carries on substantial commerce. Filers who would
otherwise be required to report these affiliations are excused from
such reporting.
In response to the comments and to better tailor this requirement
to the purpose of premerger review, the Commission has further decided
to limit this requirement in several ways. First, the Commission has
eliminated the requirement to identify officers or directors of
acquired entities; the requirements of the final rule related to
reporting information for officers and directors will apply to the
acquiring person only. Second, the Commission limits the entities
within the acquiring person to entities that (1) have responsibility
for the development, marketing, or sale of products or services that
are reported overlaps identified in the Overlap Description or supply
relationships identified in the Supply Relationships Description or (2)
directly or indirectly control or are controlled by the acquiring
entity. If any of these entities is a non-profit entity organized for a
religious or political purpose, even if that entity carries on
substantial commerce, no reporting is required for individuals serving
as officers or directors. Third, the Commission has limited the
lookback periods contained in the proposed rule. For entities in
category (1), filers will report officers and directors serving within
three months prior to the HSR Filing. For category (2), there is no
requirement to lookback to any individual who is no longer serving as
an officer or director at the time of the HSR Filing but filers must
consider individuals who have not yet officially taken the relevant
positions. Fourth, the acquiring person will only be required to report
the names of officers and directors of these entities if those
individuals also serve as an officer or director of an entity that
derives revenue in the same NAICS code (or is in the same industry) as
the target at the time of filing and the name of such other entities.
This will result in a list of only those individuals with the relevant
connection.
As noted elsewhere, the Commission has carefully evaluated each of
the requirements of the proposed rule in light of the comments and
adjusted the final rule to calibrate information requirements to
antitrust risk, burden, and importance to the Agencies' ability to
screen for transactions that may violate the antitrust laws. On
balance, the Commission has determined that an analysis of the board of
the target entities is less probative in analyzing the potential
effects of the transaction than is an analysis of certain entities
within the acquiring person. Many filings are for acquisitions of
control, and therefore the officers or directors of the target often
change upon consummation. For those transactions where control is not
being acquired, the acquired person may not be a party to the
transaction, making the burden of collecting the information in the
period of time between when it receives the required notice letter and
when its filing is required higher than that of the acquiring person,
which generally controls the timing of its filing. As a result, the
Commission has not adopted the proposal for the acquired person.
For the acquiring person, as discussed elsewhere, due to the
competitive significance of entities with products or services in
development that have not
[[Page 89297]]
yet generated any revenue, the Commission declines to adopt a de
minimis revenue requirement for this information but agrees that
information related to officers and directors is most relevant to the
antitrust assessment when the companies have an existing business
relationship or are related to the entity making the acquisition. Thus,
the Commission modifies this proposal to look only at those entities
within the acquiring person that are responsible for the development,
marketing, or sale of the products or services identified in the
Overlap Description or the Supply Relationships Description, or
directly or indirectly control or are controlled by the acquiring
entity. This modification addresses commenters' concern about
potentially needing to report information on many officers and
directors, especially across larger or more diffuse organizations with
many subsidiaries irrespective of antitrust risk. So modified, this
requirement would focus the Agencies' inquiry on those entities that
would be most likely to have a competitively important relationship
with the target post-consummation.
The Commission believes that limiting this information requirement
to those entities for which the acquiring person and the target have
reported overlaps or supply relationships in the same sector as well as
the entities that are related to the acquiring entity provides
information the Agencies need for premerger screening. As modified,
this requirement properly targets the information that reveals any
antitrust risk that common officers and directors could act to
undermine competition during the waiting period or post-consummation.
The Commission acknowledges that there may be other such relationships
involving the parties to the transaction that may be relevant to the
competition assessment under section 7 or that present section 8
concerns but agrees that the Agencies can continue to collect this
information only for those transactions that are flagged for closer
review. While the final rule may impose a higher cost to large
companies with many competitively relevant business lines, the
Commission believes that the benefit to the Agencies is necessary and
proportionate: it is more difficult for the Agencies to discover on
their own all the individuals who serve in these key roles at different
levels of larger companies when those companies have many business
lines related to the target.
The Commission has also considered comments related to the proposed
lookback period, and, in light of these concerns and to minimize the
cost of collecting historical information about officers and directors,
the Commission has modified this requirement to shorten the lookback
period to three months before the filing date. The Commission believes
providing information about individuals who served in one of these
positions recently, but not at the time of the filing, is sufficient to
identify those individuals who would have been in a position to share
competitively sensitive information during a due diligence or
negotiation phase for the transaction. It will also serve as a
disincentive for these individuals to step down temporarily to avoid
disclosure on the HSR Form.
Once the relevant entities and individuals have been identified
(and excepting any non-profit entities organized for religious or
political purposes), the acquiring person must determine whether those
individuals also serve as an officer or director (or in the case of
unincorporated entities, roles that serve similar functions) of another
entity that derives revenue in the same NAICS codes as the target. If
NAICS codes are unavailable, reporting should be based upon the
industry overlaps, to the knowledge and belief of the acquiring person
or the officer or director. Only if an individual serves in such
capacity does the acquiring person need to provide the name of that
individual, along with the name of the entity within the acquiring
person they serve as an officer or director, their title at that
entity, and the name of the other entity for which they serve as an
officer or director (and excepting any non-profit entity organized for
religious or political purposes). The Commission believes that these
limitations will allow the Agencies to have information about key
affiliations with other businesses in competitive overlap relationships
while limiting the burden on filing parties and their officers and
directors.
Finally, commenters representing the pharmaceutical industry voiced
concerns about the applicability and effects of the proposed
instruction on reportable transactions in the pharmaceutical and
biomedical sectors. For example, one pointed out that biotech firms
generally rely on a small cadre of qualified directors and officers who
have the appropriate business background and stated that disclosure of
these positions in an HSR Filing would discourage highly sought-after
experts and specialists from accepting biotech leadership roles.
Another explained that many pharmaceutical transactions that trigger
HSR Filings involve only the acquisition of exclusive licenses, where
the parties remain as independent firms post-transaction. This
commenter also objected to reporting this information for acquisitions
of companies with no sales.
The Commission is aware, from its own experience and from research
done by others,\348\ that there are individuals who serve on the boards
of multiple life science companies. The final rule does not impose a
disproportionate obligation for companies operating in this sector;
these individuals are obligated to comply with the antitrust laws
regarding interlocks as much as individuals serving in other sectors.
The Commission does not agree that there is a unique risk that
disclosure of recent, current, or future leadership positions will
limit the number of talented and qualified individuals who are
available to serve as officers or directors in the biopharma or life
sciences sector beyond whatever limits the antitrust laws impose. Many
sectors prefer knowledgeable professionals with distinct credentials
and experience to serve as board members. Moreover, the cost of
reporting these relationships is directly related to the number of
reportable transactions that occur each year in this sector and the
number of existing or potential relationships. The Commission does not
believe that HSR reporting requirements will improperly deter qualified
individuals from serving on the boards of these or any other companies.
---------------------------------------------------------------------------
\348\ See Lemley, supra note 316.
---------------------------------------------------------------------------
The Commission believes that the modifications made to the final
rule will ensure that the Agencies receive the information about
recent, current, and future officers and directors that may create
opportunities for anticompetitive harm under any antitrust law,
including section 7 of the Clayton Act, section 1 of the Sherman Act,
or the HSR Act itself. The Commission disagrees that the instruction
will newly create a chilling effect on lawful and procompetitive
activity or board membership. When individuals agree to serve as board
members, they take on fiduciary responsibilities that statutory and
common law require. Separate from any HSR requirements, these fiduciary
duties require directors to, inter alia, act in the best interest of
the organization and to ensure that the organization follows applicable
laws.\349\ Courts have found that directors may breach their duty of
loyalty if they do not make a good faith effort to provide adequate
[[Page 89298]]
oversight and monitoring.\350\ A merger or acquisition that requires
reporting under the HSR Act is not an insignificant occurrence. When an
organization to which an individual owes a fiduciary duty is involved
in a reportable transaction, it is reasonable to expect those
individuals to exercise their duties of care and loyalty by
participating in compliance activities. Moreover, individuals who serve
on boards must comply with the prohibitions in the antitrust laws that
relate to interlocks and should be aware of how their role in a senior
leadership position is relevant to the Agencies' assessment of proposed
transactions. These risks exist without regard to the disclosure of
their board position in an HSR Filing. Given the responsibilities that
board members already carry, the Commission believes that the reporting
requirement is reasonable and appropriate, particularly when balanced
against the increased transparency and value it provides to the
Agencies' premerger antitrust analysis.
---------------------------------------------------------------------------
\349\ Jeremy S. Piccini, ``Director Liability, the Duty of
Oversight, and the Need to Investigate,'' Bus. L. Today 1 (Feb./Mar.
2011).
\350\ See Marchand v. Barnhill, 212 A.3d 805, 824 (Del. 2019)
(reversing dismissal of stockholder's claims that directors breached
their duty of loyalty by failing to establish a reasonable system of
controls and reporting regarding food safety in connection with
listeria outbreak); In re Boeing Co. Derivative Litig., No. CV 2019-
0907-MTZ, 2021 WL 4059934, at *33 (Del. Ch. Sept. 7, 2021) (finding
that plaintiffs stated a claim that board breached its duty of
oversight by failing to establish a reporting system for airplane
safety).
---------------------------------------------------------------------------
In sum, the Commission has determined that the reporting
requirements for UPEs contained in the final rule are necessary and
appropriate to enable the Agencies to identify transactions that may
violate the antitrust laws because the acquiring person and the target
have existing business relationships, including through shared
individuals or entities, that must be considered as part of that
assessment, and that these requirements, as modified, have been
tailored to reduce the cost of reporting as much as practicable.
E. Transaction Information
This section of the Form and Instructions reorganizes, clarifies,
and expands the information required in the initial portion of the
current Form as well as in Items 2, 3, and 5. The Commission proposed
new sections to facilitate the reorganization, clarification, and
expansion of these items and received comments on certain portions of
the Transaction Information section. As discussed below, the Commission
adopts some of these proposals without change and some with
modifications.
1. Parties
This section requires the information currently mandated by Item
3(a). The Commission did not propose and does not adopt any material
changes to the information required by this item.
2. Transaction Details
This section requires the information currently mandated by Items
2(b), 2(c) and 2(d). The Commission did not propose and does not adopt
any material changes to the information required by these items. The
Commission notes that the requirement to indicate the notification
threshold in Item 2(c) is not applicable to the acquired person and is
therefore excluded from the Form and Instructions for the acquired
person. The Commission did not propose and does not adopt any material
changes to the information required by this item.
3. Transaction Description
This section requires the information currently mandated by Items
2(a) and Item 3(a). The Commission did not propose and does not adopt
any material changes to information required by these items. The
Commission also proposed requiring the acquiring person to describe the
business operations of all the entities within the acquiring person,
which it adopts with modification, as discussed below.
a. Business of the Acquiring Person
The Commission proposed requiring the acquiring person to briefly
describe the business operations of all entities within the acquiring
person to provide a clear overview of all aspects of the acquiring
person's pre-transaction business. The Commission adopts the proposal
with modification.
The Commission received two comments expressing general support for
the proposal, with one noting that the change is essential to ensuring
that the Agencies can meet the statutory deadline. One law firm
commenter was critical of the burden that the proposal would impose,
stating that companies may have several dozen subsidiaries and written
descriptions as to each of the respective business operations is not
information readily maintained in the ordinary course of business and
could be incredibly burdensome to collate.
The Commission adopts a clarified version of this requirement. The
proposal was intended to require a short description of the operating
businesses within the acquiring person, not an entity-by-entity
description. The Commission understands that a single operating
business may comprise multiple entities, such as shell entities or
separate entities for each location of the business. Therefore, the
Commission amends the requirement to remove ``of all entities within''
to make clear that the acquiring person does not need to describe its
operations on an entity-by-entity basis.
Understanding the business of the acquiring person is necessary to
understanding the potential competitive implications of the
transaction. Investment groups often control multiple portfolio
companies across many lines of business. Similarly, some corporations
also have multiple and varied operations. These other operations may be
related to the operations of the target, even if they do not directly
overlap with it. Therefore, particularly for acquiring persons with
complex structures or many businesses, knowing just the business of the
acquiring entity is not sufficient for the Agencies to evaluate the
impact of the acquiring person merging with or acquiring an interest in
the target. The scope of the acquiring person's holdings is often not
publicly available, necessitating the Agencies receiving the
information from the acquiring person itself.
b. Business of the Target
This section requires the information currently required by Item
3(a). The Commission did not propose and does not adopt any material
changes to the information required by this item.
c. Non-Reportable UPEs
This section requires the listing of non-reportable UPEs, which is
currently required by Item 2(a). The Commission did not propose and
does not adopt any material changes to the information required by this
item.
d. Transaction Description
This section requires the information currently mandated by Item
3(a). The Commission did not propose and does not adopt any material
changes to the information required by this item.
e. Related Transactions
This section requires filing persons to identify related
transactions, and the Commission proposed a list of common
circumstances in which multiple filings are required to guide filing
parties in their responses. Although Item 3(a) of the current Form asks
parties to indicate whether there are additional filings related to the
transaction, filers sometimes overlook this requirement. The Commission
received three comments in support of the proposed changes, with one of
these commenters
[[Page 89299]]
noting that they appear to be reasonably designed to provide
potentially helpful clarification. The Commission adopts this
requirement as proposed.
f. Transactions Subject to International Antitrust Notification
The Commission proposed creating a Transactions Subject to
International Antitrust Notification section that would require parties
to identify the jurisdictions where each filing person has already
filed or is preparing notifications to be filed as well as a list of
the jurisdictions where it has a good faith belief it will file. The
Commission adopts this requirement as proposed, but only for the
acquiring person.
Although the Form currently asks filing parties to voluntarily
identify other jurisdictions in which filings will be made, most filers
do not disclose the information even though more and more transactions
are subject to review in multiple jurisdictions around the world. As
noted in the NPRM, in order to fully benefit from inter-agency
consultations, the Agencies need to know as early as possible which
foreign jurisdictions may also be evaluating a proposed transaction.
The Commission received two comments in opposition to this
proposal. One commenter expressed concern about the effects of inter-
agency consultations, and another recommended maintaining the status
quo where filers voluntarily identify other jurisdictions where the
transaction will trigger premerger notification under the laws of that
jurisdiction. Both stated that the proposal would only impact
international companies, which might be forced to speculate about
potential foreign filings. The Commission acknowledges that the
proposed requirement will have a greater impact on companies with
operations outside the United States. But the Commission disagrees that
it is asking parties to speculate about potential foreign filings;
however, it has determined that it is sufficient for the information to
be provided only by the acquiring person. As stated in the NPRM, the
text of the proposed rule provides flexibility for parties who, at the
time of the HSR Filing, may not have yet identified all the other
jurisdictions where they will file. Indeed, the final rule specifies
that filing parties can respond based on their good faith belief, which
provides filing parties with the ability to respond based on their
knowledge at the time of filing. Otherwise, the requirement asks for
facts that are already known: the jurisdictions where the party has
already filed and the ones for which it is preparing a filing. The Form
also affords parties the option to voluntarily make certain waivers
related to other jurisdictions, as discussed in section VI.K.3.
Accordingly, knowing which other jurisdictions are reviewing the
transaction can expedite the waiver process if the parties intend to
provide a waiver after filing.
Given the importance of knowing which foreign jurisdictions may
also be evaluating a proposed transaction and the benefits to the
Agencies and the parties of early case-specific cooperation facilitated
by waivers, the Commission adopts this necessary change as proposed for
the acquiring person. However, because filing parties often coordinate
their notification to other jurisdictions and in order to further
reduce the burden on acquired persons, the Commission does not adopt
the change for acquired persons because it is sufficient to obtain this
information from only one filing party.
4. Additional Transaction Information
a. Transaction Rationale
The Commission proposed that the acquiring and acquired person be
required to describe all strategic rationales for the transaction.
These rationales would include those related to, for example,
competition for current or known planned products or services that
would or could compete with a current or known planned product or
service of the other reporting person, expansion into new markets,
hiring the sellers' employees (so-called acqui-hires), obtaining
certain intellectual property, or integrating certain assets into new
or existing products, services, or offerings. The Commission also
proposed that the filing person identify which documents submitted with
the HSR Filing support the rationale(s) described in the narrative. The
Commission adopts the requirement as proposed but does not require the
information from select 801.30 transactions.
The Commission received several comments supporting disclosure of
transaction rationales. Individual commenters described the changes as
common-sense requirements and noted the need to ensure each party in
the transaction explains the reasoning from their perspective. One
commenter stated that mergers may be beneficial to an acquiring company
for anticompetitive reasons that might not be immediately apparent from
a surface-level analysis of market shares and concentration in a
particular market, and that requiring a firm to submit its
justification for the strategic wisdom of a particular transaction
would help diminish the role of guesswork in the Agencies' review of a
proposed merger.
Commenters opposing disclosure of transaction rationales focused on
the evolving nature of the information, which may very well differ
across the various personalities and business roles that span an
organization and which in some instances may be only discovered in the
course of post-signing diligence. The Commission understands that there
may be many goals for the transactions and that different perspectives
within the filing person may be difficult to resolve. But that is
precisely the problem that this requirement is intended to resolve. The
Agencies are not in a position to understand which rationales are
predominant nor choose among different rationales presented in the
other materials submitted with the notification, such as transaction-
related documents, without additional context. That is why the
Commission believes that requiring filers to point to documents or
other materials in the HSR Filing that support the stated rationale
would help resolve any uncertainty about which rationale (or
rationales) may predominate. The Commission also understands that
rationales may change throughout the diligence process. The parties are
not required to wait to file their notification until they have settled
on a single or predominant rationale.
Others described the request as unfair because in the past the
merging parties' strategic rationale for the transaction has only been
revealed after the Agencies have sued to block a deal. The Commission
disagrees that the parties lack rationales for the transaction until
they are before a court defending a lawsuit, or that it is unfair to
require them to state each strategic rationale for the transaction
known at the time of making an HSR Filing. Indeed, each filer may have
different reasons for entering into the transaction. Whatever the
reasons for agreeing to the transaction, that is the information the
Agencies seek. Knowing why each party sees the transaction as
beneficial is highly relevant to the initial antitrust assessment and
may cause the Agencies to determine, relying on the documentary support
for that rationale, that the transaction does or does not warrant
additional investigation.
In addition, commenters noted that a description of transaction
rationales would be burdensome to generate and duplicative of other
materials submitted in the HSR Filing, particularly documents
responsive to current Item 4. The Commission acknowledges that there is
some cost to filers to provide a description of strategic rationales
but
[[Page 89300]]
disagrees that it is duplicative. There is no current requirement that
the parties describe the rationale for the transaction, and for many
transactions, there are no documents or other information submitted
with the HSR Filing that reference a rationale. For these filings, the
Agencies do not know what benefits either party hopes to achieve
through the transaction. Alternatively, where there are many different
rationales discussed in submitted materials, the Agencies lack the
context to know which ones predominate or reflect the views of the
organization. Requiring each filer to describe each strategic rationale
for the transaction provides the Agencies with a starting place to
understand the motivation behind the transaction without having to make
judgments about which ones are still under consideration. Given the
Agencies' experience with asking this question during the initial
waiting period or reviewing other white papers that the parties
voluntarily provide, the Commission believes that the cost of supplying
a transaction rationale will be minimal and, in any event, is necessary
for the Agencies to determine whether the transaction may violate the
antitrust laws. Filers are invited (but not required) to copy and paste
text or provide a summary from documents produced with the HSR Filing
and reference the specific portions of those documents where the
discussion of that rationale exists. However, if documents provide
inconsistent rationales, filers should address these inconsistencies.
The Commission believes that relying on statements contained in
documents submitted with the HSR Filing will reduce the burden of
preparing the filer's description of rationales for the transaction.
One commenter requested clarification as to whether the proposal
contemplates a single consistent response submitted by all parties
notifying the same transaction (in the context of a simple acquisition,
buyer and seller) or whether it contemplates that each notifying party
submits a separate narrative, noting that the motivations of buyers and
sellers may diverge. The Instructions clarify that each filing party is
required to submit a description of its strategic rationales because it
is important to have such a description from both sides of a given
transaction.
Another commenter suggested that to reduce burden the Commission
should only require the acquiring person to submit its transaction
rationale, reasoning that the acquiring person's strategy is the most
competitively relevant and that the seller's rationale for a
transaction is often no more than obtaining cash to distribute to
investors or to use for unrelated business purposes. The same commenter
suggested that the instruction be limited to requiring a brief
description of the primary strategic rationale for the transaction. For
the reasons outlined above, the Commission declines to adopt these
suggestions but notes that a brief description of the transaction
rationale is sufficient so long as it is accurate and does not conflict
without explanation with stated rationales in documents submitted with
the HSR Filing.
b. Transaction Diagram
The Commission proposed a new requirement that filing persons
provide a diagram of the deal structure along with a corresponding
chart that would explain the relevant entities and individuals involved
in the transaction. The Commission adopts this proposal with
modification.
The Commission received many comments in support of this proposal,
all of which noted the value of such materials to the Agencies as they
work quickly to assess the transaction. One commenter stated that
without a diagram of all the entities and their relationships it can be
hard to understand what's going on. Another highlighted that the
proposed requirement would leverage documentation that often already
exists. Noting that transaction diagrams can sometimes be incomplete or
inaccurate, a law firm commenter suggested that this proposed
instruction be modified to require the submission of the most recent
diagram of the transaction, but only to the extent that such a diagram
already exists and is not materially inaccurate. Finally, two
commenters expressed general support for the proposal.
Three commenters opposed the proposal on the grounds that it would
unnecessarily increase the burden on filing parties. One commenter
stated that these materials are often not maintained in the ordinary
course of business or created in the course of a deal negotiation.
Another noted that deal structure may not be ``set in stone'' even
after signing. In addition, another commenter pointed out that, besides
burdening the parties, the proposal would increase the burden on Agency
staff reviewing the information, adding that the additional information
is not likely to be any more informative to the Agencies than the
information already required under the current HSR Form.
Two commenters proposed modifications in light of the fact that
many times these charts are drafted by outside tax advisors to show the
pre-transaction reorganization needed to achieve the desired tax
structure and benefits and that the charts sometimes include detailed
tax advice that is protected by the attorney-client privilege or
otherwise commercially sensitive. A law firm commenter suggested
modifying the instructions to permit parties to redact, omit, or
simplify any diagram, to exclude information that relates solely to tax
considerations. Another commenter noted that where the details of the
pre-transaction reorganization are irrelevant to the antitrust
assessment of the transaction, such as where all or a majority of the
outstanding equity of a target is being acquired, less detailed
diagrams should provide the agencies with the desired information.
The Commission acknowledges the cost of having to create both a
diagram along with a corresponding chart explaining the relevant
entities and individuals involved in the transaction. Although such
information would be materially useful to the Agencies, the Commission
adjusts the proposal to require only the acquiring person in non-select
801.30 transactions to provide a diagram of the deal structure and only
if one exists. That is, filers are not required to create a diagram or
a chart solely for the purposes of submitting an HSR Filing. The
Commission believes that such a diagram would be useful even if
prepared for other purposes. With regard to privileged materials, HSR
Rules already accommodate withholding certain material based on a claim
of attorney-client privilege; if such a claim is made with respect to
transaction diagrams, the filer can follow those requirements.
In sum, the Commission has determined that the transaction
information requirements contained in the final rule are necessary and
appropriate to enable the Agencies to fully understand the scope of the
transaction being considered and to identify those that may violate the
antitrust laws, and that the requirements, as modified, have been
tailored to reduce the cost of reporting as much as practicable.
F. Joint Ventures
This section requires information currently mandated by Item 5(b)
of the Form. As discussed in section VI.J.1.f, the Commission adopts
the proposal to eliminate the use of 10-digit NAPCS codes, including in
this section. The
[[Page 89301]]
Commission did not propose and does not adopt any other material
changes to the information required by this item. The Commission notes
that no acquired person filings are required for joint ventures, so
this section is not included in the Form or Instructions for acquired
persons.
G. Business Documents
The Commission proposed a Business Documents section that would
require the submission of documents currently required by Items 4(c)
and 4(d) of the Form as well as additional categories of documents.
Specifically, the Commission proposed expanding the current requirement
found in Item 4(c) to the ``supervisory deal team lead(s);'' altering
the language of current Item 4(d)(ii); requiring the production of
certain ordinary course documents; requiring drafts of Transaction
Related Documents; and requiring an organizational chart of authors and
recipients. As discussed below, the Commission adopts some of these
requirements with modification and does not adopt others.
As noted in the proposed rule, the Agencies compared documents they
have received over the years in response to Second Requests with those
submitted in the HSR Filing and assessed whether having certain types
of documents at the beginning of the waiting period would have changed
the Agencies' determination of whether and how to move into an in-depth
investigation of the transaction. As a result of this review, the
Commission identified documents that are not required by the current
Form but would have been highly probative to the initial antitrust
assessment of the transaction during the initial waiting period.
1. Transaction-Related Documents
a. Competition Documents
In the proposed rule, the Commission proposed expanding the
documents currently required by Item 4(c) of the Form, which are
prepared by or for officers and directors for the purpose of evaluating
or analyzing the transaction. Since the beginning of the premerger
notification program, these transaction-related documents have been a
key screening tool for the Agencies to determine whether the
transaction may violate the antitrust laws because they discuss the
acquisition with respect to market shares, competition, competitors,
markets, potential for sales growth or expansion into product or
geographic markets. The Commission proposed requiring the filing person
to submit such documents prepared by or for supervisors of the team of
individuals working to complete the transaction, which the Commission
referred to as the supervisory deal team lead(s).
In response to comments that the proposal was not clear about whom
the Commission intends for filers to search for responsive documents
and information in addition to officers and directors, the Commission
has introduced a definition of supervisory deal team lead and limited
the term to just one person. As discussed in section VI.A.1.g., the
Commission believes these changes will provide clarity for filing
parties. The Commission now turns to comments that were not directed at
the definition of supervisory deal team lead but concerning the
requirement to submit documents prepared by or for someone other than
officers and directors.
The Commission received one comment from State antitrust enforcers
supporting the proposal, but other commenters expressed concerns about
the costs associated with identifying, collecting, and producing
documents from the supervisory deal team lead. Certain commenters
stated that expanding 4(c) to include documents to and from supervisory
deal team lead(s) would create a significant burden to filers that is
not justified by any benefit to the Agencies. One commenter said that
adding documents from these individuals would not likely generate
material that would allow staff to better assess the need for Second
Requests.
The Commission disagrees that adding documents prepared by or for
the senior leader of the deal team would not likely generate additional
key documents to help staff better assess whether to issue Second
Requests. Since the beginning of the premerger notification program,
4(c) documents have been a principal source of information that allows
the Agencies to identify those transactions that may violate the
antitrust laws and that require a more in-depth review through the
issuance of Second Requests. Based on documents submitted in response
to Second Requests, it is the Agencies' experience that someone other
than an officer or director is often in charge of the deal team and
this person typically has additional documents that would be responsive
to 4(c), but the documents have not been transmitted to an officer or
director at the time of the HSR Filing. This is even more likely to be
true when the HSR Filing occurs before due diligence is complete or a
final agreement is executed. Requiring the submission of transaction-
related documents prepared by or for the supervisory deal team lead
would result in the Agencies receiving additional probative documents
that speak directly to whether the transaction may or may not violate
the antitrust laws even if the document has not been shared with an
officer or director prior to filing the notification. Based on the
Agencies' experience, the analysis of the transaction's competitive
implications contained in these documents is extremely probative.
Certain commenters explained that the addition of the supervisory
deal team lead to the existing officer and director custodians,
combined with the other new document requirements, would require filers
to submit a significantly larger volume of documents. One commenter
estimated that adding documents from the supervisory deal team lead(s)
as well as draft documents as proposed in the NPRM may increase the
number of documents submitted with each filing by tenfold or greater.
Another comment pointed out that adding supervisory deal team lead(s)
to Item 4(c) could also add a burden related to internal document
preservation and retention. The comments did not provide specific
estimates of how many additional documents or pages of materials adding
a supervisory deal team lead may generate, however.
As discussed throughout this final rule, the Commission has taken
steps to lessen the costs identified by commenters. After careful
consideration of the comments, the Commission has modified this
proposal to reduce the cost associated with requiring 4(c) documents by
limiting new custodians to be searched to a single individual, the
supervisory deal team lead. This modest expansion of custodians by one
individual is necessary because documents responsive to Item 4(c) are
some of the most relevant material that staff receives, and based on
the Agencies' experience there are also probative documents containing
4(c) content generated by and for the supervisory deal team lead that,
if submitted with the HSR Filing, would allow staff to better gauge the
competitive implications of the transaction--as understood by the
filing person--and conduct a more informed, efficient screening
analysis.
Another concern articulated by a small number of commenters was
that documents created by or for the supervisory deal team lead may
convey information that does not reflect the actual assessment of the
proposed merger at senior levels. As one commenter explained, the
Agencies may draw conclusions that do not actually
[[Page 89302]]
align with the documents provided to or sent by the personnel that can
make final decisions for an entity, such as officers and directors. The
Commission acknowledges this concern but believes that the exclusion of
these documents from HSR Filings is often technical and simply a matter
of timing. HSR Rules do not require filers to complete due diligence or
sign an executed agreement before filing a notification. Even the
modification discussed in section V.D. which requires filing parties to
have agreed to key terms of the transaction still allows parties to
file prior to the completion of all diligence and negotiation. In the
Agencies' experience, staff often receives these 4(c)-type documents in
response to a Second Request and finds that the reason they were not
submitted with the filing was that they had not been shared with any
officer or director at the time of the HSR Filing but were eventually
shared with them. Even if such documents were never shared with an
officer or director, any document that is responsive to 4(c) and was
only shared with the supervisory deal team lead--the person who has
primary responsibility for supervising the strategic assessment of the
deal--is still highly probative of whether the transaction is likely to
violate the antitrust laws.
The Commission believes that by limiting this requirement to the
individual who has primary responsibility for supervising the strategic
assessment of the deal, and who would not otherwise qualify as a
director or officer, it has been tailored to provide a benefit to the
Agencies with minimal cost to filers. In the situation where the only
individuals supervising the strategic assessment of the deal are
already either an officer or director, this requirement will not
require searching for responsive documents from anyone new. As
discussed above, to the extent that the supervisory deal team lead has
responsive documents, it is just often a matter of timing that the
document is not submitted with the HSR Filing. Rather than requiring
parties to complete their due diligence and provide all responsive
transaction assessments provided to key decision makers prior to
filing, the Commission has determined that also requiring documents
provided to the supervisory deal team lead is the most direct way to
obtain these highly relevant assessments of the transaction with the
HSR Filing. The cost associated with searching one additional
individual for these documents is necessary and appropriate given their
importance to the Agencies in quickly identifying those transactions
that warrant a closer look. Thus, the Commission adopts this proposal
as modified in the final rule.
b. Drafts
The Commission proposed requiring drafts of responsive transaction-
related documents if that draft document was provided to an officer,
director, or supervisory deal team lead(s). The Commission does not
adopt the proposal at this time.
As explained in the NPRM, filers are currently required to submit
draft versions of documents responsive to Items 4(c) or 4(d) only if
there is no final version or if the draft was sent to the board of
directors. Under this guidance, if a not-final version of a document is
sent to the board of directors, it ceases to be a ``draft'' and must be
submitted, even if a final version is also submitted. Based on the
Agencies' experience with receiving other drafts of documents during a
Second Request investigation, in some cases prior draft versions have
been edited to remove candid assessments of factors relevant to
competition prior to circulation to officers or directors.
The Commission received numerous comments on this proposal, raising
four principal issues: (1) the burden of producing draft transaction-
related documents is not justified by the benefit to the Agencies; (2)
such drafts do not reflect sufficient deliberation to be probative of
antitrust risk; (3) the term ``drafts'' is not defined in the NPRM and
has no common meaning; and (4) requiring the production of drafts would
chill internal discussions related to the strategic assessment of the
transaction. These concerns are discussed in turn.
First, some commenters emphasized the burden of producing drafts,
noting that filing parties will need assistance from counsel and may
have to use e-discovery or forensic collection tools to capture all
drafts. Requiring drafts, one commenter stated, would significantly
increase the volume of documents produced; another commenter noted that
it is not uncommon for the authors of these documents to prepare many
discrete drafts as part of the drafting process. Some commenters
underscored that Agency staff would also face the challenge of
reviewing these additional documents. Another commenter pointed out
that the proposal would disproportionately affect smaller businesses,
which may not have staff lawyers or the ability to incur hundreds of
thousands of dollars in legal fees.
In addition, some commenters expressed doubt regarding the
probative value of drafts. Drafts may be duplicative, they noted, and
often include boilerplate language that may not be accurate as well as
incomplete thoughts, dummy slides, and placeholders. One commenter
observed that the Agencies do not typically request drafts during the
initial waiting period, and that it is exceedingly rare for Agency
staff to use a draft document as a deposition exhibit or in any
subsequent litigation.
Commenters also sought guidance from the Agencies regarding what
constitutes a ``draft'' transaction-related document. In the context of
a shared document platform, where several contributors may be working
on a document simultaneously, one commenter asked if each saved
iteration would be considered a draft that must be produced. Another
commenter asked whether a document is considered to be ``submitted'' to
an officer, director, or supervisory deal team lead if that individual
simply has access to the document via a collaborative drafting tool. As
a result of such vagueness, commenters noted, merging parties will face
the enormous practical challenge of preserving all versions of
documents, even at highly preliminary, incomplete stages. Moreover,
such vagueness will lead to arbitrary and capricious enforcement of the
requirement to submit drafts if Agency staff later discovers a draft
document that they believe should have been submitted with the HSR
Filing, according to one commenter.
Finally, some commenters raised concerns about the implications for
internal deliberation during the drafting process. One commenter stated
that the proposed requirement would chill open discussion ``for fear of
creating documents that do not reflect the final thoughts of the
company.'' Another commenter warned that it might cause some risk-
averse businesses to remove officers, directors, and supervisory deal
team leads from the document-drafting process.
Although several commenters recommended eliminating the proposed
requirement entirely, the Commission did receive a few suggestions for
ways to narrow the proposal. One suggestion was to limit drafts to
specific types of documents identified by the Agencies as likely to
contain probative information. Another commenter suggested requiring
filers to submit the first draft, the last draft, and the final
document. Alternatively, one commenter proposed that only the initial
draft version submitted to an officer, director, or supervisory deal
team lead be produced. None of the commenters supported the alternative
proposed in the NPRM, which would require filing parties to
[[Page 89303]]
withhold drafts and submit them within 48 hours only if requested to do
so by the Agencies.
Having carefully considered the comments, the Commission has
decided not to adopt the proposed change to require draft documents at
this time.
However, in light of concerns that the Agencies are receiving
documents edited to remove candid assessments of the transaction and
market competition, the Commission modifies its informal guidance
regarding drafts that were shared with the board of directors or
similar body. Currently, a document, even in draft form, that is shared
with the board of directors (or similar) is responsive and no longer
considered a ``draft.'' This distinction is based on the belief that if
a document is shared with the board of directors, it is sufficiently
reliable to be submitted with the HSR Filing. However, this guidance
has sometimes been limited to require that the document be shared with
the entire board. The Commission now clarifies that any Transaction
Related Document (currently referred to as 4(c) and 4(d) documents)
that was shared with any member of the board of directors (or similar
body) is responsive and should not be considered a draft; rather, it
should be treated as a final version and submitted with the HSR Filing
as a Competition Document.
As explained in the NPRM, draft versions of responsive documents
can contain highly relevant, probative, or candid statements about the
transaction's competitive impact not reflected in the final version of
the document, and in some cases, it appears that the final document has
been edited to remove candid assessments of factors relevant to
competition prior to circulation to officers or directors. The
Agencies' experience is buttressed by multiple commenters, who
similarly acknowledged that `sanitizing' these documents in
anticipation of antitrust investigation by the Agencies is a legitimate
concern. The Commission believes that modifying its informal guidance,
as well as obtaining additional documents and information as outlined
in this final rule, including those shared with the supervisory deal
team lead, will help ensure that the documents the Agencies review
contain factual, accurate assessments of the strategic and competitive
implications of the transaction.
c. Confidential Information Memoranda
This section requires information currently collected in by Item
4(d)(i) of the current Instructions. The Commission did not propose and
does not adopt any material changes to the information required by this
item.
d. Third-Party Studies, Surveys, Analyses, and Reports
This section requires information currently required by Item
4(d)(ii) of the current Instructions. The Commission did not propose
and does not adopt any material changes to this item.
e. Synergies and Efficiencies
The Commission proposed a Synergies and Efficiencies section to
collect the information currently required by Item 4(d)(iii) of the
Instructions, with a proposed modification to clarify that forward-
looking analyses are responsive. Although one comment expressed general
support, some objected to the proposed modification, noting that it
would expose firms' proprietary information. More generally, another
commenter expressed concern that the burden of identifying the
documents that relate to potential synergies or efficiencies would
increase greatly if expanded to include supervisory deal team lead(s)
and drafts, because synergy analyses in particular can generate a large
number of drafts.
In light of the comments and to reduce the overall cost of the
final rule as compared to the benefit this information would provide to
the Agencies, the Commission does not adopt the proposed modification.
However, the Commission declines to repeal the requirement to provide
documents that reflect expected synergies and efficiencies, as the
Agencies find these analyses to be relevant to understanding any such
expected benefits of the transaction. Parties often provide more
information about potential efficiencies than is strictly required by
the Rules if they want the Agencies to consider such information during
their initial review. Thus, the current language in the Instructions
regarding synergies and efficiencies remains in effect as part of the
final rule.
2. Plans and Reports
The Commission proposed requiring filers to submit two sets of
plans and reports not created specifically for analyzing the filed-for
transaction. First, it proposed requiring the submission of periodic
plans and reports that discuss market shares, competition, competitors,
or markets of any product or service that is provided by both the
acquiring person and acquired entity, if those documents were shared
with a chief executive officer of an entity involved in the
transaction, or with certain individuals who report directly to such a
CEO. Second, the Commission proposed requiring the submission of all
plans and reports submitted to the board of directors (or, in the case
of unincorporated entities, individuals exercising those functions)
that discuss market shares, competition, competitors, or markets of any
product or service that is provided by both the acquiring person and
acquired entity. The NPRM called for all such plans and reports that
went to the board, not merely those prepared on a periodic basis,
because it is the Commission's experience that any report sent to the
board reflects market intelligence that is important to the top
decision-makers. As proposed, the Commission limited this document
requirement to those materials prepared or modified within one year of
the filing date of the notification. The Commission adopts the proposal
with modifications explained below.
As explained in the NPRM, plans and reports prepared in the
ordinary course often contain detailed assessments of core business
segments, markets, competitors, other acquisition targets, and
projections about future competitive dynamics--insights that have
direct bearing on the Agencies' antitrust assessment of the transaction
in the initial waiting period. Staff at the Agencies frequently request
these documents voluntarily from filing parties early in their review
to better understand and analyze the relevant markets at issue.
The Commission received several comments on these proposals. Some
comments stated that the proposed requirement was overly broad and
would create a significant burden for filers without commensurate
benefit to the Agencies. In particular, for example, some comments said
that this requirement would mean that filing company personnel must
identify, collect, and produce responsive material from several
individuals who are not currently searched for documents or materials
submitted with an HSR Filing. These comments disagreed with the NPRM's
statement that companies frequently collect these documents as part of
the due diligence process for transactions. In addition, one commenter
stated that, even if such documents were collected, the collection
process would not occur in a systematic way to ensure compliance with
HSR requirements. In order to effectively collect and produce
responsive material, some comments contended that filers would need to
use e-discovery and other forensic discovery tools, which are expensive
and add
[[Page 89304]]
additional time. Certain comments explained it would be
counterproductive and burdensome for the Agencies' staff to review and
assess the significant volume of documents this new request will likely
yield.
The Commission acknowledges that this proposal would have increased
the costs for certain filers and has tailored the final rule to
minimize these costs. For instance, commenters suggested that there
would be additional costs to collect these types of documents, such as
interviewing additional personnel, collecting additional documents for
production, and having those documents reviewed by counsel, among other
tasks. In response to these concerns, the Commission notes the revised
requirement is very targeted: it applies only to documents that already
exist and are dated within one year of filing, and that discuss
overlapping products and services. But in response to concerns that a
search for even this limited set of documents could require forensic
document technology or other investments in discovery tools, the
Commission modifies this requirement to limit the business executives
whose files need be searched, dropping the need to collect and produce
documents from any person who reports directly to the relevant CEO. As
a result, this requirement will not require documents from any new
custodians. With this modification, the Commission believes that the
number of responsive documents will be reduced so that the burden on
the parties to submit and the burden on staff to review these documents
will be manageable.
The Commission believes that limiting responsive plans and reports
to those shared with the CEOs and with the Boards of Directors of the
entities involved in the transaction will still provide the Agencies
with sufficient context necessary to determine whether the transaction
is likely to violate the antitrust laws. Importantly, these individuals
are often involved in preparing the HSR Filing and are the same
individuals who are searched for other responsive documents, such as
Competition Documents. From the Agencies' experience, those that report
directly to the CEO typically collect and retain the types of reports
that contain important and relevant business facts so that documents
provided to the CEO contain important market analyses and facts that
are highly relevant to the Agencies' initial antitrust assessment. They
can be especially important for determining the scope of any
investigation, potentially narrowing the areas of inquiry or
identifying areas of emerging competition that are not otherwise
discussed or described in documents generated in connection with
evaluating the reported transaction.
The Commission has determined that at this time, requiring reports
provided to lower-level executives who report to the CEO, as proposed
in the NPRM, would add cost for filers, even those with known
overlapping business lines who may expect that the Agencies will be
taking a close look at the documents submitted with the HSR
Filing.\351\ The Commission is also mindful of the burden to the
Agencies of receiving HSR Filings with many additional documents that
must be reviewed during the initial waiting period. The Commission
believes that getting ordinary course plans and reports from the Board
of Directors and CEOs should be sufficient to provide staff with highly
relevant information with important market context for other submitted
documents and information, including the Overlap Description, without
overwhelming the current level of staffing devoted to premerger review.
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\351\ In the final rule, the Commission adopts the suggestion of
one commenter to limit plans and reports to those provided to the
CEO but declines to seek another round of public comment before
finalizing this requirement as modified. Another commenter suggested
that the Commission only require these documents that were provided
to the board and not to the CEOs. The Commission declines to adopt
this suggestion because it believes that excluding CEOs would
prevent the Agencies from having the type of relevant information
that is routinely provided to senior leaders related to markets with
overlapping products and services. Based on its cumulative
experience in collecting these types of documents during merger
investigations, the Commission has determined that it is necessary
and appropriate to collect a limited set of plans and reports that
were provided to the highest level of decision-makers, including the
CEOs, because they contain important context for conducting the
Agencies' initial antitrust assessment of the transaction.
---------------------------------------------------------------------------
In addition to limiting the people who must provide plans and
reports, the Commission has also determined that these documents are
not required for select 801.30 transactions. As discussed above, select
801.30 transactions are those where the Commission believes that
certain requirements of the final rule are unlikely to provide
information necessary to determine whether that transaction may violate
the antitrust laws. Not requiring plans and reports for HSR Filings of
select 801.30 transactions is another way the Commission is lessening
cost based on the lower likelihood that the transaction may violate the
antitrust laws.
Other commenters mentioned that responsive plans and reports are
unlikely to contain only information about the specific products or
services offered by the other filers and this requirement would thus
sweep in irrelevant information. One such comment noted that the
material received would contain much irrelevant material that would
lack sufficient probative value. The Commission disagrees that
requiring the plans and reports at issue will generate irrelevant
documents. Based on the Agencies' experience, plans and reports, taken
as a whole, are highly relevant to staff's analysis of the nature and
scope of product or service markets, geographic markets, competitors
and competitive dynamics in the industry, new or potential entrants
that could mitigate competition concerns, among other key
considerations that could determine whether the transaction may violate
the antitrust laws. Documents that were created in the ordinary course
of business and not solely for the purpose of evaluating the
transaction frequently contain important discussions about development
efforts for non-commercial products or services or explain competitive
dynamics in a broader way that would reveal ways that the transaction
could impact non-horizontal competition. In addition, they may identify
potential entrants or emerging threats, or discuss other potential
acquisition targets. In the Agencies' experience, such plans and
reports provide market facts and long-range assessments that bear
directly on whether the transaction is one that may violate the
antitrust laws in ways described in section II.B.4. Staff has routinely
requested that filers provide these documents on a voluntary basis
during preliminary-phase investigations, however, because of the
voluntary nature of the request there is no requirement that filers
produce all or even any of these materials.
Moreover, the modifications the Commission has made to the final
rule ensure that the plans and reports are relevant to understanding
the nature and extent of existing competition between the merging
parties. The only filers who must provide these documents are those
involved in transactions in which both parties provide the same types
of products or services or that are known to be under development. The
Commission acknowledges that these plans are also important to
investigate competitive effects in transactions involving supply
relationships but has limited this request in the interest of
administrability, efficiency, and reducing cost. Transactions between
two entities that currently compete (or have pre-revenue products in
development that will result in direct
[[Page 89305]]
competition soon) typically warrant a close look during the initial
waiting period. For these transactions, filers need provide only the
plans and reports that discuss market shares, competition, competitors,
or markets for those overlapping lines of business created within a
year of filing. This is exactly the kind of information the Agencies
rely on to determine whether to investigate a transaction during the
initial waiting period because it provides key information about the
competitive landscape at issue in the transaction. While the Commission
acknowledges there may be select portions of these responsive documents
that do not contain relevant information, it is often the case that
responsive documents contain non-responsive portions. Therefore, the
Commission adopts this requirement with a clarification that the
relevant products and services are those that both the acquiring person
and target produce, sell, or are known to be developing.
One commenter explained that this requirement means filers must
self-assess the products and services in which they overlap, and filers
may disagree on the existence or degree of the overlap. The Commission
agrees that this requirement requires a self-assessment by each party
and does not expect that the products and services that are identified
in the Overlap Description by each filer will always align, since the
acquired person may not have complete information about all the
products and services that the acquiring person offers or is
developing. The Commission expects that the acquiring person, through
its normal diligence of the target, will have a more fulsome
understanding of the target's products and services, including those
under development. However, as discussed in section VI.I.1., filers
should not exchange information with each other when responding to the
Overlap Description and each filer may refer to any submitted business
document that supports the analysis of overlaps contained in the
Overlap Description. In this way, the Commission expects that the
analysis of markets reflected in the submitted plans and reports will
be reflected in each party's assessment of overlaps contained in the
Overlap Description. As is currently the case with a filer's
identification of overlapping NAICS codes and for the new requirement
to provide an Overlap Description, the Commission will rely on the good
faith of the filer to provide accurate information.
Another commenter explained that ordinary course documents not
prepared for the transaction are arguably outside the HSR statutory
mandate because the Commission had previously declined to adopt a
proposal to include such ordinary course documents. The Commission's
1976 proposal had contemplated filers providing, among other items,
copies of studies, surveys, analyses, and/or reports prepared by or for
the company in the three years before filing, which contain information
regarding market shares, competition, competitors, markets and more in
relation to any product or service currently made or sold by the other
filing party. The Commission states that merely because it declined to
require the submission of ordinary course documents with the HSR Filing
in the past does not mean it lacks the authority to do so now. The
Commission believed that it had the statutory authority to require
ordinary course documents in 1976 when it first set up the premerger
review program but determined that excluding these types of documents
was unlikely to impede effective premerger review.
The Commission believes that it is now necessary and appropriate to
require such documents to be submitted with the HSR Filing. As
discussed in section II.B., many aspects of the economy, deal
structure, and technology have changed dramatically since Congress
passed the HSR Act. Based on their experience, the Agencies know that
ordinary course documents often contain important horizon-scanning
discussions, including market intelligence about other competitors in
the market or emerging competitive threats, and that these high-level
plans and reports provide important information about the competitive
dynamics that may be affected by the transaction. Indeed, these
documents often identify other competitors, including their strengths
and weaknesses, and this information is highly probative of the
competitive assessment of the transaction. Moreover, with the practical
limitation to collect and submit only documents that were shared at the
highest levels of management--those provided to the CEO or the Board of
Directors--the Commission believes the final rule carefully balances
the burden of this requirement (for the parties and the Agencies) in
light of their clear relevance to the antitrust assessment of the
transaction.
One comment noted that requiring plans and reports would be
inconsistent with international jurisdictions' merger control regimes.
However, the Commission does not find the issue of varying
international jurisdictions' document requirements for government
merger review dispositive. Each jurisdiction establishes, for itself,
the information needed for the particulars of their laws, economies,
and priorities. The Commission relies on its own experience in
enforcing the U.S. antitrust laws, in light of binding precedent, to
assess the most relevant and probative information to determine whether
an acquisition may violate those laws. Based on its own experience and
expertise in enforcing the U.S. antitrust laws, the Commission has
determined that due to the changes in corporate structure and market
dynamics described in section II.B., it is now necessary and
appropriate to collect a limited set of plans and reports with the HSR
Filing.
A smaller set of comments stated that the terms used in the new
proposed requirements were vague and unclear. For example, one comment
said that the proposed instructions do not provide a clear definition
of ``semi-annual and quarterly'' or ``plans and reports,'' which
creates uncertainty and compliance risks for filers. Another comment
said that the expanded requirements will create uncertainty because
they do not directly reference the transaction under review or
documents shared during the due diligence process, which would lead
filers to make subjective determinations as to which materials are
responsive.
The Commission disagrees that there is uncertainty or ambiguity
about what is responsive. As stated in the NPRM, regularly prepared
plans and reports are high-level strategic business documents created
not in contemplation of the transaction but in the ordinary course of
business within one year of filing and that are prepared at regular
intervals. Responsive plans and reports will discuss market shares,
competition, competitors, or markets of any product or service that is
provided by both the acquiring person and acquired entity, if those
documents were shared with a CEO of an entity involved in the
transaction, or of any entity it controls or is controlled by.
Targeting documents that discuss market shares, competition,
competitors, or markets tracks similar language in Item 4(c) of the
current HSR Form, which in the Commission's experience is familiar to
many filers and uses phrases that are known to businesspeople. The NPRM
references to semi-annual and quarterly rely on standard terms that are
routinely used in document requests sent to filers and third parties by
the Agencies during their investigations. In the interest of clarity,
however, the Commission notes that regularly prepared documents
[[Page 89306]]
include those that are produced at regular intervals, such as
``annual'' (once a year), ``semi-annually'' (two reports or plans each
year), and ``quarterly'' (once every quarter or every three months). To
help resolve any remaining uncertainty, the Commission clarifies that
regularly prepared plans and reports are those that are prepared by the
filers in the ordinary course and at regular intervals and does not
include special reports prepared for a specific purpose. Filers should
submit one year's worth of annual, semi-annual, or quarterly plans or
reports provided to a CEO but do not need to submit plans or reports
that are produced more frequently, such as monthly or weekly. The
Commission clarifies that filers should submit all plans and reports
provided to the Board of Directors and not only those that are
regularly prepared. These documents, which were shared at the highest
level of decision-making, may include special reports if they contain
responsive material.
Yet other commenters were concerned that requiring plans and
reports would raise confidentiality concerns, forcing filers to
disclose potential transactions to employees before they are ready to
do so. As modified, this requirement alone would not lead other
personnel to become aware of the transaction prematurely. The
Commission believes that plans and reports can be obtained from these
CEOs and Board members in a way that does not necessitate divulging the
transaction to other executives and businesspeople who do not otherwise
know about the pending transaction. Finally, the Commission notes that
plans and reports are also not required in filings for select 801.30
transactions.
Certain comments that opposed the requirement to submit plans and
reports also offered suggested modifications. One of these comments
recommended that the Commission tailor the requirements to clarify that
it is limited only to the filing party's products and services in the
United States and that filers need only produce documents, or portions
thereof, that discuss specifically identified subject matter. Certain
comments agreed that the Commission should allow filers to redact non-
responsive materials from these documents. The Commission declines to
adopt these suggestions because it finds that allowing filers to redact
non-privileged information or information related solely to matters
outside the United States on the basis of relevance would introduce too
much uncertainty into the value of these documents, leaving Agency
staff with incomplete, piecemeal material. Agency staff is experienced
with reviewing documents that contain relevant as well as non-relevant
content and the Commission believes it is important for documents be
produced as they were shared with the relevant decision-makers,
properly redacted for privilege only.
The Commission also considered alternatives proposed by commenters.
One commenter explained that the Agencies could request filers to
submit these documents on a voluntary basis, because those requests are
narrowly tailored and have historically followed initial substantive
discussions between filers and Agency staff. When used in combination
with withdrawing and refiling, this process would provide the Agencies,
the commenter said, with at least 30 days to review and analyze
strategic plans before issuing Second Requests. The Commission
disagrees that it is sufficient to continue to obtain plans and reports
on a voluntary basis after staff has identified that they are needed
because there is no obligation for filers to comply, substantially or
minimally, with such a request for information prior to the expiration
of the initial waiting period. In the Agencies' experience, even when
parties are asked to provide these documents on a voluntary basis, they
are often do not provide them prior to the end of the first review
period (either 30 or 15 days) and often choose to pull and refile their
notification in order to submit these and other materials that were
requested on a voluntary basis. Moreover, in the Agencies' experience,
these particular documents contain important information that is
currently missing from the HSR Filing that would identify the
transaction as one that requires a closer look.
Another comment suggested that Agencies could get these documents
using Second Requests as they do now. While either Agency can obtain
these documents through the issuance of Second Requests, the Commission
believes that the probative value of these documents makes them
necessary for staff's initial screening assessment, both because they
can identify different areas of antitrust risk, including for areas of
future competition, and because they may contain additional information
about the business lines of interest that may alleviate the need to
issue Second Requests or narrow their scope. As discussed above,
because issuing Second Requests is time- and resource-intensive for
both the parties and the investigating agency, is it not a substitute
for having additional information in the HSR Filing that minimizes the
need to issue Second Requests at all. Having additional relevant and
targeted information on the front-end benefits both the Agencies and
the parties because it allows the Agencies to focus on the most
concerning transactions, and allows parties to avoid Second Requests
when they are not warranted, and thereby avoid unnecessary expense and
delay.
Finally, certain comments discussed earlier also suggested not
adopting the proposed requirement at all. In light of the Agencies'
experience with the probative value of high-level ordinary course
documents and their belief that having them would provide necessary
context to other material submitted with an HSR Filing, the Commission
declines to dismiss the requirement altogether. The Commission believes
this final rule, as modified, reflects a reasonable balancing of the
importance of these documents to a premerger assessment and the burden
of requiring them for any transaction where filers have overlapping
business lines. The Commission has in considered the specific concerns
raised by comments and tailored the requirement to preserve the
important benefit to the Agencies while mitigating the cost to filers
(and to the Agencies).
3. Organizational Chart of Authors
As the final part of its Business Documents section, the Commission
proposed requiring an organizational chart(s) that would reflect the
position(s) within the filing person's organization held by identified
authors and, for privileged documents, recipients of each document
submitted with the HSR Filing. The Commission also proposed requiring
the filer to identify the individuals searched for responsive
documents. The Commission does not adopt this proposal.
The Commission received several comments opposing this proposed
instruction, with commenters noting that many companies do not maintain
these types of organizational charts in the ordinary course of
business, and to the extent they do, such charts are often incomplete
or inaccurate. According to one commenter, such charts would need to be
prepared solely for the purpose of the HSR Filing, which would be time-
consuming. Other commenters pointed out that authors of certain
documents may not even be employees of the filing entity, thereby
complicating the certification of the filing.
In addition, multiple commenters questioned the Agencies' need for
organizational charts to determine whether to issue a Second Request.
As one commenter noted, it is unclear why organizational charts will
assist staff in
[[Page 89307]]
assessing whether a particular transaction merits further review as
opposed to their value for identifying potential custodians for a
potential Second Request.
As to the proposed requirement to identify the individuals searched
for responsive documents, one commenter stated that parties may claim
privilege on information regarding whose files were searched. Another
commenter observed that, for the majority of HSR filings, documents are
identified through targeted self-collection, directed and overseen by
legal counsel, rather than running Second Request-style searches
through custodial files. The same commenter cautioned that the proposed
disclosure requirement would disincentivize companies to err on the
side of over-collection so as not to raise a red flag to the Agencies
or suggest that the persons searched should be custodians in a Second
Request.
Finally, as an alternative to providing an organizational chart,
one commenter suggested requiring parties to identify the person who
supervised the drafting and the person to whom that drafter directly
reports.
After considering the comments and weighing the benefit to the
Agencies during the initial waiting period in light of the cost of
complying, the Commission does not adopt this proposal. As discussed in
section VI.A.3., elsewhere the final rule requires filers to identify
authors of documents if the filer has identified a NAICS overlap,
product or service overlaps in the Overlap Description, or a supply
relationship in the Supply Relationships Description. The Commission
has determined that author information is not relevant for all filers
and that limiting author information in this way provides sufficient
benefit to the Agencies while reducing the cost for filings without
such relationships.
In sum, the Commission has determined that the requirements to
submit business documents contained in the final rule are necessary and
appropriate to enable the Agencies to identify transactions that may
violate the antitrust laws and to provide important information about
each party's view of market realities and that these requirements, as
modified, have been tailored to reduce the cost of submitting
responsive documents as much as practicable.
H. Agreements
The Commission proposed an Agreements and Timeline section to
require filing persons to provide a term sheet or draft agreement that
reflects sufficient detail about the proposed transaction to
demonstrate the transaction is more than hypothetical, if a definitive
agreement has not been executed. In addition, the Commission proposed
additional changes to require the submission of the entirety of all
agreements related to the transaction and a new requirement to submit
other agreements between the filing persons that are not related to the
transaction, as well as a timetable for the transaction. As discussed
below, the Commission adopts some proposals with modification and does
not adopt the requirement to submit a timeline.
1. Transaction-Specific Agreements
The Commission proposed requiring filing persons to produce all
documents that constitute the agreement between the acquiring person(s)
and the person(s) whose assets, voting securities, or non-corporate
interests are to be acquired, inclusive of schedules, exhibits, and the
like, that relate to the transaction, regardless of whether both
parties to the transaction are signatories. Further, consistent with
the proposed changes to Sec. 803.5, the Commission proposed requiring
the most recent draft agreement or term sheet, if filers were not
submitting a definitive agreement. The Commission adopts the
requirements with modification.
Currently, only the production of certain schedules is required,
although many filers do provide schedules regardless. As noted in the
NPRM, in the Commission's experience, the structure of transactions has
become increasingly complex, often comprising not only multiple
agreements between the filing persons but also agreements with third
parties. Understanding the entirety of the transaction, including but
not limited to non-competition and non-solicitation agreements and
other agreements negotiated with key employees, suppliers, or customers
in conjunction with the transaction, is crucial to determining the
totality of the transaction and assessing during the initial waiting
period the transaction's potential competitive impact.
The Commission received one comment in support of this proposal.
The State antitrust enforcers wrote in support of the request for non-
competition agreements, noting that non-compete clauses that bind
employees post-employment prevent new businesses from emerging and
stifle entrepreneurship and innovation. One commenter opposed the
proposal, noting that this requirement will significantly increase the
burdens for filers and recommended requiring that notifying parties
provide a descriptive index of such agreements from which investigating
staffs could identify specific agreements that they require (with
translations if needed). Another commenter expressed the concern that,
as written, the proposed instruction would capture clean-team
agreements, used by merging parties to reduce the antitrust risk
associated with exchanging competitively sensitive information, as well
as confidentiality agreements that include similar antitrust
safeguards, and that in doing so this proposal might have unintended
effects. The commenter cautioned that in response some parties might
forgo using clean-team agreements entirely, on the thinking that
including a clean-team agreement in the HSR filing would signal a
larger competitive concern than actually exists.
The Commission finds that having the complete set of documents that
will govern the transaction is necessary to understand the potential
effects of ``the transaction.'' Therefore, it does not adopt
suggestions to provide an index in lieu of the actual documents that
constitute the agreement. In the Commission's experience, voluntary
production of documents can delay the review of transactions within the
initial waiting period. The Commission does limit the requirement to
those agreements that will be in effect on and after closing, with the
intention of excluding agreements such as clean team agreements. The
Commission also adopts the clarification, discussed in section V.D.,
that the requirement relates to the transaction that the parties intend
to consummate.
The Commission also proposed requiring that, if there is no
definitive executed agreement, the filing parties provide a copy of the
most recent draft agreement or term sheet that provides sufficient
detail about the scope of the entire transaction that the parties
intend to consummate. As discussed in section V.D., the Commission is
modifying the proposed instructions in response to certain comments
that requested clarification. One commenter sought clarity on what
constitutes ``sufficient detail'' about the scope of the transaction,
noting that certain transaction details are often not fully determined
at the time of signing a definitive agreement or filing HSR, but also
may not be necessary to determine whether to issue Second Requests. The
same commenter cautioned that the proposed requirement will likely
cause undue delays and risk unnecessarily increasing the overall timing
to close a transaction especially in instances where parties intend to
file on the basis of a letter of intent.
[[Page 89308]]
To address this concern, the Commission has revised the
Instructions to describe what would be sufficient:
some combination of the following terms: the identity of the
parties; the structure of the transaction; the scope of what is
being acquired; calculation of the purchase price; an estimated
closing timeline; employee retention policies, including with
respect to key personnel; post-closing governance; and transaction
expenses or other material terms.
The Commission notes that these examples are meant to be
illustrative and not exhaustive.
2. Other Agreements Between the Parties
The Commission proposed requiring filing persons to submit all
agreements between any entity within the acquiring person and any
entity within the acquired person in effect at the time of filing or
within the year prior to the date of filing. The Commission adopts the
proposal with a significant modification to reduce the burden that
would have been associated with producing copies of these agreements
with the HSR Filing.
As explained in the NPRM, understanding the scope of any existing
contractual relationships between the filers, such as an existing
customer-supplier relationship, would materially assist the Agencies'
review by revealing any business interactions or relationships that
exist prior to the transaction and that may be affecting premerger
competition, which is material to assessing how the transaction may
affect post-acquisition competition.
The Commission received two comments in support of the proposed
requirement. The State antitrust enforcers noted that it would shed
light on any licensing or supply agreements, as well as any non-compete
agreements, between the parties. A union commenter also supported the
request and suggested expanding it for certain non-compete and non-
solicitation agreements. The commenter noted that the filing parties
might have such agreements related to the products, but these
agreements might be with third parties and not between the filing
persons. In addition, the same commenter suggested requiring parties to
submit copies of collective bargaining agreements, at least with any
common unions.
Several commenters, however, objected to the burden the proposed
requirement would impose, particularly in industries where companies
rely heavily on agreements with other industry participants to do
business. One commenter noted that broadband and telecommunications
providers routinely have myriad agreements with each other, covering a
wide range of aspects of the services they offer. The commenter stated
that many, if not most, of these agreements have little potential to
create competition concerns, and in fact many are pro-competitive.
Another commenter stated that, in the wireless communications industry,
some pairs of wireless carriers might have up to 1,000 agreements to
which they are both parties.
A few commenters recommended modifications of the proposed
instruction to reduce the burden. One commenter suggested relying on
the Competition Descriptions or excluding de minimis agreements and
only requiring ``Material Other Agreements,'' which would be defined as
exceeding in value some percentage of entity revenues. Another
commenter recommended only requiring the production of three categories
of pre-existing contracts between the acquiring person and the acquired
entity or assets: (i) noncompete agreements in effect within one year
of filing, (ii) non-solicitation agreements in effect within one year
of filing, and (iii) supply or license agreements that generated annual
revenue of $10 million or more within one year of filing. The commenter
also suggested clarifying that purchase orders do not need to be
produced, nor do contracts that have expired or terminated before the
filing date. A third commenter also recommended limiting the
requirement to contracts that are material in terms of dollar value. In
addition, the commenter proposed that notifying parties be permitted to
exclude standard-form agreements that they use with numerous other
counterparties.
In light of the comments, the Commission has made significant
modifications to this proposal. First, the Commission has determined
that only one party need provide this information; in accordance with
its general approach, the Commission has determined to require only the
acquiring person to indicate if there are existing agreements between
the parties. Second, the acquiring person will not be required to
provide the agreements, but rather only to answer whether any such
contractual agreements exist and, if so, to indicate via checkbox which
types. The Commission has identified specific types of agreements that
reflect a significant business relationship that is relevant to the
premerger assessment: agreements with non-compete or non-solicitation
terms; leases, licensing agreements, master service agreements,
operating agreements, or supply agreements. If the there are other
types of agreements, the acquiring person should indicate ``other.''
The Commission clarifies that these are agreements that the parties
have with one another and which may affect the antitrust assessment of
the reported transaction.\352\ Third, the Commission has limited the
requirement to those agreements that are between the acquiring person
and the target, rather than the acquired person. This is the specific
relationship that is of interest to the Agencies for the premerger
assessment and should limit the information to those agreements most
relevant to that analysis. These limitations should provide the
Agencies with sufficient information to screen for transactions that
may require further review due to existing contractual obligations,
while relieving much of the cost associated with the requirement.
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\352\ For example, a non-compete or non-solicitation agreement
between two otherwise independent companies is indicative that the
parties may have a competitively significant relationship, and in
certain situations, may violate the antitrust laws. See, e.g.,
United States v. Brown, 936 F.2d 1042 (9th Cir. 1991). In a merger
context, non-compete restrictions can implicate post-merger
competition in ways that violate the antitrust laws. See, e.g., In
re ARKO Corp., No. C-4773 (F.T.C. Aug. 9, 2022) (final decision and
order); In re DTE Energy Co., No. C-4691 (F.T.C. Nov. 24, 2021)
(decision and final order). Other agreements between the parties,
including those related to distribution or licensing, can limit
competition post-merger in ways that may violate section 7,
including by increasing the risk of foreclosure. See, e.g., FTC v.
Tempur Sealy Int'l, Inc., 4:24-cv-02508 (S.D. Tex. filed July 2,
2024) (complaint) (alleging that buyer attempted to use existing
distribution relationship to exclude rival mattress brands
premerger).
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3. Timeline
The Commission proposed that filing persons provide a narrative
timeline of key dates and conditions for closing. After careful
consideration of concerns raised by commenters, the Commission does not
adopt this proposal.
In the NPRM, the Commission reasoned that, just as it is critical
for the Agencies to understand the totality of the transaction during
the initial waiting period, it is critical to understand the timing of
key milestones and the conditions to closing, which are often complex
and not easily understood from the transaction documents themselves.
The Commission suggested that this basic information would help the
Agencies understand key deal milestones and better manage the timing
and focus of the investigation during the initial waiting period.
The Commission received a few comments expressing general support
for the proposal; however, one commenter raised concerns regarding the
burden, noting that the proposed
[[Page 89309]]
requirement is broader and more onerous than the interrogatory that
staff routinely requires during in-depth investigations. The same
commenter suggested that this instruction be limited to requiring a
brief description of the timetable for the transaction and a brief
description of any termination fees, break-up fees, ticking fees, or
similar arrangements.
After considering the comments and weighing the benefit to the
Agencies of requiring a deal timeline in light of the cost of
compliance presented by commenters, the Commission is not adopting this
proposal. Even though the Agencies would benefit from knowing the
timeline for the transaction to help manage their time and
investigative resources during the initial waiting period, the
Commission does not adopt the proposed change to require one. In the
Agencies' experience, these timelines can change throughout the course
of an investigation, although not typically within the initial waiting
period. The decision not to require a timeline is one of the ways in
which the Commission aims to lessen cost on all filers of preparing an
HSR Filing and staff can continue to ask for (or parties can choose to
provide) this relevant information when warranted.
In sum, the Commission has determined that the requirements for the
transaction agreement and information about other types of agreements
between the parties contained in the final rule are necessary and
appropriate to enable the Agencies to understand the scope of the
transaction as well as any existing business relationship that might be
affected by the transaction and that these requirements, as modified,
have been tailored to reduce the cost of reporting as much as
practicable.
I. Competition Descriptions
The Commission proposed a new Competition Analysis section in the
Instructions to require filers to provide three categories of narrative
responses: (1) an Overlap Narrative, (2) a Supply Relationships
Narrative, and (3) Information related to Labor Markets. As proposed,
filers would provide, among other things, a description of their basic
business lines as well as product and service information for all
related entities; identify current and potential future overlaps and
supply relationships between the filing persons; and provide
information about their employees and what services these employees
provide in areas where both parties employ the same types of workers.
As noted in the NPRM, this information would supply crucial information
about existing and future competitive relationships between the filing
parties, which is the starting point for any assessment of whether the
transaction may violate the antitrust laws.
As discussed in detail below, in the final rule the Commission does
not adopt requirements related to Labor Market Information, and adopts
requirements to submit an Overlap Description and a Supply
Relationships Description with significant modifications. On the Form,
this section is now labeled Competition Descriptions.
The Commission received several comments that supported the
introduction of narrative responses. One commenter strongly supported
the collection of information in narrative form related to products,
services, workers, supply and distribution relationships, licensing,
and industry and geographic overlaps, believing that this information
is necessary to help the Agencies evaluate the effects of an
acquisition more thoroughly and efficiently, and identify potential
threats to competition. Another commenter suggested that pre-
acquisition disclosure of vertical linkages is necessary for antitrust
agencies to effectively assess the potential anticompetitive impact of
these non-horizontal acquisitions. Another noted that, while HSR rules
have always required parties to identify downstream products and
revenues by NAICS and NAPCS codes, they have never required the
disclosure of any information at all about input markets, including
those for labor. It stated that this lack of information leaves initial
filing screeners at a loss to spot these competition issues and
potential violations, and further noted that this omission forces
investigatory staff scrambling to ask companies to volunteer such
critical input market information. The same commenter stated that the
proposed rule would help narrow this information asymmetry and empower
the Agencies to clearly identify impact in both output and input
markets.
The Commission also received several comments that objected to the
collection of this information in narrative form. In general, comments
asserted that expansive narrative requirements are arbitrary and
capricious because they would change HSR notification from an objective
task to a subjective task, creating delays, disputes, and uncertainty
with no countervailing benefit especially for those deals where no
antitrust issues are present. For a number of reasons discussed in
detail below, the Commission disagrees, but has nonetheless modified
these requirements as appropriate to tailor them to their relevance in
determining whether the transaction may violate the antitrust laws and
warrant a Second Request.
Experience With Narratives
The Agencies have extensive experience reviewing narrative
responses to requests for voluntary submissions from the filing parties
during the initial waiting period (and to other types of investigative
demands where responses can be compelled) and are aware of the effort
required to produce them. From this experience, the Commission knows
that when the parties submit this information on a voluntary basis
during the initial waiting period--and it is complete and timely--
narratives that discuss existing business relationships between the
parties are critically important to determining whether there is a need
to issue a Second Request. In the Agencies' experience, voluntary
narrative responses are especially helpful in focusing any potential
Second Request on the areas of competition most in need of in-depth
review but just as often can lead staff to conclude that no Second
Request is necessary. As discussed above in section III.A.2., when the
Agencies engage with the parties during a withdraw-and-refile
investigation, which typically involves the submission of some
narrative responses from the parties, the transaction is more likely to
proceed without the need for a Second Request.
But voluntary narrative responses often come late in the initial
waiting period and are frequently incomplete. More importantly, staff
only asks for additional information on a voluntary basis when it has
determined, on the basis of other information contained in the HSR
Filing, that the transaction may alter existing competitive conditions
in a way that may violate the antitrust laws but that more information
is needed. As discussed in section II.B., the current information
requirements do not surface the facts that would flag transactions for
certain types of violations, and for those filings staff has no basis
to know that additional information is needed. Where there are
deficiencies in the initial information requirements, resorting to
collecting information on a voluntary basis does not cure the
deficiency because staff will not know that relevant facts exist to
flag the transaction for follow up.
The Commission believes that requiring additional information with
the HSR Filing that would reliably reveal any existing business
relationships between the filers is
[[Page 89310]]
necessary and appropriate to enable the Agencies to determine whether
an acquisition may, if consummated, violate the antitrust laws. Because
the information called for in the Competition Descriptions is provided
directly by the parties to the transaction and is reflective of each
filer's business operations, it is highly probative and reliable for
the purpose of conducting a quick and thorough premerger assessment of
existing and future business relationships between them. The
information collected on the current Form does not reveal these
relationships, yet these are the relationships that are foundational to
flagging whether the transaction is one that warrants a closer look. As
discussed in sections II.B.3. and 4., the need is especially great for
information related to potential non-horizontal concerns because there
is currently no information that specifically identifies existing
supply relationships. Information about existing supply relationships
will fill critical information gap in the current Form and provide a
factual basis for the Agencies to screen for potential non-horizontal
impacts during the initial waiting period.
Nonetheless, to make clear that the Commission does not require the
parties to submit an antitrust analysis akin to a ``white paper,'' or
hire counsel or experts simply to create narratives for the purpose of
an HSR Filing, the Commission eschews the use of the term
``narratives'' and instead adopts the term ``description'' to better
reflect the type of answer that is required. Filers should rely on
business personnel to describe the products and services they offer (or
that are under development) using terms and language that is natural in
the marketplace. Given the breadth and tone of the objections to the
proposed narratives, the Commission believes that commenters
misunderstood what is sought. The Commission intends to collect factual
information about overlaps and supply relationships via a written
answer (as opposed to documents or data) but is not seeking opinions or
arguments about what those facts should imply. While in other contexts
a narrative response may contain opinions, tell a story, or take a
position, the final rule does not require any of that from filers.
Instead, filers should collect and report the type of information it
provides to customers, suppliers, investors, or the public for purposes
other than an antitrust analysis--to simply describe the products or
services it offers for sale. This is the type of basic business
description required by the final rule, and the Commission adopts with
terms Overlap Description and Supply Relationships Description to
address concerns that the final rule requires something other than
that. Moreover, the Instructions ask filers to provide a brief
description in an attempt to discourage lengthy responses or
unnecessary commentary beyond what is strictly required. \353\
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\353\ A significant number of filers who report NAICS overlaps
initiate contact with the Agencies to provide supplemental
information (often in the form of white papers) that supplies
context for how they view competition, regardless of NAICS
reporting. In the Agencies' experience, these presentations often
contain descriptions of the parties' respective business operations
as well conclusions that the parties would like the Agencies to
reach to dismiss concerns about the transaction. The former is now
required by the final rule while the latter is not.
---------------------------------------------------------------------------
The Overlap Description is a key reform and is motivated by the
Commission's experience over time with relying on NAICS codes to
identify areas of horizontal competition. Based on its experience
reviewing narrative responses submitted on a voluntary basis during the
initial waiting period, the Commission has identified problems with
relying exclusively on NAICS code overlaps as the basis for screening
whether the merging parties are current competitors. While NAICS codes
are well suited for reporting in some sectors, the Commission agrees
that NAICS codes can be both overinclusive and underinclusive in
reflecting whether the parties offer competing products or services to
any set of customers. As discussed in section II.B.4., when it comes to
certain sectors of the economy that are undergoing technological change
or growth, including through the introduction of novel products or
services, NAICS codes are especially unhelpful, and have not been
updated to reflect current market offerings.
The mismatch between existing NAICS codes and market realities can
be most acute in new sectors of the economy, for which there are not
many codes. For instance, NAICS code 518210 is for companies that
provide computing infrastructure, data processing, web hosting, and
related services, which covers businesses as diverse as those providing
data entry services, cloud storage services and cryptocurrency
mining.\354\ Included in this six-digit NAICS code are a whole array of
businesses offering complex and evolving products, some of which may
compete for the same customers but some of which surely do not. Adding
further complexity, the Census Bureau provides cross-references to
fourteen other NAICS codes with related business lines. This single
category is very broad, potentially reflecting ``competition'' between
the parties that does not exist in the marketplace. As a result, each
filer in a transaction may report revenues in 518210 reflecting an
``overlap'' in their respective business lines, when in reality they
offer very different products or service.
---------------------------------------------------------------------------
\354\ See U.S. Census Bureau, North American Industry
Classification System, 51280 Computing Infrastructure Providers,
Data Processing, Web Hosting, and Related Services (rev. Sept. 10,
2024), https://www.census.gov/naics/?input=518210&year=2022&details=518210.
---------------------------------------------------------------------------
These cross-references create a different but equally vexing
problem. For instance, NAICS code 541511 is for companies that offer
custom computer programming services to meet the needs of a particular
customer while NAICS code 513210 is for companies primarily engaged in
software publishing. Here, a company that provides both standard and
custom solutions may report revenues only in 513210 even if some of the
companies it competes with would only report revenues in 541511,
reflecting its focus on custom products. Overall, companies select
their own NAICS codes for revenue reporting, introducing discretion
into the use of this ``objective'' system of classification, which was
established for a purpose other than identifying companies that offer
competing products or services. As a result, companies that may
regularly compete against one another may not identify any overlapping
NAICS codes.
Despite these shortcomings, the Commission will continue to rely on
NAICS code reporting for revenues and the identification of overlaps to
give filers some common system of reference and because the
identification of horizontal overlaps is a key screening step in the
Agencies' initial antitrust assessment. But new sectors have emerged
over the years and NAICS codes have not been refined or updated.
Accordingly, the Commission has determined that receiving overlap
information in description provided by the filer is necessary and
appropriate to enable the Agencies to determine whether an acquisition
may, if consummated, violate the antitrust laws. The Agencies may also
use the Overlap Description to conclude that the parties are not
current or future rivals because the exercise provides filers with an
opportunity to correct any ``false positives'' that result from
inaccurate reporting of NAICS revenue overlaps. As a result, the
Overlap Description may contain a factual basis for the Agencies to
determine, solely on the basis of information contained in the HSR
Filing, that the transaction is not likely
[[Page 89311]]
to violate the antitrust laws at that time. In the Overlap Description,
a filer can make clear that further investigation is unnecessary.
Allowing the agencies to reach these conclusions at the outset is more
efficient than having the parties provide the information at a later
stage or requiring the Agencies to discover this information indirectly
through document requests.
As the Commission acknowledged in the NPRM, the cost to filers to
create these descriptions could be significant, especially for
transactions involving close competitors with multiple overlapping
product or service lines or those who operate in the same supply chain.
But identifying those transactions that present broad and complex
competition issues is a critical first step for the Agencies, and
information from these descriptions is highly relevant to flagging the
transaction as one that may violate the antitrust laws. Thus, the cost
of providing these descriptions is proportional to the likelihood that
the transaction is one that warrants a close look: the more extensive
the existing competitive relationship between the parties, the more
relevant these relationships are in identifying the transaction as one
that warrants further investigation. It is also possible that these
descriptions will provide important context for other information
contained in the HSR Filing that would allow the Agencies to narrow any
potential investigation to those areas of important existing or future
competitive interaction, or to conclude that the transaction is not one
that is likely to violate the antitrust laws. Thus, the descriptions
are necessary and appropriate for the Agencies to assess the potential
for anticompetitive impacts, including some indication of their scope.
This information will also permit the Agencies to manage their
resources appropriately, increasing overall efficiency. For example, if
the Overlap Description identifies hundreds of products or services,
the Agencies can devote sufficient staff resources to reviewing those
areas of overlap to determine whether any rise to the level of
requiring a Second Request investigation. On the other hand, if the
notification identifies no areas of overlap, the Agencies may be able
to quickly determine whether there are other materials in the filing
that would nonetheless raise concerns about the competitive impact of
the transaction.
It is appropriate for the filers to bear the burden of providing
basic business information that they possess. It is unreasonable and
inefficient to require the Agencies, who do not possess basic
information about the filers' businesses, to expend resources gathering
the information from outside sources, or to require the Agencies to
issue a separate request for this critical information which only
delays the review process and in turn the filers' ability to consummate
transactions. Yet the status quo requires the Agencies to obtain basic
business facts that are needed to evaluate transactions through
voluntary requests to the parties or Second Requests. As one commenter
noted, the Federal Rules of Civil Procedure encourage Federal courts to
order civil discovery based on the obvious principle that the person
already in possession of the information is in the best position to
provide it, and properly so.\355\ This principle is apt here.
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\355\ Fed. R. Civ. P. 26(b)(1) advisory committee note (2015)
(identifying information asymmetry as a justification for placing a
heavier burden on the party who has the information).
---------------------------------------------------------------------------
The Commission also believes that parties will be able to reduce
the cost of creating descriptions by drafting them during the period of
due diligence when the companies are learning more about their
respective business operations. Discovering the extent of existing
business operations is key to the diligence process, and companies
often create descriptions of their operations as part of the
process.\356\
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\356\ When establishing the premerger regime, the Commission
acknowledged that requiring information in the notification may
actually reduce the cost associated with compiling it. 42 FR 39040,
39043 (Aug. 1, 1977).
---------------------------------------------------------------------------
The Commission has made every effort to calibrate its need for the
requested information and the availability of that information from the
parties or from others, including the cost to filers associated with
collecting information and creating the descriptive responses. For this
reason, as discussed below, the Commission has decided to significantly
modify certain aspects of the proposed descriptions, for instance when
the information is duplicative of other information in the notification
or when the information is available from a source other than the
parties. In taking this approach, the Commission rejects alternatives
suggested by commenters to reduce the cost by excusing transactions
below a certain value or without a NAICS overlap, because it has found
no basis for doing so. In the Agencies' experience, deal value is not a
reliable indicator of the potential for antitrust harm,\357\ especially
when the transaction involves multiple business lines or when
competition occurs in local markets.\358\ Instead, the Commission has
determined to excuse select 801.30 transactions from the requirement to
provide Competition Descriptions. As discussed in section VI.A.1.f.,
these transactions rarely involve entities with existing competitive
relationships and do not confer control, and thus the Commission has
determined not to require these filers to provide descriptions of any
existing business relationships, should they exist.
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\357\ See, e.g., United States v. Neenah Enterprises, Inc., No.
1:21-cv-02701 (D.D.C. Oct. 14, 2021) (complaint) ($110 million asset
purchase); In re Global Partners LP, No. C-4755 (F.T.C. Mar. 2,
2022) (decision and final order) ($151 million acquisition); In re
ANI Pharmaceuticals, Inc., No. C-4754 (F.T.C. Jan. 12, 2022)
(decision and final order) ($210 million acquisition); United States
v. Grupo Verzatec S.A. de C.V., No. 1:22-cv-01401 (N.D. Ill. Mar.
17, 2022) (complaint) ($360 million acquisition). Note that the
value of the transaction is considered by some filers to be
confidential information and is not always disclosed in public
filings. See FTC v. IQVIA Holdings Inc., No. 1:23-civ-06188
(S.D.N.Y. Dec. 29, 2023); In re Lifespan Corp., No. C-9406 (F.T.C.
Feb. 17, 2022) (complaint).
\358\ See, e.g., In re The Golub Corp., No. C-4753 (F.T.C. Jan.
20, 2022) (decision and final order) (divestiture of 12
supermarkets); United States v. B.S.A. S.A., No. 1:21-cv-02976
(D.D.C. Mar. 15, 2022) (divesture of two business lines).
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The Commission now turns to a discussion of both the general and
specific objections to the Competition Descriptions requirements.
General Objections to the Competition Descriptions
Several commenters questioned the general utility of these
requirements. One commenter suggested that burdening all filers with
these descriptive requirements is not particularly well targeted to
identifying acquisition-related antitrust concerns. Another stated that
the information called for is duplicative of documentary materials that
are now also required. Two other commenters suggested that the
Commission continue to ask for this information on a voluntary basis
and only for deals that have been flagged for closer review.
The Commission disagrees that the information required by the
Competition Descriptions would be of little use or contain repetitive
information. Requiring filers to provide a description of their
existing competitive relationships is a key reform of the final rule to
make the premerger review process more effective and efficient. Such
descriptions should contain a factual summary of the parties' existing
business relationships, which is critical information for identifying
those transactions that require a closer look. This is information that
is known to filers and bears directly on whether the transaction may
violate the antitrust laws. The Commission has determined
[[Page 89312]]
that it is necessary to require this descriptive information from
filers because other information in the HSR Filing is not sufficient to
screen transactions for all types of potential harm, and, as discussed
above, staff cannot rely solely on voluntary collection of this
information to flag the transaction for a closer review.
Moreover, as discussed elsewhere, the Commission intends to rely on
information in the Competition Descriptions as the basis for
determining whether the filer also has to provide other information
required by the final rule. The Commission has determined that, for
many additional information requirements, these descriptions (in
addition to the NAICS code overlap reporting) will determine the scope
of most of the other information requirements in the HSR Filing. It is
appropriate for the Commission to condition additional information
requests on the identification of an existing business relationship as
the most effective way to calibrate the cost of reporting the antitrust
risk associated with each transaction. In order to reduce the cost for
filers whose transactions raise little to no antitrust risk, it is
necessary that all filers go through the exercise of determining
whether they are in a horizontal or supply relationship with the other
party. Those filers who do not have such relationships will so indicate
by responding ``none'' and will be relieved of the obligation to
respond to other questions that are conditional on an affirmative
response. Relying on this conditional response format is a key feature
of the final rule to ensure that filers who do not have an existing
business relationship with the other party (e.g., as a competitor or
supplier) have a lower cost associated with submitting an HSR Filing.
One commenter stated that because these descriptions are not
prepared in the ordinary course, they cannot be required to be
submitted with the notification. Further, this commenter stated that
Congress only intended the Commission to collect information and
documentary materials reasonably available to the reporting companies,
suggesting that anything not kept in the ordinary course of business
runs afoul of Congressional intent. The Commission disagrees with the
commenter's reading of both the statute and the legislative history.
The rulemaking provision in 15 U.S.C. 18a(d) contains no ordinary
course limitation. To the contrary, it states that HSR filings shall be
in such form and contain such documentary material and information
relevant to a proposed acquisition as is necessary and appropriate to
enable the Agencies to determine whether an acquisition may, if
consummated, violate the antitrust laws. The commenter quotes the
Commission's 1977 Notice of Proposed Rulemaking for the premerger
notification rules when making this assertion, but in that notice, the
Commission did not state that information reasonably available was
limited to ordinary course documents.\359\ Further, the Competition
Narratives as adopted do not require any information that is not kept
in the ordinary course of business of the acquiring or acquired person.
These descriptions require parties to gather and present this
information in a format that will permit the Agencies to understand
their lines of business, areas in which the parties offer similar
products and services, and relationships in the relevant supply chains.
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\359\ 42 FR 39040, 39043 (Aug. 1, 1977).
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The Commission also disagrees that businesses do not develop an
understanding of their business operations in comparison to those of
the other merging party ``in the ordinary course.'' In the Agencies'
experience, businesses routinely conduct competitive assessments in
which they compare their operations to those of others. These internal
assessments of other market participants are often done long before any
specific assessment of a particular transaction and may be contained in
documents such as plans and reports. In the specific context of a
proposed transaction, parties (especially those that are publicly
traded) conduct due diligence assessments of prospective targets. These
comparative assessments may be done specifically for the purpose of
analyzing the filed-for transaction, and the Commission considers those
to be in the ordinary course of acquisition planning. The descriptions
required by the final rule would summarize these types of assessments
and reflect their underlying business facts. In the Commission's view,
this is exactly the type of materials the House conferees intended
would be submitted with the notification: ``the very data that is
already available to the merging parties, and has already been
assembled and analyzed by them. If the merging parties are prepared to
rely on it, all of it should be available to the Government.'' \360\
---------------------------------------------------------------------------
\360\ 122 Cong. Rec. 30877 (1976) (remarks of Rep. Rodino).
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Compliance Concerns
Some comments expressed concern that the descriptions would create
HSR Act compliance issues, noting that, because the descriptions
require subjective judgments, the Agencies have no objective standards
or precedent against which compliance or substantial compliance could
be judged. One commenter suggested that each of the descriptions may
generate disagreements between the Agencies and the merging parties
regarding the accuracy or completeness of the information provided,
leading the Agencies to retroactively declare a notification to be
incomplete and restarting the initial waiting period. One commenter
stated that the descriptive responses will require extensive iterative
discussions with PNO to determine compliance, which will delay the
start of the waiting period. Others asserted that the Commission could
deem a descriptive answer to be incomplete simply because staff
disagrees with the assessment, or that the Agencies may be tempted to
second-guess or nitpick the parties' responses, leading to uncertainty
about deal timelines.
As discussed above, the Agencies have decades of experience with
reviewing descriptive responses, including those submitted on a
voluntary basis during the initial waiting period and in response to
Second Requests. In fact, staff routinely seeks this information as the
first supplement to the information contained in the HSR Filing for any
transaction that is identified as requiring a closer look. But the
current practice of permitting parties to submit descriptive responses
on a voluntary basis while the waiting period is underway has
encouraged parties to submit incomplete responses or submit them at a
time when staff is unable to verify the information before it must make
a determination whether to issue Second Requests. Any deficiency in a
voluntary descriptive response prevents staff from being able to
quickly determine whether the Agency should issue a Second Request to
require a more complete narrative answer.
The Commission believes that requiring Competition Descriptions to
be submitted with the HSR Filing provides the proper incentive for
filers to submit a complete and accurate response, one that is
certified by the responsible executive who signs the notification and
that is available at a time when the information can be reviewed and
assessed by staff. The certification allows the Commission to accept
filings containing descriptive responses and to start the waiting
period. If, upon reviewing the notification, staff determines that the
[[Page 89313]]
descriptive responses are directly contradicted by other information
submitted with the notification, staff may request supplementary
information to explain the contradictions, which could require a
restarting of the waiting period. If the notification contains no such
materials that call into question the reliability of the descriptions,
any supplementary submissions to clarify or correct them would likely
not require a restarting of the waiting period under the Act.
Other comments raised compliance concerns related to who must help
prepare the information. Some comments stated that the descriptive
responses will require filers to hire expensive antitrust counsel, and
possibly an expert economist, to draft the descriptions prior to
filing. According to one commenter, filing parties will be forced to
engage antitrust counsel, economists, and other professional class
consultants on every deal, regardless of its impact on competition.
Another commenter suggested that hiring consultants to draft narratives
may be prohibitive for some parties that may be most in need of a
merger or affiliation. One comment noted that, as a practical matter,
the only people who are eligible to certify the notification often lack
personal knowledge necessary to opine about things like the relevant
product market definition or the competitive effects of a transaction.
The Commission disagrees that filers need to hire outside personnel,
who do not know the filer's business operations and would need to be
given the very information that the Competition Descriptions call for
in order to draft them. As noted in the NPRM, those who author the
descriptive responses should be the individuals who best know the
business of the filing person. The Commission reiterates that the
Competition Descriptions should be based on a businessperson's
understanding of the filer's business operations and consistent with
other business documents and materials submitted with the HSR Filing.
Other comments raised a related point, stating that the type of
detailed, competitively sensitive information necessary to draft these
narratives is often deliberately kept away from the business
executives, which would require certain filing parties to employ
antitrust safeguards to collect information without sharing
confidential business information with or about one another. Several
commenters asserted that providing customer contact information,
including identifying specific individuals for Agency outreach, would
create significant uncertainty and further increase the risk that
confidential acquisition plans would be known more widely, or increase
the risk of insider trading.\361\
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\361\ Commenter American Securities Association states that
certain aspects of the proposed rule would require public companies
to announce and file details with the SEC about signed deals,
``creating additional hurdles that will test investor confidence.''
Comment of Am. Sec. Ass'n, Doc. No. FTC-2023-0040-0682 at 2. Because
the final rule does not change who is required to file notification
under the Act, there are no new obligations to disclose transactions
nor to make statements to the SEC. To the extent that this comment
is based on a concern that the Agencies may flag additional deals as
requiring Second Requests because they may determine that a
particular transaction may violate the antitrust laws, that is the
intention of the final rule and well within the Commission's
authority under the Act, regardless of filers' obligations to make
statements required by the securities laws.
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As discussed in the section below, the Commission agrees that it is
important to reduce the need to share information about the transaction
more broadly than is necessary to complete an HSR Filing, but rejects
the idea that companies are unfamiliar with managing these risks or
that the rule would significantly increase them. Also, complying with
securities laws to prevent insider trading in public shares is an
obligation of every publicly traded company, and the rule does not
increase the risk that those with knowledge of the deal will violate
those laws. Nonetheless, in response to these concerns, as discussed
below, the Commission has determined to modify certain requirements for
the Competition Descriptions in order to reduce the need for filers to
share information outside of the company, for instance with customers
or suppliers. The Commission agrees that the process required to
collect information for the notification should not require
information-sharing beyond what is absolutely necessary. Specifically,
the Commission has added to the instruction a statement that the
parties should not exchange information for the purpose of responding
to the Overlap or Supply Relationships Descriptions. The acquiring and
acquired persons should each respond on the basis of information known
to them in the ordinary course of their business or through normal
transaction diligence. The Commission understands that, unlike the
NAICS overlap identification, the filings may not identify the same
products and services in the Competition Descriptions. This may require
those contemplating a transaction to plan for limits on the flow of
information about the deal, including ``clean teams'' and data rooms
with limited access, but the Commission believes filers have experience
with managing these risks and employ protections to prevent the sharing
of information or disclosing knowledge of the deal beyond these limits.
The Commission has determined that the requirement to prepare
descriptive responses does not increase the risk that those protections
will be breached or that filers will be required to change their
approach to comply with the final rule. To the extent that this process
reveals existing business relationships of which either or both parties
were not aware, this is an appropriate outcome of requiring this
analysis to be done prior to filing.
Another group of comments raised compliance concerns related to
taking an affirmative position on specific elements of an antitrust
violation, such as the definition of relevant markets and any
competitive effects, impermissibly shifting the burden of proving such
elements of an antitrust violation to the parties. For instance, one
commenter read the rule as not requiring filers to define a relevant
market or provide market shares but nonetheless objected that filers
lack the benefit of established competition law principles to guide the
scope of their responses. Others suggested that the Commission adopt
the practice of the European Union and other regimes and make available
written decisions about market definitions.
As stated in the NPRM, the Commission does not intend for the
Competition Descriptions to contain an assessment of relevant markets
or reference any ``market.'' The Commission understands that the
determination of a relevant antitrust market is a fact-bound process
that is the result of extensive information gathering, including from
third parties (who may be other participants in the ``market'').
Information contained in the notification has never been, and never
could be, sufficient to determine whether a relevant antitrust market
exists in which the transaction could potentially cause harm. Rather,
the Commission intends the identification of competing products or
supply relationships to be a statement of business fact, not a
conclusion that there is a relevant antitrust market that comprises an
area of effective competition.\362\ The Agencies recently
[[Page 89314]]
released updated Merger Guidelines that contain a detailed discussion
of how and why the Agencies undertake the exercise of defining
markets.\363\ Thus, the Commission disagrees that filers are unable to
understand how information about whether and to what extent the merging
parties are direct competitors factors into the Agencies' initial
antitrust assessment.
---------------------------------------------------------------------------
\362\ A party responding to an interrogatory under Rule 33 of
the Federal Rules of Civil Procedure ``must furnish information that
is available to it and that can be given without undue labor and
expense,'' and a party must ``provide relevant facts reasonably
available to it but should not be required to enter upon independent
research in order to acquire information merely to answer
interrogatories.'' Lynn v. Monarch Recovery Mgmt., Inc., 285 FRD.
350, 357 (D. Md. 2012) (citation and internal quotations omitted).
Filers should take a similar approach to providing business facts
here.
\363\ See Dep't of Justice & Fed Trade Comm'n, Merger Guidelines
4.3 (2023).
---------------------------------------------------------------------------
Comparison to Other Jurisdictions
Some comments suggested that the Commission is improperly
attempting to model the U.S. premerger notification regimes on those in
other jurisdictions. The Commission rejects this suggestion. The
purpose of this rulemaking is to maintain a premerger notification
regime that fulfills the Agencies' congressional mandate to vigorously
enforce the U.S. antitrust laws and prevent undue concentration in its
incipiency. As the Commission noted in the NPRM, many other
jurisdictions rely on submissions from the parties that contain basic
information about business lines or company operations, and several
require the parties to self-report overlaps.\364\ The Commission
expects that the burden on filers (or their counsel) with experience
drafting these submissions for other jurisdictions will be
comparatively low because of their familiarity with such drafting. This
does not mean that the Commission is relying on the experience of other
jurisdictions in enforcing their laws. Rather, the Commission is simply
noting that the prevalence of descriptive requirements among other
competition enforcers supports its belief that, for some filers,
preparing descriptive responses is not a new exercise or overly
burdensome. The Commission further notes that other businesses might be
familiar with preparing a business plan or conducting a market research
and competitive analyses, which would contain much of the same
information as is required by the narratives.\365\
---------------------------------------------------------------------------
\364\ NPRM at 42180.
\365\ The Small Business Administration provides guidance for
how to conduct market research and find a competitive advantage,
including links to free government databases and resources to help
with that assessment. See U.S. Small Bus. Admin, ``SBA Business
Guide, Market research and competitive analysis'' (last updated May
31, 2024), https://www.sba.gov/business-guide/plan-your-business/market-research-competitive-analysis#id-use-market-research-to-find-customers.
---------------------------------------------------------------------------
One commenter stated that pharmaceutical transactions are not
acquisitions of other companies but instead involve exclusive licenses,
which are not reportable in other jurisdictions. As a result, according
to this commenter, the descriptive requirements introduce an entirely
new and significant burden that will fall disproportionately on parties
to pharmaceutical transactions. The Commission disagrees that there
will be a measurably different impact on pharmaceutical companies. As
discussed above, the requirement to submit Competition Descriptions is
not dependent on having prepared similar materials for other
jurisdictions, and there are many kinds of transactions that are not
reportable in other jurisdictions for which the parties will now be
required to submit a descriptive response. In addition, the Commission
has no reason to exempt pharmaceutical licensing deals from any
requirements of the Act because these transactions, like other
reportable transactions, can raise antitrust concerns.\366\ As the D.C.
Circuit found when it upheld the Commission's authority to require the
reporting of pharmaceutical licensing transactions, the Act does not
prevent the Commission from adopting rules of general applicability and
the Commission can rely on its experience in reviewing HSR Filings to
adjust the HSR rules.\367\ Certain sectors have more reportable
transactions, but the Commission is not imposing different requirements
on any sector. Nor should it remove information reporting requirements
for those sectors where there are more reportable transactions merely
because more companies in those sectors are involved in reportable
transactions. Moreover, the Commission believes that complying with the
Competition Description requirements for transactions involving
licensing agreements will be less costly than for other types of
transactions because those transactions are fairly limited in purpose
as they relate to uses for the licensed technology.
---------------------------------------------------------------------------
\366\ See, e.g., In re Sanofi Corp., No. 9422 (F.T.C. Dec. 11,
2023) (complaint) (transaction abandoned); FTC v. Mallinckrodt ARD
Inc. (f/k/a Questcor Pharms., Inc.), No. 1:17-cv-120 (D.D.C. Jan.
30, 2017) (stipulated order for permanent injunction and equitable
monetary relief).
\367\ PhRMA, 790 F.3d at 201.
---------------------------------------------------------------------------
After careful consideration of the comments raising general
objections to requiring descriptions of existing business operations of
the merging parties, the Commission has determined to require
Competition Descriptions in the final rule due to the benefit they
would provide to the Agencies. These responses will provide the
Agencies with key information that is necessary to determine whether an
acquisition, if consummated, may violate the antitrust laws. It is
appropriate for filers to provide this information because they are in
the best position to do so. Competition Descriptions will allow the
Agencies to conduct a fact-based assessment of the antitrust risks
posed by each transaction, rather than expend time and resources
issuing voluntary access letters and Second Requests for information
that bears directly on the determination that further investigation is
warranted. Nonetheless, in light of the concerns expressed by
commenters, the Commission has made significant modifications to these
requirements to better calibrate the information that would be most
beneficial to the Agencies while reducing the cost as much as
practical, including excusing select 801.30 transactions from these
requirements.
1. Overlap Description
The Commission proposed a new Overlap Narrative section that would
require each filing person to provide an overview of its principal
categories of products or services (current and planned) as well as
information on whether it currently competes with the other filing
person. The Commission further proposed that each filing person would
describe its current and planned principal categories of products and
services in a way that those business lines are referred to in the
company's day-to-day operations, and identify any documents submitted
with the HSR Filing that support information contained in the
narrative. For each identified overlapping product or service, the
Commission proposed that the filing person would also provide sales,
customer information (including contacts), a description of any
licensing arrangements, and a description of any non-compete or non-
solicitation agreements applicable to the employees or business units
related to the product or service.\368\
---------------------------------------------------------------------------
\368\ NPRM at 42196.
---------------------------------------------------------------------------
The Commission received numerous comments on this requirement. As
one commenter noted, the Commission's original proposal in 1977 would
have required a filer to identify its top five most significant
competitors for overlapping operations. The Commission did not adopt
this proposal, as well as other proposals, not because they were
improper, as suggested by this commenter, but because the Commission
determined at the time that it was important to reduce
[[Page 89315]]
the overall burden of complying with notification requirements,\369\
which were unfamiliar to the M&A business community at that time. After
forty-five years of experience with reviewing thousands of transactions
each year, the Agencies are now well aware of the importance of
understanding who the parties view as their competitors, especially if
that group includes the other merging party, because it is relevant to
whether the transaction may violate the antitrust laws.\370\ The need
for this self-identification of competitors has grown over time as
NAICS codes and other information do not always provide a consistent
and reliable benchmark for filers, resulting in over- or under-
reporting of competitive overlaps. In this rule, filers are merely
required to describe each of the principal categories of products and
services they offer, and list and describe each product or service that
they both provide to the market. The Commission believes that in light
of the shortcomings of other more objective reference points, it is
necessary to require filers to identify whether they offer products or
service that compete with the other filing party.
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\369\ See 42 FR 39040, 39043 (Aug. 1, 1977).
\370\ See, e.g., Illumina, Inc. v. FTC, 88 F.4th 1036, 1049 (5th
Cir. 2023); FTC v. Whole Foods Market, Inc., 548 F.3d 1028, 1045
(D.C. Cir. 2008) (Tatel, J., concurring in judgment).
---------------------------------------------------------------------------
Several comments pointed to the burden of providing an Overlap
Description for all filings. For instance, one commenter stated that
the proposal lacks a relevance test or de minimis threshold so that
companies will be required to delve deep into complex corporate
structures to identify individual products and services offered by
their subsidiaries. Another raised concerns that providing a detailed
analysis of competitive dynamics in each of these theoretical segments,
particularly in transactions that are occurring in manifestly
competitive environments, is wasteful and unduly burdensome.
As discussed above, in light of concerns about the cost this
requirement places on all filers, the Commission has modified its
proposal in several ways to reduce the cost on filer. First, it has
decided to limit the requirement to report planned or future products
to those referenced in another document submitted with the HSR Filing.
The Commission has also eliminated the requirement to provide an
estimate of how much of the product or service each customer category
purchased or used monthly for the last fiscal year. And rather than
require reporting for the two most recent fiscal years, the Commission
has limited reporting to the most recent fiscal year. In addition, the
Commission has decided not to require sales information in units--only
dollars. It has also eliminated the requirement to provide individual
contact information for customers. Additionally, the Commission has
eliminated the requirement to describe licensing agreements and non-
compete or non-solicitation agreements in this section. These changes
are discussed in greater detail in the sections that follow. Finally,
the Commission has decided not to require Overlap Descriptions for
select 801.30 transactions. In the Commission's experience, these
filings almost never report overlaps on the basis of NAICS codes and
there is no reason to think that requiring this class of filers to
provide a descriptive confirmation would provide a benefit to the
Agencies that would enhance premerger screening of this particular set
of transactions.
At this time, the Commission lacks a basis to excuse other
categories of filings either on the basis of complexity of the filer's
corporate structure or the general robustness of competition in the
markets in which the filers compete. In fact, complex corporate
structures can make it much harder for the Agencies to discover
competing lines of business from any source other than the filers. When
information in the HSR Filing is inconclusive, staff often must try to
discover these existing relationships based on imperfect information
from public sources, the parties' submitted documents, and other
sources of market information, such as third parties. Requiring filers
to provide a description of any overlap is a much more direct,
efficient, and reliable way to get this critical information because it
will be coming from the parties. If the parties are aware of other
companies that also provide products or services that compete, they can
(but are not required to) provide that information as part of their
descriptive response. If this requirement creates a significant cost to
filers, it is due to their significant pre-acquisition business
relationships, meaning that the effort to provide the description is
directly proportional to the risk that the transaction may violate the
antitrust laws.
After careful consideration of the comments, the Commission has
made significant modifications to the Overlap Description to reduce the
cost to filers while also providing a factual basis for identifying
whether the filing parties are actual or potential competitors. This
information will improve Agency decision-making during the initial
waiting period. Modifications reflected in the final rule are discussed
below.
a. Identification of Current or Future Overlaps
The Commission proposed that each filing person provide a brief
overview of its principal categories of products and services (current
and planned) as well as information on whether it currently competes
with the other filing person. As noted in the NPRM and discussed above,
such information is core to the Agencies' substantive antitrust
analysis during the initial waiting period and is not readily
accessible from sources other than the filers themselves.\371\ A
comment from State antitrust enforcers supported the requirement for
additional information about present and potential horizonal
competitive overlaps, noting that State antitrust enforcers are
particularly concerned with acquisitions of potential or nascent
competitors and the protection of rivalrous innovation. As fellow
enforcers of the Federal antitrust laws, they noted that most research
and development (``R&D'') pipelines are known only to the companies and
that disclosing current or known plans, including R&D efforts, up front
would ensure effective deal reviews. They noted that, at times, deals
that appear benign may mask significant anticompetitive effects lurking
below the surface. Sophisticated incumbent companies have a greater
incentive and more developed means to detect industry developments--and
a correspondingly far-reaching ability to curb competition in ways that
harm consumers.
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\371\ NPRM at 42196.
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As discussed in section II.B.4., the Agencies currently lack a
sufficient basis from information in the notification to determine if
the transaction is likely to violate the antitrust laws by eliminating
on-going innovation competition, a potential competitor, or a nascent
competitive threat that has yet to make sales. Without information that
indicates there are known areas of competition based on expected
revenues, this will continue to be a blind spot that results in less-
than-optimal enforcement on this basis. Because these areas of
potential or emerging competition are typically not well-known to
others uninvolved in the transaction, the Agencies do not have a source
for this information other than the filing parties.
The need for information related to planned products and services
is especially important for transactions in which one (or both) filers
already have
[[Page 89316]]
a dominant position and the other party has planned products that could
soon be introduced to the market to provide some level of competition
to the dominant player. According to the State antitrust enforcers,
acquisitions of potential or nascent entrants may empower already
dominant incumbents to discontinue either the target firm's or its own
innovation, thereby eliminating existing and future competition between
the merging parties and information supplied by the Overlap Description
is critical for the Agencies to analyze acquisitions affecting
potential competition or present rivalrous innovation.
Other commenters object to the requirement to identify overlaps
based on planned products or services under development by the other
party. One pointed out that many companies have a pipeline of product
ideas that may or may not result in an actual product sold to
customers. Others indicated that in the pharmaceutical and biotechnical
sectors, this information would be speculative at best for many ongoing
R&D initiatives. The Commission acknowledges that the assessment of
when a planned product or service will start generating revenues is
likely imprecise, and that products in development often do not meet
important deadlines for commercial release. But the Commission
disagrees that companies with extensive R&D pipelines are unfamiliar
with these drawbacks or that imprecision prevents them from having
target launch dates based on their best information. In the Agencies'
experience, companies with ongoing product development efforts
routinely adjust expected timelines to commercialization based on new
information. In particular, as part of preparing for the transaction,
many of these companies prepare an assessment of the target's products,
including products in development. Products in development can compete
with other products in various stages of commercialization, forming the
basis for antitrust liability in certain circumstances.\372\
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\372\ See, e.g., Illumina v. FTC, 88 F.4th at 1050.
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Nonetheless, to provide an objective reference point that would
determine whether a filer would need to include a product in
development as part of its descriptive response, the Commission
modifies this requirement to limit the reporting of current or known
planned products or services to those that are reflected in documents
submitted with the filing. This limitation should serve to reduce the
cost and increase the certainty that the planned product or service is
likely to be introduced. In particular, plans and reports provided to
the CEOs and Boards of Directors and submitted with the HSR Filing
would likely provide a solid reference point for filers to determine if
the planned product is sufficiently likely to meet targets for
commercial introduction because it is discussed in these high-level
reports shared with key decision-makers.
In addition to the objections discussed above, several commenters
objected to the specific requirements of identifying overlaps or
customers based on sales information, which might include sales
generated in markets outside the United States. One commenter stated
that the requirement to provide historical information should be
limited to sales and customers from U.S. operations and should be
further limited to sales information based solely on sales by dollars,
not additionally by units. The Commission declines to limit the Overlap
Description to U.S. sales information. Many transactions every year
involve industries whose companies compete on a global basis such that
the relevant antitrust markets in which they compete are broader than
the United States or involve facilities or customers that are located
outside the United States.\373\ Having this information is critical to
the Agencies' assessment during the initial waiting period.
---------------------------------------------------------------------------
\373\ See, e.g., Polypore Int'l, Inc. v. FTC, 686 F.3d 1208
(11th Cir. 2012); FTC v. Wilh. Wilhelmsen Holding ASA, 341 F. Supp.
3d 27 (D.D.C. 2018); FTC v. Tronox Ltd., 332 F.Supp.3d 187 (D.D.C.
2018); In re Nvidia Corp., No. 9404 (F.T.C. Dec. 2, 2021)
(complaint); United States v. ZF Friedrichshafen A.G., No. 1:20-cv-
00182 (D.D.C. Jan. 23, 2020) (complaint); United States v. United
Techs. Corp., No 1:18-cv-02279 (D.D.C. Oct. 1, 2018) (complaint);
United States v. Novelis, Inc., No. 1:19-cv-02033 (N.D. Ohio Sept.
4, 2019) (complaint); In re Corpus Christi Polymers LLC, No. C-4672
(F.T.C. Feb. 20, 2019) (decision and final order): In re Quaker
Chem. Corp., No. C-4681 (F.T.C. Sept. 9, 2019) (decision and final
order).
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The Commission agrees with the other modification suggested by one
commenter to limit this requirement by reporting revenues only based on
sales by dollars and not also by units. As the commenter notes, in many
service sectors such as healthcare or professional services, the
concept of ``units'' is arbitrary and estimates would be both
burdensome and unreliable. The Commission believes that it is less
costly for filers to rely on only one measure of sales and that
reporting by other measures in addition to sales often does not lead to
different results. Thus, the Commission does not adopt the requirement
to report sales based on units in addition to dollars and limits the
reporting of sales and customer information only to dollar sales.
To further reduce the cost of collecting data to support the
Overlap Description, the final rule requires the reporting of sales
data only for the most recent fiscal year, down from the last two years
as proposed. This limitation parallels other reporting requirements
that are similarly limited to the most recent fiscal year.
The commenter also suggested that, in order to prevent the sharing
of information between existing competitors that would inadvertently
increase the risk of anticompetitive coordination, the information
required by the Overlap Description be limited to information within
the knowledge, information, or belief of the person filing. The
Commission confirms that filers should prepare the Overlap Description
based on the knowledge and belief of the filing person.
b. Customer Information
The Commission proposed that, for each principal category of
products and services and each overlapping product or service, filers
(a) describe all categories of customers, including an estimate of
monthly sales or purchases in each category; (b) contact information
(including the individual's names, title, phone, and email) for the top
10 customers (based on units and sales) for the last year, and the top
10 customers in each customer category.
Some individual commenters supported this proposal, urging the
Agencies to take steps to better understand the impact of acquisitions
on those most affected by them, including customers. Other comments
raised concerns about the type and amount of information collected
about customers, as well as the risks associated with identifying them
in an HSR Filing, including providing individual contact information.
One commenter asserted that the Agencies' stated intention to contact
customers during the initial waiting period raises serious
confidentiality concerns and places a transaction at considerable risk.
Another commented that there may be legitimate business justifications
for not disclosing a potential transaction internally or to commercial
partners at the time of filing, and requiring specific contact
information practically necessitates such disclosures to maintain
employee and customer relations. According to another commenter, for
the vast majority of transactions, customer information is not required
to make an assessment that the transaction requires Second Requests,
and thus the Agencies should
[[Page 89317]]
continue to ask for customer contact information on a voluntary basis
only when it may be necessary.
After considering these comments and others, the Commission
modifies the amount of information required in the Overlap Description
related to customers but has determined that some information related
to customers is important for the initial antitrust assessment of the
transaction. The Agencies will continue to reach out to customers in
order to get their input and reactions to reportable transactions as
time and resources allow during the initial waiting period regardless
of whether they are referenced in the notification. Contacting
customers to learn about the business lines of the filing parties is
often the very first thing staff does to begin the investigation of a
potentially problematic transaction. As discussed in section III.C.1.,
the Agencies routinely contact many customers of the filing parties,
often without the filing parties' knowledge, during the course of an
investigation, especially if the initial waiting period is prolonged by
a withdrawal and refile.
There is nothing improper about the Agencies' contacts with third
parties to learn facts about the industry or the operations of the
filing parties. The HSR Act contains strict limits on the disclosure of
information submitted or collected during an investigation,\374\ and
unauthorized disclosure carries criminal penalties.\375\ At all times
during the investigation, Agency staff comply with these requirements.
For example, when contacting customers or other market participants,
Agency staff may disclose that the agency is conducting a nonpublic
investigation of the proposed transaction, but Agency staff will not
disclose any information contained in an HSR Filing without a waiver.
---------------------------------------------------------------------------
\374\ 15 U.S.C. 18a(h).
\375\ See 18 U.S.C. 1905, 15 U.S.C. 50.
---------------------------------------------------------------------------
Although collecting more information from filers in the HSR Filing
should reduce the Agencies' reliance on contacting third parties to
learn basic business facts about the merging parties, conducting
outreach with third parties is an essential task of premerger screening
to ensure that the Agencies' antitrust assessment fully considers any
potential impact of the transaction on other market participants.\376\
Because transactions may not have been publicly disclosed, it is
imperative that the Agencies initiate contact with third parties and
not wait for them to reach out. The Agencies routinely conduct public
research to learn about customers for potential outreach, regardless of
whether the filing parties have provided their contact information.
Moreover, customer information is typically in the agency's first
request to filers to submit additional information on a voluntary basis
during the initial waiting period. At times, filers have anticipated
this voluntary request and provide this information quickly, sometimes
the same day. However, this is not universally true and any delay in
obtaining this information about top customers is inefficient and
undermines the Agencies' ability to conduct third-party outreach. While
the Agencies may be able, on their own, to identify some customers of
the filing parties, it is important that such third-party outreach also
include those customers most affected by the transaction, that is,
those customers who are most reliant on the filing parties to conduct
their own business.
---------------------------------------------------------------------------
\376\ Some commenters believe that the Agencies have been
insufficiently attentive in the past to those most affected by
harmful consolidation.
---------------------------------------------------------------------------
Nonetheless, in light of concerns about identifying particular
individuals as customer contacts, the Commission does not adopt that
requirement as proposed. Instead, the Commission modifies the
requirement so that filers must identify customers by company name
without providing contact information for any individual employed by
the company. The Commission believes that company contact information
has value even without knowing the name or title of the individual at
the customer business that is most knowledgeable about the existing
business relationship with the filer. Moreover, knowing which companies
are top customers provides important context to determining whether any
particular customer may be affected by the elimination of competition
between the parties and is additional information beyond knowing what
the overlapping product or service is.
To further reduce the cost of providing information related to
customers, the Commission has modified this requirement so that filers
do not have to estimate monthly purchases or sales by customer category
as proposed. Filers will be required to describe all categories of
customers without providing specific sales or purchase estimates by
category. Simply describing categories of customers will enable the
Agencies to determine if there are unique end-uses for the product,
possibly reflecting some degree of non-uniform demand that would
indicate limits on substitutability across different customers.
Qualitative descriptions of customer categories are sufficient for the
Agencies to determine, at a preliminary stage, whether demand is
segmented, a fact that is important for gauging potential competitive
effects of the transaction. Relatedly, this additional information may
help eliminate or reduce antitrust concerns if the parties serve very
different customers or customer categories.
With these significant modifications, the Commission adopts the
requirement that filers providing an Overlap Description also include
some information about customers for those products or services.
c. Descriptions of Agreements With the Other Filing Party
The Commission proposed that as part of the Overlap Description,
for each overlap product or service identified, filers would provide a
description of certain competitively significant agreements between the
filing parties, such as licensing arrangements and any non-compete or
non-solicitation agreements applicable to employees or business units
related to the product or service.\377\
---------------------------------------------------------------------------
\377\ NPRM at 42196.
---------------------------------------------------------------------------
One commenter supported the collection of information related to
existing agreements between the filing parties because it may be
relevant to an assessment of whether something short of a full merger
may be sufficient to enable the parties to realize the potential
procompetitive benefits of a transaction without potential competitive
harm. No commenter specifically objected to this particular requirement
of the Overlap Description. However, in light of objections to the
overall cost of the final rule, the Commission does not adopt this
proposal at this time. Instead, the Commission believes that the
requirement, discussed in section VI.I.1, to indicate via check boxes
whether certain types of agreements exist between the acquiring person
and target will alert the Agencies to transactions that may require
further investigation.
2. Supply Relationships Description
The Commission proposed to require each filing person to provide
information about existing or potential purchase or supply
relationships between the filing persons. This description would
require filers to describe each product, service or asset (including
data) that the filer sold, licensed or otherwise supplied, to the other
party or to any other business that, to the filer's knowledge or
belief, uses its product, service, or asset to compete with the other
party's products or services, or as an input for a product or
[[Page 89318]]
service that competes with the other party's products or services.\378\
Similar information is required for purchases from the other party.
According to the NPRM, this information would allow the Agencies to
identify whether the transaction would create opportunities for post-
acquisition foreclosure of rivals arising from vertical or diagonal
relationships.\379\ As discussed in section II.B.3., current
information requirements do not provide a factual basis to alert the
Agencies that there is an existing supply relationship that might
require a closer look to determine whether the transaction is likely to
violate the antitrust laws.
---------------------------------------------------------------------------
\378\ Id. at 42196-97.
\379\ See Dep't of Justice & Fed Trade Comm'n, Merger Guidelines
2.5 (2023).
---------------------------------------------------------------------------
As noted in the NPRM, in the past the Commission had required
filers to provide similar information about vertical vendor-vendee
relationships, but the requirement was eliminated in 2001; since that
time, filers have provided no specific information related to existing
vertical or other supply relationships. Several commenters objected to
including this information again, noting that vertical concerns will
not be a feature of most transactions, and information related to these
issues is more appropriate for a Second Request once the Agencies have
determined that the transaction genuinely raises vertical foreclosure
concerns. One commenter stated that information about sales to and
purchases from non-transacting parties has limited, if any, relevance
to the transaction and is thus outside the scope of the Act. Another
noted that concerns about unwinding already-consummated transactions
that motivated the Act are not present in non-horizontal transactions,
and urged the Agencies to exempt purely non-horizontal transactions
from the reporting requirements of the Act on that basis.
Other commenters supported the reintroduction of the requirement to
report information related to key supply relationships, suggesting that
descriptive responses should provide a more accurate and complete basis
for screening transactions. One commenter commended the Commission for
recognizing the need to request information about input markets and
noted the historical lack of such information has resulted in an
information asymmetry between the Agencies and filing parties. Others
identified industry-specific concerns related to non-horizontal
implications of acquisitions. One commenter cited the example of the
seed industry, commenting that to understand market power in that
industry the Agencies must have information regarding the unique
supply, distribution, and licensing dynamics that are present. Another
commenter discussed the proposal's impact on private equity firms,
claiming it is common for firms to have portfolios that include
upstream and downstream segments, a structure that can incentivize
preferential treatment between portfolio companies in ways that
disadvantage rivals.
State antitrust enforcers also supported the need to better
understand any supply relationships, including through the collection
of information regarding data assets. They explained that the merger of
two firms' complementary data sets can create, augment, and maintain
market power. As antitrust enforcers, they stated that they also seek
to understand how the target's data can be combined with the buyer's,
and whether the combined data can be used to leverage power into
further applications. To fully account for the potential that the
combination of the buyer's and seller's data could be leveraged into
additional applications, the State antitrust enforcers recommended the
Commission consider whether these requests should be expanded beyond
the related purchases and related sales narrative.
After considering the concerns raised by commenters on both sides,
the Commission has determined that the final rule will require, once
again, the submission of information related to supply relationships.
Contrary to assertions that the Agencies rarely challenge, and even
more rarely prevail against, non-horizontal acquisitions, the Agencies
have blocked several non-horizontal mergers since 2021 and have another
challenge pending review.\380\ The Commission specifically rejects the
suggestion that the final rule exempt non-horizontal mergers from the
reporting requirements of the Act. Such an exemption would abrogate the
Agencies' direct Congressional mandate not to ignore mergers that do
not involve horizontal competitors. With the 1950 amendments to the
Clayton Act, Congress made clear that section 7 applies not only to
mergers between actual competitors but also to vertical and
conglomerate mergers.\381\
---------------------------------------------------------------------------
\380\ See Press Release, Fed. Trade Comm'n, ``Statement
Regarding Illumina's Decision to Divest Grail'' (Dec. 18, 2023),
https://www.ftc.gov/news-events/news/press-releases/2023/12/statement-regarding-illuminas-decision-divest-grail; In re Lockheed
Martin Corp., No. 9405 (F.T.C. Jan. 25, 2022) (complaint alleging
merger would enable missile systems manufacturer to use control over
missile propulsion systems to harm rival defense prime contractors)
(transaction abandoned); In re Nvidia Corporation, No. 9404 (F.T.C.
Dec. 2, 2021) (complaint alleging merger would give chip
manufacturer the ability and incentive to use control over
microprocessor design technology to undermine competitors)
(transaction abandoned); In re Microsoft Corp., No. 9412 (F.T.C.
Dec. 8, 2022) (complaint). See also FTC v. Procter & Gamble Co., 386
U.S. 568, 577 (1967) (whether classified as horizontal, vertical,
conglomerate or other, all mergers tested by the same standard under
section 7).
\381\ Brown Shoe Co. v. United States, 370 U.S. 294, 317 (1962)
(explaining that by the deletion of the acquiring-acquired language
in the original statutory text, Congress hoped to make plain that
section 7 applied not only to mergers between actual competitors,
but also to vertical and conglomerate mergers whose effect may tend
to lessen competition in any line of commerce in any section of the
country). See also H.R. Rep. No. 1191, at 11 (1949).
---------------------------------------------------------------------------
The Commission observes that mergers that create a risk of non-
horizontal concerns are more varied in their effects, with the over-
arching concern being the risk that the transaction provides the merged
firm with the ability and incentive to foreclose rivals. According to
controlling precedent, there are myriad ways in which the merged firm
could engage in foreclosing behavior, such as by making late deliveries
or subtly reducing the level of support services.\382\ In light of that
variety of potential mechanisms, it is important to have some basis to
assess whether the transaction creates a risk that the merged firm may
limit access to products or services that its rivals use to
compete.\383\
---------------------------------------------------------------------------
\382\ See Illumina, Inc. v. FTC, 88 F.4th 1036, 1053 (5th Cir.
2023).
\383\ See Dep't of Justice & Fed Trade Comm'n, Merger Guidelines
2.5 (2023).
---------------------------------------------------------------------------
Some commenters questioned whether, as a practical matter, filers
will be able to gather the information required by the Supply
Relationships Description. For instance, one commenter stated that
providing this information would require filers to create a new tool
for tracking related sales and purchases, while another noted that,
especially for retailers who are often ``price takers,'' there may be
no need internally for conducting this type of analysis, meaning it
would be undertaken solely to comply with the Act for reporting
transactions. Two other commenters stated that this narrative is
duplicative of document requests and thus should be eliminated.
The Commission disagrees that the new Supply Relationships
Description requires special reporting tools or is duplicative of
document requests. In the Agencies' experience, documents submitted
with the HSR Filing often do not contain references to key suppliers or
purchasers, or the documents do not
[[Page 89319]]
provide sufficient context to understand whether the merged firm will
have the ability to foreclose key inputs in violation of the antitrust
laws. Nor does the Commission agree that companies are unaware that
they are in an existing supply relationship or that there would be no
records for a company to determine that it has purchases from or sales
to another company. As with the Overlap Description, requiring filers
to provide a brief description of any sales or purchase relationship is
a much more direct, efficient, and reliable way to get this critical
information because it will be coming from the parties and does not
require staff to interpret references in documents to these types of
relationships. Even given the expansion of document requirements in the
final rule, this specific information that describes an existing
business relationship in the same supply chain is unlikely to be
revealed in transaction-specific documents or those generated in the
ordinary course. This is especially true because the Supply
Relationships Description requires each filer to identify whether it
supplies not just the other party but a different company that competes
with the other party.
Two commenters urged the Commission to narrow the scope of the
required information by adopting a limitation for de minimis levels of
related sales or related purchases, for example by restricting
requirements to those related sales or purchases generating over $10
million in U.S. revenue in the past fiscal year. One commenter noted
that the pre-2001 reporting for vendor-vendee information was limited
to transactions between the parties and to purchases or sales over $1
million, and stressed the need for the Agencies to establish a similar
objective criteria to guide filers and avoid reporting thousands of
routine or competitively benign purchases. Another commenter questioned
the need for the Commission to revive a request that it deemed
insufficient as a screen for potential non-horizontal relationships.
After careful consideration of these comments, and in light of the
Commission's intention to reduce cost wherever practical, the
Commission has made several modifications to the Supply Relationships
Description. As with the Overlap Description, the Commission declines
to exclude information related to sales outside the United States. Here
too, such an exclusion is not justified for the significant number of
transactions for which sales occur outside the United States and yet
the transaction has sufficient nexus to the United States to require
reporting. Nonetheless, the Commission has determined that the rule
should include a de minimis exclusion to reduce the cost of collecting
information related to competitively insignificant sales or purchases.
The final rule excludes reporting unless the product, service, or asset
(including data) represented at least $10 million in revenue. In order
to ensure that the de minimis exclusion does not cause filers to
underrepresent their own production or capacity to supply the market,
the de minimis amount is inclusive of internal transfers within the
filing person. That means that when applying the de minimis exclusion,
the filer should include the value of the product that it supplies to
itself because that reflects the filer's ability to meet the demand for
the product. For example, if the acquiring firm sells Product X to the
target, when calculating the total revenue for Product X to determine
whether Product X represents at least $10 million in revenue, the filer
must include its own consumption of Product X and sales of Product X to
anyone else. If all of the filer's sales (including internal sales) of
Product X represent less than $10 million in revenue, the filer does
not need to respond to the Supply Relationships Description for sales
of Product X.
As with the Overlap Description, several commenters objected to the
Supply Relationships Description on the grounds that it is subjective
and burdensome and that it would require premature disclosure of the
deal or improperly shift the burden of proving an antitrust violation
from the Agencies to the filing parties. Accordingly, the Commission
has determined to make similar modifications to the Supply
Relationships Description as it did for the Overlap Description, in
order to reduce the cost of reporting. Specifically, the final rule
limits the reporting period to the most recent fiscal year and requires
reporting for sales only in dollars, not also in units. It also
eliminates the requirement for contact information for individuals at
customers or suppliers, requiring only the identity of the company to
limit the risk of inadvertent disclosure. With these modifications, the
Supply Relationships Description will provide a factual basis to
determine whether the transaction requires a closer look to assess the
risk of foreclosure, while minimizing the cost as much as practicable.
3. Labor Markets Information
The Commission proposed creating a new Labor Markets Information
section within the Instructions that would require each filing person
to provide certain information about its workers in order to screen for
potential labor market effects arising from the transaction. As noted
in the NPRM, the Agencies have increasingly recognized the importance
of evaluating the effect of mergers and acquisitions on labor
markets.\384\ Yet, as noted in section II.B.2., the Agencies' HSR Form
does not collect information from filers about their employees or the
type of work that their employees do that would allow the Agencies to
identify the parties as competitors for certain labor services, raising
challenges for the effective enforcement of section 7 to protect
competition that benefits workers.\385\
---------------------------------------------------------------------------
\384\ NPRM at 42197.
\385\ 15 U.S.C. 18.
---------------------------------------------------------------------------
Within the Labor Markets section, the Commission proposed requiring
each filing person to (1) provide the aggregate number of employees for
each of the five largest 6-digit Standard Occupational Classification
(SOC) codes; (2) identify the top five largest 6-digit SOC codes in
which both parties employ workers, and for each of these SOCs, list the
overlapping ERS-defined commuting zones and the total number of
employees within each commuting zone; and (3) identify any penalties or
findings that were issued against the acquiring person or acquired
entity by the DOL's Wage and Hour Division, NLRB, or OSHA during the
five-year period before the filing.\386\
---------------------------------------------------------------------------
\386\ NPRM at 42197-42198.
---------------------------------------------------------------------------
The Commission received many comments focused on the labor market
proposals. Several commenters, including hundreds of individual
commenters, supported the Agencies' attention to the potential for
merger-induced harm in labor markets and the requirement that parties
submit information about their employees for premerger screening.
Supportive commenters stated that filers have sophisticated legal and
accounting personnel and systems to minimize the burden on the
companies of collecting and reporting employee information. Other
commenters asserted that requesting labor market information in the
earlier stages of merger review would lead to a more efficient and
uniform process that could result in the Agencies' termination of the
HSR waiting period prior to the end of the initial 15 or 30 days in a
greater number of mergers where no labor market issues exist.
[[Page 89320]]
Other commenters, including law firms, private equity and venture
capital groups, and industry groups, raised broad objections to the
Commission's proposal to collect labor market information in the HSR
Form. These organizations argued that the effort required by the Labor
Markets section would be significant and would greatly increase costs
for companies wishing to engage in reportable transactions. Moreover,
they argued that this increased burden was not justified by the utility
of the employee information required by the proposed rule for antitrust
screening. Some commenters stated that the increased burden of
complying with these reporting requirements would have a chilling
effect on transactions.
In light of the comments, as well as the Agencies' recent
experience in identifying and investigating transactions that may harm
competition for workers, the Commission has determined not to require
specific information about employees at this time. After considering
several options to collect worker information that would be specific
enough to allow the Agencies to screen for potential labor market
effects without unduly burdening filers, the Commission has determined
that the Agencies will rely on other information required by the final
rule to identify transactions that require an in-depth investigation
for potential labor market effects. This includes the new Competition
Descriptions, which together will provide the Agencies with a better
understanding of the premerger competition between the merging parties.
The Commission believes that this information is likely to reveal those
transactions where the filers are likely to compete for workers that do
the same or similar types of jobs because they supply similar or
related products or services. In addition, the new document
requirements, including plans and reports and additional transaction-
related documents, should reveal whether the parties view themselves as
competing for labor services. From these documents, as well as a
description of the rationale for the transaction from the buyer, the
HSR Filing should reveal whether the buyer anticipates any impact on
workers or labor costs as a result of the transaction.
The Commission acknowledges the need to obtain detailed information
about employees for some transactions during the merger review process
and will continue to consider whether it is appropriate, on a case-by-
case basis, to require the production of such information in a Second
Request.
a. Worker and Workplace Safety Information
The Commission proposed to create a Worker and Workplace Safety
Information section that would require filing persons to identify any
penalties or findings that were issued against the acquiring person or
acquired entity by the U.S. Department of Labor's Wage and Hour
Division, the National Labor Relations Board, or the Occupational
Safety and Health Administration during the five-year period before the
filing. Several commenters supported the inclusion of the Worker and
Workplace Safety Information, noting that the information could prove
indicative of a concentrated labor market and market power. One
commenter stated that it had previously alleged that repeated and
widespread labor law violations constituted direct evidence of labor
market dominance that could be relevant to merger analysis. Others
noted that this information is often known to the filers and may be
indicative of a concentrated labor market.
Some commenters urged the Commission not to require the submission
information about past workplace violations due to the lack of a clear
nexus between labor law violations and merger analysis. Other
commenters stated that labor law violations may be tied to issues that
are irrelevant to market power, such as the presence of an organized
labor group that is more inclined to report potential violations, and
the requirement should be limited to the industries where violations
are more prevalent. Some stated that the existence of labor law
violations was government data that was already available to the
Agencies without placing the obligation on parties to report such
violations.
The Commission acknowledges that information regarding some of
these violations may be publicly available or otherwise available to
the Agencies. The U.S. Department of Labor and the National Labor
Relations Board maintain public accessible databases containing labor
enforcement case information on their respective websites.\387\ In
addition, the Agencies have each established Memoranda of Understanding
(MOUs) with the Department of Labor and the National Labor Relations
Board that would allow for the Agencies to obtain relevant non-public
information regarding labor law violations.\388\ Accordingly, when the
Agencies identify potential harms to labor market competition through
information contained in the HSR Filing or through other means, they
can seek information on labor violations from publicly available
sources, from the Department of Labor and the National Labor Relations
Board under their respective MOUs, and when appropriate, from the
filers on a voluntary basis or in response to Second Requests. Because
this information may be available to the Agencies through means that
would not require filers to provide this information in the HSR Filing,
the Commission does not adopt the requirement for filers to submit
information on worker and workplace safety, and it is not required by
the final rule.
---------------------------------------------------------------------------
\387\ See U.S. Dep't of Labor, ``Enforcement Data,'' https://enforcedata.dol.gov/Enfdata/search.php; Nat'l Labor Relations Bd.,
``Case Search,'' https://www.nlrb.gov/search/case.
\388\ See Press Release, Fed. Trade Comm'n, ``FTC, Department of
Labor Partner to Protect Workers from Anticompetitive, Unfair, and
Deceptive Practices'' (Sept. 21, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/09/ftc-department-labor-partner-protect-workers-anticompetitive-unfair-deceptive-practices; Press
Release, Fed. Trade Comm'n, ``Federal Trade Commission, National
Labor Relations Board Forge New Partnership to Protect Workers from
Anticompetitive, Unfair, and Deceptive Practices'' (July 19, 2022),
https://www.ftc.gov/news-events/news/press-releases/2022/07/federal-trade-commission-national-labor-relations-board-forge-new-partnership-protect-workers; Press Release, U.S. Dep't of Justice,
``Justice Department and National Labor Relations Board Announce
Partnership to Protect Workers'' (July 26, 2022), https://www.justice.gov/opa/pr/justice-department-and-national-labor-relations-board-announce-partnership-protect-workers; Press Release,
U.S. Dep't of Justice, ``Departments of Justice and Labor Strengthen
Partnership to Protect Workers'' (Mar. 10, 2022), https://www.justice.gov/opa/pr/departments-justice-and-labor-strengthen-partnership-protect-workers.
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b. Requests To Expand Requirements for Information Related to Labor
Markets
Some commenters encouraged the Commission to request more
information about employees, including the merging companies' histories
of labor law violations dating back ten years rather than only five
years; information about their remote, temporary, or contract workers;
and the merging companies' union avoidance activities and expenditures.
Certain commenters encouraged the Agencies to consider the role of
unions and collective bargaining to accurately assess employer market
or monopsony power. In particular, commenters suggested that the
Agencies could collect the following information to animate such an
analysis: (1) a list of unions at controlled entities, associates, and
franchisee/cooperatives; (2) copies of collective bargaining
agreements, at least with any common unions; and (3) a narrative
describing any opposition to
[[Page 89321]]
efforts to unionize, including union avoidance activities and
expenditures. The Commission acknowledges the utility of collecting
this information for some transactions during the merger review process
but does not believe that this information is necessary for all filings
at the screening stage. As a result, the Commission has not included
requirements for this information in the final rule but will continue
to consider whether it is appropriate, on a case-by-case basis, to
request such information during the investigation of the transaction.
In sum, the Commission has determined that the requirements of the
final rule to provide descriptions of areas of competitive interaction
between the parties are necessary and appropriate to enable the
Agencies to identify transactions that may violate the antitrust laws
and that the requirements, as modified, have been tailored to reduce
the cost of reporting as much as practicable.
J. Revenues and Overlaps
The Commission proposed a Revenues and Overlaps section to collect
information currently required by Items 5(a), 6(c), 7, and 8, subject
to proposed modifications. The Commission proposed substantive changes
to the reporting of revenue by NAICS code, how NAICS overlaps of
controlled entities are reported, which minority-held entities must be
reported, and which prior acquisitions must be reported. As discussed
below, the Commission adopts some of the changes as proposed, adopts
others with modifications, and does not adopt others.
1. NAICS Codes
In the NPRM, the Commission proposed several changes related to
revenue reporting. One of the changes was ministerial in nature--
adopting the 2022 version of the NAICS codes. This proposal received no
comments, and the Commission adopts it as proposed.
The Commission proposed other, non-ministerial changes to revenue
reporting that reflect a substantively different approach to revenue
information by: (1) eliminating the requirement that filing persons
provide the precise amount of revenue attributed to each NAICS code and
instead report revenues within ranges; (2) reporting NAICS codes on a
descriptive basis through engagement with individuals familiar with the
business operations of each operating company and providing additional
information if more than one code would be appropriate; (3) requiring
acquiring persons and acquired entities with more than one operating
company or unit to identify which entity(s) derives revenue in each
code; (4) requiring acquiring and acquired persons to report NAICS
codes for certain pipeline or pre-revenue products; (5) clarifying that
the acquired person must report the NAICS codes relevant to the
acquired entity(s) at the time of closing; and (6) eliminating the
requirement for filing persons engaged in manufacturing to provide
revenue by NAPCS-based codes. As discussed below the Commission adopts
some of these changes, adopts a modified version of others, and does
not adopt certain of these proposed changes.
a. Reporting Revenues in Ranges
The Commission received several comments in support of the proposal
to eliminate the requirement that filing persons provide the precise
amount of revenue attributed to each NAICS code and instead report
revenues within one of five ranges. One commenter stated that the
introduction of levels proposed in the NPRM will simplify compliance
with the NAICS allocation requirement. Two other commenters expressed
general support for the proposed set of reorganized revenue
information. The Commission did not receive any comments opposed to
this change and adopts it as proposed.
b. Reporting Revenues on a Descriptive Basis
Regarding the proposal to report NAICS codes on a descriptive basis
through engagement with individuals familiar with the business
operations of each operating company and provide additional information
if more than one code would be appropriate, two commenters objected on
the grounds that it would be overly burdensome. One commenter noted
that many NAICS codes are broad and disconnected from the modern
economy, making it difficult to determine whether a particular code
applies. The other commenter objected to the proposal to list all the
codes that describe the products or services offered, explaining that
it would be extremely difficult to comply with when relying on
personnel at various operating companies that have varying familiarity
with the NAICS system. The same commenter noted that if the Agencies
are concerned about missing potential overlaps, the Overlap Description
is a more effective way to address that concern.
The Commission acknowledges the concerns about cost and adopts this
proposal with modifications. As noted in the proposed rule, in the
Commission's experience, reliance on financial records often results in
under-reporting or reporting revenues in codes that may not actually be
descriptive of the products or services provided. Having knowledgeable
business personnel select the appropriate NAICS codes that best
describe the filer's business lines is the best way to ensure that the
NAICS code revenues contained in the HSR Filing reflect the full range
of products and services offered from a business perspective. However,
the Commission will not require a particular methodology to collect
NAICS codes and notes that the intent of this change is to have filers
report codes that descriptively represent their revenues, and not need
to rely on how they are captured in financial systems.
c. Identifying Entities That Derive Revenues in Each Code
Two commenters objected to the proposed requirement to report NAICS
information separately by operating entity. Each of the commenters
asserted that this additional requirement would likely create
significant new burdens, in particular for larger companies with
numerous subsidiaries. While this type of reporting may be more
difficult for those with numerous subsidiaries, these are exactly the
filings for which the Agencies cannot determine which entities generate
revenues that are related to those of the other party. When parties
report revenues by entity, the Agencies can quickly home in on which
business lines are competitively relevant. The Commission notes that
some filers already provide revenues in this way and it is extremely
useful to the Agencies when they do. Although the Commission
acknowledges that this proposal may be more difficult for some filers,
it is necessary for the Agencies to have at the outset a clear picture
of how revenues are generated within the filing person. The Commission
adopts this change as proposed.
d. Reporting Revenues for Pre-Revenue Products or Services
The Commission received several comments regarding the proposal to
require acquiring and acquired persons to report NAICS codes for
certain pipeline or pre-revenue products. A group of State antitrust
enforcers supported the proposal, noting that they are particularly
concerned with acquisitions of potential or nascent competitors and the
protection of rivalrous innovation. Critics of the proposed requirement
expressed concerns about compliance. One commenter pointed out that the
Commission did not provide a clear standard for what ``under
development''
[[Page 89322]]
means or what information the acquiring person must have to ``know''
about the target's product pipeline. Other commenters noted that
classifying pre-revenue products or products under development is
inherently speculative and that the NAICS classifications sometimes lag
changes in technology and business.
The Commission acknowledges the potential challenges in complying
with this change and believes it is sufficient for the Agencies to rely
on the Competition Descriptions section for information related to pre-
revenue products or services. In the Overlap Description, filers are
required to list and briefly describe each current or known planned
products or services that compete or could compete with those of the
other party. As a result, similar information related to potential
NAICS code revenues would be largely duplicative. Given the
Commission's interest in reducing the cost of complying with the final
rule where the additional information provides little benefit to the
Agencies, the Commission does not adopt this proposal.
e. Overlap Reporting Revenues as of Time of Closing
Regarding the proposal to clarify that the acquired person must
report the NAICS codes relevant to the acquired entity(s) at the time
of closing, the Commission did not receive any comments. The Commission
adopts this item as proposed.
f. Eliminating Reporting by NAPCS Codes
Regarding the proposal to eliminate the requirement for filing
persons engaged in manufacturing to provide revenue by NAPCS-based
code, the Commission did not receive any comments. The Commission
adopts this item as proposed.
2. Controlled Entity Geographic Overlaps
Information about the geographic areas related to overlapping
products and services is currently required by Item 7. The Commission
proposed modifying these requirements to: (i) add a requirement to
provide the name(s) by which entities have done business within the
last three years, (ii) require the filing person to identify the
overlapping entity within its own person, rather than the other filing
person, (iii) update the NAICS codes that require geographic reporting
at the street address level, (iv) require the identification of
locations of franchisees for certain NAICS codes, and (v) add a
requirement to provide geolocation data. As discussed below, the
Commission adopts the some of the proposals as proposed, some with
modification, and does not adopt others.
a. NAICS Overlaps of Controlled Entities
The Commission proposed several changes to the information
concerning NAICS overlaps of controlled entities. First, the Commission
proposed requiring the acquiring person to identify the entity(s)
within its own person that has operations in the same NAICS code as the
acquired entity(s), and the acquired person to identify the entity(s)
within the acquired entity(s) that has operations in the same NAICS
codes as the acquiring person. Second, it proposed requiring the
identification of ``doing business as'' or ``formerly known as'' names
used within the last three years by entities with U.S. operations in
overlapping NAICS codes. Finally, the Commission proposed that filing
persons be required to identify the entity(s) that have U.S. operations
in the overlapping NAICS code(s).
Regarding the proposal to require the identification of ``doing
business as'' or ``formerly known as'' names used within the last three
years by entities with U.S. operations in overlapping NAICS codes, the
Commission received two comments. One commenter expressed support for
the proposal, noting that information regarding how private equity
portfolio companies are commonly known in the marketplace is necessary
for the Agencies to assess potential anticompetitive overlaps. Another
commenter, however, stated that the new requirement may be difficult
for filing parties to meet if they do not maintain such records,
meaning they would need to recreate the information for the HSR filing.
The same commenter questioned the value of the information for entities
beyond those that either (i) generate revenue that results in a NAICS
overlap or (ii) are parties to Material Other Agreements.
The Commission believes ``doing business as'' names will be of
great value to the Agencies in the initial waiting period and thus
adopts the proposal to require filing parties to identify names by
which entities do business at the time of filing. However, as part of
its overall efforts to lessen costs, the Commission does not adopt the
proposal to require ``formerly known as'' names.
Regarding the proposal to have each filing person only report
entities within its own person that derive revenue in the overlapping
NAICS codes, the Commission did not receive any comments. The
Commission adopts this change as proposed.
Finally, regarding the proposal to require filing persons to
identify the entity(s) that have U.S. operations in the overlapping
NAICS codes, the Commission did not receive any comments. The
Commission adopts this change as proposed.
In addition, one commenter suggested that the Commission require
identification of overlaps at the 3-digit, rather than 6-digit level,
stating that 6-digit NAICS codes are too narrow. While the Commission
agrees that some 6-digit NAICS codes are too narrow to identify
products or services that effectively compete in the market, it also
finds that other codes are overly broad. Further, identification of
overlaps also triggers the reporting of additional information,
including geographic information, identification of authors of
documents, production of certain annual reports, information about
certain officers and directors, identification of certain prior
acquisitions, and certain defense and intelligence contracts. Thus, the
Commission declines to adopt this suggestion but notes that this final
rule includes a Competition Descriptions section, as discussed in
section VI.I, to address the shortcomings of revenue reporting by NAICS
codes.
b. Geographic Market Information
The Commission proposed two changes related to geographic markets.
First, the Commission proposed updating the list of NAICS codes for
which locations need only be identified at the State level and NAICS
codes for which street-level information would be required. These
adjustments reflect the Commission's periodic review of which NAICS
codes need more granular street, city, and State address information,
and which NAICS codes need only be reported at the State level.
Information about where each filer generates revenues is important to
determining whether the parties sell or supply products or services in
the same local markets. Geographic market information often provides a
factual basis for the Agencies to conclude that the merging parties do
not sell the same products in the same local areas. Keeping this
information up-to-date allows the Agencies to rely on geographic market
information to conclude that the transaction does not warrant the
issuance of Second Requests.
The Commission received two comments regarding this requirement,
one in support of it and one opposed. The supportive comment emphasized
the need for street-level information in
[[Page 89323]]
the agriculture industry, where the relevant markets for evaluating
competition tend to be local and regional due to the perishable nature
of agricultural products. The Commission agrees that street-level
information is key in local and regional markets and articulated this
as the basis for the expansion of the requirement in the NPRM.
The comment in opposition to the proposal stated that it would
impose additional costs on filing parties given the wide range of
industries for which street-level information would be required. The
Commission acknowledges the cost, but for the reasons discussed above,
believes that street-level geographic information is necessary to the
Agencies' ability to conduct appropriate premerger screening of
transactions that are most likely to affect competition at a local
level. The Commission adopts this change as proposed.
The Commission also proposed requiring filers to list locations
where franchisees of the acquiring or acquired person (as appropriate)
generate revenue in overlapping NAICS codes that require street-level
reporting. The Commission did not receive any comments on this change
and adopts it as proposed.
c. Geolocation
The Commission also proposed requiring filers to report latitude
and longitude information for street addresses. The Commission received
comments both in support and in opposition to this requirement. The
supportive comment stated that many companies already keep lists of
latitude/longitude waypoints, while the comment opposed stated that
exceedingly few businesses maintain geolocation data in the ordinary
course of business.
As helpful as this information would be to the Agencies, especially
during the initial waiting period when the Agencies need to determine
whether there are any geographic markets in which the parties compete,
in its overall effort to reduce costs to filing parties, the Commission
does not adopt this proposal. Agency staff can continue to pursue
sources for this information when necessary and as time permits during
the initial waiting period.
3. Minority-Held Entity Overlaps
The Commission proposed creating a Minority-Held Overlaps section
to collect information related to minority holdings that is currently
required by Item 6(c). Item 6(c) requires the identification of
holdings of the acquiring person and its associates or the acquired
entity (as appropriate) of greater than 5% but less than 50% if such
holdings derive revenue in any of the same 6-digit NAICS codes (or
industries) as the other party. In the NPRM, the Commission proposed
eliminating the option to list all the minority-held entities, rather
than just those that are in overlapping NAICS codes or industries. The
Commission also proposed requiring filers to provide the names by which
the listed entities do business, if known. The Commission adopts these
changes as proposed.
Regarding the proposal to eliminate the option to list all
minority-held entities, the Commission received three comments, one
comment in support of the proposed change and two comments opposed to
it. The supporter of the proposal stated that it is critical to
understand a company's minority holdings, which may allow it to
exercise a level of competitive control in a market. One commenter
questioned the probative value of information about minority interests
generally but did not address this specific proposal. Another commenter
expressed concern that the proposal could lead to greater scrutiny of
``growth equity'' firms that primarily take minority stakes in
companies, and asserted that it could have a chilling effect on certain
investments.
The Commission addresses concerns that increased transparency may
lead to more enforcement actions in section III.C.1. and states that
the identification of overlapping minority holdings is a key reform of
the final rule because where these relationships exist, the Agencies
should scrutinize them as part of their premerger review. The
Commission also emphasizes that filers are currently required to
identify overlapping minority holdings. However, the current
Instructions allow filers to identify all minority holdings rather than
only those that overlap. The Commission has found that lists not
limited to the overlapping entities hinder efficient screening for
transactions that may require further investigation, resulting in extra
effort even when it would not be required if the overlaps were known as
well as not surfacing transactions that do have such overlaps. In
contrast, when filers submit a list of only those minority-held
entities that derive revenue in the same NAICS code, or are in the same
industry as the other party, the Agencies can quickly focus in on
holdings that could create a competitive concern. Additionally, as
minority interest holders, the filers are in a better position than the
Agencies to identify which, if any, of their holdings operate in the
same space as the other party. Given the importance of this information
to the Agencies, the Commission adopts this change as proposed.
Regarding the proposal to require filers to provide the names by
which the listed entities do business, if known, one commenter
supported the proposal while another stated that it may be difficult
for filing parties to comply with if they do not maintain such records.
As discussed in sections VI.D.1.d.(i) and (iii) and VI.D.2.a., the
legal names of entities are not always directly related to the name by
which the entity is known to the marketplace. Knowing the public-facing
names of entities facilitates efficient review of transactions by the
Agencies because those names may be better known to other market
participants. For investors of 5% or more, the Commission believes this
information should be readily available to filers. However, if this
information is not known, a statement of non-compliance can be
submitted with the filing, as discussed in section VI.A.5. Accordingly,
the Commission adopts this requirement as proposed.
In sum, the Commission has determined that the reporting
requirements for revenues and overlaps contained in the final rule are
necessary and appropriate to enable the Agencies to identify
transactions that may violate the antitrust laws in any line of
commerce or section of the country and that the requirement, as
modified, has been tailored to reduce the cost of reporting as much as
practicable.
4. Prior Acquisitions
The Commission proposed creating a Prior Acquisitions section
within the Instructions to collect information required by Item 8 of
the current Form, as well as additional information. First, the
Commission proposed requiring both the acquiring person and the
acquired entity to provide information about prior acquisitions,
expanding the current requirement that is limited to the acquiring
person. Second, the Commission proposed extending the time frame to
report prior acquisitions from five years to ten years. Third, the
Commission proposed eliminating the dollar threshold for listing prior
acquisitions, which currently limits reporting to only acquisitions of
entities with annual net sales or total assets greater than $10 million
in the year prior to the acquisition. Fourth, the Commission proposed
treating asset transactions involving the prior acquisition of
substantially all of the assets of a business in the same manner as
prior acquisitions of voting securities or non-corporate interests. The
Commission also proposed requiring
[[Page 89324]]
filers to report whether all or substantially all of the acquired
voting securities, non-corporate interests, or assets are still held at
the time of filing. As discussed below the Commission declines to adopt
several of these proposals and modifies others.
As noted in the NPRM, information about prior acquisitions has
always been important for the Agencies, allowing them to identify
strategies to gain market share through acquisitions rather than
internal expansion or more vigorous competition. Filers have been
required to provide information about prior acquisitions from the
beginning of the premerger notification program. As discussed in
section II.B.5., the Commission believes that additional information
about prior acquisitions will reveal roll-up or serial acquisition
strategies that have become increasingly prevalent in certain sectors
as well as among certain investors and acquirors, and that have been an
effective strategy for increasing concentration. A history of prior
acquisitions in the same sector can provide an independent basis for
the Agencies to take a closer look at the filed-for transaction to
ensure that merger enforcement takes place at a time when it can be
effective in preventing undue levels of market concentration.
Several comments provided general support for the Commission's
efforts to expand this item. According to a group of State antitrust
enforcers, details about a filing entity's prior acquisitions are vital
for evaluating mergers and industry concentration trends. They contend
that, in an era of so-called ``stealth acquisitions,'' premerger tools
used by antitrust enforcers require sharpening. Another commenter also
expressed this concern, observing a rise in serial acquisition
strategies that are potentially aimed at sidestepping regulatory
scrutiny.
Other commenters provided research supporting the proposed
expansion of information about prior acquisitions. One commenter
offered that his research supports claims made in the NPRM that prior
acquisitions have important consequences for competition. He explained
that even minor deals can produce major changes in market structure,
firm behavior, and consumer welfare. Other commenters described their
research or experience with roll-up acquisitions that have occurred in
various sectors of the economy, explaining that more expansive
disclosures of prior acquisitions will allow the Agencies to better
identify serial acquisitions and their potentially anticompetitive
effects.
But several comments raised broad objections to the Commission's
proposal to collect additional information on prior acquisitions.
Several comments broadly asserted that the burden of providing this
additional information about prior acquisitions would be too high. One
commenter asserted that expanding the information required would create
a chilling effect that could discourage acquisitions of startups, as
many potential acquirers of startups are likely to have made several
small acquisitions in the technology sector. Similarly, some comments
explained that the expansion of information related to prior
acquisitions would have particular impact on specific industries or
financial sectors, including pharmaceuticals, technology, agriculture,
and private equity. Other commenters said that providing more complete
information about prior acquisitions would reduce investments in
startup companies. Finally, certain comments suggested that the
proposed changes would adversely affect venture capital and funding
acquisitions.
The Commission has addressed some of these general concerns in
section III.C., as well as more detailed concerns about the cost to
complete this requirement, below. It believes that many of these broad
concerns are either not directly relevant to this rulemaking or
otherwise in tension with historical reporting practice.\389\
Nonetheless, the Commission has determined not to adopt most of the
expansions contained in the proposed rule, including the extension of
the lookback period from five to ten years or the elimination of the
$10 million exception. Instead, the Commission adopts modest
adjustments to the current requirements and extends the reporting
requirement to prior acquisitions of the target. The adopted
adjustments contained in the final rule include: (1) the elimination of
the $1 million threshold for revenue when determining which overlapping
NAICS codes are relevant; (2) the requirement to include prior
acquisitions of assets or entities that also provide competing products
or services listed in the filing person's Overlap Description; and (3)
the proposal to treat prior acquisitions of substantially all of the
assets of a business in the same manner as prior acquisitions of voting
securities or non-corporate interests.
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\389\ The Commission previously required information about prior
acquisitions for a full ten years. The Commission is not aware of
any evidence, and commenters did not point to any, of any noticeable
impact on the level of startup activity or venture capital funding
during that period.
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This information related to prior acquisitions will better reflect
current market dynamics in the very lines of business that will be the
focus of the Agencies' premerger assessment. The final rule does not
require reporting on all prior acquisitions, only those in in business
lines which the parties have identified as areas of overlapping current
or future competition, either on the basis of NAICS code reporting or
in the Overlap Description. This limitation focuses the required
information on the specific antitrust risk that one or both parties
have a pattern or strategy of rolling up competitors. It also alerts
the agencies to potential changes in the competitive environment that
may not be publicly available, which is valuable information in
assessing whether or not the filed for transaction may violate the
antitrust laws. In addition, parties are required to report only those
acquisitions of U.S. entities or assets and foreign entities or assets
with U.S. sales, thus targeting acquisitions that are likely to affect
local markets within the United States. With these limitations,
information collected about prior acquisitions is properly focused on
the antitrust risk that the merging parties are pursuing a roll up
strategy that is harming or could harm competition in the United States
in violation of the antitrust laws.
As discussed in section II.B.5., the antitrust laws have always
applied to anticompetitive serial acquisitions. In light of the
increased use of these strategies and evidence of their harmful effects
in certain sectors, there is a clear benefit to antitrust enforcement
from disclosing prior acquisitions that may reveal a pattern or
strategy of rolling up competitors in violation of the antitrust laws.
This risk can be especially acute when the transaction involves a
merger between `consolidators,' with both firms having many prior
acquisitions in the same lines of business. The final rule is properly
tailored to focus on the risk that the transaction is part of such a
strategy. Information about prior acquisitions need only be submitted
for business lines that the parties have identified as areas of current
or future competition. Moreover, any burden imposed by the additional
reporting requirements would be limited. Based on the Agencies'
experience, information about prior acquisitions is well-known to
companies that are parties to an acquisition agreement, as this
information is often collected as part of the due diligence process for
the pending transaction. Other companies, even relatively small
companies, routinely provide this information to the
[[Page 89325]]
Agencies in response to a Second Request.
The Commission acknowledges that this requirement imposes a new
obligation on acquired companies but believes this information is
necessary and appropriate for the Agencies to conduct their premerger
review. Information about prior acquisitions is specifically targeted
to uncover prior acquisitions where the parties have existing or
emerging overlaps; if the acquired person completed many acquisitions
over the past five years in these overlapping business lines, that
information would be highly relevant to assessing the transaction's
likely effect on future competition in those overlap sectors. Moreover,
serial acquisition strategies may be going on simultaneously in a
particular business line, and the acquired person's history would
reveal whether the acquiring person is acquiring a firm that was also
pursuing such a strategy.
The benefit to the Agencies from collecting this information from
both parties is directly related to the number of prior acquisitions in
the same business lines: the more acquisitions recorded during the
prior five years, the more relevant is the information about them. Both
the acquiring person and the acquired entity can and do make
acquisitions that have an impact on the relevant competitive landscape.
In addition, requiring this information from both filers may help deter
acquisition strategies whereby a target buys several related companies
that fall under the HSR thresholds and then the acquiring person
purchases the target; the current rule does not reveal this history of
prior acquisitions in the same business lines. Being able to clearly
understand this history from the time a filing is made assists the
Agencies in identifying a potential pattern of acquisitions in a
particular industry that has contributed to a trend toward
concentration or vertical integration that affects the competitive
dynamics for the parties to the transaction, as well as the commercial
realities of post-merger competition. One commenter suggested that
parties report prior acquisitions only from the point in time when the
current UPE acquired control of the acquiring or acquired entity, but
this would limit the Agencies' ability to fully understand patterns and
current competition. Thus, the Commission declines to further limit the
requirement in this way.
The Commission also proposed expanding the time frame for reporting
prior acquisitions from five to ten years to allow the Agencies to have
a more complete understanding of how past acquisitions in the affected
business lines affect the competitive landscape of the current
transaction under review. Even though the Commission has required ten
years of prior acquisition information on the HSR Form in the past,
commenters questioned the expansion of the requirement now. Some
comments focused on the added burden, noting that individuals who have
institutional knowledge of past acquisitions may no longer be employed
by the filing entity. Another comment pointed out that the Commission
previously recognized that a ten-year lookback period was unduly
burdensome when it reduced the information request from ten years to
five years in 1987. The Commission acknowledges the cost associated
with reporting many prior acquisitions, and after careful consideration
of the comments, has determined not to require reporting for prior
acquisitions occurring more than 5 years prior to filing.
But the Commission disagrees that concerns about roll-up strategies
are not well-grounded in antitrust law. As discussed in section
II.B.5., U.S. antitrust law clearly addresses concerns about the
acquisition or maintenance of market power through serial acquisitions.
As stated above, it is precisely this information that allows the
Agencies to fairly measure the competitive landscape and on-going
trends toward concentration in certain business lines, making the
information relevant to the Agencies' initial antitrust assessment of
the transaction. The Commission also disagrees that the HSR Act does
not permit the Agencies to use section 7 of the Clayton Act to
challenge serial acquisitions. Section 7 clearly prohibits acquisitions
that were preceded by a series of acquisitions that rendered the
market(s) under review concentrated,\390\ and it is not improper for
the Commission to require the reporting of prior acquisitions to better
detect a pattern of acquisitions that may also violate other antitrust
statutes, such as section 2 of the Sherman Act or section 5 of the FTC
Act. Although the Commission agrees that the information submitted with
the HSR Form must be used to examine the potential competitive impact
of the filed-for transaction, it disagrees that the scope of section 7
is so limited as to prevent the Agencies (or other enforcers of the
Federal antitrust laws) from alleging harm that derives from a
cumulation of similar acquisitions in the same market.\391\
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\390\ See United States v. Phila. Nat'l Bank, 374 U.S. at 367.
See also Credit Bureau Reps., Inc., v. Retail Credit Co., 358 F.
Supp. 780, 794 (S.D. Tex. 1971), aff'd, 476 F.2d 989 (5th Cir.
1973).
\391\ See Brown Shoe Co. v. United States, 370 U.S. 294, 334
(1962) (citing S. Rep. No. 81-1775, at 5 (1950) and H.R. Rep. No.
81-1191, at 8 (1949)). In particular, S. Rep. No. 81-1775, at 5
noted that where several large enterprises are extending their power
by successive small acquisitions, the cumulative effect of their
purchases may be to convert an industry from one of intense
competition among many enterprises to one in which only a few large
concerns supply the market.
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The Commission also proposed eliminating the $10 million threshold
for identifying prior acquisitions and received several comments on
this point. One comment urged the Commission to keep the existing
limitation that requires reporting only those acquisitions of more than
$10 million in total assets and annual net sales in the year prior to
the acquisition as a way to eliminate the burden of reporting a large
number of extremely small transactions that are competitively
insignificant. One comment suggested maintaining the current $10
million threshold for prior acquisitions but exempting certain,
specified NAICS codes related to emerging technology sectors from the
threshold.
Yet another commenter suggested the Commission broaden its proposed
rule to include prior acquisitions based on three-digit NAICS codes,
rather than relying on six-digit NAICS code overlaps, which the
commenter found to be often too narrow or imprecisely defined. The
Commission acknowledges that three-digit NAICS codes would include more
prior acquisitions and present a broader picture of the competitive
landscape. But because prior acquisitions also include products or
services described in the Overlap Description, which in some instances
may encompass a broader set of acquisitions than reliance on NAICS
codes alone, the Commission declines to use three-digit NAICS codes as
the standard.
In sum, the Commission has determined that the reporting
requirements for prior acquisitions contained in the final rule are
necessary and appropriate to enable the Agencies to identify
transactions in which the merging parties are engaged in a pattern or
strategy of roll-up acquisitions and that the requirement, as modified,
has been tailored to reduce the cost of reporting as much as
practicable.
K. Additional Information
1. Subsidies From Foreign Entities or Governments of Concern
While the Commission did not receive any comments objecting to the
proposed new defined terms ``foreign entity or
[[Page 89326]]
government of concern'' and ``subsidy'' discussed in section IV.B., it
did receive several comments about the reporting requirements included
in the proposed Instructions. One commenter objected that the Committee
on Foreign Investment in the US (``CFIUS'') already is tasked with the
review of certain transactions involving foreign investment in the
United States and that requiring information about foreign subsidiaries
in the HSR form would add to the burden of notifying parties (and the
Agencies) without providing concurrent value for the substantive
antitrust analysis. In response to this comment, the Commission notes
that it must defer to Congress in implementing the requirement to
report information about foreign subsidies in the HSR Form.
Another commenter suggested introducing a de minimis threshold so
that the reporting obligation is limited to only those subsidiaries
from foreign governments and entities of sufficiently large amounts to
potentially distort the competitive process in markets in the United
States in which the merging parties compete. Citing the EU Foreign
Subsidies Regulation as an example, this commenter claimed that such a
threshold would save merging parties the burden of compiling small
subsidy amounts that could not be expected to result in competition
concerns. The Commission acknowledges that a de minimis requirement may
indeed make sense as part of the information required, but Congress did
not provide for a de minimis threshold, and the Commission does not yet
have sufficient data to make that determination or establish an amount
at this time. Once the Agencies have begun to receive information about
foreign subsidies, the Commission can revisit this issue, if warranted.
Finally, a comment from a senator and a representative noted that
information about the financing activities of merging parties would
also be useful in addressing a host of national security challenges and
encouraged the Agencies to share such information with other
governmental bodies, including Congressional committees. The Commission
agrees the Agencies should facilitate this kind of information sharing
to the extent permitted by current law, regulations, guidelines, and
practices governing information sharing within the Federal government.
2. Defense or Intelligence Contracts
The Commission proposed creating a Defense or Intelligence
Contracts section that would require filing persons to report
information related to certain contracts with defense or intelligence
agencies to speed up outreach to those agencies related to the reported
transaction. As proposed, both the acquiring and acquired person would
have been required to identify whether they have existing or pending
procurement contracts with the Department of Defense (``DoD'') or
Intelligence Community (``IC''), as defined by 10 U.S.C. 101(a)(6) and
50 U.S.C. 3003(4), valued at $10 million or more, and provide
identifying information about the award and relevant DoD or IC
personnel. The Commission reasoned that for filings from companies that
supply DoD or IC with products or services, this information would
greatly enhance the Agencies' ability during the initial waiting period
to identify and contact appropriate stakeholders within DoD or IC to
seek their input as customers that might be impacted by the proposed
transaction and to speak to knowledgeable experts about the products or
services provided to the government by the parties. As discussed below
and in response to concerns raised in public comments, the Commission
adopts the proposal with modification.
The Commission received several comments on this proposal. One
commenter stated that the Commission provides limited explanation of
its authority or justification for this proposed requirement and that
it does not explain its focus on these agencies. The Commission
responds that it proposed special reporting requirements for the
defense and intelligence agencies because they are often the only
customer for products and services offered by defense companies, and a
thorough review of these transactions is a priority for the Agencies.
Products and services sold to DoD or the IC are often unique and not
sold to any other customer. As noted in the NPRM, the Agencies
regularly review filings from companies that supply the DoD or the IC
with products or services, and it is important for them to be able to
quickly contact DoD and IC staff to collect key insights and
information to prevent mergers that may have an anticompetitive impact.
A recent study by the General Accountability Office highlights the
importance of DoD's input to the Agencies regarding potential
competition risks to the defense industrial base and DoD programs.\392\
The Agencies have relied on interactions with DoD personnel, and to a
lesser extent IC personnel, to investigate and challenge defense
mergers over the years. Without information about specific DoD or IC
contracts or knowledge of which unit handles that contract, the
Agencies often face difficulty and delay in identifying appropriate
relevant personnel or stakeholders with knowledge of the contracts,
programs, or products or services at issue.
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\392\ See U.S. Gov't Accountability Office, Defense Industrial
Base: DOD Needs Better Insight into Risks from Mergers and
Acquisitions 28 (Oct. 2023) (GAO-24-106129).
---------------------------------------------------------------------------
Any delay in identifying the right DoD or IC personnel with deep
knowledge of complex and highly sensitive programs hinders the
Agencies' ability to identify and fully assess competition issues in
the reported transaction that would impact DoD or IC programs or
budget. The Commission has determined that to be fully proactive about
these concerns, and to seek DoD or IC input at an early stage of the
inquiry, parties with certain pending or current DoD or IC contracts
need to provide that information with their notification. Although the
Agencies are also attentive to any merger that may affect purchases by
other parts of the government, these transactions involve products and
services that are also sold to commercial customers and can be
investigated using our standard approach.
Beyond this comment on the general focus of the requirement,
commenters addressed three primary areas of concern: vagueness,
confidentiality, and the burden of compliance. First, commenters
expressed concern about the lack of clarity in the proposed rule, for
instance pointing out that neither the NPRM nor the cited statutes
define what constitutes a ``pending'' procurement contract. This
commenter suggested that, to avoid this ambiguity, the new rule should
apply only to active procurement contracts, not pending contracts. The
Commission agrees there is a need to clarify which contracts should be
reported and modifies the Final Rule to require reporting for (1)
pending proposals submitted to the U.S. Department of Defense or any
member of the U.S. intelligence community, as defined by 10 U.S.C.
101(a)(6) or 50 U.S.C. 3003(4), and (2) awarded procurement contracts
with the U.S. Department of Defense or any member of the U.S.
intelligence community, as defined by 10 U.S.C. 101(a)(6) or 50 U.S.C.
3003(4). The Commission declines to limit the reporting requirement to
active contracts only. Submission of a proposal indicates that the
filer is a competitor, regardless of
[[Page 89327]]
whether it is ultimately awarded the contract. The Commission believes
that these changes address some of the ambiguities raised by
commenters.
According to one commenter, it is not clear what method of
valuation should be used to determine if a contract is valued at $10
million or more, particularly for open-ended supply contracts. First,
as discussed below, the Commission increases the threshold to $100
million. Second, the Commission clarifies that filers should use the
maximum estimated quantity or value in their proposed or awarded prices
to determine the estimated value of the contract. Otherwise, filers
should use reasonable judgment in determining how to value their
contracts and may explain the method of valuation used.
With respect to confidentiality concerns, one commenter stated that
it is not clear how a company may provide this information without
violating Federal laws and regulations restricting the dissemination of
such sensitive information. Commenters proposed suggestions to avoid
such conflicts. For instance, one suggested that the proposed
instruction should be clarified to exclude any contracts that are
classified or otherwise subject to a government-imposed duty of
confidentiality. Another recommended that the Agencies consider the
appropriateness and potential applicability of a national security
exception to certain requirements within this proposed rule.
As an initial matter, the Commission notes that there is nothing in
the HSR Act that overrides the protections due classified information,
and the Commission specifically intends to not require the submission
of classified information. To alleviate concerns about the sensitivity
of the information related to these contracts, the Commission revises
the Instructions to expressly state that parties should not include
classified information but that they should note when responsive
information is withheld on that basis. The Commission believes that
this modification addresses the concerns raised in the comments and
preserves protections for classified information. The Commission
declines to adopt the proposal to exclude any contracts that are
classified or otherwise subject to a government-imposed duty of
confidentiality. The fact that the parties have submitted a proposal in
response to a request from DoD or the IC or have an existing contract
is not classified information. Such an exclusion is overbroad and would
not allow the Agencies the benefit of reviewing non-classified
information related to these pending proposals or active contracts. The
Commission believes that the revision stating that parties should not
include classified information in their submissions addresses this
issue. For the same reason, the Commission declines to adopt the
proposal to create a national security exception to the rule. The
confidentiality provisions of the Act provide sufficient protection for
any confidential but unclassified information about these documents.
The Commission additionally notes that many of the products and
services the Agencies investigate have similar national security
implications even if they involve customers other than DoD or the IC.
As to the burden of complying with this requirement, one commenter
noted that the requested information is often not maintained in the
ordinary course of business, nor is it created in the course of a deal
negotiation, and that due to confidentiality concerns, these data are
often not centrally maintained and may not be known, even among senior
leadership. To limit the burden, one commenter recommended that the
requested information be limited to those DoD or IC contracts with a
primary NAICS code for which the filing parties have identified NAICS
overlaps or that the Agencies obtain this information from the Federal
Procurement Data System.
To reduce the cost of complying with this request, and in light of
the general concern that classified materials are not widely known or
shared, the Commission makes two significant modifications to limit the
scope of this requirement. In line with the proposal above, the
Commission limits the set of responsive contracts to those involving a
6-digit NAICS industry code overlap or a product or service described
in the Overlap Description or the Supply Relationships Description. The
Agencies' need for information about pending or active DoD or IC
contracts is directly related to the specific antitrust risks
associated with the transaction, and limiting this information in this
way targets the most relevant contracts, if they exist. In addition, in
response to concerns that the $10 million de minimis level will require
reporting for purchases by DoD or the IC of mundane products and
services, rather than critical defense purchases, the Commission has
determined to increase the de minimis threshold for these contracts
from $10 million to $100 million. The Commission believes that this is
the appropriate threshold for limiting this request to products that
are uniquely sold to the DoD or the IC. The Commission declines to make
any modification in response to the suggestion that the Agencies get
this information from the Federal Procurement Data System. It is not
feasible for the Agencies to rely on discovering critical DoD or IC
proposals or contracts from this database for the purpose of
identifying key personnel at those agencies and obtaining information
about complex products and services during the initial waiting period.
This information is known by the parties and easy to verify, especially
with the limitation that the contracts be worth more than $100 million
annually. Contracts or commitments of this size are likely subject to
close monitoring.
In addition, to further reduce the burden of this requirement, the
Commission excuses select 801.30 transactions from reporting
information related to DoD or IC proposals or contracts. These
transactions do not involve an agreement between the parties.
Finally, two commenters noted a typographical error in the proposed
Instructions: the reference to 50 U.S.C. 3033(4) should refer to 50
U.S.C. 3003(4). The Commission revises the instructions to correct the
typographical error noted by the commenters.
In sum, the Commission has determined that the reporting
requirements for pending proposals and active contracts with DoD or the
IC contained in the final rule are necessary to provide the Agencies
with the ability to identify transactions in which the merging parties
are providing critical products or services to the government and to
quickly reach out to those agencies for their input. The requirement,
as modified, has been appropriately tailored to reduce the cost of
reporting as much as practicable.
3. Voluntary Waivers
The Commission proposed amending the Instructions to allow filing
persons to waive the confidentiality provision contained in the Act, 15
U.S.C. 18a(h), for any non-U.S. competition authorities or State
Attorneys General they identify. As stated in the NPRM, allowing filers
to waive the confidentiality protections in the HSR Filing would
provide an efficient mechanism for filers to consent to limited waivers
of confidentiality at the outset of any agency review to facilitate
early cooperation among competition enforcers. The proposed voluntary
waivers would allow the Agencies to disclose the existence of an HSR
Filing and the information contained in the HSR Filing, but only for
those non-U.S. competition authorities or State Attorneys General
identified by the filing person. The
[[Page 89328]]
Commission also proposed modifying the language that would inform
filers about potential disclosures based on the waivers to track the
language of the Act more closely. As discussed below, the Commission
adopts this proposed change with modifications.
The Commission received three comments addressing this proposal. A
group of State Attorneys General, who would be the recipients of HSR-
related information if filers granted access on a voluntary basis,
encouraged the Commission to consider three changes. First, they
proposed requiring filing persons to identify the relevant States where
the parties do business, regardless of whether they opt to provide
waivers or check the box. Second, they encouraged the Agencies to, by
default, disclose to the public the fact of filing and the expiration
date of the waiting period. They argued that nothing in the HSR Act
requires that the fact of filing and the waiting period be kept
confidential and that this information should not be treated as such.
The comment urged the Agencies to exercise their authority to disclose
this information to the public or to the States. They recommended that
to avoid disclosure, the parties should have to provide a basis for
keeping the fact and timing of the filing confidential. If the Agencies
adopted the second proposal, they also encouraged the Agencies to
include a check box to allow parties to waive confidentiality of the
information and documents filed with the notification so that these
materials could be shared with affected States. Third, if the Agencies
chose not to adopt the above recommendation regarding public
disclosure, the State antitrust enforcers suggested disaggregating the
check box into two separate boxes, one to allow disclosure of the fact
of filing and the associated waiting period and another to allow
sharing of the information and documents in the filing with affected
State Attorneys General. They stated that disaggregating the check box
increases the likelihood that States at least receive notification of
the transaction.
The Agencies have historically not publicly disclosed or provided
to the States or international enforcers information regarding HSR
filings, including the fact that a filing was made and the waiting
period, in the absence of a waiver from the parties. Without weighing
on the merits of the States' legal arguments regarding the scope of the
HSR Act's confidentiality protections, the Commission at this time
believes it is appropriate to maintain its prior practice. The
Commission does adopt the States' suggestion to disaggregate the waiver
check boxes, which would allow for greater flexibility in providing the
Agencies consent to disclose and provide filers with the option to
disclose some information but not all information contained in the HSR
Filing.\393\ The waiver would apply only to those non-U.S. competition
authorities or State Attorneys General selected by the filing person.
The Commission declines to adopt the proposal by the State antitrust
enforcers to require parties to identify the relevant States where they
do business, regardless of whether they waive confidentiality. The
Commission will likely receive much of this information through the new
requirements contained in the final rule.
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\393\ The Commission's implementation of this suggestion differs
from the text proposed by the States. The Commission does not adopt
the States' suggestion, with respect to the fact of filing and the
waiting period, that, in order to prevent disclosure, the parties be
required to affirmatively check a box and provide a basis for
keeping the information confidential.
---------------------------------------------------------------------------
The Commission received two other comments on this proposal. One
commenter expressed concern about confidential information becoming
publicly known once it is shared more widely due to the increased risk
of leaks. On this point, the Commission notes that these waivers are
voluntary. The parties can decide not to waive confidentiality if they
have concerns about confidentiality. Further, the Agencies take
seriously the confidentiality requirements of the Act and require law
enforcement colleagues to abide by these protections. In the many
decades of case cooperation pursuant to voluntary waivers, these
protections have worked to prevent improper disclosures. The Commission
believes that concerns about an increased risk of leaking due to the
option to waive confidentiality at the time of filing are unfounded.
Finally, according to one commenter, the proposed rule appears to
contemplate a single check box that does not permit notifying parties
to communicate their willingness to waive confidentiality as to some
international competition authorities but not as to others. The
Commission notes that this commenter misunderstands the requirement and
clarifies that the voluntary waiver will only apply to those
jurisdictions that the party affirmatively indicates in the HSR Filing.
In addition, failure to check either box or indication of only a few
jurisdictions for waivers does not prevent the parties from providing
these waivers or adding jurisdictions later. The inclusion of these
waiver options in the Form is simply meant to serve as an efficient
mechanism for filers to provide their clear consent at the outset even
if only on a limited basis.
The Commission did not receive any comments regarding the proposal
to modify the language informing filers about potential disclosures
based on the waivers to track the language of the Act more closely.
Thus, the Commission adopts this change as proposed.
In sum, the Commission has determined that offering the option for
parties to waive the confidentiality provisions of the Act to allow for
the sharing of HSR materials with non-U.S. jurisdictions or State
enforcers in the final rule will provide a benefit to the Agencies in
facilitating case cooperation at an early stage in the Agencies'
assessment of antitrust risk. The option, as modified, has been
tailored to provide a clear choice for filers who wish to facilitate
the sharing of information by providing a waiver.
4. Identification of Communications and Messaging Systems
In conjunction with the proposed requirement that filing persons
certify they have taken steps to prevent destruction of relevant
information, as discussed in section VI.L., the Commission also
proposed that filers identify and list all communications systems or
messaging applications on any device used by the filing person that
could be used to store or transmit information or documents related to
its business operations. The Commission does not adopt this proposal.
In the proposed rule, the Commission reasoned that, as companies
have increasingly been relying on new forms of communication to do
business and make key operational decisions, these communications
systems have become an important part of the Agencies' investigations.
In the Agencies' experience, these systems contain highly relevant
information on the transaction itself, as well as on topics that are
critical for the Agencies' assessment of the transaction such as
competition, competitors, markets, customers, and industry
characteristics. Nevertheless, many parties do not appear to fully
understand or comply with document preservation obligations for these
new modalities.
The Commission received several comments on this proposal, mainly
regarding the burden of the request and its utility in screening for
anticompetitive transactions during the initial waiting period.
Multiple commenters expressed doubt about the Commission's assertion
that this
[[Page 89329]]
information is readily available to the filing person and that
identifying these systems would impose minimal burden. One association
of antitrust practitioners noted that because there is no limitation on
the requirement, large or diffuse organizations may have hundreds of
communications systems that would require identification but are
unknown or unused by the filing person's employees who are involved in
preparing the HSR filing. One commenter also flagged the inevitable
complications caused by, for example, special IT systems, legacy IT
systems, and individual employees who do not follow corporate IT
policies. According to another, the process of gathering this
information often requires the expertise of counsel and entails
interviews of key employees as well as a careful review of company
practices and policies. As a result, this commenter stated that the
burdens associated with the additional requirements would fall more
harshly on small companies that are not equipped to navigate the
regulatory process. In addition, comments also objected that the
information requested would not assist the Agencies in determining
whether to issue a Second Request. They noted that the identification
of these systems is best reserved for the transactions that are
investigated as is the Commission's current practice when issuing
Second Requests.
After carefully considering these comments, and as part of its
overall effort to reduce burden on filing parties, the Commission does
not adopt this proposal. The Commission notes, however, that the
Agencies have taken steps to update their guidance related to
obligations to preserve ephemeral messages and similar communications
systems, and have provided language in the Model Second Request to
reflect document production and retention obligations for these
communication systems.\394\ Based on this guidance, companies that take
steps to preserve information related to these communications systems
may reduce the likelihood that they will face consequences for non-
compliance with a Second Request.
---------------------------------------------------------------------------
\394\ See Press Release, U.S. Dep't of Justice, ``Justice
Department and FTC Update Guidance that Reinforces Parties'
Preservation Obligations for Collaboration Tools and Ephemeral
Messaging'' (Jan. 26, 2024), https://www.justice.gov/opa/pr/justice-department-and-ftc-update-guidance-reinforces-parties-preservation-obligations. See also Fed. Trade Comm'n, ``Slack, Google Chats, and
other Collaborative Messaging Platforms Have Always Been and Will
Continue to be Subject to Document Requests,'' Fed. Trade Comm'n
Competition Matters blog (Jan. 26, 2024), https://www.ftc.gov/enforcement/competition-matters/2024/01/slack-google-chats-other-collaborative-messaging-platforms-have-always-been-will-continue-be-subject.
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L. Certification
Each HSR Filing is accompanied by a notarized certification, signed
by the person preparing or supervising the preparation of the filing.
The person signing the certification attests to the veracity of the
information submitted in the filing. The Commission proposed amending
this certification to require filers to affirm that they have taken the
steps necessary to prevent the destruction of documents and information
relevant to the transaction. The Commission also proposed adding
language to the Instructions to remind filers that criminal statutes
prohibit practices that impede or frustrate functions of government
agencies, such as submitting false information. This proposal would
require most HSR filers to establish new document retention policies or
revise existing policies prior to filing. As explained in the NPRM, the
deletion of information or documents that could be called for in a
Second Request could lead to a loss of information critical to the
Agency's ability to conduct an in-depth investigation.
The Commission received approximately ten comments on this
proposal. Some commenters noted that the proposed rule would expand
document preservation beyond current law, which obligates parties to
preserve documents and information related to an ongoing or anticipated
government investigation \395\ or if they have a reasonable
anticipation of litigation.\396\ Commenters noted that very few filers
have an obligation to preserve information about the transaction since
they are not yet under investigation and do not have a reasonable
anticipation of litigation.
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\395\ Federal law provides serious criminal penalties, including
up to twenty years imprisonment, for any person who knowingly
alters, destroys, mutilates, conceals, covers up, falsifies, or
makes a false entry in any record, document, or tangible object with
the intent to impede, obstruct, or influence an ongoing or
anticipated Federal investigation. See, e.g., 18 U.S.C. 1519.
\396\ Zubulake v. UBS Warburg LLC, 220 FRD. 212, 218 (S.D.N.Y.
2003) (holding that once a party reasonably anticipates litigation,
it must suspend its routine document retention/destruction policy
and put in place a litigation hold to ensure the preservation of
relevant documents).
---------------------------------------------------------------------------
Commenters also described the burden, particularly the cost,
associated with document preservation obligations. Several commenters
explained that litigation holds are expensive and difficult to design
and implement, especially concerning the breadth of documents and
information that would be subject to a hold. One commenter noted that a
document hold does not simply encompass the suspension of auto-delete
policies, can be difficult and expensive to implement with precision,
and typically extends to individuals, databases, communication systems,
and materials beyond the scope of the transaction. Another pointed out
that data is expensive to store and that filers would be required to
retain documents that cover large components of their day-to-day
operations. According to one commenter, at the time of filing, the
notifying party may not know enough about what issues will be of
interest to the Agencies to identify a set of custodians who are likely
to have information related to the proposed transaction.
After carefully considering the comments, the Commission has
determined not to adopt this proposal. The Commission notes that, under
current law, when litigation is reasonably foreseeable, parties have an
obligation to preserve documents relating to the proposed transaction.
This obligation could arise before or after HSR filing. In addition, it
is a Federal crime for any person to knowingly alter, destroy,
mutilate, conceal, cover up, falsify, or make a false entry in any
record, document, or tangible object with the intent to impede,
obstruct, or influence an ongoing or anticipated Federal
investigation.\397\
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\397\ See 18 U.S.C. 1519.
---------------------------------------------------------------------------
The Commission also received a few comments on the addition of
language reminding the filer of potential criminal liability under
other Federal statutes that prohibit various deceptive practices aimed
at frustrating or impeding the legitimate functions of government
departments or agencies. Commenters raised general concerns about how
this language could alter how filers prepared their notification. One
commenter stated that when read together with the requirement to
preserve documents, the reminder of criminal penalties would prevent
filers from instituting a tailored legal hold. Another stated that it
seems to suggest that filers should fully expect a harsh and punitive
response to filing errors. Commenters primarily noted that the added
language merely restated existing law. Given that the proposed
certification on criminal liability does not increase the burden or
cost of filing and may have a benefit of putting some unaware filers on
notice of possible criminal penalties, the Commission adopts this
proposal as a simple restatement of existing penalties.
[[Page 89330]]
M. Affidavit
As discussed in section V.D., the Commission proposed requiring
filings for transactions without definitive agreements to include a
term sheet or draft agreement that describes with specificity the scope
of the transaction that would be consummated. In conjunction with that
proposal, the Commission also proposed that parties making such filings
attest in their affidavit that a term sheet or draft agreement that
describes with specificity the scope of the transaction that will be
consummated has been submitted with the executed letter of intent or
agreement in principle.
As described above, the Commission modified the proposal and has
made a conforming change to this section of the Instructions as part of
the final rule.
VII. Severability
In the NPRM, the Commission noted that Sec. 803.90 contains a
separability (or severability) provision such that, if any provision of
the Rules (including the Form) or the application of any such provision
to any person or circumstance is held invalid, the other provisions of
the Rules and their application to other persons or circumstances shall
be unaffected.
The Commission did not propose any changes to the severability
provision in Sec. 803.90 and does not adopt any changes. However, as
it did in the NPRM, the Commission confirms its intent that, if a court
were to invalidate any provision, any part of any provision, or any
application of the final rule, the remainder of the final rule would
remain in effect to the greatest extent possible. The Commission's
general view is that each substantive requirement of the final rule is
severable from each of the others. The Agencies need the information
requested by the final rule for the reasons discussed above. Each
requirement in the final rule serves an important, related, but
distinct purpose and provides a distinct benefit separate from, and in
addition to, the benefit provided by other requirements. However, if a
court finds that certain provisions are invalid, the following analysis
applies.
The Commission notes that some reporting requirements are
contingent upon filers reporting overlapping products or services in
(1) the Overlap Description; (2) the Supply Relationships Description;
and (3) the same NAICS codes. The severability of these reporting
requirements are as follows:
Officers and Directors
If product or service overlaps are identified in the Overlap
Description or Supply Relationships Description, the final rule
requires the acquiring person to list officers and directors (or in the
case of unincorporated entities, individuals exercising similar
functions), and those who have served in the position within the past
three months for each entity within the acquiring person responsible
for the development, marketing, or sale of products or services that
are identified as overlaps and who have also served in these roles with
the target. The Commission does not view this requirement as severable
from the Overlap or Supply Relationships Descriptions. However, the
Commission's view is that the two other reporting requirements
regarding Officers and Directors are severable and would remain if the
Overlap or Supply Relationships Descriptions are held invalid. These
are the requirements to (1) list all individuals likely to serve as,
nominate, or appoint an officer or director of the acquiring entity
(and the accompanying requirements); and (2) for each officer and
director identified, list all other entities operating in commercial
activities in the same NAICS codes reported by the target for which the
individual currently serves as an officer or director. The Agencies
need the information in the first requirement for the reasons discussed
above in sections II.B.1. and VI.D.3.c., and this first requirement
would not be affected by invalidation of the Overlap or Supply
Relationships Descriptions. With respect to the second requirement, the
Commission has long required reporting of NAICS code information, and
the reporting of NAICS code information stands independent of, and can
operate separately from, the Overlap or Supply Relationships
Descriptions. The changes the Commission has finalized here are modest
and do not significantly alter the existing requirement to report
certain NAICS code information. Accordingly, the Commission believes
that the requirement to report certain officer and director information
in any identified NAICS code overlap would stand even if either (1) the
Overlap or Supply Relationships Descriptions were held invalid, or (2)
any of the final rule's changes regarding NAICS code reporting were
invalidated.
Prior Acquisitions
Filers (both acquired and acquiring persons) are required to report
certain information regarding prior acquisitions that (1) derived
revenue in an identified NAICS code overlap or (2) provided or produced
an overlap product or service as described in the Overlap Description.
If the Overlap Description is invalidated, the Commission does not view
the second part of the Prior Acquisitions reporting requirement as
severable from that reporting requirement. However, the first
requirement regarding derived revenue in an identified NAICS code
overlap would remain in place, for the same reasons discussed
previously in connection with the severability of the Officers and
Directors requirement.
Defense or Intelligence Contracts
Filers are required to identify (1) proposals submitted to the U.S.
Department of Defense or any member of the U.S. intelligence community,
and (2) awarded procurement contracts with the U.S. Department of
Defense or any member of the U.S. intelligence community, valued at
$100 million or more, that (A) are or will be the source of revenues in
any identified NAICS code overlap or (B) involve or will involve an
overlapping product or service identified in the Overlap Description or
the Supply Relationships Description. If the Overlap or Supply
Relationships Descriptions are invalidated, the Commission does not
view the portion of the Defense or Intelligence Contracts reporting
requirement referring to the Overlap or the Supply Relationships
Descriptions as severable from those reporting requirements. However,
the portion requiring the reporting of certain information in any
identified NAICS code overlap would remain in place, for the same
reasons discussed previously in connection with the severability of the
Officers and Directors requirement.
Annual Reports and Audit Reports for Acquiring Entities
The final rule requires the acquiring entities whose revenues
contribute to a NAICS code overlap or any overlap identified in the
Overlap Description to provide the most recent annual report or audit
report and CIK number if annual reports are filed with the SEC. If the
Overlap Description is invalidated, the Commission does not view the
portion of the Annual Reports and Audit Reports requirement referring
to the Overlap Description as severable from the requirement to provide
an Overlap Description. However, the portion requiring annual reports
or audit reports relating to NAICS code overlap would stand, for the
same reasons discussed previously in connection with the
[[Page 89331]]
severability of the Officers and Directors requirement.
Author Information for Business Documents
For Business Documents, if (1) a NAICS code overlap has been
identified, (2) an overlap within the Overlap Description has been
identified, or (3) a supply relationship within the Supply
Relationships Description has been identified, filers must provide
certain information about the author of the documents. If the Overlap
or Supply Relationships Descriptions are invalidated, the Commission
does not view the portions of the Author Information requirement
referring to those descriptions as severable from the Overlap and
Supply Relationships Descriptions requirements. However, the portion
requiring the reporting of author information if a NAICS ode overlap
has been identified would stand, for the same reasons discussed
previously in connection with the severability of the Officers and
Directors requirement.
The Commission views all remaining provisions, parts of provisions,
and applications of the final rule not specifically identified as non-
severable above to be severable. These reporting requirements would
have been adopted individually regardless of whether the other
reporting requirements were adopted and could function effectively
without the other provisions. If a reviewing court were to stay or
invalidate any reporting requirement (or part or application thereof)
not identified as non-severable above, the Commission states its intent
to have adopted the remainder of the final rule.
VIII. Paperwork Reduction Act
On June 29, 2023, the Commission published its intention to submit
the proposed rule and the associated Supporting Statement to OMB for
review under the Paperwork Reduction Act of 1995 (``PRA''), 44 U.S.C.
3501 et seq.\398\ The Commission emphasized that some of the proposed
changes were intended to reduce the burden of filing \399\ and that
other proposed changes offered clarifications to the current rules and
were unlikely to change the burden on filers.\400\ Further, the
Commission highlighted proposed changes that would require a filer to
collect and report information kept in the filer's ordinary course of
business records, minimizing the burden of new collection
requirements.\401\ The Commission noted that many of the proposed
changes would increase the burden on all filers; \402\ the Commission
also noted that some of the proposed changes would significantly
increase the burden on only certain filers.\403\
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\398\ 88 FR 42178, 42207-08 (June 29, 2023).
\399\ Id. at 42,207 (e.g., the proposal to report NAICS codes in
ranges rather than by specific dollar amount).
\400\ Id. (e.g., the proposal to eliminate references to paper
and DVD filings).
\401\ Id. (e.g., the proposal to require the reporting of
minority investors in additional entities related to the filed
transaction).
\402\ Id. (e.g., the proposal to require narratives regarding
transaction rationale).
\403\ Id. (e.g., filers whose businesses have existing
horizontal, non-horizontal, or labor market overlaps or
relationships).
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In conducting the PRA analysis for the proposed rule, in order to
estimate the projected change in burden due to the proposed changes and
to provide a baseline for public comment, PNO staff consulted current
Agency staff attorneys who had previously prepared HSR filings for
clients while in private practice. These experienced attorneys provided
estimates of how many hours the proposed changes would require,
depending on the complexity of the filing at issue. To estimate an
average number of additional hours, the Commission conservatively
assumed that 45% of HSR filings would be highly complex and 55% would
be less complex. The Commission next multiplied the average estimate of
additional hours per filing (107 hours) by the 7,096 non-index HSR
filings that the Commission projected it would receive in FY 2023.\404\
Finally, the Commission multiplied the total hours by an estimate of
the hourly rate for executive and attorney compensation ($460/hour).
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\404\ In January 2023, the Commission requested a three-year
extension of its PRA clearance for information collection
requirements related to the existing HSR rules, which was approved
by OMB on February 23, 2023, through February 28, 2026 (OMB Control
Number 3084-0005). See 88 FR 3413, 3414 (Jan. 19, 2023). At that
time, FTC staff projected an average of 7,096 non-index filings per
year for fiscal years 2023-2025. This estimate of 7,096 non-index
filings was based on the fact that the FTC received 6,518 non-index
filings in fiscal year 2022 and had experienced an average annual
increase in filings of 4.3% in the pre-COVID fiscal years 2017-2019.
Actual non-index filings in FY 2023 totaled 3,515. See Fed. Trade
Comm'n & Dep't Just., Hart-Scott-Rodino Annual Report, Fiscal Year
2023 appendix A (FY 2023).
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The Commission received numerous public comments referencing the
NPRM's PRA burden analysis. One commenter supported the analysis,
noting that the increase in the estimated time required to prepare an
HSR filing is ``inconsequential,'' even ``trivial'' considering that
these reporting requirements only apply to transactions valued at more
than the reporting threshold. This commenter further asserted that it
is appropriate to shift costs from the Agencies to the merging parties.
Some commenters, however, criticized the Commission's analysis for
significantly underestimating the extent of the burden, and many raised
concerns about the methodology employed by the Commission to calculate
such burden. For instance, they raised concerns that the estimates are
not based on empirical data or discussions with current practitioners;
and that the Commission's methodology is non-verifiable, and thus not
subject to empirical validation. They also argued that Agency staff's
prior experience in preparing HSR filings is not relevant given the
wholly different and new information requested under the proposed rule.
One commenter called the Commission's approach biased and inaccurate,
stating that there is no indication that Agency staff relied on any
data when trying to create an estimate based on memories from past
private practice. Additionally, several commenters also criticized the
Commission's explanation of its PRA analysis. With respect to the
survey of Agency staff, one commenter stated that the Commission failed
to provide basic information, such as the number of staff surveyed, who
these staff are, their level of experience in preparing HSR filings,
when they last prepared HSR filings, and the results of the survey.
Another commenter stated that it had no context for what the median
might be for filings to better understand whether the low and high ends
are outliers or the anticipated typical experience.
The Commission carefully reviewed the comments asserting that its
analysis underestimated the extent of the cost and delay that would be
imposed if the Commission adopted the proposed rule. The Commission was
persuaded by commenters who asserted that the PRA analysis in the NPRM
underestimated the time and expense associated with the proposed rule.
To address commenters' concerns and recognizing the changes from the
proposal discussed above in section II, the estimates are revised as
reflected below.
As outlined in section I and discussed more fully in sections IV to
VI above, the Commission has not adopted certain requirements in the
proposed rule in an effort to reduce compliance costs, and has also
modified other proposed requirements in a manner that reduces the
burden in certain respects. Specifically, the Commission is not
adopting proposals that would have required a timeline of key dates for
closing the proposed transaction; organization charts; certain
information about other interest holders; drafts of
[[Page 89332]]
submitted documents; information about employees; information about
board observers; geolocation information; prior acquisitions involving
entities with less than $10 million in sales or revenues or consummated
more than 5 years prior to filing; and information about steps taken to
preserve documents or use of messaging systems. These items were
frequently cited by commenters as unduly burdensome. While this
information is relevant to the Agencies' premerger assessment, the
Commission has determined it can forgo requiring this information at
this time. The Commission also has modified, in some instances
substantially, many other proposed information requirements, which will
reduce the burden on filers to collect and report this information. As
a result, the information requirements contained in the final rule are
significantly less burdensome than those reflected in the proposed
rule, and the costs imposed on filers are thus reduced as compared to
the proposed rule.
Before finalizing the changes adopted in the final rule, the
Commission undertook a new survey of Agency staff that responds to
comments critiquing the estimate in the NPRM and implemented several
improvements to its methodology, as explained below. The Commission
believes that in light of these improvements, the estimates of the
incremental costs associated with the final rule are reliable and
consistent with survey techniques used by others to calculate the
burden of filling out a form.\405\
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\405\ This same survey technique, asking experienced HSR
practitioners to estimate the time required to comply with the new
information requirements in addition to other costs, was used in the
Kothari Report, discussed below.
---------------------------------------------------------------------------
The new survey included 15 current FTC and DOJ attorneys who have
recent experience preparing HSR filings in private practice. The
Commission asked each survey participant to estimate, based on their
own experience with preparing HSR Filings, the incremental change in
hours that would be required to respond to each of the new and updated
items in the final rule. They were also asked to estimate how much time
would be saved by no longer having to provide information for current
requirements that are not included in the final rule. The survey
participants were provided with (1) the current HSR Form and
Instructions; (2) the HSR Form and Instructions for both acquiring and
acquired persons for the final rule; (3) a spreadsheet listing each of
the new, updated, and eliminated items for three categories of
transactions; and (4) instructions regarding how to input their
responses.
The survey participants provided estimates for the amount of time
required to collect and submit information responsive to each of the
new and updated items in the final rule, separately for acquiring and
acquired persons, and separately for three types of HSR-reportable
transactions that reflect varying levels of complexity and antitrust
risk: (1) the new category of select 801.30 transactions; (2)
transactions with no reportable competitive overlaps (e.g., where an
investment fund is buying or selling a portfolio company with no NAICS
or competitive overlap or supply relationship); and (3) transactions
where the parties report at least one NAICS code overlap or have an
existing overlap or supply relationship (referred to below as
``overlap'' filings). They were asked to estimate the incremental
change in costs of complying with each new and adjusted information
requirement contained in the final rule in each of the categories and
for each type of filer. Also, for each item, the survey participants
were asked to indicate what percentage of the additional time required
would be time spent by company personnel as compared to a law firm
hired to prepare the HSR Filing or any third parties that would need to
be hired to complete the HSR Form (e.g., data vendors).
In generating their estimates, the survey participants were asked
to consider all time spent to complete the HSR Form,\406\ including
time spent reviewing the HSR Instructions; generating and compiling the
materials necessary for collection; acquiring, installing, and
utilizing any necessary technology or systems; and completing and
reviewing the collected information, among other tasks. They were also
asked to consider whether filers would need to incur additional costs
not necessarily measured in hours, e.g., the costs associated with new
IT investments, long-lived facilities or equipment, related one-time
expenditures, and other non-labor expenditures, such as attorney
training or general HSR resources.
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\406\ The Commission notes that parties to acquisitions, whether
HSR-reportable or not, may hire antitrust counsel to assess whether
the transaction would violate any of the antitrust laws. This is a
different task from evaluating whether a transaction requires
notification pursuant to the HSR Act, and if so, how to comply with
the Form and Instructions. The final rule does not require any
information from attorneys or any other advisors to assess the
antitrust risk of the transaction. As a result, any cost related to
the assessment of the potential for a substantive antitrust risk,
rather than compliance with the information requirements of the Form
and Instructions, are not costs attributable to the final rule and
are not included in this PRA analysis.
---------------------------------------------------------------------------
The Commission took several steps to increase the reliability of
its survey. First, to reduce sampling bias as much as possible, the
Commission relied on Agency staff who have not been involved in this
rulemaking and thus have no more familiarity with the changes to the
HSR Form and Instructions than an attorney in private practice would
have. As exclusion criteria, the Commission did not survey any staff
from the FTC's Premerger Notification Office, nor any staff at either
Agency who were part of the core team responsible for drafting the
final rule.
Second, the survey participants were asked to provide details about
their experience preparing HSR filings in private practice, both in
terms of how many years they were in private practice and the number
and types of transactions involved. Collectively, the survey
participants had experience with each of the three types of HSR-
reportable transactions described above. Based on the information
provided, the survey participants with the most experience tended to
generate a lower estimated number of hours than the average.
The Commission believes that, with these controls, the individuals
who provided estimates for the PRA burden assessment had sufficient
experience with the current HSR reporting requirements and enough
understanding of the HSR Rules and practice to make their estimates of
incremental costs reliable.
Based on the survey responses, the Commission finds that the
average number of additional hours required to prepare an HSR filing
with the changes outlined in the final rule is 68 hours, with an
average low of 10 hours for select 801.30 transaction filings by the
acquired person and an average high of 121 hours for filings from
acquiring person in a transaction with overlaps or supply
relationships. As noted, however, the estimate varies significantly
based the type of filings, with filings that are more likely to raise
antitrust risk requiring higher hours.
To calculate the average number of additional hours, the averages
of the estimates provided by respondents were calculated separately for
each change for both the acquiring and acquired person within each
category of transaction. These averages were then summed by category of
transaction and then divided by two to provide category-specific
estimated averages for an individual filer to comply with all changes.
The overall average estimate for an
[[Page 89333]]
individual filer was calculated as a weighted average of these
category-specific estimates for an average filer, using as weights the
Agencies' estimate of the fraction of filings that fall into each of
the three categories. Specifically, the Commission estimates that 8
percent of filings will meet the definition of a select 801.30
transaction,\407\ 45 percent will have a NAICS code overlap or an
overlap or supply relationship identified in the Competition
Descriptions section, and 47 percent of filings will have no overlaps
or supply relationship.
---------------------------------------------------------------------------
\407\ Estimated based upon a review of HSR Filings from fiscal
years 2018 through 2022.
---------------------------------------------------------------------------
One commenter commissioned a report (the Kothari Report, referenced
in section III.C.2.) to estimate the additional monetary costs of the
proposed rule and relied on a survey of company and private counsel to
estimate the time required to comply with the new requirements of the
proposed rule as compared to the current rules.\408\ From the responses
to this survey, the Kothari Report estimated that the proposed rule as
published in the NPRM would have added 101.6 hours of internal
personnel time and 140.3 hours of outside counsel time above the
current requirements for a total incremental increase of 241.9 hours.
Although this estimate is substantially higher than the estimate based
on the Commission's new survey, the Kothari Report estimated costs for
the proposed rule, and may have included costs related to advocacy
about whether a transaction violates an antitrust law, rather than only
costs related to collection and submission of information required by
the Form and Instruction, as indicated by its inclusion of costs of
economic experts. In contrast, the Commission has estimated the
additional time attributable to the less burdensome requirements of the
final rule and has included in its estimates only that time that is
required to complete an HSR Filing that is fully compliant with the Act
and the Rules. Given the significant modifications from the proposed
rule to the final rule that lessen the estimated burden, the Commission
finds the results of its new survey to be generally consistent with the
survey relied on in the Kothari Report.
---------------------------------------------------------------------------
\408\ Comment of U.S. Chamber of Com., Doc. No. FTC-2023-0040-
0684. The Kothari Report reflects the results of a survey of
antitrust practitioners conducted by the Chamber of Commerce seeking
input on the proposed rule as well as the Agencies' draft merger
guidelines. See U.S. Chamber of Com., ``U.S. Chamber HSR/Merger
Guides Practitioner Survey'' (Sept. 19, 2023), https://www.uschamber.com/finance/antitrust/antitrust-experts-reject-ftc-doj-changes-to-merger-process. The Kothari Report was prepared by
Professor S.J. Kothari and is appended to its comment at 54-85.
---------------------------------------------------------------------------
Several commenters also questioned the hourly rate that the
Commission relied on to calculate the estimated cost of compliance. One
commenter stated that the Commission's estimate of $460 per hour may
underestimate the blended hourly rate applicable to most HSR filings,
particularly given attorney billing rates and that such filings often
require senior executive participation. Another noted that the rate is
below the nationwide average hourly rate for M&A attorneys. Others
objected to the lack of support for the previously assumed hourly wage
and description of how the Commission calculated the assumed hourly
wage. One commenter suggested that a more realistic average rate for
outside counsel is $936 per hour; however, no law firm that submitted
comments specified a different hourly rate that should be applied.
The Commission has carefully reviewed and considered the comments
submitted regarding the hourly rate and has determined to apply a
blended hourly rate of $583. To reach this number, the Commission
consulted additional resources regarding the rates for outside counsel
and in-house personnel. In an effort to make as few assumptions as
possible, the Commission used current data from reliable, publicly
available sources. Although the actual rates charged by HSR
practitioners (and attorneys generally) are not typically publicly
available (and no commenter provided actual rates), the Commission
reviewed public media and industry reports to determine a range of
approximate values that would realistically reflect the costs to
prepare an HSR filing.
The ELM Solutions 2023 Real Rate Report published by Wolters Kluwer
reports data regarding the 2023 hourly rates charged by corporate M&A
attorneys.\409\ According to the report, at firms with more than 1,000
lawyers, the nationwide mean rate charged by partners in 2023 was
$1,254 per hour and the nationwide mean rate charged by associates in
2023 was $781 per hour. At firms with 501 to 1,000 lawyers, the
nationwide mean rate charged by partners was $1,213 per hour and for
associates it was $801 per hour. At firms with 201 to 500 lawyers, the
nationwide mean rates were $786 per hour for partners and $519 per hour
for associates.
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\409\ Wolters Kluwer's ELM Solutions, 2023 Real Rate Report
(2023). See also Ctr. Ethics & L. Prof. at Geo. L. & Thomson Reuters
Inst. 2024 Report on the State of the US Legal Market 11-12 (Jan. 8,
2024) (discussing rise in law firm worked rates over the past five
years as well as the counterinfluence of billing realization
practices); Andrew Maloney, ``Where Are Partner Billing Rates
Surging the Most in Big Law?,'' Am. L. (May 24, 2023) (noting a 2023
median hourly rate for M&A partners of $955 per hour).
---------------------------------------------------------------------------
The Commission notes that HSR filings are not typically prepared
exclusively by M&A law firm partners or exclusively by M&A associate
attorneys. As a result, relying on one mean rate or the other would be
inappropriate. The WK 2023 Real Rate Report indicates that with regard
to corporate M&A matters from 2020-2023 that resulted in 40-100 total
billed hours, approximately 45% of the hours billed were at the partner
hourly rate, and approximately 49% of the hours billed were at the
associate hourly rate.\410\ The report further notes that approximately
7% of the hours billed were at a lower paralegal hourly rate.\411\
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\410\ Wolters Kluwer's ELM Solutions, supra note 410, at 214.
\411\ Instead of separately estimating a paralegal hourly rate,
the Commission conservatively estimated that the remaining 7%
assigned to paralegals in the WK 2023 Real Rate Report would be work
performed at the associate's hourly rate.
---------------------------------------------------------------------------
The Commission further notes that HSR filings are not prepared
exclusively by the largest law firms, nor is it necessary for filers to
engage such counsel. To account for filings prepared by small to mid-
sized firms, the Commission calculated blended rates for both partners
and associates by weighting the nationwide mean rates for firms with
more than 1,000 lawyers (67%) and firms with 201 to 500 lawyers (33%).
Applying the billing percentages in the WK 2023 Real Rate Report to
those blended rates, the Commission calculated a blended rate for
outside counsel of approximately $878 per hour.
To generate an overall blended rate, the Commission also accounted
for the cost of client time spent preparing the filing, which could
include a range of employees depending on the type of business and may
include in-house counsel. The Commission has factored in an hourly rate
for in-house personnel of approximately $140 per hour, which reflects
current wage data reported by the Bureau of Labor Statistics.\412\
Additionally, the Commission believes that 60% of the time required to
prepare
[[Page 89334]]
the HSR filing is time spent by outside counsel and 40% is time spent
by the client. These percentages are supported by survey results from
Agency staff and are also consistent with the survey results in the
Kothari Report. By weighting the hourly rates for outside counsel and
in-house personnel accordingly, the Commission calculates an overall
blended rate of $583 per hour. This adjusted hourly rate generally
reflects publicly available information; however, it does not reflect
real-world factors that would likely drive down the overall cost of
preparing an HSR filing under the final rule (e.g., client-negotiated
rates, discounts, write-offs, alternative fee agreements, and work
shifted to paralegals and other support staff at substantially lower
rates).
---------------------------------------------------------------------------
\412\ This assumed hourly rate is based on the median wage for
lawyers, which according to the Bureau of Labor Statistics was
$70.08 in 2023. See https://www.bls.gov/ooh/legal/lawyers.htm. The
Commission doubles this number to reflect the lost productivity of
the worker. The Commission notes that a company's top executives may
also participate in preparing or reviewing the filing; however,
since the median wage for top executives was $49.92 in 2023, to be
conservative the Commission values top executive time at the same
rate as lawyer time. See https://www.bls.gov/ooh/management/top-executives.htm.
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Multiple commenters cited to the Kothari Report as providing a
better estimate of the additional costs of the proposed changes and
concluding that the true cost of the proposed rule may be many times
greater than the NPRM suggested. But the Commission has accounted for
many of the same costs in its own estimates, such as the time required
from outside counsel, in-house counsel, and business personnel. Much of
the difference in estimates is attributable to the higher hourly rate
applied to the required hours, which the Kothari Report suggests is
more likely $936 per hour, and a category of ``other'' costs that is
nearly one-third of the total projected costs.\413\ These additional
costs are attributable to ``other external costs'' that include
economic consultants, investment bankers, and data vendors.
---------------------------------------------------------------------------
\413\ Comment of U.S. Chamber of Com., Doc. No. FTC-2023-0040-
0684 at 74-75 (other costs estimated at $102,917, added to external
costs of $234,259 for a total of $313,828, with other costs 33% of
total).
---------------------------------------------------------------------------
The Commission does not believe that there will be this level of
additional costs outside of internal personnel and outside counsel. In
particular, completing the new requirements contained in the final rule
should not require the services of economic consultants or investment
bankers. As described above, the Form and Instructions require
information from the parties' own records. The Commission specifically
is not seeking an analysis or post-hoc rationales developed by external
parties. As for data vendors and similar services for the collection
and production of the required information, in its new survey of Agency
staff, the Commission asked the survey participants to indicate for
each item the percentage of time that should be allocated to third
parties that they did not otherwise attribute to time spent by outside
counsel. Only a few of the survey participants indicated any need for
third-party involvement--and even for those few, they estimated only a
small percentage of time for a limited set of items (e.g., for
translations). As a result, there is no basis to further adjust the
Commission's estimates to account for ``other'' external costs.
Commenters also objected that the Commission failed to consider the
indirect costs to the economy that would result when parties are
discouraged from pursuing clearly nonproblematic deals. The PRA does
not require the Commission to consider potential indirect costs to the
economy presented by the changes described in the proposed rule. Under
the PRA, the term ``burden'' means time, effort, or financial resources
expended by persons to generate, maintain, or provide information to or
for a Federal agency, including the resources expended for (A)
reviewing instructions; (B) acquiring, installing, and utilizing
technology and systems; (C) adjusting the existing ways to comply with
any previously applicable instructions and requirements; (D) searching
data sources; (E) completing and reviewing the collection of
information; and (F) transmitting, or otherwise disclosing the
information.\414\ Comments related to indirect costs attributable to
the final rule are discussed in section III.C.
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\414\ 44 U.S.C. 3502(2); see also 5 CFR 1320.3(b) (defining
burden); U.S. General Services Administration & Office of Management
and Budget, ``A Guide to the Paperwork Reduction Act: Estimating
Burden,'' https://pra.digital.gov/burden/.
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Despite these points of disagreement, the Commission notes that its
estimate for the increase in the average number of hours required to
prepare an HSR filing is generally consistent with the estimates put
forth by commenters, including in the Kothari Report, which were based
on the proposed rule but not the final rule. The Commission believes
that the differences in projected total costs are mainly attributable
to (1) the significant modifications that were made to the final rule
as compared to the proposed rule; (2) the difference in the hourly
rates ($583 versus $936); (3) a category of ``other'' costs that unduly
increased total costs by one-third; and (4) use of projected filings
for FY 2023 (7,096), which the Commission now replaces in its
calculation with the actual number of filings for FY 2023 (3,515). The
Commission's PRA assessment for the final rule addresses concerns
raised by the commenters related to the methodology used in the NPRM.
Net Effect
The changes outlined in the final rule only affect non-index
filings which, for FY 2023, totaled 3,515. As described above, the
Commission estimates that the amendments to the HSR Rules and
Notification and Report Form contained in the final rule could increase
the time required to prepare responses for non-index filings, with an
estimated average increase of 68 hours per filing. Thus, the annual
estimated additional hours burden is 239,020 (3,515 non-index filings
multiplied by 68 additional hours per filing). Applying the revised
estimated hours, 239,020, to the updated hourly rate of $583 for
executive and attorney compensation yields approximately $139.3 million
in total additional annual costs for a year with that number of
filings. The additional per filing cost is estimated at $39,644 (68
hours multiplied by $583 per hour). However, the Commission believes
that this PRA cost estimate may overestimate the actual PRA burden. For
a variety of reasons, costs for any particular transaction are likely
to be different from these estimates. The final rule will result in
higher costs for those transactions that present the most antitrust
risk, and the PRA estimates do not take account of the substantial
benefits to the Agencies, the parties, and third parties generated from
a more efficient premerger review process that shifts some of the
burden of information collection and reporting away from third parties
to the merging parties and allows the Agencies to obtain critical
business facts earlier in the initial waiting period, which in turn
helps mitigate avoidable costs associated with Second Requests that
might have been avoided or that were not tailored to areas of
competitive concern due to insufficient information in the HSR Filing.
In addition, the annual costs associated with the final rule will be
directly related to the number of reportable transactions. See section
III.C. Finally, any estimated additional hours burden is expected to
decline over time as filers become more familiar with the HSR Form and
Instructions.
The amendments are expected to impose either minimal or no
additional capital or other non-labor costs, as businesses subject to
the HSR Rules generally have or obtain necessary equipment for other
business purposes.
[[Page 89335]]
The Commission believes that the above requirements necessitate
ongoing, regular training so that covered entities stay current and
have a clear understanding of Federal mandates, but that this would be
a small portion of and subsumed within the ordinary training that
employees receive apart from that associated with the information
collected under the HSR Rules and the corresponding Instructions.
Basis for OMB Assessment
Finally, one commenter stated that the proposed rule provides an
insufficient basis for the Office of Management and Budget (OMB) to
conduct the informed and accurate assessment required by the PRA. The
OMB typically defers its substantive review until the final rule stage
and did not provide substantive feedback on the NPRM. However, the
Commission disagrees with the commenter and believes that it has
provided a sufficient basis for OMB to conduct an informed and accurate
PRA assessment. Based on comments it received, the Commission narrowed
the information requirements in the final rule, conducted a new survey
to estimate costs, and revised its PRA analysis accordingly. The
Commission believes that its revised assessment provides a sufficient
basis for OMB review under the PRA.
IX. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 through 612,
requires that an agency conduct an initial and final regulatory
analysis of the anticipated economic impact of the proposed amendments
on ``small entities,'' unless the agency certifies that the regulatory
action will not have a significant economic impact on a substantial
number of small entities.\415\ Pursuant to section 605(b) of the
Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies
that the final rule will not have a significant economic impact on a
substantial number of small entities.
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\415\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------
The Commission finds that the final rule will not affect a
substantial number of small entities, because small entities will be
affected only when they are party to a transaction that exceeds the HSR
Act thresholds, and less than 0.02% of the nation's small entities file
premerger notifications in any given year. Furthermore, the economic
impact on the very few small entities that are required to file is not
significant, because smaller businesses generally have fewer employees,
generate fewer documents related to a transaction, and are involved in
less complex transactions, all of which will minimize their costs of
complying with the final rule. Further, these costs will generally
account for a small fraction (less than 0.5%) of the value of the
transaction. This document serves as the required notice of this
certification to the SBA's Chief Counsel for Advocacy.\416\
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\416\ Id.
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The Commission also certified in the NPRM that the changes in the
proposed rule would not, if adopted, have a significant economic impact
on a substantial number of small entities. Commenters objected to the
Commission's reliance on this certification and stated that the
Commission failed to use the proper definition of small business or to
discuss the proposed rule's impact on them.\417\ The Commission
responds by providing an assessment of how many small businesses are
subject to the reporting requirements of the HSR Act and therefore
would be impacted by the final rule. The Commission also notes that the
final rule does not change which entities (including which small
entities) are required to submit HSR Filings.
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\417\ One commentor suggested that the increased information
requirements will, on the margin, lead to less investment by private
equity in small businesses. Such indirect effects are not the proper
subject of RFA analyses. See, e.g., Cement Kiln Recycling Coalition
v. EPA, 255 F.3d 855, 868 (D.C. Cir. 2001) (rejecting the contention
that the RFA applies to small businesses indirectly affected by the
regulation of other entities).
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Under the RFA, ``small entities'' are defined as small businesses,
not-for-profit organizations that are independently owned and operated
and not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.\418\ The term ``small business'' has
the same meaning as the term ``small business concern'' under section 3
of the Small Business Act, meaning that it must be independently owned
and operated and not dominant in its field of operation.\419\ The Small
Business Act permits the Small Business Administration (SBA) to specify
size standards by which a business may be determined to be a ``small
business concern.'' \420\ The SBA publishes these standards at 13 CFR
121.201.
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\418\ 5 U.S.C. 601.
\419\ See id. at 601(3) (cross-referencing 15 U.S.C. 632).
\420\ 15 U.S.C. 632(a)(2)(A). The Commission does not expect
that the final rule will impact other types of ``small entities''
(not-for-profit organizations that are independently owned and
operated and not dominant in their fields and governmental
jurisdictions with populations of less than 50,000). In the
Agencies' experience, governmental jurisdictions are typically not
parties to transactions that would be subject to the HSR Act. As a
result, the Commission has focused its analysis on small businesses
as defined by the SBA.
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To determine whether a regulatory action will impact a
``substantial number'' of small entities, SBA Guidance encourages
agencies to examine the number of small businesses affected by a given
rule relative to the total number of small businesses in the regulated
industry. The regulated industry may include the ``entire universe of
small businesses'' where a rule's reach is economy wide.\421\ That is
the case here, as the HSR Rules apply broadly to the entire economy,
and all persons involved in reportable transactions are required to
file an HSR Form, irrespective of industry.
---------------------------------------------------------------------------
\421\ U.S. Small Bus. Admin., Office of Advocacy, ``How to
Comply with the Regulatory Flexibility Act'' 21 (Aug. 31, 2017),
https://advocacy.sba.gov/2017/08/31/a-guide-for-government-agencies-how-to-comply-with-the-regulatory-flexibility-act/ (``Depending on
the rule, the substantiality of the number of small businesses
affected should be determined on an industry-specific basis and/or
on the number of small businesses overall. For example, the Internal
Revenue Service, when changing the tax deposit rules, would examine
the entire universe of small businesses to see how many would be
affected.'').
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The SBA estimates that, as of March 2023, there were approximately
33.2 million small businesses in the United States.\422\ As explained
below, due to the filing thresholds Congress established in the HSR
Act, the small businesses that would have to report a transaction under
the HSR Act represent a tiny fraction of this number. Even under the
counterfactual and extreme assumption that all of 6,288 HSR filings
received in FY2022 were made by small businesses,\423\ less than 0.02%
(6,288 divided by 33.2 million) of all small businesses would need to
file an HSR Form. Such a de minimis number of small businesses does not
qualify as a ``substantial number'' of small entities under the SBA's
Guidance.\424\ In an abundance of caution, however, as detailed below,
the Commission analyzed a randomized sample of the filings received in
FY2022 and further estimates that the final rule will apply to less
than 0.0007% of small businesses. Therefore, the final rule will
[[Page 89336]]
not apply to a substantial number of small businesses.
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\422\ U.S. Small Bus. Admin., Office of Advocacy, ``Frequently
Asked Questions'' (Mar. 2023), https://advocacy.sba.gov/wp-content/uploads/2023/03/Frequently-Asked-Questions-About-Small-Business-March-2023-508c.pdf.
\423\ Federal Trade Commission, Hart-Scott-Rodino Annual Report
Fiscal Year 2022, appendix A.
\424\ U.S. Small Bus. Admin., Office of Advocacy, supra note
424, at 21 (``The interpretation of the term `substantial number' is
not likely to be five small firms in an industry with more than
1,000 small firms.'').
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The SBA regulations define ``small business'' primarily based on
firm revenue or total number of employees, depending on the
industry.\425\ For industries where the SBA uses revenue to define
``small business,'' the revenue thresholds vary from $2.25 million to
$47 million. In other industries, the SBA definition of small is based
upon the number of employees. These thresholds range from 100 to 1,500
employees. Finally, certain finance-related industries are defined as
small if they have less than $850 million in assets. Each NAICS code
has a corresponding SBA threshold to determine whether a business
generating revenue in that code is ``small.'' \426\ In addition to
these thresholds, businesses must also be independently owned and
operated and not dominant in their fields on a national basis and
satisfy additional criteria to be considered ``small.'' \427\ The
calculation of the size of a business must also give present effect to
agreements to mergers and acquisitions, including agreements in
principle.\428\
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\425\ 13 CFR 121.201.
\426\ Id.
\427\ 15 U.S.C. 632.
\428\ 13 CFR 121.103(d)(1).
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To estimate how many small entities so defined might be required to
make an HSR filing, the Commission analyzed a randomly selected,
statistically significant 10% sample of the filings submitted in FY
2022. Of that sample, the Commission first eliminated filings made by
individuals in their individual capacity, and not as the ultimate
parent entity of a business, such as for filings resulting from
executive compensation. Second, the Commission used NAICS code
information and financials reported by the acquiring or acquired person
to determine if they qualified as a small business by revenue or
assets, as applicable. For NAICS codes with thresholds based upon the
number of employees, the Commission used public information or
documents submitted by the filing parties to determine if they
qualified as a small business based on the number of employees. For
transactions in which the acquiring person filed for control of the
acquired entities, the Commission analyzed the acquiring person and
acquired entities after giving effect to the change of control.\429\
Additionally, because a small business must be independently owned and
operated, all filings where an investment group was the ultimate parent
entity of the acquiring or acquired person were coded as not small
businesses. The Commission does not have information sufficient to
determine whether other filers are independently owned and operated,
but where the Commission lacked sufficient information to exclude a
business on this basis, they were counted as a small business even if
they may not truly qualify as one. As a result, the estimates below are
likely over-inclusive; that is, it is likely that fewer filers were
small than were coded as small in the sample.
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\429\ The Commission notes that filers must attest (1) to their
good faith intent to consummate a transaction, and (2) in all
transactions to which 16 CFR 801.30 does not apply, that a contract,
agreement in principle or letter of intent to merge or acquire has
been executed. See 16 CFR 803.5.
[GRAPHIC] [TIFF OMITTED] TR12NO24.051
As shown above in Table 6,\430\ the Commission estimates that in FY
2022, it received up to 220 filings from businesses that meet the
definition of small (22 found in the 10% sample). Of these,
approximately 180 (18 found in the 10% sample) were the targets of the
transaction, and 40 (4 found in the 10% sample) were the buyers. As a
result, the Commission estimates than less than 0.0007% of small
businesses will be affected by the final rule.\431\
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\430\ See Table 1 (showing 15,734 acquisitions in 2022).
\431\ Though the SBA regulations give effect to agreements,
including agreements in principle, when determining size, the
Commission also analyzed whether the sample of filers might meet the
thresholds if agreements resulting in a change of control were not
considered. Here too, the Commission finds that the final rule does
not affect a substantial number of small entities. It estimates that
in FY2022 approximately 850 filers may have met the definition of
small if the effect of agreements is not considered, representing
less than 0.003% of small businesses in the United States,
approximately 2.70% of the estimated number of M&A parties, and
13.52% of FY 2022 HSR filers.
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This is consistent with the structure of the HSR Act, which focuses
on larger mergers, as defined by dollar value.\432\ The framework of
the Act established three tests that together serve to limit the
applicability of the Act for small businesses: (1) the Commerce Test;
(2) the Size of the Transaction Test; and (3) the Size of the Person
Test.\433\
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\432\ The Commission now provides this information to give
context about the reach of the Act and does not rely upon any of the
HSR reporting thresholds in this certification, since it has
conducted an analysis of the filing parties using the SBA's
definitions of small, as described above. Therefore, the Commission
does not address comments related to the RFA analysis provided in
the NPRM that drew different conclusions from the statutory
thresholds.
\433\ 15 U.S.C. 18a(a).
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[[Page 89337]]
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The Commerce Test is met if either party is engaged in commerce or
any activity affecting commerce.
Under the Size of the Transaction Test, no filing is required if
the transaction is valued at $119.5 million \434\ or less. Transactions
valued between $119.5 million and $478 million only must be reported if
the acquiring and acquired person also meet the Size of the Person
Test. Transactions valued at more than $478 million are reportable
regardless of the Size of the Person Test.
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\434\ When Congress passed the HSR Act, it created minimum
dollar thresholds for mandatory premerger reporting. In 2000,
Congress amended the HSR Act to require an annual adjustment of
these thresholds based on the change in gross national product. As a
result, reportability under the Act changes from year to year as the
statutory thresholds adjust. The most recent adjustment became
effective March 6, 2024.
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Where the Size of the Person Test applies, premerger notification
is required only if (1) the acquiring person has total assets or annual
net sales of $23.9 million (2024 adjusted value) and the acquired
person has total assets or annual net sales of $239 million (2024
adjusted value); or (2) the acquiring person has total assets or annual
net sales of $239 million (2024 adjusted value) and the acquired person
has total assets (or, if it is ``engaged in manufacturing,'' annual net
sales) of $23.9 million (2024 adjusted value). If these size thresholds
are not met, no filing is required. For example, in 2024, if the size
of a transaction were $475 million and the acquiring person had $1
billion in assets and revenue, but the acquired person was not engaged
in manufacturing and had $220 million in revenue but only $20 million
in assets, no filing would be required.
The final rule also will not have a significant economic impact on
small entities that are required to file. An HSR filing is not an
ongoing cost for small businesses. Instead, the costs are incurred only
when a small business is a party to a reportable transaction.
Therefore, the Commission does not expect that the costs of complying
with the final rule will cause a significant impact on affected small
businesses.
For the less than 0.0007% of American businesses that will remain
small after engaging in an HSR reportable transaction, the impact will
be minimal. Even in a case of a complex transaction between two small
businesses where the size of the transaction was at the threshold
(currently $119.5 million), the Commission estimates that the
additional cost imposed by the final rule would be approximately 0.12%
of the value of the transaction.\435\ For the majority of transactions
involving small businesses, actual costs are likely much lower and
would represent an even smaller percentage of the proceeds from the
transaction. For example, based upon the Commission's review of the
sample of FY 2022 transactions, in some transactions involving a
presumptively small business, the size of transaction value exceeded $1
billion, resulting in the additional cost of the final rule
representing less than 0.015% of the transaction value for even a
complex transaction.\436\
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\435\ Estimated cost for acquiring and acquired persons combined
in transactions with overlaps using highest average cost (242 hours
x $583) divided by the $119,500,000 threshold.
\436\ Estimated cost for acquiring and acquired persons combined
in transactions with overlaps using highest average cost (242 hours
x $583) divided by $1,000,000,000.
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Finally, the Commission has no reason to believe that the final
rule will have a significant economic impact on any entity, let alone
entities that have assets or revenues substantial enough to meet the
HSR Act's reporting thresholds but that nevertheless qualify as small
businesses. As detailed in the final rule, the Commission estimates
that the changes would result in approximately 10 to 121 additional
hours per filing, depending on the complexity of the filing at issue.
In the Commission's experience, smaller businesses have fewer lines of
business and fewer employees, generate fewer documents related to a
transaction and maintain fewer ordinary course documents, and are
involved in less complex transactions, all of which will minimize their
costs of responding to the document requests contained within the final
rule, to the extent their compliance is even triggered under the HSR
Act's thresholds.
Accordingly, the Commission hereby certifies that the final rule
will not have a significant impact on a substantial number of small
entities.
X. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs has designated this
rule as a ``major rule,'' as defined by 5 U.S.C. 804(2).
List of Subjects
16 CFR Parts 801
Antitrust.
16 CFR Part 803
Antitrust, Fees, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Federal Trade
Commission amends 16 CFR parts 801 and 803 as set forth below:
PART 801--COVERAGE RULES
0
1. The authority citation for part 801 is revised as follows:
Authority: 15 U.S.C. 18a(d); 15 U.S.C. 18b.
0
2. Amend Sec. 801.1 by revising examples 1, 4, 5, and 6 in paragraph
(d)(2) and by adding paragraph (r) to read as follows:
Sec. 801.1 Definitions
* * * * *
(d) * * *
(2) * * *
Examples: 1. ABC Investment Group has organized a number of
investment partnerships. Each of the partnerships is its own ultimate
parent, but ABC makes the investment decisions for all of the
partnerships. One of the partnerships intends to make a reportable
acquisition. For purposes of the Notification and Report Form, each of
the other investment partnerships, and
[[Page 89338]]
ABC Investment Group itself, are associates of the partnership that is
the acquiring person. In the Minority-Held Entity Overlaps section of
the Notification and Report Form, the acquiring person will disclose
any of its 5 percent or greater minority holdings that generate
revenues in any of the same NAICS codes as the acquired entity(s) in
the reportable transaction. In this same section, the acquiring person
would also report any 5 percent or greater minority holdings of its
associates in the acquired entity(s) and in any entities that generate
revenues in any of the same NAICS codes as the acquired entity(s). In
the Controlled Entity Geographic Overlaps section of the Notification
and Report Form, the acquiring person will indicate whether there are
any NAICS code overlaps between the acquired entity(s) in the
reportable transaction, on the one hand, and the acquiring person and
all of its associates, on the other.
* * * * *
4. CORP1 controls GP1 and GP2, the sole general partners of private
equity funds LP1 and LP2 respectively. LP1 controls GP3, the sole
general partner of MLP1, a newly formed master limited partnership
which is its own ultimate parent entity. LP2 controls GP4, the sole
general partner of MLP2, another master limited partnership that is its
own ultimate parent entity and which owns and operates a natural gas
pipeline. In addition, GP4 holds 25 percent of the voting securities of
CORP2, which also owns and operates a natural gas pipeline.
MLP1 is acquiring 100 percent of the membership interests of LLC1,
also the owner and operator of a natural gas pipeline. MLP2, CORP2 and
LLC1 all derive revenues in the same NAICS code (Pipeline
Transportation of Natural Gas). All of the entities under common
investment management of CORP1, including GP4 and MLP2, are associates
of MLP1, the acquiring person.
In the Controlled Entity Geographic Overlaps section of the
Notification and Report Form, MLP1 would identify MLP2 as an associate
that has an overlap in pipeline transportation of natural gas with
LLC1, the acquired person. Because GP4 does not control CORP2 it would
not be listed in this section, however, GP4 would be listed in the
Minority-Held Entity Overlaps section of the Notification and Report
Form as an associate that holds 25 percent of the voting securities of
CORP2. In this example, even though there is no direct overlap between
the acquiring person (MLP1) and the acquired person (LLC1), there is an
overlap reported for an associate (MLP2) of the acquiring person in the
Controlled Entity Geographic Overlaps section of the Notification and
Report Form.
5. LLC is the investment manager for and ultimate parent entity of
general partnerships GP1 and GP2. GP1 is the general partner of LP1, a
limited partnership that holds 30 percent of the voting securities of
CORP1. GP2 is the general partner of LP2, which holds 55 percent of the
voting securities of CORP1. GP2 also directly holds 2 percent of the
voting securities of CORP1. LP1 is acquiring 100 percent of the voting
securities of CORP2. CORP1 and CORP2 both derive revenues in the same
NAICS code (Industrial Gas Manufacturing).
All the entities under common investment management of the managing
entity LLC, including GP1, GP2, LP2 and CORP1 are associates of LP1. In
Minority-Held Entity Overlaps section of the Notification and Report
Form, LP1 would report its own holding of 30 percent of the voting
securities of CORP1. It would not report the 55 percent holding of LP2
in Minority-Held Entity Overlaps section of the Notification and Report
Form because it is greater than 50 percent. It also would not report
GP2's 2 percent holding because it is less than 5 percent. In the
Controlled Entity Geographic Overlaps section, LP1 would identify both
LP2 and CORP1 as associates that derive revenues in the same NAICS code
as CORP2.
6. LLC is the investment manager for GP1 and GP2 which are the
general partners of limited partnerships LP1 and LP2, respectively. LLC
holds no equity interests in either general partnership but manages
their investments and the investments of the limited partnerships by
contract. LP1 is newly formed and its own ultimate parent entity. It
plans to acquire 100 percent of the voting securities of CORP1, which
derives revenues in the NAICS code for Consumer Lending. LP2 controls
CORP2, which derives revenues in the same NAICS code. All of the
entities under the common management of LLC, including LP2 and CORP2,
are associates of LP1. For purposes of the Controlled Entity Geographic
Overlaps section of the Notification and Report Form, LP1 would report
LP2 and CORP2 as associates that derive revenues in the NAICS code that
overlaps with CORP1. Even though the investment manager (LLC) holds no
equity interest in GP1 or GP2, the contractual arrangement with them
makes them associates of LP1 through common management.
* * * * *
(r)(1) Foreign entity or government of concern. The term foreign
entity or government of concern means:
(i) An entity that is a foreign entity of concern as that term is
defined in section 40207 of the Infrastructure Investment and Jobs Act
(42 U.S.C. 18741(a)(5)); or
(ii) A government, or an agency thereof, of a foreign country that
is a covered nation as that term is defined in section 40207 of the
Infrastructure Investment and Jobs Act (42 U.S.C. 18741(a)(5)(C)).
(2) Subsidy. The term subsidy has the meaning given to the term in
part IV of title VII of the Tariff Act of 1930 (19 U.S.C. 1677(5)(B)).
PART 803--TRANSMITTAL RULES
0
3. The authority citation for part 803 is revised to read as follows:
Authority: 15 U.S.C. 18a(d); 15 U.S.C. 18b.
0
4. Amend Sec. 803.2 by:
0
a. Revising paragraph (a);
0
b. Removing paragraph (b) and the undesignated example following
paragraph (b);
0
c. Redesignating paragraphs (c), (d), (e), and (f) as paragraphs (b),
(c), (d), and (e), respectively; and
0
d. Revising newly redesignated paragraphs (b), (d), and (e). The
revisions read as follows:
Sec. 803.2 Instructions applicable to Notification and Report Form.
(a)(1) The notification required by the act shall be filed by the
preacquisition ultimate parent entity, or by any entity included within
the person authorized by such preacquisition ultimate parent entity to
file notification on its behalf. In the case of a natural person
required by the act to file notification, such notification may be
filed by his or her legal representative: Provided however, That
notwithstanding Sec. Sec. 801.1(c)(2) and 801.2 of this chapter, only
one notification shall be filed by or on behalf of a natural person,
spouse and minor children with respect to an acquisition as a result of
which more than one such natural person will hold voting securities of
the same issuer.
Example 1 to paragraph (a)(1). Jane Doe, her husband, and minor
child collectively hold more than 50 percent of the shares of family
corporation F. Therefore, Jane Doe (or her husband or minor child) is
the ``ultimate parent entity'' of a ``person'' composed to herself (or
her husband or minor child) and F; see Sec. 801.1(a)(3), (b), and
(c)(2) of of this chapter. If corporation F is to
[[Page 89339]]
acquire corporation X, under this paragraph only one notification is to
be filed by Jane Doe, her husband, and minor child collectively.
(2) Persons that are both acquiring and acquired persons shall
submit separate forms, one as the acquiring person and one as the
acquired person, following the appropriate instructions for each.
(b) In response to the Revenue and Overlaps section of the
Notification and Report Form, information need not be supplied with
respect to assets or voting securities to be acquired, the acquisition
of which is exempt from the requirements of the act.
* * * * *
(d) For annual reports and audit reports required by the
Notification and Report Form, a person filing the notification may,
instead of submitting a document, provide a cite to an operative
internet address directly linking to the document, if the linked
document is complete and payment is not required to access the
document. If an internet address becomes inoperative during the waiting
period, or the document is otherwise rendered inaccessible or
incomplete, upon notification by the Commission or Assistant Attorney
General, the parties must make the document available to the agencies
by either referencing an operative internet address where the complete
document may be accessed or by providing electronic copies to the
agencies as provided in Sec. 803.10(c)(1) by 5 p.m. Eastern Time on
the next regular business day. Failure to make the document available,
by the internet or by providing electronic copies, by 5 p.m. Eastern
Time on the next regular business day, will result in notice of a
deficient filing pursuant to Sec. 803.10(c)(2).
(e) Filings must comply with all format requirements set forth at
the Premerger Notification Office pages at https://www.ftc.gov. The use
of any format not specified as acceptable, or any other failure to
comply with the applicable format requirements, shall render the entire
filing deficient within the meaning of Sec. 803.10(c)(2).
0
5. Amend Sec. 803.5 by redesignating the paragraph (a)(1) heading as
the paragraph (a) heading and republishing it and revising paragraphs
(a)(1) introductory text, (a)(3), and (b) to read as follows:
Sec. 803.5 Affidavits required.
(a) Section 801.30 acquisitions. (1) For acquisitions to which
Sec. 801.30 of this chapter applies, the notification required by the
act from each acquiring person shall contain an affidavit attesting
that the issuer or unincorporated entity whose voting securities or
non-corporate interests are to be acquired has received written notice
delivered to an officer (or a person exercising similar functions in
the case of an entity without officers) by email, certified or
registered mail, wire, or hand delivery, at its principal executive
offices, of:
* * * * *
(3) The affidavit required by this paragraph must have attached to
it a copy of the written notice received by the acquired person
pursuant to paragraph (a)(1) of this section.
(b) Non-section 801.30 acquisitions. For acquisitions to which
Sec. 801.30 of this chapter does not apply, the notification required
by the act shall contain an affidavit attesting that a contract,
agreement in principle, or letter of intent to merge or acquire has
been executed, and further attesting to the good faith intention of the
person filing notification to complete the transaction. If the executed
agreement is not the definitive agreement, the affidavit must attest
that a dated document that provides sufficient detail about the scope
of the entire transaction that the parties intend to consummate has
also been submitted.
0
6. Revise Sec. 803.8 to read as follows:
Sec. 803.8 Foreign language documents.
Documentary materials or information in a foreign language required
to be submitted at the time of filing a Notification and Report Form
and in response to a request for additional information or documentary
material must be submitted with verbatim English language translations.
All verbatim translations must be accurate and complete.
0
7. Amend Sec. 803.9 by revising paragraph (c) to read as follows:
Sec. 803.9 Filing fee.
* * * * *
(c) For a reportable transaction in which the acquiring entity has
two ultimate parent entities, both ultimate parent entities are
acquiring persons; however, if the responses for both ultimate parent
entities would be the same for the NAICS Codes section of the
Notification and Report Form, only one filing fee is required in
connection with the transaction.
* * * * *
0
8. Amend Sec. 803.10 by revising paragraphs (c)(1)(i) and (ii) and
redesignating the example following paragraph (c)(1)(ii) as Example 1
to paragraph (c)(1).
The revisions read as follows:
Sec. 803.10 Running of time.
* * * * *
(c) * * *
(1) * * *
(i) The date of receipt shall be the date of electronic submission
if such date is not a Saturday, Sunday, a legal public holiday (as
defined in 5 U.S.C. 6103(a)), or a legal public holiday's observed
date, and the submission is completed by 5 p.m. Eastern Time. In the
event electronic submission is unavailable, the FTC and DOJ may
designate procedures for the submission of the filing. Notification of
the alternate delivery procedures will normally be made through a press
release and, if possible, on the https://www.ftc.gov website.
(ii) Delivery effected after 5 p.m. Eastern Time on a business day,
or at any time on any day other than a business day, shall be deemed
effected on the next following business day. If submission of all
required filings is not effected on the same date, the date of receipt
shall be the latest of the dates on which submission is effected.
* * * * *
0
9. Amend Sec. 803.12 by revising paragraph (c)(1)(iii) to read as
follows:
Sec. 803.12 Withdraw and refile notification.
* * * * *
(c) * * *
(1) * * *
(iii) The resubmitted notification is recertified, and the
submission, as it relates to Transaction-Specific Agreements,
Transaction-Related Documents, and Subsidies from Foreign Entities of
Concern sections of the Notification and Report Form, is updated to the
date of the resubmission;
* * * * *
0
10. Revise appendices A and B to part 803 to read as follows:
Appendix A to Part 803--Notification and Report Form for Certain
Mergers and Acquisitions
BILLING CODE 6750-01-P
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Appendix B to Part 803--Instructions to the Notification and Report
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BILLING CODE 6750-01-C
By the direction of the Commission.
April J. Tabor,
Secretary.
Note: The following statements will not appear in the Code of
Federal Regulations.
Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly
Slaughter and Commissioner Alvaro Bedoya
The Federal Trade Commission, with the collaboration and
concurrence of the Assistant Attorney General of the Department of
Justice's Antitrust Division, has voted unanimously to issue a Final
Rule to amend the Hart-Scott-Rodino (``HSR'') Form and Instructions.
This marks the first time in 46 years that the agencies have undertaken
a top-to-bottom review of the form (``HSR Form'') that businesses must
fill out when pursuing an acquisition that must be notified in
accordance with the HSR Act.\1\ Alongside this Final Rule, the
[[Page 89395]]
Commission voted to submit to Congress its FY2023 Annual Report
regarding the Federal Trade Commission and Department of Justice's
administration of the HSR Act. This Annual Report highlights the
agencies' work investigating and challenging illegal mergers.\2\
---------------------------------------------------------------------------
\1\ Press Release, Fed. Trade Comm'n, FTC Finalizes Changes to
Premerger Notification Form (Oct. 10, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/10/ftc-finalizes-changes-premerger-notification-form.
\2\ Press Release, Fed. Trade Comm'n, FTC, DOJ Issue Fiscal Year
2023 Hart-Scott-Rodino Notification Report and Announce Corrected
Fiscal Year 2022 Report (Oct. 10, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/10/ftc-doj-issue-fiscal-year-2023-hsr-report-and-announce-corrected-2022-report. On July 1, 2024, the
Commission and DOJ Antitrust Division submitted to Congress a
summary of this Report.
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Much has changed in the 48 years since the HSR Act was passed.
Changes in the economy, corporate structure, and investment strategies
have reshaped how businesses compete in today's marketplace. The number
of transactions reported to the agencies surged during fiscal years
2021 and 2022 and remains high.\3\ And deal valuations have soared. In
FY2019, only 13.3% of transactions reported to the agencies exceeded $1
billion.\4\ Those high-value transactions now represent nearly a
quarter (24%) of all transactions that come before the agencies.\5\
Transactions have also become increasingly complex in both structure
and potential competitive impact.\6\
---------------------------------------------------------------------------
\3\ Fed. Trade Comm'n & Dept. of Justice, Hart-Scott-Rodino
Annual Report Fiscal Year 2023 (2024) [hereinafter FY23 Report] at
20.
\4\ Fed. Trade Comm'n & Dept. of Justice, Hart-Scott-Rodino
Annual Report Fiscal Year 2019 (2020) at Ex. A, Table I, https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-bureau-competition-department-justice-antitrust-division-hart-scott-rodino/p110014hsrannualreportfy2019.pdf.
\5\ FY2023 Report at Ex. A, Table I.
\6\ See Remarks by Chair Lina M. Khan, Private Capital, Public
Impact Workshop on Private Equity in Healthcare (March 5, 2024),
https://www.ftc.gov/system/files/ftc_gov/pdf/2024.03.05-chair-khan-remarks-at-the-private-capital-public-impact-workshop-on-private-equity-in-healthcare.pdf; Statement of Chair Lina M. Khan Joined by
Comm'r Rebecca Kelly Slaughter & Comm'r Alvaro Bedoya in the Matter
of EQT Corporation (Aug. 16, 2023), https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/statement-chair-lina-m-khan-joined-commissioner-rebecca-kelly-slaughter-commissioner-alvaro-m-bedoya-4.
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The HSR Form, meanwhile, has largely stayed the same. Against the
backdrop of vast changes in the structure of business associations and
corporate transactions, the information currently collected by the HSR
Form is insufficient for our teams to determine, in the initial 30 days
provided by the HSR Act, whether a proposed deal may violate the
antitrust laws and hence warrant an in-depth investigation. The
antitrust agencies are put in the position of expending significant
time and effort to develop even a basic understanding of key facts.
They must often rely on information provided in third-party interviews
that can be challenging to obtain in 30 days. Much of the key
information, moreover, is known only to the firms proposing the merger,
such as the breadth of their business operations, including any
existing relationship with the other party, the deal rationale, and the
structure of each relevant entity. Seeking this information on a
voluntary basis can leave critical gaps that allow unlawful deals to go
undetected.
By reflecting modern day commercial realities, the HSR Form updates
in the Final Rule will provide the antitrust agencies with information
that is more probative as to whether a proposed deal risks violating
the antitrust laws. Several aspects of the Final Rule bear particular
mention:
Shed light on complex and opaque entities, including
private equity and minority holders. The existing HSR Form did not
require information about the entities between the ultimate parent
entity and the acquiring entity. Nor did it allow the agencies to
determine whether the acquiring person may have competitively relevant
premerger entanglements with the target's industry or whether minority
holders have significant rights to direct the acquiring entity's
actions. To close this gap, the Final Rule requires parties to provide
information about the entities and individuals involved in the deal
that will have the ability to influence decision-making post-merger.
Report vertical and other non-horizontal relationships.
The existing HSR Form failed to provide agencies with meaningful
information about non-horizontal relationships. After a decades-long
focus primarily on mergers between direct competitors, the antitrust
agencies in recent years have reinvigorated merger enforcement against
non-horizontal deals that violate the antitrust laws. Since 2021, the
FTC has brought six enforcement actions against mergers involving a
vertical combination--more than the total number of vertical cases
pursued in the last decade overall.\7\ The FTC's efforts have already
resulted in the government's first litigated victory against a vertical
merger in over 50 years.\8\ As we continue building on this work,
ensuring that the agencies receive information on non-horizontal
components of deals is vital. Accordingly, the Final Rule requires
filers to report supply relationships to reveal whether the transaction
may undermine competition, including through limiting rivals' access to
key products or services they need to compete. The Final Rule also
contains new document requirements that are intended to reveal any
existing or future non-horizontal business relationships that could
give rise to competitive risks.
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\7\ Illumina, Inc. v. FTC, 88 F.4th 1036 (5th Cir. 2023); FTC v.
IQVIA et al, 710 F.Supp.3d 329 (S.D.N.Y. 2024); FTC v. Tempur Sealy
Intern'l, Inc., 4:24-cv-02508 (S.D. Tex. July 2, 2024); In re
Lockheed Martin Corp., Docket No. 9405 (2022), https://www.ftc.gov/legal-library/browse/cases-proceedings/211-0052-lockheedaerojet-matter (alleging that the merger would enable missile systems
manufacturer to use control over missile propulsion systems to harm
rival defense prime contractors) (transaction abandoned); In re
Nvidia Corp., Docket No. 9404 (2021), https://www.ftc.gov/legal-library/browse/cases-proceedings/2110015-nvidiaarm-matter (alleging
that the merger would give chip manufacturer the ability and
incentive to use control over microprocessor design technology to
undermine competitors) (transaction abandoned); In re
Intercontinental Exchange, Inc. & Black Knight, Inc., Docket No.
9413, https://www.ftc.gov/legal-library/browse/cases-proceedings/221-0142-intercontinental-exchange-incblack-knight-inc-matter
(2023).
\8\ Illumina, Inc., 88 F.4th 1036.
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Reveal areas of future competition and emerging rivals. As
section 7 instructs us to arrest anticompetitive tendencies in their
incipiency, the agencies must scrutinize acquisitions that may
eliminate emerging rivals or threaten competition in lines of products
that are still in development.\9\ The existing HSR form has been
particularly ill-suited to this task, as it gives no insight into
merging parties' ongoing product development efforts or pipeline
projects that could implicate future areas of competition. The Final
Rule fixes this problem by requesting key information about products
and services under development that are not yet generating revenues. In
recent years the FTC pursued an enforcement action involving a pipeline
product still in early-stage development, as well as successfully
litigated a case involving the market for research and development.\10\
The new HSR Form will further bolster these efforts.
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\9\ See Illumina, Inc. v. FTC, 88 F.4th 1036, 1049-51 (2023)
(stating that antitrust markets are not limited to products that
exist but may include those that are anticipated or expected or
encompass research, development and commercialization of products in
development); FTC v. PPG Indus., Inc., 798 F.2d 1500, 1504 (D.C.
Cir. 1986) (noting that merging firms competed in evolving high
technology market at the request-for-proposal stage of product
development).
\10\ In re Sanofi/Maze Therapeutics, Docket No. 9422 (2023),
https://www.ftc.gov/legal-library/browse/cases-proceedings/2310091-sanofimaze-therapeutics-inc-matter; Illumina, Inc., 88 F.4th 1036.
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Identify a greater range of prior acquisitions. Another
notable trend has been the rise of serial acquirers, firms that engage
in numerous strategic acquisitions in the same industry and sometimes
``roll up'' many small competitors in the same or adjacent
[[Page 89396]]
markets. This strategy can consolidate a market through a series of
smaller deals that fly below the radar of antitrust enforcers. Private
equity firms and other investors have deployed roll-up strategies
across a range of industries, from healthcare to housing--with
potentially major ramifications for the public.\11\ Indeed, the FTC's
lawsuit against U.S. Anesthesia Partners charges the entity with
acquiring over a dozen anesthesiology providers across Texas in the
span of eight years, a reduction in competition that cost consumers and
businesses tens of millions of dollars.\12\ The Commission's
investigations into acquisitions of veterinary clinics have also
revealed roll-up plays.\13\ To understand whether a proposed
transaction is part of an anticompetitive roll-up scheme, the agencies
need insight into what prior acquisitions the entity has made within
the same lines of business. While the existing Form required some
reporting of these acquisitions, the Final Rule provides a more
complete picture of the merging parties' overarching acquisition
strategies by requiring that both entities provide information on
certain prior acquisitions that closed within the previous five years.
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\11\ See, e.g., Richard M. Scheffler et al., Am. Antitrust
Inst., Soaring Private Equity Investment in the Healthcare Sector:
Consolidation Accelerated, Competition Undermined, and Patients at
Risk 8-16 (2021), https://publichealth.berkeley.edu/wp-content/uploads/2021/05/Private-Equity-I-Healthcare-Report-FINAL.pdf; Atul
Gupta, et al., Does Private Equity Investment in Healthcare Benefit
Patients? Evidence from Nursing Homes (Becker Friedman Inst.,
Working Paper No. 2021-20, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3537612. The Commission recently hosted a
public workshop to discuss the growing body of economic research
examining the role of private equity investment in health care
markets. Fed. Trade Comm'n, Private Capital, Public Impact: An FTC
Workshop on Private Equity in Health Care (Mar. 5, 2024), https://www.ftc.gov/news-events/events/2024/03/private-capital-public-impact-ftc-workshop-private-equity-health-care.
\12\ Complaint, FTC v. U.S. Anesthesia Partners, Inc., et al.,
No. 4:23-cv-03560 (S.D. Tex. Sept. 21, 2023), https://www.ftc.gov/legal-library/browse/cases-proceedings/2010031-us-anesthesia-partners-inc-ftc-v.
\13\ In re JAB Consumer Partners, et al., Docket Nos. C-4766 &
C-4770 (2022), https://www.ftc.gov/legal-library/browse/cases-proceedings/2110140-jab-consumer-partnersnational-veterinary-associatessage-veterinary-partners-matter.
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The notice of proposed rulemaking included a requirement that would
have aided the agencies' assessment of whether the proposed deal would
risk threatening competition in labor markets. This proposal fit within
a wider effort at the agencies to correct for antitrust enforcers'
decades-long neglect of promoting fair competition in labor markets. As
Commissioner Bedoya rightly notes, when antitrust enforcers did pay
attention to workers, it usually involved weaponizing antitrust against
them.\14\ This disposition had no basis in the law--and, as
Commissioner Bedoya notes, directly contravenes the goals Congress
sought to advance in passing the antitrust laws. No antitrust law gives
primacy to some market participants over others or states that some are
entitled to greater protection from unlawful monopolization or mergers;
to the contrary, the Clayton Act prohibits mergers that may
substantially lessen competition ``in any line of commerce.'' \15\ I am
pleased that in recent years the FTC has reoriented towards a more
faithful application of the law, including--for the first time in our
110-year history--through challenging a transaction on the grounds that
it risks undermining competition in labor markets.\16\
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\14\ Statement of Comm'r Alvaro M. Bedoya Joined by Comm'r
Rebecca Kelly Slaughter & Chair Lina M. Khan in the Matter of
Amendments to the Premerger Notification and Report Form and
Instructions and the Hart-Scott-Rodino Rule (Oct. 10, 2024).
\15\ 15 U.S.C. 18. See also, Statement of Comm'r Alvaro M.
Bedoya, id.
\16\ Press Release, Fed. Trade Comm'n, FTC Challenges Kroger's
Acquisition of Albertsons (Feb. 26, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/02/ftc-challenges-krogers-acquisition-albertsons; see also, Statement of Comm'r Rebecca Kelly
Slaughter & Chair Lina M. Khan Regarding FTC and State of Rhode
Island v. Lifespan Corporation and Care New England Health System
(Feb. 17, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/public_statement_of_commr_slaughter_chair_khan_re_lifespan-cne_redacted.pdf.
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While the Final Rule pares back some of the labor market
requirements, I believe that the information required by other
provisions of the Final Rule will position the agencies to identify
transactions that threaten competition in labor markets. In particular,
the newly-mandated information on overlap and supply relationship
descriptions, as well as new high-level business and transaction-
related documents, will enable the agencies to identify whether a
proposed deal risks undermining competition for workers. And
partnerships with the National Labor Relations Board and the Department
of Labor will allow the FTC to continue deepening its expertise in how
competition works in labor markets.\17\
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\17\ Press Release, Fed. Trade Comm'n, FTC, Department of Labor
Partner to Protect Workers from Anticompetitive, Unfair, and
Deceptive Practices (Sept. 21, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/09/ftc-department-labor-partner-protect-workers-anticompetitive-unfair-deceptive-practices, Press
Release, Fed. Trade Comm'n, FTC, National Labor Relations Board
Forge New Partnership to Protect Workers from Anticompetitive,
Unfair, and Deceptive Practices (July 19, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/07/federal-trade-commission-national-labor-relations-board-forge-new-partnership-protect-workers.
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The FTC also announced today that, following the Final Rule coming
into effect, we will lift the categorical suspension on early
termination of filings made under the HSR Act. When the antitrust
agencies grant early termination, merging parties can consummate their
deal without waiting for the full 30-day period ordinarily required
under the law. The Commission initially suspended early termination due
to a historic volume of filings amidst the COVID-19 pandemic.\18\ But a
revisiting of the FTC's early termination policy was overdue. Data
reveal that permissively granting early termination led to the
consummation of some deals that resulted in significant harm.\19\
Moreover, the law makes clear that the granting of early termination is
purely a discretionary function.\20\ Merging
[[Page 89397]]
parties are not entitled to early termination, and I question the
wisdom of using agency resources on a discretionary function while
resource constraints impede our ability to fully execute on our
mandatory functions. Because the Final Rule will provide the agencies
with additional information necessary to probe the competitive risk
that a transaction may pose, we will be better positioned to determine
the right set of policies and procedures around early termination,
including which subset of deals may receive it and under what
circumstances.
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\18\ Press Release, Fed. Trade Comm'n, FTC, DOJ Temporarily
Suspend Discretionary Practice of Early Termination,'' Federal Trade
Commission (Feb. 4, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/02/ftc-doj-temporarily-suspend-discretionary-practice-early-termination.
\19\ See Premerger Notification; Reporting and Waiting Period
Requirements, 16 CFR parts 801, 803 (2024) at 17 (The consequences
of inadequate detection are revealed in a recent analysis of
hospital mergers that were reported to the Agencies for premerger
review co-authored by two economists from the Commission's Bureau of
Economics. Keith Brand et al., ``In the Shadow of Antitrust
Enforcement: Price Effects of Hospital Mergers from 2009-2016,'' 66
J. L. Econ. 639 (2023). The paper examined a set of consummated
hospital mergers and measured the effect of each merger on prices.
The study concluded that mergers not reportable under the HSR Act
did not result in larger price increases than reportable mergers. In
contrast, the authors found different outcomes among mergers that
were subject to premerger review based on how much review the
transaction received. Of the mergers reported to the Agencies, the
largest average percentage price increase occurred for those mergers
that received early termination of the initial waiting period. This
suggests that the HSR Filings failed to provide sufficient
information to trigger additional investigations that could have
blocked these harmful mergers before they were consummated; instead,
the filings resulted in early termination of the waiting period.
While the study was not designed to test the impact of this
rulemaking, the study supports the Commission's belief that there
are information deficiencies with the current HSR Rules that prevent
the Agencies from identifying mergers that may violate the antitrust
laws.'').
\20\ Both the Clayton Act and the HSR Act provide for an
exception to the waiting period by empowering the FTC and DOJ to
grant early terminations ``in their discretion.''16 CFR 803.11(c)
(HSR Act: ``The Federal Trade Commission and the Assistant Attorney
General may, in their discretion, terminate a waiting period upon
the written request of any person filing notification or . . . sua
sponte.''); 15 U.S.C.A. 18a(2) (Clayton Act: ``The Federal Trade
Commission and the Assistant Attorney General may, in individual
cases, terminate the waiting period specified in paragraph (1) and
allow any person to proceed with any acquisition subject to this
section, and promptly shall cause to be published in the Federal
Register a notice that neither intends to take any action within
such period with respect to such acquisition.'').
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The new HSR Form marks a generational upgrade that will sharpen the
antitrust agencies' investigations and allow us to more effectively
protect against mergers that may substantially lessen competition or
tend to create a monopoly. But it is not the only part of the HSR
regime that requires upgrading. As I've noted in past years, the HSR
Act must be modernized for today's economy.\21\ In particular, the
statutory timelines laid out in the HSR Act have not kept pace with the
surge in deal volume, the complexity of transactions, and the increased
burden associated with proving in court a violation of section 7. The
HSR Act gives the agencies 30 days to determine whether a deal warrants
close investigation, and then another 30 days after parties certify
they have ``substantially complied'' with the inquiry. These timelines
were set in an era when document productions were measured in the
number of boxes and not the number of terabytes--and when lawmakers
expected the agencies would receive around 150 merger notifications per
year, rather than 150 notifications per month (as the agencies now
routinely receive).\22\ While the new HSR Form will bolster the
antitrust agencies' ability to adequately screen proposed deals during
the initial waiting period, Congress should revisit HSR and
appropriately extend these timelines to match today's realities.\23\
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\21\ Statement of Chair Lina M. Khan Joined by Commissioner
Rebecca Kelly Slaughter and Commissioner Alvaro M. Bedoya Regarding
the FY2022 HSR Annual Report to Congress (Dec. 21, 2023), https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/statement-chair-lina-m-khan-joined-commissioner-rebecca-kelly-slaughter-commissioner-alvaro-m-bedoya-5.
\22\ See id.
\23\ Presently, FTC staff are routinely at the mercy of merging
parties granting extensions of the statutory deadline so that staff
has the necessary time to review the transaction. But it should not
be merging parties that get to determine the amount of time FTC
staff has to review mergers and do the work required by law.
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Faithfully discharging the Commission's statutory obligations also
requires adequate funding. The HSR Annual Report summarizes the
agencies' merger enforcement work over FY2023.\24\ During that period
the FTC's work resulted in challenges to 15 transactions that risked
threatening competition.\25\ Ten of these challenges resulted in
parties abandoning the transactions, nearly double the average annual
number of abandonments from the preceding 10 years. Our efforts to keep
building on this efficacy, however, will run into major resource
constraints. The FTC's enacted budget for fiscal year 2024 represented
a one percent reduction from the previous year. Alongside a statutorily
mandated five percent pay raise and higher non-pay costs resulting from
inflation, the result of this reduction has been significantly fewer
resources to support the FTC's mission. While our teams work diligently
to faithfully enforce the antitrust laws, resource constraints have
meant the FTC has been forced to make difficult triage decisions and
forgo meritorious investigations--likely resulting in the public
bearing the cost of illegal mergers. Additional resources would better
equip the Commission to fully pursue its mandate and protect the
public.
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\24\ Commissioners Holyoak and Ferguson dissent from the
issuance of the HSR Annual Report. In particular, Commissioner
Holyoak disagrees with the longstanding practice to count
abandonments and deals where parties were not required to make an
HSR filing. Dissenting Statement of Commissioner Melissa Holyoak,
Hart-Scott-Rodino Annual Report, Fiscal Year 2023 (Oct. 10, 2024) at
2. For over a decade, the Report has been clear that it includes
certain non-HSR reportable matters. FY23 Report at n.28 (``The cases
listed in this section were not necessarily reportable under the
premerger notification program. Given the confidentiality of
information obtained pursuant to the Act, it would be inappropriate
to identify the cases initiated under the program except in those
instances in which that information has already been disclosed.'');
see also Fed. Trade Comm'n, FY 2010 Hart Scott Rodino Annual Report
(2011) at n.18. A proposed merger may be anticompetitive even if it
falls below the threshold that would require an HSR filing. As a
result, FTC staff may raise concerns regarding certain transactions
even where such a filing has not been made. Those matters are part
of the FTC's merger enforcement work and including them faithfully
represents the Commission's work to Congress. The HSR Annual Report
also states plainly that it references certain deals where ``the
transaction was abandoned or restructured as a result of antitrust
concerns raised during the investigation,'' id. at 2, and
Commissioner Holyoak does not identify any inconsistency or explain
any insufficiency in how the numbers are tabulated here versus how
the Commission has historically done so. Commissioner Ferguson notes
in his dissent that the precise timing of HSR reports is not
mandated by Congress and has varied in past years, but neglects to
mention that timing under prior administrations also varied
significantly. Dissenting Statement of Commissioner Andrew N.
Ferguson Regarding the FY2023 HSR Annual Report to Congress (Oct.
10, 2024) at 1-2. See, e.g., Fed. Trade Comm'n, Annual Competition
Reports (last visited Oct. 9. 2024), https://www.ftc.gov/policy/reports/annual-competition-reports (for example, the FY19 Annual HSR
Report was released in July of 2020, the FY18 Annual HSR Report was
released Sept 2019, the FY17 Annual HSR Report was released Apr. 11,
2018, the FY16 Annual HSR Report was released Oct. 4, 2017.
Strangely, Commissioner Ferguson also suggests that the decision to
issue this year's report in October is part of some political scheme
related to giving the Democratic ticket an advantage in the
forthcoming presidential election. I am unaware of any reports,
research, or evidence suggesting that the HSR Report has any bearing
on voting patterns or electoral outcomes.
\25\ One transaction challenged in FY2023 remains in litigation.
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Finally, the FTC today is launching a new online portal so that
members of the public can directly submit comments on mergers that may
threaten competition.\26\ This portal is part of the FTC's broader work
to ensure we are opening our doors to hear from people across the
country on issues of public concern.\27\ Whether the antitrust agencies
do or do not take action against a merger can be of enormous
consequence--determining how much people pay for essential goods and
services, how much workers earn on a job, whether independent
businesses can keep serving their communities, whether an entrepreneur
can bring a breakthrough innovation to market, and whether our supply
chains are brittle or resilient. Ensuring the antitrust agencies are
positioned to make these high-stakes decision with a full understanding
of what may follow from a merger is vital. Well-resourced businesses
know how best to inform the agencies' investigations, but one shouldn't
need to hire a lawyer to provide public enforcers with relevant
information on a merger. This new portal will allow the FTC to
systematize the regular gathering of public input on mergers and
continue broadening the types of expertise and experience that inform
our work.
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\26\ See Press Release, Fed. Trade Comm'n, FTC Finalizes Changes
to Premerger Notification Form (Oct. 10, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/10/ftc-finalizes-changes-premerger-notification-form.
\27\ When the FTC in recent years has invited public input, we
have received thousands--and sometimes tens of thousands--of
comments, including on issues relating to merger enforcement. See,
e.g., Public Docket FTC-2023-0043, Draft Merger Guidelines for
Public Comment, Regulations.gov (Jul. 19, 2023); Public Docket FTC-
2024-0028, FTC and DOJ Seek Info on Serial Acquisitions, Roll-Up
Strategies Across U.S. Economy, Regulations.gov (May 23, 2024).
---------------------------------------------------------------------------
The Final Rule, HSR Report, and new merger portal reflect
tremendous work by teams across the FTC, in particular from the
Premerger Notification Office, the Office of Policy and Coordination,
and the Office of Policy Planning, as well as from throughout the
Bureau of
[[Page 89398]]
Competition, the Office of General Counsel, and the Bureau of
Economics. I am grateful to this team for their diligent efforts, as
well as to the FTC's partners at DOJ for their collaboration, and to my
fellow Commissioners for their thoughtful engagement.
Statement of Commissioner Alvaro M. Bedoya Joined by Chair Lina M. Khan
and Commissioner Rebecca Kelly Slaughter
My colleagues Commissioners Ferguson and Holyoak write at some
length in support of the Commission's decision not to adopt, at this
time, a set of proposed requests for employment information (``the
labor screen'') that was included in the original notice of proposed
rulemaking.\1\ Rather than litigating the merits of the labor screen, I
write to respond to one of the ideas underlying my colleagues'
arguments against it.
---------------------------------------------------------------------------
\1\ Premerger Notification; Reporting and Waiting Period
Requirements, 88 FR 42178, 42197 (June 29, 2023) (to be codified at
16 CFR pts. 801, 803).
---------------------------------------------------------------------------
The Sherman Act was passed in 1890; the Clayton Act and the Federal
Trade Commission Acts were passed in 1914, creating this Commission and
empowering it to enforce this newly expanded set of antitrust laws.\2\
Yet it was only in 2021 that a Federal antitrust enforcer first stopped
a merger because of its impact on competition in the labor market.\3\
---------------------------------------------------------------------------
\2\ 15 U.S.C. 1-38; 15 U.S.C. 12-27; 15 U.S.C. 41-58.
\3\ United States v. Bertelsmann SE & Co. KGaA, 646 F. Supp. 3d
1, 1 (D.D.C. 2022).
---------------------------------------------------------------------------
My colleagues cite the absence of such merger challenges as a key
reason for dropping the labor screen. Both stress the extensive efforts
the antitrust agencies have expended to identify such mergers.\4\ They
argue that, if enforcers have been working for years to identify
mergers that harm competition in labor markets and have not brought
more challenges, how can we justify requesting additional data to
identify those mergers? In fact, Commissioner Holyoak seems to imply
that labor monopsony is rare, going so far as to say that the labor
screen ``was a solution in search of a nonexistent problem.'' \5\
---------------------------------------------------------------------------
\4\ Statement of Commissioner Melissa Holyoak, Final Premerger
Notification Form and the Hart-Scott-Rodino Rules, at 9; Concurring
Statement of Commissioner Andrew N. Ferguson, In the Matter of
Amendments to the Premerger Notification and Report Form and
Instructions and the Hart-Scott-Rodino Rule, at 11.
\5\ Statement of Commissioner Melissa Holyoak, Final Premerger
Notification Form and the Hart-Scott-Rodino Rules, at 9.
---------------------------------------------------------------------------
History tells a different story. While my colleagues suggest that
the absence of labor-based merger challenges exists ``not for a lack of
trying,'' \6\ a review of the first hundred years of that history finds
dreadfully little trying. Indeed, most of the history of antitrust
enforcement has been marked by a clear aversion to protecting labor
market competition. This arguably has only been reversed in the last
decade.
---------------------------------------------------------------------------
\6\ Id.; see also Concurring Statement of Commissioner Andrew N.
Ferguson, In the Matter of Amendments to the Premerger Notification
and Report Form and Instructions and the Hart-Scott-Rodino Rule, at
11 (``It is not for a lack of effort.'').
---------------------------------------------------------------------------
The historical record reveals several reasons for the lack of
labor-based merger challenges, none of which suggest that labor
monopsony is rare. The first would be early antitrust enforcers' overt
hostility to labor organizing specifically and labor organizations more
generally--a position that put them in sharp opposition to the
legislators who created American antitrust law.
From the first Senate debates over passage of the law that would
come to bear his name, Senator John Sherman made clear he was concerned
with combinations of companies that could unilaterally set the price of
labor. In denouncing the ``trust,'' he explained that:
``The sole object of such a combination is to make competition
impossible. It can control the market, raise or lower prices, as
will best promote its selfish interests. . . It dictates the terms
to transportation companies, it commands the price of labor without
fear of strikes, for in its field it allows no competitors. Such a
combination is more dangerous than any heretofore invented. . .''
\7\
---------------------------------------------------------------------------
\7\ 21 Cong. Rec. 2457 (Mar. 21, 1890) (remarks of Sen. John
Sherman of Ohio).
He wasn't the only legislator who was concerned with labor. The
debates in 1890 as well as 1914 were defined by an overriding concern
that the laws being considered would be misused to stop labor
organizing. Thus, the Sherman Act was amended not once but twice to
avoid such a result, ultimately being rewritten nearly in its entirety;
sections 6 and 20 of the Clayton Act were enacted for the same reason
24 years later.\8\
---------------------------------------------------------------------------
\8\ See Alvaro M. Bedoya & Bryce Tuttle, ``Aiming at Dollars,
Not Men'': Recovering the Congressional Intent Behind the Labor
Exemption to Antitrust Law,'' 85 Antitrust L.J. 805, 809-812 (2024).
---------------------------------------------------------------------------
Early antitrust enforcers ignored this legislative intent, as did
the courts hearing challenges brought under the laws. Prosecutors
instead turned the Sherman Act into what Professor Hovenkamp termed a
``savage weapon'' against labor, \9\ using it to break the strikes of
longshoremen in New Orleans and hungry Pullman Palace Car workers in
Illinois.\10\ The labor protections in the Clayton Act arguably fared
worse. Despite the law's clear prohibition against the use of antitrust
laws against labor organizing, courts in the 1920s used it to stop
2,100 strikes.\11\
---------------------------------------------------------------------------
\9\ Herbert Hovenkamp, Labor Conspiracies in American Law, 1880-
1930, 66 Tex. L. Rev. 919, 928 (1988).
\10\ See Bedoya & Tuttle, supra note 8, at 811-812; see also
U.S. v. Workingmen's Amalgamated Council of New Orleans, 54 F. 994,
996 (E.D. La. 1893); Melvin I. Urofsky, Pullman Strike, Encyc.
Britannica (Sept. 2, 2022), https://www.britannica.com/event/Pullman-Strike.
\11\ See William E. Forbath, Law and the Shaping of the American
Labor Movement 158 (1991).
---------------------------------------------------------------------------
In short, for the first four decades of their existence, the
antitrust laws were used as a cudgel against organized labor, not a
tool to detect and block mergers that risked harming labor markets.
While the law was there to allow for a challenge to a merger based on
its impact on labor market competition,\12\ the idea that the DOJ or
FTC of that era would try to block such mergers finds no basis in
reality.
---------------------------------------------------------------------------
\12\ In 1926, in line with Senator Sherman's intent, the Supreme
Court held that antitrust law could be used affirmatively to protect
competition in labor markets, allowing a group of sailors to sue
shipowners for wage-fixing. Anderson v. Shipowners Ass'n of the Pac.
Coast, 272 U.S. 359, 365 (1926).
---------------------------------------------------------------------------
In his treatise exploring the absence of antitrust enforcement
targeted at labor markets, Professor Posner presents two other reasons
for the lack of labor-based merger challenges, both of which post-date
the heyday of the labor injunction in the first half of the 20th
century.\13\ He argues that, starting in the 1960s, legal scholars
began to prevail upon law enforcers to target antitrust enforcement on
conduct and combinations that raised the prices on products and
services sold to the public--that is, ``consumer welfare.'' More
interestingly, he explains that until very recently, most economists
assumed labor markets were more or less competitive, and labor market
power--the power of employers to set wages below a competitive level--
was thus not an important problem for society.\14\
---------------------------------------------------------------------------
\13\ See generally Eric A. Posner, How Antitrust Failed Workers
(2021).
\14\ See id at 4. Professor Posner cites a popular economics
textbook from 2005 which declared that ``[m]ost labor economists
believe there are few monopsonized labor markets in the United
States.'' Id. citing Dennis W. Carlton & Jeffrey M. Perloff, Modern
Industrial Organization 108 (2005). See also David Card, Who Set
Your Wage? American Economic Review at 1075 (2022) (``the time has
come to recognize that many--or even most--firms have some wage-
setting power. Such a shift was made with respect to firm's price-
setting power many decades ago[. . .] In the past few years we may
have reached a tipping point for a similar transition in labor
economics, driven by the combination of new (or at least post-1930)
theoretical perspectives, newly available data sources, and
accumulating evidence on several different fronts.''); id. at 1086
(``By insisting that `markets set wages,' labor economists ceded the
field, and had very little to say about questions like the design of
online labor markets, or the effects of no-solicitation or no-
poaching agreements--other than that they should not matter[. . .]
One of the most exciting developments in the field today is the
evidence of labor economists taking questions about wage setting
seriously[. . .] I also expect this work to lead to some rethinking
on policies such as minimum wages, the regulation of trade unions,
and anti-Trust'').
---------------------------------------------------------------------------
[[Page 89399]]
That understanding of labor markets has begun to unravel. New
research suggests that the fewer companies in a community competing for
workers, the lower the wages.\15\ Research also suggests that mergers,
specifically, help companies keep wages low.\16\ This appears to be a
common problem in American society. Professor Posner found it plausible
that in many labor markets, workers receive thousands of dollars less
than the competitive rate.\17\ Two years ago, the Treasury Department
estimated that as a result of current employer market concentration as
well as how time consuming it is to find, interview for, and accept a
job, Americans likely lose out on the equivalent of eight weeks of pay
every year. In other words, in a perfectly competitive labor market--in
a world where we can easily switch jobs to one of any number of firms,
most of us would be about two to four paychecks richer.\18\ Few people
may know about ``labor monopsony,'' but anyone on a budget knows what
they'd do with that money.
---------------------------------------------------------------------------
\15\ See, e.g., Efraim Benmelech, et al., Strong Employers and
Weak Employees: How Does Employer Concentration Affect Wages, 57. J.
of Hum. Res. S200, S203 (Supplement) (2022).
\16\ See Elena Prager & Matt Schmitt, Employer Consolidation and
Wages: Evidence from Hospitals, 111 Am. Econ. Rev. 397, 397 (2021);
Benmelech, supra note 3, at S200 (``instrumenting concentration with
merger activity shows that increased concentration decreases
wages''); David Arnold, Mergers and Acquisitions, Local Labor Market
Concentration, and Worker Outcomes (unpublished) (Oct. 29, 2021)
(``M&As that increase local labor market concentration have negative
impacts on worker earnings with the largest impacts in already
concentrated markets.''), available at https://sites.google.com/site/davidhallarnold/research.
\17\ See Posner, supra note 13, at 28.
\18\ The report's review of academic studies ``places the
decrease in wages at roughly 20 percent relative to the level in a
fully competitive market.'' This is a middle estimate from an
estimated range of $0.15 to $0.25 cents of lost wages on every
dollar. The ``eight weeks of pay'' figure applies the lower bound of
that estimate ($0.15, or 15%) to 52 weeks of pay. See U.S. Dep't of
Treasury, The State of Labor Market Competition, at ii (2022) (``20
percent''); id. at 24-25 (``15-25 cents on the dollar'').
---------------------------------------------------------------------------
In short, my colleagues seem to say that labor monopsony is not a
problem even though we've only just started to look for that problem.
Then, they wave away tools to help find that problem because we haven't
found it yet.\19\
---------------------------------------------------------------------------
\19\ Commissioner Holyoak states that ``[t]he agencies have
never made a standalone labor challenge to an acquisition,'' and
Commissioner Ferguson states that the agencies have never made a
challenge ``based on labor market theories that could have been
identified by the proposed requirements.'' Statement of Commissioner
Melissa Holyoak, Final Premerger Notification Form and the Hart-
Scott-Rodino Rules, at 9-10; Concurring Statement of Commissioner
Andrew N. Ferguson, In the Matter of Amendments to the Premerger
Notification and Report Form and Instructions and the Hart-Scott-
Rodino Rule, at 11. I evaluate this new era quite differently. In
2021, our colleagues at the Antitrust Division successfully blocked
a proposed merger between two of the nation's largest book
publishers based on a labor theory that the elimination of
competition between the merging publishers likely would have
negatively impacted the advances paid to authors for their work. See
United States v. Bertelsmann SE & Co. KGaA, 646 F. Supp. 3d 1
(D.D.C. 2022). What's more, in addition to Commission staff's
challenge of the Kroger/Albertson's merger in part on a labor
theory, FTC staff just last month submitted a comment urging the
Indiana Department of Health to deny an application that seeks to
combine Union Hospital and Terre Haute Regional Hospital, in part
because, in staff's view, the proposed merger would likely depress
wage growth for hospital employees and exacerbate challenges with
recruiting and retaining healthcare professionals. See Complaint,
FTC v. Kroger Co., and Albertsons Co., (D. Or. Feb. 26, 2024);
Federal Trade Commission Staff Submission to Indiana Health
Department Regarding the Certificate of Public Advantage Application
of Union Health and Terra Haute Regional Hospital at 54-63 (Sept. 5,
2024). The Commission unanimously authorized staff to file the
comment. Press Release, Fed. Trade Comm'n, FTC Staff Opposes
Proposed Indiana Hospital Merger (Sept. 5, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/09/ftc-staff-opposes-proposed-indiana-hospital-merger. Additionally, in 2018,
under Republican leadership, the Commission alleged that Grifols
S.A.'s proposed acquisition of Biotest U.S. Corporation would likely
have enabled the combined firm to decrease fees paid to blood plasma
donors and required Grifols to divest certain assets as a condition
of the acquisition. See Complaint, In the Matter of Grifols S.A. and
Grifols Shared Services North America, Inc. (Aug. 1, 2018). Finally,
I note that prior to my arrival at the Commission, Chair Khan and
Commissioner Slaughter sounded the alarm on labor concerns in the
abandoned merger between Lifespan Corporation and Care New England
Health System stating that, in addition to allegations contained in
staff's complaint, they would have also supported an allegation on
labor grounds. See Concurring Statement of Comm'r Rebecca Kelly
Slaughter and Chair Lina M. Khan Regarding FTC and State of Rhode
Island v. Lifespan Corporation and Care New England Health System,
Fed. Trade Comm'n (Feb. 17, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/public_statement_of_commr_slaughter_chair_khan_re_lifespancne_redacted.pdf.
---------------------------------------------------------------------------
All of this said, a key barrier to any merger challenge, including
labor-based challenges, is a lack of time. The changes voted out today
will help FTC staff quickly find and focus on the mergers that hurt
competition in any market, including labor markets. For this and many
other reasons, I am proud to support them.
Statement of Commissioner Melissa Holyoak
I. Introduction
The Commission issued its notice of proposed rulemaking for the
Premerger Notification, Reporting and Waiting Period Requirements which
implements the Hart-Scott-Rodino Antitrust Improvements Act (``NPRM'')
on June 29, 2023.\1\ The contents of the NPRM were harrowing and
generated (justifiably) substantial outcry from many commentors. Many
of the contemplated filing requirements, if implemented, would have
been beyond the Commission's legal authority, arbitrary and capricious,
unjustifiably burdensome, and just plain bad policy.\2\
---------------------------------------------------------------------------
\1\ Premerger Notification; Reporting and Waiting Period
Requirements, 88 FR 42178 (proposed Jun. 29, 2023) (to be codified
at 16 CFR parts 801 and 803) (hereinafter NPRM).
\2\ Out of the gate, the NPRM made broad assertions about
increasing concentration as a justification for the unprecedented
and wide-sweeping proposed changes. NPRM, supra note 1, at 42179.
The concentration literature upon which it relied, id. at 42179 n.7,
however, has been heavily criticized and debunked. See, e.g., Chad
Syverson, Macroeconomics and Market Power: Context, Implications,
and Open Questions, 33 J. Econ. Perspectives 23 (2019); Carl
Shapiro, Antitrust in a Time of Populism, 61 Int'l J. Indus. Org.
714 (2018); Gregory J. Werden & Luke M. Froeb, Don't Panic: A Guide
to Claims of Increasing Concentration, Antitrust Magazine, Fall
2018. Most notably, the literature cited by the NPRM does not use
well-defined antitrust markets in its assessment or conclusions.
Further, even if increasing concentration had been a reality, it
only has a limited role in analyzing competitive effects. See infra
note 57.
---------------------------------------------------------------------------
The Commission worked together on the monumental task of modifying
the NPRM into the Final Rule,\3\ ensuring the Final Rule does not
suffer from the many legitimate criticisms raised by the commentors.
The Final Rule modifies many provisions in the NPRM while taking great
care to avoid unduly burdening merging parties or chilling the many
procompetitive transactions that happen each year. To be clear, this
Final Rule does not align exactly with my preferences. But I have
worked to curb the excesses of the NPRM in meaningful ways that would
not have happened absent my support. These significant modifications
resulted in a Final Rule that is not only consistent with the agencies'
statutory grant of authority but will also close certain informational
gaps that affect the agencies' ability to conduct effective premerger
screening.
---------------------------------------------------------------------------
\3\ Fed. Trade Comm'n, Premerger Notification; Reporting and
Waiting Period Requirements, Final Rule (Oct. 3, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/p110014hsrfinalrule.pdf
(hereinafter Final Rule).
---------------------------------------------------------------------------
Commissioner Ferguson, in section III of his statement, describes
in detail the
[[Page 89400]]
benefits of certain provisions that the Commission included in the
Final Rule. These provisions that he describes fill information gaps in
the agencies' current ability to fulfill their missions under the HSR
Act. I agree with Commissioner's Fergusson's assessments and applaud
the Commission's efforts to include these new requests in the Final
Rule.
Simultaneous with today's issuance of the Final Rule, the
Commission has also announced that it will lift its suspension of early
termination when the Final Rule takes full effect. The suspension
itself has been in place for more than three-and-a-half years, even
though the suspension was supposed to be ``temporary'' and ``brief.''
\4\ I have been baffled by this unjustified delay and disappointed that
it took the promulgation of this Final Rule to lift the suspension of
early termination. One of the virtues of the Final Rule is that certain
provisions will allow staff to more quickly identify which mergers
should receive early termination, a significant benefit to both staff
and merging parties. So I guess late is better than never.
---------------------------------------------------------------------------
\4\ Press Release, Fed. Trade Comm'n, FTC, DOJ Temporarily
Suspend Discretionary Practice of Early Termination (Feb. 4, 2021),
https://www.ftc.gov/news-events/news/press-releases/2021/02/ftc-doj-temporarily-suspend-discretionary-practice-early-termination.
---------------------------------------------------------------------------
For the remainder of my statement, I write to demonstrate the
dramatic differences between this Final Rule and the proposed rule set
forth in the NPRM, and also to elaborate on some of the changes, in
addition to lifting the early termination suspension, that drove my
decision to vote in favor of the Final Rule. My overview of the Final
Rule is not a substitute to the text of the Final Rule or the analysis
in the Statement of Basis and Purpose (``SBP''),\5\ both of which
should be consulted by all filers.
---------------------------------------------------------------------------
\5\ Fed. Trade Comm'n, 16 CFR parts 801 and 803, Premerger
Notification; Reporting and Waiting Period Requirements, Statement
of Basis and Purpose (Oct. 3, 2024) (hereinafter SBP).
---------------------------------------------------------------------------
Of the twenty-nine primary proposals in the NPRM, ten were rejected
entirely, including, among others, the request for labor information,
the obligation to produce draft transaction documents, and the
requirements to create organizational charts. Of the remaining nineteen
proposals, the Final Rule includes just two without modification; we
have made meaningful changes to the other seventeen requirements.
Table 1--Rejected Proposals
------------------------------------------------------------------------
NPRM provision Results in final rule
------------------------------------------------------------------------
Labor Market/Employee Information............... Proposal rejected.
Drafts of Transaction-Related Documents......... Proposal rejected.
Organizational Chart of Authors and Recipients.. Proposal rejected.
Other Types of Interest Holders that May Exert Proposal rejected.
Influence.
Expand Current 4(d)(iii) to Include Financial Proposal rejected.
Projections to Synergies and Efficiencies.
Deal Timeline................................... Proposal rejected.
Provision of Geolocation Information............ Proposal rejected.
Identification of Messaging Systems............. Proposal rejected.
Litigation Hold Certification Language.......... Proposal rejected.
Identification of F/K/A Names................... Proposal rejected.
------------------------------------------------------------------------
For example, the prior acquisition proposal that called for ten
years of prior acquisitions without any size threshold was reversed in
the Final Rule to request only five years of acquisitions, and
reinstated the $10 million threshold--returning to the time period
adopted in 1987 \6\ and dollar threshold that had existed since the
original rules in 1978.\7\ The NPRM proposal that would have required
the filers to identify and produce all agreements between the merging
parties has been modified significantly in the Final Rule to simply
require the filers to check boxes to indicate whether they have a few
types of agreements between them--nothing has to be produced or
described. The Final Rule similarly modifies the NPRM's overlap and
supply ``narratives'' to require only ``brief'' descriptions instead.
And, among other revisions, the Final Rule's overlap and supply
descriptions requirement makes clear that antitrust analysis is not
required.
---------------------------------------------------------------------------
\6\ 52 FR 7066 at 7078 (Mar. 6, 1987) (``[The Commission]
believes that this change can be made without harming the agencies'
ability to conduct a thorough antitrust review since an account of
the acquiring person's acquisitions over the past five years will
give adequate notice of possible trends toward concentration.'').
\7\ 43 FR 33450 at 33534 (July 31, 1978) (``The item permits the
omission of prior transactions that did not involve the acquisition
of more than 50 percent of the voting securities or assets of a
person with preacquisition sales or assets of $10 million, since
smaller acquisitions are likely to be less significant from an
antitrust standpoint.''). Unlike prior iterations of the rules, the
Final Rule does require the acquired entity to also identify prior
acquisitions and clarified that an acquisition of ``all or
substantially all'' of the assets of a business must be reported.
---------------------------------------------------------------------------
Further, many of the modifications exempt ``Select 801.30
Transactions'' from having to report certain information required by
the Final Rule. Select 801.30 Transactions are acquisitions of third
parties' voting securities where the acquirer does not gain control, no
agreements between the acquiring and acquired person govern the
transaction, and the acquiror does not have the ability to appoint or
serve on a board.\8\ The Final Rule likewise exempts transactions where
there is no horizontal overlap or supply relationship from certain
information requirements, and sets a de minimis threshold to exclude
the requirement to describe supply relationships where the sale or
purchase of the product, service, or asset represents less than $10
million in revenue in the most recent year. Table 2 highlights some of
the main modifications that have been made in the Final Rule (again,
this list is not exhaustive and does not substitute for the text of the
Final Rule).
---------------------------------------------------------------------------
\8\ The Final Rule defines Select 801.30 Transactions as ``[a]
transaction to which Sec. 801.30 applies and where (1) the
acquisition would not confer control, (2) there is no agreement (or
contemplated agreement) between any entity within the acquiring
person and any entity within the acquired person governing any
aspect of the transaction, and (3) the acquiring person does not
have, and will not obtain, the right to serve as, appoint, veto, or
approve board members, or members of any similar body, of any entity
within the acquired person or the general partner or management
company of any entity within the acquired person. Executive
compensation transactions also qualify as select 801.30
transactions.'' 16 CFR part 803, appendix B at 1.
[[Page 89401]]
Table 2--Select Modified NPRM Proposals
------------------------------------------------------------------------
Select modification in final
NPRM provision rule
------------------------------------------------------------------------
Prior Acquisitions \9\................. Among others, retain the five-
year lookback and $10 million
sales/assets threshold that
existed in prior iterations of
the HSR rules.
Other Agreements Between the Parties Among others, filers are not
\10\. required to produce or
describe agreements between
the parties; instead, they
must only, via checkbox,
identify types of agreements
between them, if any.
Officers, Directors, and Board Among others, (1) exclude
Observers \11\. reporting on board observers;
(2) limit to acquiring person
only; (4) limit to officers/
directors of entities in
overlap industries as
described by the text of the
Final Rule.
4(c) Documents by/for Supervisory Deal Limit to only apply to one
Team Lead(s) \12\. individual (not the plural
``leads'' like in the NPRM)
supervisory deal team lead, as
defined in the text of the
Final Rule.
Supply Relationships \13\.............. Among others, (1) require only
``brief'' descriptions rather
than a narrative; (2) exclude
``Select 801.30
Transactions''; (3) impose a
de minimis threshold and (4)
limit descriptions to a
business assessment rather
than an antitrust analysis
(see SBP).
Overlap Products and Services \14\..... Among others, (1) require only
``brief'' descriptions rather
than a narrative; (2) exclude
``Select 801.30
Transactions''; and (3) limit
description to a business
assessment rather than an
antitrust analysis (see SBP).
Ordinary Course Documents (Periodic Among others, limit to exclude
Plans and Reports) \15\. ``Select 801.30 Transactions''
and limited to only require
documents provided to Chief
Executive Officers.
Identification of Limited Partners \16\ Among others, limit disclosure
requirements for limited
partners who do not have
management rights.
Description of Entity Structures and Among others, eliminate
Organizational Chart for Funds and requirement to create an
MLPs \17\. organizational chart.
Transaction Diagram \18\............... Among others, exclude ``Select
801.30 Transactions'' and only
necessary if diagrams
previously existed (i.e., no
need to create diagrams).
Mandatory Identification of Foreign Limit to acquiring person.
Jurisdiction Reporting by Both Parties
\19\.
Requiring a draft agreement or term Clarify scope and provide more
sheet and transaction specific details about the information
agreements for filings on non- required.
definitive agreements \20\.
Transaction Rationale \21\............. Among others, exclude ``Select
801.30 Transactions.''
Voluntary Waivers for State AGs and Allow filers to voluntarily
International Enforcers \22\. check two separate boxes that
would permit certain
disclosures.
Defense or Intelligence Contracts \23\. Among others, limit to
contracts generating $100
million or more of revenue and
only if there is an Overlap or
Supply Relationship.
Document Log Requirements \24\......... Among others, limit requirement
to identify authors to certain
and limited circumstances.
Adjustments to NAICS revenue reporting Modified to limit scope.
\25\.
------------------------------------------------------------------------
Notably, only two of the main proposals in the NPRM were adopted
without modification: the requirements to translate foreign-language
documents and to report subsidies from foreign entities of concern,
which was mandated by the Merger Filing Fee Modernization Act of
2022.\26\ All other proposals were rejected or significantly modified.
Taken together, the dramatic revisions to the proposed rule set forth
in the NPRM result in a Final Rule that I can support. The decisions
made to scale back the proposed requirements in the NPRM will limit
burden, aligns the Final Rule with the Commission's legal authority
under the HSR Act, and is tailored to address information gaps that
have hampered the agencies' premerger review.\27\
---------------------------------------------------------------------------
\9\ See Final Rule, supra note 3, Acquiring Person Instructions,
at 14-15.
\10\ See id. at 9.
\11\ See id. at 5.
\12\ See id. at 1.
\13\ See id. at 10.
\14\ See id. at 9-10.
\15\ See id. at 9.
\16\ See id. at 4-5.
\17\ See id. at 5.
\18\ See id. at 8.
\19\ Compare id. at 7 (requiring disclosure for acquiring
person) with Final Rule, supra note 3, Acquired Person Instructions
(not requiring disclosure of transactions subject to international
antitrust notification).
\20\ See Final Rule, supra note 3, Acquiring Person
Instructions, at 9.
\21\ See id. at 8.
\22\ See id. at 15-16.
\23\ See id. at 15.
\24\ See id. at 2.
\25\ See id. at 10-11.
\26\ See 15 U.S.C. 18b (requiring the Commission to promulgate a
rule requiring HSR filings to include information on subsidies
received from certain foreign governments or entities that are
identified as foreign entities of concern); Consolidated
Appropriations Act, 2023, Public Law 117-328 (2023) (reflecting the
appropriations bill that included the Merger Filing Fee
Modernization Act of 2022).
\27\ The incremental burden estimated in the NPRM decreased from
107 hours to only 68 hours in the Final Rule, a result that was
critical to my decision. NPRM, supra note 1, at 42208 (reporting 107
incremental hours); SBP, supra note 3, at section VIII, 386 of 406
(reporting 68 incremental hours).
---------------------------------------------------------------------------
Sections II through IV of my statement explain why three proposals
in the NPRM were especially problematic to me, and why their
elimination or substantial revision was critical to my vote on this
Final Rule: (II) Labor Market/Employee Information, (III) Drafts of
Transaction-Related Documents, and (IV) Ten Years of Prior Acquisitions
Without any Size Thresholds. To be clear, by focusing on these three
proposals I do not mean to diminish the importance of the other changes
reflected in the Final Rule. Each of the many revisions that scaled
back the proposed requirements in the NPRM contributed to my vote to
issue the Final Rule. Finally, I discuss in section V some additional
considerations that led me to support the Final Rule, including
important limitations in the Final Rule that ensure
[[Page 89402]]
the Final Rule will not result in fishing expeditions.
Before proceeding, I want to discuss the Commission's authority to
issue today's Final Rule, an issue that is critical to me as a
Commissioner.\28\ The HSR Act obligates the Commission, ``with the
concurrence of the Assistant Attorney General,'' to issue rules that
require information to be submitted in HSR filings that will ``be in
such form and contain such documentary material and information
relevant to a proposed acquisition as is necessary and appropriate to
enable the Federal Trade Commission and the Assistant Attorney General
to determine whether such acquisition may, if consummated, violate the
antitrust laws.'' \29\ While this mandate affords some discretion to
the Commission, this discretion is not unbounded. Critically, Congress
did not give the Commission authority to promulgate rules to gather
information generally, or to merely heap burden upon merging parties in
an effort to dissuade acquisitions. Rather, the Act explains that the
purpose of HSR filings, and the rules determining the content of
filings, is for the agencies ``to determine whether such acquisition
may, if consummated, violate the antitrust laws.'' \30\ Many proposals
in the NPRM--including the three discussed below--have been rejected or
substantially modified to ensure the Final Rule includes only new
requirements that are consistent with the text and structure of the HSR
Act.
---------------------------------------------------------------------------
\28\ See, e.g., Dissenting Statement of Commissioner Melissa
Holyoak, Joined by Commissioner Andrew N. Ferguson, In the Matter of
the Non-Compete Clause Rule, Matter Number P201200 (June 28, 2024),
https://www.ftc.gov/system/files/ftc_gov/pdf/2024-6-28-commissioner-holyoak-nc.pdf.
\29\ 15 U.S.C. 18a(d).
\30\ Id. (emphasis added).
---------------------------------------------------------------------------
II. Labor Market Information
The NPRM contained many problematic proposals. Chief among them was
its proposal to collect information from filers about labor
markets.\31\ As proposed, filers would report three different types of
information related to labor:
---------------------------------------------------------------------------
\31\ NPRM, supra note 1, at 42197.
``Largest Employee Classifications[:] Provide the
aggregate number of employees . . . for each of the five largest
occupational categories'' based upon 6-digit SOC classifications;
\32\
---------------------------------------------------------------------------
\32\ Id. at 42215. SOC codes are ``Standard Occupational
Classification'' codes used by the Bureau of Labor Statistics of the
Department of Labor. See id. at 42210.
---------------------------------------------------------------------------
``Geographic Market Information for Each Overlapping
Employee Classification[:] Indicate the five largest 6-digit SOC
codes in which both parties . . . employ workers [and also provide]
each ERS commuting zone in which both parties employ workers with
the 6-digit classification and provide the aggregate number of
classified employees in each ERS commuting zone; and'' \33\
---------------------------------------------------------------------------
\33\ Id. at 42215.
---------------------------------------------------------------------------
``Worker and Workplace Safety Information[:] Identify
any penalties or findings issued against the filing person by the
U.S. Department of Labor's Wage and Hour Division (WHD), the
National Labor Relations Board (NLRB), or the Occupational Safety
and Health Administration (OSHA) in the last five years and/or any
pending WHD, NLRB, or OSHA matters.'' \34\
---------------------------------------------------------------------------
\34\ Id. Filers also had to provide, ``[f]or each identified
penalty or finding . . . (1) the decision or issuance date, (2) the
case number, (3) the JD number (for NLRB only), and (4) a
description of the penalty and/or finding.'' Id.
All three of these requirements (``Labor Proposal'') were
completely rejected in the Final Rule. Chair Khan asserts in her
statement that ``the Final Rule pares back some of the labor market
requirements.'' \35\ Despite this confusing statement, the text of the
Final Rule makes clear that all (not ``some'') of the labor
requirements have been fully removed (not ``pare[d] back''). And for
good reason. Despite repeated and extensive efforts to make harm in
labor markets a standard component of merger enforcement, no evidence
exists to justify including the Labor Proposal in the Final Rule.
Accordingly, the Labor Proposal was rightfully excluded from the Final
Rule and, absent new evidence, has no place in any future rulemaking
that the Commission may contemplate.
---------------------------------------------------------------------------
\35\ Statement of Chair Lina M. Khan, Regarding The Final
Premerger Notification Form and the Hart-Scott-Rodino Rules,
Commission File No. P239300, and Regarding the FY2023 HSR Annual
Report to Congress Commission File No. P859910 at 5-6 (Oct. 3, 2024)
(hereinafter Statement of Chair Khan).
---------------------------------------------------------------------------
To be sure, a merger may theoretically create anticompetitive
effects in a relevant labor market.\36\ A post-merger entity might, for
example, be able to lower wages for workers when the merger eliminates
a critical employment option for workers. Such a scenario is more
likely when the merger involves specialized workers who may have fewer
comparable alternatives than less skilled workers.\37\ Theory aside,
the Labor Proposal would have asked for information generally unhelpful
for determining whether an acquisition violates the antitrust laws.
---------------------------------------------------------------------------
\36\ Ioana Marinescu & Herbert J. Hovenkamp, Anticompetitive
Mergers in Labor Markets, 94 Ind. L.J. 1031, 1032 (2019).
\37\ Id. at 1038.
---------------------------------------------------------------------------
First, the ``worker and workplace safety information'' would have
provided no measurable benefit to the agency in its initial
determination of whether the proposed merger violates the antitrust
laws. To support burdening all filers with providing this information,
the NPRM asserted that ``[i]f a firm has a history of labor law
violations, it may be indicative of a concentrated labor market where
workers do not have the ability to easily find another job.'' \38\ No
evidence, empirical or otherwise, was presented to support this
assertion. And I am not aware of any supportive literature and have
never seen a court opinion that suggests such evidence indicates
competitive harm from a merger under section 7 of the Clayton Act (or
any other antitrust violation under the Sherman Act or otherwise).
Instead, this proposal seems like an overt way to harass firms with any
workplace failure under the guise of an antitrust investigation. As the
Supreme Court observed, ``[e]ven an act of pure malice by one business
competitor against another does not, without more, state a claim under
the [F]ederal antitrust laws; those laws do not create a [F]ederal law
of unfair competition or `purport to afford remedies for all torts
committed by or against persons engaged in interstate commerce.' ''
\39\ We simply do not have authority under the HSR Act to require
filers to submit information about workplace safety.
---------------------------------------------------------------------------
\38\ NPRM, supra note 1, at 42198.
\39\ Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509
U.S. 209, 225 (1993) (quoting Hunt v. Crumboch, 325 U.S. 821, 826
(1945)); cf. Rambus Inc. v. FTC, 522 F.3d 456, 464 (D.C. Cir. 2008)
(``Deceptive conduct--like any other kind--must have an
anticompetitive effect in order to form the basis of a
monopolization claim. `Even an act of pure malice by one business
competitor against another does not, without more, state a claim
under the [F]ederal antitrust laws,' without proof of `a dangerous
probability that [the defendant] would monopolize a particular
market.' '' (alteration in original) (quoting Brooke Grp., 509 U.S.
at 225)).
---------------------------------------------------------------------------
Second, the proposed request for Standard Occupational
Classification (``SOC'') codes would have been of--at most--limited
value because SOC codes by themselves are not sufficient to define a
relevant labor market for antitrust purposes.\40\ Phrased differently,
they are not tethered to the hypothetical monopolist test which has
been applied by the agencies and courts in various iterations of the
merger guidelines for decades.\41\ Depending on the merger, SOC codes
may be too broad
[[Page 89403]]
to accurately assess labor competition,\42\ limiting their predictive
value for assessing competitive harm. The NPRM itself appeared to
acknowledge the limited value of SOC codes: ``[t]he use of [SOC] codes
as a screening tool is not intended to endorse their use for any other
purpose, such as defining a relevant labor market.'' \43\ In fact, just
a few examples demonstrate the limited value SOC codes would provide to
the Commission:
---------------------------------------------------------------------------
\40\ See Comment of U.S. Chamber of Com., Doc. No. FTC-2023-
0040-0684 at 34 (hereinafter U.S. Chamber Comment) (``The data
sought by the proposed rules defines labor markets imprecisely at
best.'').
\41\ See Fed. Trade Comm'n v. Advoc. Health Care Network, 841
F.3d 460, 468-70 (7th Cir. 2016) (using the hypothetical monopolist
test to inform market definition); Fed. Trade Comm'n v. Hackensack
Meridian Health, Inc., 30 F.4th 160, 167 (3d Cir. 2022) (similar).
\42\ E.g., Jose Azar et al., Concentration in US Labor Markets:
Evidence from Online Vacancy Data, 66 Labor Econ. 101886, 5 (2020).
(``[T]he 6-digit SOC is too broad of a market according to the
[small significant non-transitory reduction in wage test].'').
\43\ NPRM, supra note 1, at 42197; see Comment of International
Center for Law & Economics, Doc. No. FTC-2023-0040-698 at 15
(``Given the systematic misfit between the proposed `Labor Markets'
section and any actual labor markets, given the agencies lack of
experience in analyzing the local labor-market effects of proposed
mergers, and given the hard questions of when or under what
conditions such labor-market effects might be both material and
unlikely to covary with product-market effects, we suggest that the
screening utility of the new information remains unclear.'').
Attorneys working across diverse areas of expertise are broken
down into attorneys (23-1011 Lawyers) and . . . well, attorneys,
although there is a separate category for Judges, Magistrate Judges,
and Magistrates (23-1023), who are likely lawyers, too. To
paraphrase Shakespeare (or a character in ``Henry VI, Part 2''),
let's kill all the widgets.
To the best of my recollection, the agencies tend to slice the
professional salami a little thinner than that when hiring staff.
Physicians fare a little better, although 10 categories of
specialist physicians, plus ``family medicine physicians'' and
``physicians, all other'' leave out some specialties (like, say,
surgery and ophthalmology) and make no room for subspecialties,
which might be of interest if you're hiring a cardiothoracic surgeon
to do a quad bypass or an orthopedic surgeon to do a hip replacement
(or both, but you care which surgeon does which procedure).\44\
---------------------------------------------------------------------------
\44\ Daniel J. Gilman, Antitrust at the Agencies Roundup: Kill
all the Widgets Edition, Truth on the Market (Aug. 4, 2023), https://truthonthemarket.com/2023/08/04/antitrust-at-the-agencies-roundup-kill-all-the-widgets-edition/ (ellipses in original).
Third, the agencies have not relied upon the Economic Research
Service (``ERS'') commuting zones to allege a relevant labor
market,\45\ and based upon this limited experience, they cannot be
considered sufficiently applicable to require all filers to provide the
ERS data proposed by the NPRM. Further, the NPRM proposal on ERS
commuting zones relied upon data from 2000--yes, 24-year-old data--even
though more recent iterations are available.\46\ And newer data confirm
that the older data fail to reflect current market realities, including
the widespread transition to telework.\47\ Given that there is no
evidence that forcing all filers to provide the proposed labor market
information would assist the agencies in determining whether the filed-
for acquisition violates the antitrust laws, the Commission lacks
authority to request the information under the HSR Act.
---------------------------------------------------------------------------
\45\ The Commission did not use SOC codes or ERS commuting zones
in their complaint allegations that reference concerns in labor
markets in its recent litigations. See Compl., In re Tapestry, Inc.,
& Capri Holdings Ltd., No. 9429 (F.T.C. Apr. 22, 2024); see Compl.,
In re The Kroger Co. & Albertsons Cos., Inc., No. D-9428 (F.T.C.
Feb. 26, 2024). And the DOJ did not rely upon ERS commuting zones in
United States v. Bertelsmann SE & Co. KGaA See Compl., United States
v. Bertelsmann SE & Co. KGaA, 646 F. Supp. 3d 1 (D.D.C. 2022); see
also infra note 48 (explaining why Bertelsmann is not properly
considered a case about harm in a labor market, but rather a
monopsony input case).
\46\ Comment of Wachtell, Lipton, Rosen & Katz, Doc. No. FTC-
2023-0040-0670 at 8.
\47\ Id.
---------------------------------------------------------------------------
Even if one were to assume that the agencies had the authority to
request the proposed labor market information, it was nonetheless
properly excluded from the Final Rule because it was a solution in
search of a nonexistent problem. The agencies have never brought a
standalone labor challenge to an acquisition.\48\ And this is not for
lack of trying. Officials at the Commission,\49\ Department of
Justice,\50\ and State enforcers \51\ have stated their desire to focus
on harms to the labor market, especially in mergers, since at least
2018, but the expended resources so far have been to no avail.
---------------------------------------------------------------------------
\48\ Some have considered United States v. Bertelsmann SE & Co.
KGaA, 646 F. Supp. 3d 1, 1 (D.D.C. 2022) to be a labor-market case.
I disagree. On balance, this was more of a traditional monopsony
input case. Id. The primary concern was whether there would be
sufficient outlets for best-selling books. Id. I am also unaware of
merger challenges by private parties where the plaintiffs alleged
harm in a labor market. See Suresh Naidu et al., Antitrust Remedies
for Labor Market Power, 132 Harv. L. Rev. 536, 571 (2018) (``[W]e
[have not] found a reported case in which a court found that a
merger resulted in illegal labor market concentration.''). The
Commission, as reflected in the SBP, also classifies Bertelsmann as
an input monopsony case. SBP, supra note 5, at section II.B.2, 32 of
406.
\49\ See Testimony of Fed. Trade Comm'n Chair Joseph Simons, US
Congress, Oversight of the Enforcement of the Antitrust Laws, Senate
Judiciary Committee, 2018, available at https://www.judiciary.senate.gov/meetings/10/03/2018/oversight-of-the-enforcement-of-the-antitrust-laws (staff instructed to ``look for
potential effects on the labor market with every merger they
review'').
\50\ Assistant Attorney General Makan Delrahim, Remarks at the
Public Workshop on Competition in Labor Markets 3 (Sept. 23, 2019),
https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-remarks-public-workshop-competition (``With
respect to mergers, the Division also has challenged transactions
where the merged firm would likely have the ability to depress
reimbursement rates to physicians, including the Anthem/Cigna merger
challenge.''); Counsel to the Assistant Attorney General of the
Antitrust Division Doha Mekki Testifies Before House Judiciary
Committee on Antitrust and Economic Opportunity: Competition in
Labor Markets (Oct. 29, 2019), available at https://www.justice.gov/opa/speech/counsel-assistant-attorney-general-antitrust-division-doha-mekki-testifies-house (``[L]abor competition issues are a high
priority for Assistant Attorney General Delrahim and for the
Antitrust Division. We have devoted significant resources to
enforcement and advocacy in this area recently.''); id. (``The
Division has also been busy developing and implementing screens to
help agency staff detect mergers that are likely to create or
enhance monopsony power in labor markets. Over the last 18 months,
the Division has developed important new specifications for Second
Requests and Civil Investigative Demands to determine whether a
transaction will create or enhance labor monopsony. Moreover, the
Division has leveraged improved search and review technology to
identify labor competition concerns in merger and non-merger
investigations.'').
\51\ Testimony of Rahul Rao before Subcommittee on Antitrust,
Commercial and Administrative Law of the Committee on the Judiciary,
U.S. Hours of Rep. (Oct. 29, 2019), available at https://www.govinfo.gov/content/pkg/CHRG-116hhrg45126/html/CHRG-116hhrg45126.htm. (``Labor is an input, and it is a critical input.
It's one that directly affects people's lives in that, when there's
a monopoly power, the effect is increase in prices for consumers.
When there is monopsony power of a dominant buyer, it decreases
wages for workers.'').
---------------------------------------------------------------------------
Granted, the Commission has included tagalong labor claims in
addition to traditional theories of harm.\52\ And, in a press release,
the Commission has taken credit for protecting against harms in the
labor market even though the actual complaint being announced by the
press release did not allege harm in a labor market.\53\ But these few
and obscure outliers do not justify the widespread proposal to include
labor market information in the Final Rule, especially information
(e.g., SOC codes) that has never been used in any of the agencies'
filings (litigated or otherwise).
---------------------------------------------------------------------------
\52\ See Compl., In re The Kroger Company and Albertsons
Companies, Inc., No. D-9428 (F.T.C. Feb. 26, 2024).
\53\ See Press Release, Fed. Trade Comm'n, FTC Moves to Block
Tempur Sealy's Acquisition of Mattress Firm (Jul. 2, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/07/ftc-moves-block-tempur-sealys-acquisition-mattress-firm (stating that ``[t]his deal
isn't about creating efficiencies; it's about crippling the
competition, which . . . could lead to layoffs for good paying
American manufacturing jobs in nearly a dozen States,'' even though
nothing in the complaint suggests any harm in the labor markets);
see also Compl. In re Tapestry, Inc., and Capri Holdings Limited,
No. 9429 (F.T.C. Apr. 22, 2024) (discussing labor issues but not
alleging violations of the law based upon harm in labor markets).
---------------------------------------------------------------------------
Moreover, the NPRM did not identify any economics literature that
justified the request for labor information.\54\ As explained by
Albrecht et al.:
---------------------------------------------------------------------------
\54\ See NPRM, supra note 1, at 42197-98.
[D]espite growing interest in the use of antitrust law to
address labor monopsony, such efforts are not supported by empirical
and theoretical foundations sufficient to bear the weight of these
galvanized efforts . . . .
Empirical data concerning the magnitude and impact of labor
monopsonies is
[[Page 89404]]
inconsistent. Evidence on the extent of labor-market power is mixed,
with studies reaching divergent conclusions depending on the data,
methodology, and markets analyzed.\55\
---------------------------------------------------------------------------
\55\ Brian C. Albrecht et al., Labor Monopsony and Antitrust
Enforcement: A Cautionary Tale, ICLE White Paper No. 2024-05-01 at 1
(2024); see also Suresh Naidu et al., Antitrust Remedies for Labor
Market Power, 132 Harv. L. Rev. 536 (2018) (``[W]e have not found a
reported case in which a court found that a merger resulted in
illegal labor market concentration.''). I also note that a variety
of articles sometimes cited to support increased antitrust scrutiny
in labor markets fail to justify imposing a request for labor
information in HSR filings--nor does the literature necessarily
support broader enforcement of antitrust laws in labor markets. See
Anna Stansbury & Lawrence H. Summers, ``The Declining Worker Power
Hypothesis: An Explanation for the Recent Evolution of the American
Economy'' at 1 (Nat'l Bureau of Econ. Rsch., Working Paper No.
27193, 2020), https://www.nber.org/papers/w27193 (identifying
decreased ability to unionize, not monopsony power, as the source of
declining labor share of income); David Berger et al., Labor Market
Power, 112 Am. Econ. Rev. 1147 (2022) (at 1 in SSRN version) (``[We]
conclude that changes in labor market concentration are unlikely to
have contributed to the declining labor share in the United
States.''); Chen Yeh at al., Monopsony in the US Labor Market, 112
Am. Econ. Rev. 2099, 2099 (2022) (``[T]he growing gap between worker
pay and productivity might be more about technological change than
about employers' bargaining power--a very different issue than the
monopsony problem that antitrust law could (potentially)
address.''); id. (``[T]he correlation between markdowns and
employment concentration is quite modest, both cross-sectionally
(across local labor markets) and in the aggregate over time.''); id.
at 2125 (``[A]t least within manufacturing--cross-sectional and
temporal variation in local employment concentration may not
necessarily reflect variation in employer market power as measured
by markdowns.''); David Arnold, Mergers and Acquisitions, Local
Labor Market Concentration, and Worker Outcomes at 2 (Oct. 29, 2021)
(``The evidence . . . does not support the conclusion that lack of
antitrust scrutiny for labor markets has been a major contributor to
labor market trends such as the falling labor share or stagnant wage
growth. Most mergers do not generate large shifts in concentration
and I find no evidence that the number of anticompetitive mergers in
labor markets has been increasing over time.''); Elena Prager & Matt
Schmitt, Employer Consolidation and Wages: Evidence from Hospitals,
111 Am. Econ. Rev. 397, 397 (2021) (``For unskilled workers, we do
not find evidence of differences in wage growth post-merger,
irrespective of the change in employer concentration induced by the
merger.'').
The NPRM also asserted that alleged increases in concentration
justified its proposals, including its proposal for labor
information.\56\ While concentration levels may have a role in
antitrust enforcement (e.g., merger presumptions), general and
imprecise observations of increased concentration are a slender reed
upon which to base such a significant expansion of HSR authority.\57\
These limitations also apply in the labor context. ``Many factors other
than concentration can affect wages, such as differences in firm
productivity, local labor-market conditions (e.g., urban vs. rural),
and institutional factors like unionization rates.'' \58\ Further, as
explained by Berry et al.:
---------------------------------------------------------------------------
\56\ NPRM, supra note 1, at 42179 (``This concentration may
reflect decreased competition, which can result in higher prices for
consumers, decreased innovation, reduction in output, and lower
wages for workers.'' (emphasis added))
\57\ See Carl Shapiro, Protecting Competition in the American
Economy: Merger Control, Tech Titans, Labor Markets, 33 J. Econ.
Persp. 69, 75-76 (2019) (increased concentration ``does not prove
that competition in that market has declined.''); Carl Shapiro,
Antitrust in a Time of Populism, 61 Int'l J. Indus. Org. 714, 722-23
(2018) (``Sheer size and market power are just not the same
thing.''); Dennis W. Carlton & Jeffrey M. Perloff, Modern Industrial
Organization 268 (4th ed. 2005) (``[P]erhaps the most significant
criticism is that concentration itself is determined by the economic
conditions of the industry and hence is not an industry
characteristic that can be used to explain pricing or other
conduct.''); Timothy J. Muris, Improving the Economic Foundations of
Competition Policy, 12 Geo. Mason L. Rev. 1, 10 (2003) (``The
[structural] paradigm was overturned because its empirical support
evaporated.''); Fiona Scott Morton, Modern U.S. Antirust Theory and
Evidence Amid Rising Concerns of Market Power and Its Effects, Wash.
Ctr. for Equitable Growth at 24 (May 29, 2019) (``[I]t is widely
understood that either vigorous competition could cause
concentration to increase or increased concentration could reduce
competition.''); Cristina Caffarra & Serge Moresi, Issues and
Significance Beyond U.S. Enforcement, Mlex Magazine, Apr.-June 2010,
at 41, 42-43 (``Most economists would agree that market shares and
the HHI often are poor indicators of market power.''); Herbert
Hovenkamp, The Looming Crisis in Antitrust Economics, 101 Boston
Univ. L. Rev. 489 (2021) (``The pursuit of business concentration or
bigness for its own sake will injure consumers far more than it
benefits small business, the intended beneficiaries.''); Timothy F.
Bresnahan & Peter C. Reiss, Entry and Competition in Concentrated
Markets, 99 J. Pol. Econ. 977, 978 (1991) (``[O]nce a market has
between three and five firms, the next entrant has little effect on
competitive conduct . . . . These data show that prices fall when
the second and third firms enter and then level off.''); Albrecht et
al, supra note 55 at 17 n.76 (providing additional supporting
citations).
\58\ Albrecht et al., supra note 55 at 17.
A main difficulty in [the monopsony power literature] is that
most of the existing studies of monopsony and wages follow the
structure-conduct-performance paradigm; that is, they argue that
greater concentration of employers can be applied to labor markets
and then proceed to estimate regressions of wages on measures of
concentration. [S]tudies like this may provide some interesting
descriptions of concentration and wages but are not ultimately
informative about whether monopsony power has grown and is
depressing wages.\59\
---------------------------------------------------------------------------
\59\ Id. at 18 (quoting Steven Berry, Martin Gaynor, & Fiona
Scott Morton, Do Increasing Markups Matter? Lessons from Empirical
Industrial Organization, 33 J. Econ. Persp. 44, 57 (2019)).
In short, the economic literature does not provide any conclusive
evidence on the viability or likelihood of merger harms in labor
markets that would justify the NPRM's proposals regarding labor
information.
Finally, the Commission's HSR rulemaking authority does not extend
to heaping burdens upon merging parties as a fishing expedition in the
hopes of developing new merger enforcement theories. Instead, if labor
market concerns exist, then the Commission should conduct merger
retrospectives or utilize its 6(b) authority to investigate the issue.
The Commission has done neither, and it cannot rely on the need for
general information gathering as a basis for demanding that all merging
parties provide this information.
And no doubt, the NPRM's proposal would have come with a
substantial and unjustifiable burden upon filers and also the agencies.
First, firms do not typically maintain SOC codes in the ordinary course
of business.\60\ Investing in the expertise to generate and report the
codes would have required substantial resources.\61\ And smaller
businesses who make filings infrequently will be particularly
disadvantaged compared to frequent filers. Second, the agencies' staff
would have borne the burden of this additional information. Staff have
limited experience working with SOC codes, and utilizing the data would
have required aid from already extremely overtaxed economist staffers.
But shifting resources has an opportunity cost, particularly when
Congress has flatlined our budget, significantly limiting staff's
capacity to take on new work.\62\ Thus it is unclear how the Commission
would have found resources to utilize the information. This
substantial, unjustified burden to filers and the agencies made it
impossible for me to support any rule that included the Labor Proposal.
---------------------------------------------------------------------------
\60\ See, e.g., Comment of Wachtell, Lipton, Rosen & Katz, Doc.
No. FTC-2023-0040-0670 at 8.
\61\ Comment of American Bar Association's Antitrust Law
Section, Doc. No. FTC-2023-0040-0723 at 10-12.
\62\ Given current budgetary constraints at the Commission and
reduced hiring, this is unlikely to change either. Fed. Trade
Comm'n, FTC Appropriation and Full-Time Equivalent (FTE) History,
available at https://www.ftc.gov/about-ftc/bureaus-offices/office-executive-director/financial-management-office/ftc-appropriation
(demonstrating that the FTC budget went down from 2023 to 2024);
Caroline Nihill, FTC Modernization, Enforcement Efforts Jeopardized
by Cuts, Officials Say, FedScoop (Jul. 10, 2024) (``Commissioner
Rebecca Slaughter noted that proposed fiscal year 2025 budget cuts
would result in the agency passing `up important investigations and
enforcement matters' in addition to considering furloughs and
workforce reductions.''); see also Statement of Chair Khan, supra
note 35, at 5-6.
---------------------------------------------------------------------------
As a final comment on the Labor Proposal, I recognize that excising
it from the Final Rule may not have been the desired outcome for some
of my colleagues on the Commission.\63\ I
[[Page 89405]]
nonetheless commend them for agreeing to this unanimous outcome, and I
am equally pleased that the Chair rescinded the most recent Memorandum
of Understanding Related to Antitrust Review of Labor Issues in Merger
Investigations.\64\ These efforts reflect an evolution in thinking by
the Commission toward evidence over rhetoric.\65\
---------------------------------------------------------------------------
\63\ See Statement of Chair Khan, supra note 35, at 3-4; see
generally Statement of Commissioner Alvaro M. Bedoya, Joined by
Chair Lina M. Khan and Commissioner Rebecca Kelly Slaughter,
Regarding Amendments to the Hart-Scott-Rodino Rules and Premerger
Notification Form and Instructions (Oct. 10, 2024).
\64\ Press Release, Fed. Trade Comm'n, FTC, DOJ Partner with
Labor Agencies to Enhance Antitrust Review of Labor Issues in Merger
Investigations (Aug. 28, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/08/ftc-doj-partner-labor-agencies-enhance-antitrust-review-labor-issues-merger-investigations (discussing
Chair Khan's unilateral decision to enter a memorandum of
understanding with the Department of Labor, National Labor Relations
Board, and the Department of Justice); Press Release, Fed. Trade
Comm'n, Statement on Memorandum of Understanding Related to
Antitrust Review of Labor Issues in Merger Investigations (Sep. 27,
2024), https://www.ftc.gov/news-events/news/press-releases/2024/09/statement-memorandum-understanding-related-antitrust-review-labor-issues-merger-investigations (rescinding the same memorandum of
understanding).
\65\ Chair Khan and Commissioner Bedoya each write to express
continued support for the now jettisoned Labor Proposal. I respect
their enthusiasm for the idea. But between the decision to reject
the Labor Proposal and rescind the memorandum of understanding, the
public should rely more on revealed versus expressed preferences.
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III. Drafts of Transaction-Related Documents
Historically, filers have not been required to provide drafts of
transaction-related documents with their filings.\66\ The production
and review of drafts typically occurs during a full-phase
investigation, usually after the reviewing agency issues a second
request.\67\ The NPRM proposed abandoning this practice and requiring
that drafts of responsive documents be produced as well.\68\ The NPRM
explained that requiring the production of drafts would allow staff to
have ``documents that reflect pre-transaction assessments of business
realities, as opposed to `sanitized' versions.'' \69\ Many commentors
on the NPRM opposed this requirement.\70\ The Commission ultimately
rejected this proposal, which was critical to my vote.
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\66\ NPRM, supra note 1, at 42194. One exception has been when a
draft was sent to the board of directors. Id.
\67\ Id.
\68\ Id.
\69\ Id.
\70\ See, e.g., U.S. Chamber Comment, supra note 40, at 21-22.
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Simply put, the likely burden of producing drafts would have
outweighed any perceived benefit. Depending upon the practice of the
individuals drafting the documents, and how many people are involved in
preparing different sections of the documents, there may be ``dozens or
even hundreds of iterative drafts.'' \71\ No question, filings would be
much larger under the proposal.\72\ Forensic collections, that is a
full collection of an individual's emails or documents, are incredibly
burdensome. They not only require resources from a technical team to
collect the materials; they also require time from the individual
businesspeople and then, in most cases, counsel, to review the
collected materials, identify responsive documents, conduct privilege
reviews, prepare more expansive privilege logs, and prepare the
documents for production. The status quo for HSR filings, where
generally only final versions are produced, typically does not require
a forensic collection. But if all drafts became a requirement for all
transactions, then forensic collections, with all their costs, would
become standard practice for almost all HSR filings.\73\ The use of
online collaborative workspaces further complicates the issue--and adds
burden--because when multiple parties simultaneously revise the same
document, it becomes difficult to know which versions constitute
drafts.\74\
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\71\ Comment of Foley & Lardner LLP, Doc. No. FTC-2023-0040-0653
at 11 (hereinafter Foley Comment).
\72\ Id. (``The proposed instruction could potentially increase
the size of at least some HSR filings by a factor of ten or
twenty.'').
\73\ U.S. Chamber Comment, supra note 40, at 21-22.
\74\ Id.
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To defend the proposal, the NPRM argued drafts are more likely to
contain a ``smoking gun.'' \75\ As evidence to support this claim, the
NPRM observed the drafts produced during a second request have more
salacious content.\76\ But receiving all drafts amounts to building a
haystack around a needle. Even if some drafts contain some interesting
content, that content does not support the NPRM's proposed expansive
production obligations for two reasons. First, earlier drafts of
transaction documents sometimes contain information that may not have
been finalized, may occasionally reflect incorrect assumptions, and in
some situations may be based on iterations of the transaction that were
not part of the final, executed agreement.\77\ Not every change to a
draft document is nefarious. Many of the drafts, compared to the final
version, would consist of minor or inconsequential edits, excessive
repetition, or incomplete thoughts that will require much effort for
staff to review.\78\ The dramatic increase in the number of documents
associated with each filing would have been sufficiently onerous that
staff would be simply unable to scrutinize the differences among drafts
as they triage dozens of filings each week.
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\75\ NPRM, supra note 1, at 42194.
\76\ Id.
\77\ See Comment of Wachtell, Lipton, Rosen & Katz, Doc. No.
FTC-2023-0040-0670 at 11-12; Foley Comment, supra note 71, at 11-13.
\78\ Id. at 12.
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Second, for each of the alleged ``smoking gun'' drafts identified
in a second request by staff, other information contained in the HSR
filings already prompted the staff to issue a second request. Phrased
differently, the agencies already had enough information, without the
drafts, to decide to issue a second request in each of those cases. And
beyond bald assertions, the NPRM did not provide any evidence
demonstrating the drafts would have made a difference in the decision
whether to issue a second request.
In summary, the extensive burden resulting from the production and
review by staff of drafts would have outweighed any benefits of the
requirement. I struggle to imagine any circumstance in which all draft
documents would become a ``necessary and appropriate'' input for the
agencies' initial review of proposed mergers, and therefore believe the
inclusion of this requirement in any future revision would exceed the
Commission's rulemaking authority. I would not have supported a Final
Rule that required drafts and am heartened by the removal of this
provision.
IV. Prior Acquisitions
The NPRM proposed radical changes to the prior acquisition request
in the 2011 Rule. The proposed changes included: (1) expanding the
lookback period for reporting prior acquisitions from five years to ten
years; (2) eliminating the prior de minimis exception that required
reporting only for prior acquisitions that ``had annual net sales or
total assets greater than $10 million''; (3) requiring the acquired
entity to also report prior acquisitions; and (4) requiring that
acquisitions of substantially all of the assets of a business be
treated the same as acquisitions of securities or non-corporate
interests.\79\ My vote was conditioned on the Commission eliminating
the first two of these proposed changes. I write to explain why I
believe it was proper to remove those requirements from the Final Rule
[[Page 89406]]
and why the Commission should not revisit these proposals in future
revisions to the HSR rules.
---------------------------------------------------------------------------
\79\ NPRM, supra note 1, at 42203.
---------------------------------------------------------------------------
Prior acquisitions may, in limited circumstances, be relevant to
analyzing the filed-for transaction, but consideration of these prior
transactions comes with risk of government overreach. A prior
acquisition may be relevant to analyzing a filed-for transaction when
the competitive effects of the prior acquisition have not yet
manifested. For example, if a firm acquired a rival and integration was
ongoing or existing contractual terms prevent the effects of the merger
from being fully realized, a prior acquisition may help the agencies
better understand the dynamics and competitive effects of the filed-for
transaction. Once firms have completed integration, realized
efficiencies, and implemented any strategies they plan to orchestrate,
prior acquisitions provide almost no value \80\ to the agencies as they
assess the competitive conditions surrounding the filed-for transaction
because at that juncture, the condition of the current market will
reflect the effects of past transactions.\81\
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\80\ As one exception, the agencies have considered the ability
to realize efficiencies in past transactions as evidence of the
likelihood of achieving efficiencies in the current transaction. But
even that information becomes stale and loses probative value at
some point.
\81\ Dan O'Brien, The 2023 Merger Guidelines: A Giant Leap in
the Wrong Direction, Consumer Technology Association (Jun. 2024)
(``[T]he acquisition history is irrelevant to the current merger
except to the extent it provides information about the current
merger's likely competitive effects.''); see also Brown Shoe Co. v.
United States, 370 U.S. 294, 332 (1962) (``[T]he statute prohibits a
given merger only if the effect of that merger may be substantially
to lessen competition.'').
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For the last thirty-seven years, the Commission has determined that
five years of prior acquisitions, with a threshold based upon the sales
and assets of the entity that was acquired, was justifiable.\82\ I do
not seek to relitigate thirty-seven years of precedent. The question is
whether the rulemaking record contained sufficient evidence to justify
the request to reach ten years of prior acquisitions without any size
threshold. I conclude that it did not.
---------------------------------------------------------------------------
\82\ NPRM, supra note 1, at 42203.
---------------------------------------------------------------------------
The HSR Act limits the information that can be required under the
Commission's HSR Rules to ``documentary material and information
relevant to a proposed acquisition as is necessary and appropriate to
enable the Federal Trade Commission and the Assistant Attorney General
to determine whether such acquisition may, if consummated, violate the
antitrust laws.'' \83\ Based upon this text, HSR Rules can seek only
the information the agencies need to screen for potential violations of
the antitrust laws arising from consummation of the filed-for
transaction.\84\
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\83\ 15 U.S.C. 18a(d)(1).
\84\ Id.
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Since 1987, the Commission has required only five years of prior
acquisitions.\85\ Despite the Commission making no efforts to change
this rule for thirty-seven years, the NPRM contended that it needed the
additional five years of prior acquisitions ``because the current five-
year requirement for prior acquisitions is often insufficient to
meaningfully identify patterns of serial acquisitions or a trend toward
concentration or vertical integration.'' \86\ Further, the NPRM alleged
that ``changes to the economy and the varied acquisition strategies of
filing parties'' justified ``a more detailed consideration of how
numerous past acquisitions, including those in related sectors, affect
the competitive landscape of the current transaction under review.''
\87\ The Supreme Court has explained that when an agency ``depart[s]
from a prior policy,'' ``the agency must show that there are good
reasons for the new policy.'' \88\ And ``a more detailed
justification'' is required when an agency's ``new policy rests upon
factual findings that contradict those which underlay its prior
policy.'' \89\ Beyond bald and conclusory assertions, however, neither
the NPRM nor the rulemaking record presented ``good reasons'' that
justified the production of ten years of prior acquisitions, let alone
``a more detailed justification'' that is required in this
circumstance.\90\
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\85\ Premerger Notification; Reporting and Waiting Period
Requirements, 50 FR 38742, 38769 (Sep. 24, 1985) (to be codified at
16 CFR parts 801, 802, and 803).
\86\ NPRM, supra note 1, at 42203.
\87\ Id.
\88\ FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009) (Scalia, J.).
\89\ Id.; see also id. at 537 (Kennedy, J., concurring) (``Where
there is a policy change the record may be much more developed
because the agency based its prior policy on factual findings. In
that instance, an agency's decision to change course may be
arbitrary and capricious if the agency ignores or countermands its
earlier factual findings without reasoned explanation for doing so.
An agency cannot simply disregard contrary or inconvenient factual
determinations that it made in the past, any more than it can ignore
inconvenient facts when it writes on a blank slate.'').
\90\ Id. at 515. In 1987, when the Commission adopted the rule
that required filers to report five years of prior acquisitions, it
explained that ``[t]he Commission believes that this change can be
made without adversely affecting the agencies' ability to conduct a
thorough antitrust review. The Commission believes than an accurate
account of the acquiring person's acquisitions over the past five
years will adequately put it on notice of possible trends toward
concentration in the affected industry.'' Premerger Notification;
Reporting and Waiting Period Requirements, 50 FR 38742, 38769 (Sep.
24, 1985) (to be codified at 16 CFR parts 801, 802, and 803). The
simple conclusory statements in the NPRM do not qualify as ``a more
detailed justification,'' which is necessary here because the
Commission now contradicts its previous factual finding that five
years was adequate for review.
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Insofar as the NPRM's proposal required the production of
information in order to investigate past transactions--i.e., not the
filed-for transaction--under theories of serial acquisitions or
otherwise,\91\ the Commission lacks the authority to gather that
information via an HSR filing. Because neither the NPRM nor the
rulemaking record provided evidence that ten years would be relevant to
analyzing the effects of the filed-for transaction, the NPRM's proposal
did nothing more than attempt an end-run around the HSR Act's
reportability requirements.\92\ Congress already specified which
transactions must be reported to the agencies, and the Commission
cannot gather information that does not help the agencies analyze the
filed-for transaction.\93\ Sensibly, the Final Rule does not adopt the
proposed changes to the lookback period. In the SBP for the Final Rule,
the Commission explains that the information required for prior
acquisitions is limited to what the agencies need to analyze the
anticompetitive effects of the filed-for transaction.\94\
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\91\ See NPRM, supra note 1, at 42203.
\92\ The HSR Act identifies which transactions must be
reported--i.e., filed--based upon three tests: the commerce test,
size of transaction test, and the size of person test. 15 U.S.C.
18a(a); see also Fed. Trade Comm'n, Steps for Determining Whether an
HSR Filing is Required (last visited Oct. 4, 2024), https://www.ftc.gov/enforcement/premerger-notification-program/hsr-resources/steps-determining-whether-hsr-filing.
\93\ Under the Administrative Procedure Act, a court reviewing
an agency rule can declare it ``unlawful and set aside agency
actions found to be . . . in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right.'' 5 U.S.C.
706 (Under the Administrative Procedure Act, a court reviewing an
agency rule can deem it ``unlawful and set aside agency actions
found to be . . . in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right''). ``[N]o matter how
important, conspicuous, and controversial the issue, . . . an
administrative agency's power to regulate in the public interest
must always be grounded in a valid grant of authority from
Congress.'' FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
161 (2000).
\94\ See SBP, supra note 5, at section II.B.5, 61 of 406
(explaining focus is on reportable transaction).
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The proposed removal of the $10 million threshold also suffered
deficiencies. The $10 million threshold has been the threshold for
prior acquisitions since the original HSR
[[Page 89407]]
Rules in 1978.\95\ But the NPRM disregarded this forty-six-year history
where the threshold, despite inflation, has been the same. To justify
abandoning the threshold, the NPRM pointed to ``the Commission's
technology acquisition study [that] revealed that between 39.3% and
47.9% of transactions were for target entities that were less than five
years old at the time of their acquisition.'' \96\ It then stated,
without citation, ``[g]iven the relative nascency of these acquired
companies, the Commission believes that excluding prior acquisitions of
firms that have not yet had the chance to achieve $10 million in net
sales or assets does not provide a comprehensive picture of each
filer's acquisition strategy.'' \97\ Nothing cited by the NPRM suggests
that just because an acquisition target is less than five years old,
that its sales will be below $10 million. Moreover, nothing in the NPRM
explained why the age of targets in ``technology acquisitions'' would
be relevant to the whole economy, and yet the proposed rule would have
applied universally. Indeed, neither the NPRM nor the rulemaking record
presented evidence to justify this dramatic expansion, and without
evidence, there is no justification to impose such a requirement on
filers.
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\95\ Premerger Notification; Reporting and Waiting Period
Requirements, 43 FR 33450 at 33534 (July 31, 1978).
\96\ NPRM, supra note 1, at 42203.
\97\ Id.
---------------------------------------------------------------------------
The NPRM's proposal to double the time period and to remove the $10
million threshold would have added substantial burden to filing
parties. The NPRM appeared content with the burden because it provided
an expanded ability to analyze non-reportable prior acquisitions,
including under theories of serial acquisitions.\98\ But as explained,
this benefit contravenes the Commission's rulemaking authority. Because
the Final Rule must be limited to the Commission's authority, the focus
must also be limited to how it assists the agencies' assessment of the
filed-for transaction during the initial waiting period. As explained
above, the NPRM's prior acquisition expansion would have provided
almost nothing that would help the agencies to assess filed-for
transactions.
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\98\ The NPRM sought to right the wrongs of the so-called 40
years of failed antitrust enforcement. See Exec. Order No. 14,036,
Executive Order on Promoting Competition in the American Economy;
see NPRM, supra note 1, at 42203.
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V. Additional Considerations
The changes implemented by the Final Rule request information to
analyze only the filed-for transaction. The changes are not to
authorize the agencies to engage in general fishing expeditions to
analyze non-reportable transactions or other allegedly problematic
conduct divorced from the effects of the filed-for transaction. The
same could not be said for some of the proposals in the NPRM, and those
concerns have been rectified in the Final Rule. I understand potential
filers may be skeptical that the information gathered in HSR filings
may be collected with an eye toward other purposes. In the Final Rule,
each of these provisions is now modified to collect only information
that is necessary and appropriate to analyze the filed-for
transaction.\99\
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\99\ To be clear, if a filing demonstrates anticompetitive
conduct, such as price fixing, it can prompt another investigation.
---------------------------------------------------------------------------
The Final Rule requires filers to produce new information about
officers and directors within the ``stack'' of companies. The ultimate
rule differs substantially from the NPRM's proposal.\100\ Among the key
changes, the request only applies to acquiring persons; filers no
longer have to provide information about board observers; and the
request is limited to only those entities who generate revenue in the
same NAICS codes as the target. This information, like all the
information requested by the Final Rule, is designed to help staff
better analyze the filed-for transaction. The SBP provides a detailed
description of why this requested information helps obtain that
goal.\101\ The purpose of this revision is not a general fishing
expedition; it is to illuminate complicated and overlapping management
structures that may impact the competitive effects of the filed-for
transaction.
---------------------------------------------------------------------------
\100\ See app. A.
\101\ SBP, supra note 5, at section VI.D.3.c., 241-254 of 406.
---------------------------------------------------------------------------
The additional information about minority shareholders and limited
partners has also raised concern. The Final Rule again reflects key
changes to the proposals in the NPRM. In particular, the final version
eliminates the requirement to create an organization chart and
eliminates the requirement to disclose limited partners that do not
also have management rights. The complicated nature of this request,
especially as included in the NPRM, raised confusion and concern of the
Commission's purpose for this request. The SBP goes to great lengths to
describe--and illustrate via helpful diagrams--why this information
will be important to analyzing the filed-for transactions. The purpose
is not to pursue or launch general investigations into theories of harm
based upon fringe concepts such as common ownership.\102\ Nor do I
believe it would be possible to construct such theories based upon the
information required by the Final Rule. My vote in support of the Final
Rule reflects my understanding and belief this information will help
the agencies to more quickly understand the competitive dynamics of a
filed-for transaction, and nothing more.
---------------------------------------------------------------------------
\102\ See, e.g., Einer Elhauge, Horizontal Shareholding, 129
Harv. L.R. 1267 (2016). Though beyond the scope of this statement, I
do note that no court has endorsed such a theory of harm and it has
faced scrutiny in the literature. See Matthew Backus, Christopher
Conlon & Michael Sinkinson, The Common Ownership Hypothesis: Theory
and Evidence, Brookings Econ Studies (Jan. 2019), https://www.brookings.edu/wp-content/uploads/2019/02/ES_20190205_Common-Ownership.pdf; Keith Glovers & Douglas H. Ginsburg, Common Sense
About Common Ownership, 2018 Concurrences Rev. 28 (Fall 2018);
Thomas A. Lambert & Michael E. Sykuta, Calm Down About Common
Ownership, Regulation (Fall 2018).
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VI. Conclusion
The Final Rule has been scaled back dramatically from the NPRM. And
rightly so. I voted in favor of the Final Rule because of the revisions
and outright removal of certain proposals in the NPRM. As modified, I
believe the Final Rule is consistent with that statutory grant of
authority and will help staff analyze the filed-for transaction and
protect consumers without unduly burdening the filing parties.
On a going forward basis, the Commission can and should carefully
scrutinize the effect of the Final Rule on our enforcement efforts and
on the burden it imposes upon filing parties and the agencies' staff. A
thoughtful retrospective will allow the Commission to modify the Final
Rule, if necessary, in a principled and evidence-based fashion.
Concurring Statement of Commissioner Andrew N. Ferguson
Today, the Commission updates the Hart-Scott-Rodino Act (``HSR'' or
``the Act'') \1\ notification form requirements. It concurrently
announces that, after an over three-and-a-half-year wait, it will lift
its categorical ``temporary suspension'' of early terminations once the
Final Rule goes into effect.\2\ Unlike
[[Page 89408]]
the Commission's recent, doomed effort to ban noncompete agreements,\3\
Congress undoubtedly gave us authority to promulgate rules governing
HSR notification requirements.\4\
---------------------------------------------------------------------------
\1\ 15 U.S.C. 18a.
\2\ Press Release, FTC, FTC, DOJ Temporarily Suspend
Discretionary Practice of Early Termination (Feb. 4, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/02/ftc-doj-temporarily-suspend-discretionary-practice-early-termination.
\3\ See Dissenting Statement of Comm'r Andrew N. Ferguson,
Joined by Comm'r Melissa Holyoak, In the Matter of the Non-Compete
Clause Rule, Matter No. P201200 (June 28, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-noncompete-dissent.pdf; Ryan LLC v. FTC, No. 3:24-CV-00986-E, 2024 WL 3879954
(N.D. Tex. Aug. 20, 2024) (vacating the Commission's Non-Compete
Rule).
\4\ See Pharm. Rsch. & Mfrs. of Am. v. FTC, 790 F.3d 198, 208
(D.C. Cir. 2015) (hereinafter ``PhRMA'') (``There is no doubt that
the Commission's action was taken pursuant to express delegations of
authority. The Act grants the FTC the authority to act by
rulemaking.'' (citing 15 U.S.C. 18a)).
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The notice of proposed rulemaking (``NPRM'') that launched today's
rulemaking would have abused that authority by imposing onerous,
unlawful requirements that could not have survived judicial review.\5\
But the NPRM also proposed some important, lawful updates to the HSR
instructions. Mergers have become increasingly complex since we first
adopted an HSR rule nearly five decades ago. The current HSR
instructions do not adequately address forms of business association
that were rare in 1978. And long experience implementing HSR has taught
the Commission which information is most important to fulfilling
Congress's mandate to conduct premerger review. The current HSR
instructions did not always ensure that the Commission and the
Antitrust Division (together, the ``Antitrust Agencies'') had the
information they needed to fulfill Congress's intention.
---------------------------------------------------------------------------
\5\ FTC, Notice of Proposed Rulemaking, Premerger Notification;
Reporting and Waiting Period Requirements, 88 FR 42178 (June 29,
2023) (hereinafter ``NPRM'').
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The NPRM, however, was a nonstarter. My colleagues and I engaged in
intense negotiations to separate the lawful wheat from the lawless
chaff. Today's Final Rule,\6\ and the lifting of the early-termination
ban, are the culmination of those negotiations. Were I the lone
decision maker, the rule I would have written would be different from
today's Final Rule. But it is a lawful improvement over the status quo.
And although not required for the Final Rule's lawfulness, the
Commission wisely accompanies the Final Rule with a lifting of the ban
on early termination. I therefore concur in its promulgation.
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\6\ FTC, Premerger Notification; Reporting and Waiting Period
Requirements, Final Rule (Oct. 10, 2024) (hereinafter ``Final
Rule''), https://www.ftc.gov/system/files/ftc_gov/pdf/p110014hsrfinalrule.pdf.
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I. Congress passed HSR in 1976, adding section 7A to the Clayton
Antitrust Act of 1914.\7\ It requires merging firms to notify the
Antitrust Agencies before consummating large mergers, and forbids them
from consummating the merger until some period after notifying the
Antitrust Agencies. The purpose of this premerger notify-and-wait
requirement was to give the Antitrust Agencies the opportunity to
investigate mergers and sue to block them. Premerger review dispenses
with ``interminable post-consummation divestiture trials . . . [and]
advance[s] the legitimate interests of the business community in
planning and predictability, by making it more likely that Clayton Act
cases will be resolved in a timely and effective fashion.'' \8\
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\7\ 15 U.S.C. 18a(a); see also PhRMA, 790 F.3d at 199.
\8\ H.R. Rep. No. 94-1373, at 11 (1976).
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Obviously, the Antitrust Agencies need information about the
proposed transactions to review them. Congress therefore provided that
firms seeking to merge must ``file notification pursuant to rules under
subsection (d)(1)'' of the Act.\9\ Subsection (d), titled ``Commission
rules,'' in turn commands the Commission to, ``by rule,'' ``require
that [a merging party's] notification . . . contain such documentary
material and information relevant to a proposed acquisition as is
necessary and appropriate to enable the [Antitrust Agencies] to
determine whether such acquisition may, if consummated, violate the
antitrust laws.'' \10\ The Commission may also ``prescribe such other
rules as may be necessary and appropriate to carry out the purposes of
this section.'' \11\ ``Taken together, these statutory provisions give
the FTC . . . great discretion . . . to promulgate rules to facilitate
Government identification of mergers and acquisitions likely to violate
[F]ederal antitrust laws before the mergers and acquisitions are
consummated.'' \12\
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\9\ 15 U.S.C. 18a(a).
\10\ 15 U.S.C. 18a(d)(1). If the initial notification reveals a
potential competitive problem, the Antitrust Agencies may seek
additional information, which delays the proposed transaction until
the merging parties have complied. See 15 U.S.C. 18a(e).
\11\ 15 U.S.C. 18a(d)(2).
\12\ PhRMA, 790 F.3d at 205.
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The Commission has regularly deployed the rulemaking power Congress
conferred on it in the Act. The Commission published its first final
HSR rule two years after Congress passed the Act.\13\ In the
intervening decades, the Commission has made dozens of changes to the
HSR form and instructions.\14\ Some changes expanded the scope of
information requested.\15\ Others narrowed it.\16\ Only one faced
judicial review. In 2013, an industry association challenged a
Commission rulemaking that required parties to file HSR notifications
when they transferred most, but not all, of their pharmaceutical patent
rights. The D.C. Circuit held that the rule was a proper exercise of
the Commission's rulemaking authority and reflected reasoned decision-
making.\17\ The revised HSR rule survived and took effect, as have many
HSR form changes beforehand and afterwards.
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\13\ See 43 FR 33450 (July 31, 1978) (publishing final rules for
premerger notification).
\14\ See FTC, 16 CFR parts 801 and 803, Premerger Notification;
Reporting and Waiting Period Requirements, Statement of Basis and
Purpose, 107, n.248 (Oct. 10, 2024) (hereinafter ``SBP''), https://www.ftc.gov/system/files/ftc_gov/pdf/p110014hsrfinalrule.pdf.
\15\ E.g., 76 FR 42471 (July 19, 2011) (adding Items 4(d),
6(c)(ii) and 7(d) to capture additional information).
\16\ E.g., 70 FR 73369 (Dec. 12, 2005) (amending Form and
Instructions to reduce the burden of complying with Items 4(a) and
(b)).
\17\ PhRMA, 790 F.3d at, 209-12.
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II. The Administrative Procedure Act (``APA'') \18\ governs our HSR
rulemakings.\19\ ``The APA `sets forth the procedures by which
[F]ederal agencies are accountable to the public and their actions are
reviewed by courts.' '' \20\ First, the Rule must be promulgated in
``observance of procedure required by law.'' \21\ For a rule like the
Final Rule, section 4 of the APA \22\ is the ``procedure required by
law,'' and it ``prescribes a three-step procedure.'' \23\ ``First, the
agency must issue a `general notice of proposed rulemaking,' ordinarily
by publication in the Federal Register.'' \24\ We published the NPRM
for the Final Rule on June 29, 2023.\25\ ``Second, if `notice is
required,' the agency must give `interested persons an opportunity to
participate in the rule making through submission of written data,
views, or arguments.' '' \26\ We received approximately 721 comments
during the 90-day comment period.\27\ ``Third, when
[[Page 89409]]
the agency promulgates the final rule, it must include in the rule's
text a `concise general statement of its basis and purpose.' '' \28\
With today's Final Rule the Commission includes a statement of basis
and purpose that thoroughly explains its reasoning for each of the
changes contained in the Final Rule. The Commission has therefore
satisfied the APA's procedural requirements.\29\
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\18\ 5 U.S.C. 551 et seq.
\19\ PhRMA, 790 F.3d at 209.
\20\ Dep't of Homeland Security v. Regents of the Univ. of Cal.,
591 U.S. 1, 16 (2020) (quoting Franklin v. Massachusetts, 505 U.S.
788, 796 (1992)).
\21\ 5 U.S.C. 706(2)(D).
\22\ Id. section 553.
\23\ Perez v. Mortgage Bankers Ass'n, 572 U.S. 92, 96 (2015).
\24\ Ibid. (quoting 5 U.S.C. 553(b) (cleaned up)).
\25\ NPRM, supra note 5.
\26\ Perez, 572 U.S. at 96 (quoting 5 U.S.C. 553(c) (cleaned
up)).
\27\ SBP, supra note 14, at 6, n.4; Press Release, FTC, FTC and
DOJ Extend Public Comment Period by 30 Days on Proposed Changes to
HSR Form (Aug. 4, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/08/ftc-doj-extend-public-comment-period-30-days-proposed-changes-hsr-form.
\28\ Perez, 572 U.S. at 96 (quoting 5 U.S.C. 553(c) (cleaned
up)).
\29\ See Little Sisters of the Poor Saints Peter & Paul Home v.
Pennsylvania, 591 U.S. 657, 685-86 (2020) (explaining that an agency
satisfies the procedural requirements of the APA so long as it
complies with the ``objective criteria'' of notice, opportunity to
comment, and a concise general statement of basis and purpose).
---------------------------------------------------------------------------
APA section 10's standard of judicial review also imposes
substantive limits on the exercise of our authority under HSR. The APA
requires courts to ``hold unlawful and set aside agency action'' that
is ``arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law''; ``contrary to constitutional right, power,
privilege, or immunity''; or ``in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right.'' \30\ The APA
standard generally requires an agency to show two things. First, that
it has a lawful grant of authority from Congress to issue the rule
\31\--that is, that Congress enacted a statute conferring on the agency
power to issue the rule,\32\ and that the statute is consistent with
the Constitution.\33\ Second, that the agency has exercised that grant
of authority in a lawful way.\34\
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\30\ 5 U.S.C. 706(2)(A), (B), (C).
\31\ NFIB v. Dep't of Labor, 595 U.S. 109, 117 (2022) (per
curiam) (``Administrative agencies are creatures of statute. They
accordingly possess only the authority that Congress has
provided.'').
\32\ FEC v. Cruz, 596 U.S. 289, 301 (2022) (``An agency, after
all, `literally has no power to act' . . . unless and until Congress
authorizes it to do so by statute.'' (quoting La. Pub. Serv. Comm'n
v. FCC, 476 U.S. 355, 374 (1986))).
\33\ FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161
(2000) (``[N]o matter how important, conspicuous, and controversial
the issue, and regardless of how likely the public is to hold the
Executive Branch politically accountable, an administrative agency's
power to regulate in the public interest must always be grounded in
a valid grant of authority from Congress.'' (cleaned up) (emphasis
added)).
\34\ Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,
374 (1998) (``Not only must an agency's decreed result be within the
scope of its lawful authority, but the process by which it reaches
that result must be logical and rational.'').
---------------------------------------------------------------------------
To be sure, the Commission recently has been all too happy to issue
rules without valid grants of authority from Congress.\35\ But today's
Final Rule is plainly authorized by a valid grant of authority from
Congress. HSR commands the Commission to issue rules governing the form
and contents of premerger-notification filings as it determines are
``necessary and appropriate to enable [the Antitrust Agencies] to
determine whether'' mergers ``may, if consummated, violate the
antitrust laws.'' \36\ Congress further authorized us to ``prescribe
such other rules as may be necessary and appropriate to carry out the
purposes of'' the Act.\37\ The text of HSR therefore unambiguously
commands the agency to issue rules of the type we today issue.\38\ And
I am not aware of any serious arguments that this grant of discretion
to prescribe the procedures by which firms notify the Commission of a
pending merger--distinct from the power to adjudicate merger challenges
\39\--violates the Constitution. We therefore have statutory and
constitutional authority to issue the Final Rule.\40\
---------------------------------------------------------------------------
\35\ See Ryan LLC v. FTC, No. 3:24-CV-00986-E, 2024 WL 3879954
(N.D. Tex. Aug. 20, 2024) (vacating the Commission's Non-Compete
Rule).
\36\ 15 U.S.C. 18a(d)(1).
\37\ Id. section 18a(d)(2)(C).
\38\ PhRMA, 790 F.3d at 208 (``There is no doubt that the
Commission's action was taken pursuant to express delegations of
authority.'').
\39\ See, e.g., Compl. ]] 45, 55-59, 72-76, The Kroger Co. v.
FTC, No. 1:24-cv-438 (S.D. Ohio Aug. 19, 2024), ECF No. 1
(challenging constitutionality of FTC administrative proceedings as
a violation of Article III of the Constitution).
\40\ When the judiciary last reviewed one of our HSR rules, it
deferred to our interpretation of various undefined terms of the Act
under the doctrine announced in Chevron U.S.A. Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837 (1983). See PhRMA, 790 F.3d at 204
(``[W]e apply the familiar Chevron framework . . .''). The Supreme
Court has since overruled Chevron, correctly interpreting the APA to
require the judiciary to resolve statutory ambiguities without
deferring to administrative agencies' views on how to resolve those
ambiguities. See Loper Bright Enter. v. Raimondo, 144 S. Ct. 2244,
2261 (2024) (``On the contrary, by directing courts to `interpret
constitutional and statutory provisions' without differentiating
between the two, [the APA] makes clear that agency interpretations
of statutes--like agency interpretations of the Constitution--are
not entitled to deference. Under the APA, it thus remains the
responsibility of the court to decide whether the law means what the
agency says.'' (cleaned up)). The Court in Loper Bright held,
however, that ``[i]n a case involving an agency, . . . the statute's
meaning may well be that the agency is authorized to exercise a
degree of discretion.'' Id. at 2263. The Court gave as examples
statutes that delegate ``to an agency the authority to give meaning
to a particular statutory term,'' and ``[o]thers'' that ``empower an
agency to `fill up the details' of a statutory scheme, or to
regulate subject to the limits imposed by a particular term or
phrase that `leave the agencies with flexibility,' such as
`appropriate' or `reasonable.' '' Ibid. (quoting Wayman v. Southard,
23 U.S. (10 Wheat.) 1, 43 (1825), and Michigan v. EPA, 576 U.S. 743,
752 (2015)). HSR expressly authorizes the Commission to promulgate
rules ``defin[ing] the terms used in'' the Act, and to issue all
rules that are ``necessary and appropriate to carry[ing] out the
purposes of'' the Act. 15 U.S.C. 18a(d)(2)(A), (C); see also id.
18a(d)(1) (authorizing the Commission to issue rules that are
``necessary and appropriate to enable the [Antitrust Agencies] to
determine whether such acquisition may, if consummated, violate the
antitrust laws''). HSR thus appears to be the sort of discretion-
conferring statute that the Loper Bright Court suggested may require
some modicum of judicial deference to agency decision making. My
vote in favor of the Final Rule, however, does not depend on the
Commission receiving any judicial deference. I conclude that the
Final Rule properly interprets and implements HSR.
---------------------------------------------------------------------------
The question, then, is whether the Commission has lawfully
exercised the power Congress unambiguously conferred on it. As a
general matter, an agency lawfully exercises power conferred on it by
``engag[ing] in reasoned decisionmaking,'' which requires that the
``agency['s] action . . . rest[ ] `on a consideration of the relevant
factors.' '' \41\ We must ``examine the relevant data and articulate a
satisfactory explanation for [our] action including a `rational
connection between the facts found and the choice made.' '' \42\ This
``standard is deferential'' to the agency's policy choices, so long as
``the agency has acted within a zone of reasonableness and . . .
reasonably considered the relevant issues and reasonably explained the
decision.'' \43\
---------------------------------------------------------------------------
\41\ Michigan, 576 U.S. at 750 (quoting Motor Vehicle Mfrs.
Ass'n of U.S. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29,
43 (1983)); see also Dep't of Homeland Sec. v. Regents of the Univ.
of Cal., 591 U.S. 1, 16 (2020) (The APA ``requires agencies to
engage in reasoned decision-making, and directs that agency actions
be set aside if they are arbitrary and capricious.'' (cleaned up)).
\42\ State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines
v. United States, 371 U.S. 156, 246 (1962)).
\43\ FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021);
see also Dep't of Commerce v. New York, 588 U.S. 752, 773 (2019)
(Courts ``may not substitute [their] judgment for that of the
[agency], but instead must confine [them]selves to ensuring that
[the agency] remained within the bounds of reasoned
decisionmaking.'' (cleaned up)); Garland v. Ming Dai, 593 U.S. 357,
369 (2021) (``[A] reviewing court must `uphold' even `a decision of
less than ideal clarity if the agency's path may reasonably be
discerned.''' (quoting Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281, 286 (1974)).
---------------------------------------------------------------------------
Importantly, this standard does not change because we are amending
an existing rule. The APA does not require that ``agency action
representing a policy change must be justified by reasons more
substantial than those required to adopt a policy in the first
instance.'' \44\ ``The statute makes no distinction . . . between
initial agency action and subsequent agency action undoing or revising
that action.'' \45\ When an agency revises an existing regulation,
reasoned decision-making ``would ordinarily demand that it display
awareness that it is changing its position,'' and it must show ``that
there
[[Page 89410]]
are good reasons for the new policy.'' \46\ But the APA does not
require that the agency show that ``the reasons for the new policy are
better than the reasons for the old one; it suffices that the new
policy is permissible under the statute, that there are good reasons
for it, and that the agency believes it to be better, which the
conscious change of course adequately indicates.'' \47\
---------------------------------------------------------------------------
\44\ FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514
(2009) (Scalia, J.).
\45\ Id. at 515.
\46\ Ibid.
\47\ Ibid (emphasis in original).
---------------------------------------------------------------------------
The Final Rule is not perfect, nor is it the rule I would have
written if the decision were mine alone. But I believe that it
addresses important shortcomings in the current HSR rule, and that it
is ``necessary and appropriate'' to enable the Antitrust Agencies to
determine whether proposed mergers may violate the antitrust laws.\48\
---------------------------------------------------------------------------
\48\ 15 U.S.C. 18a(d)(1).
---------------------------------------------------------------------------
III. I turn now to the specific provisions of the Final Rule to
address whether they are ``necessary and appropriate'' to executing the
premerger-review provisions of HSR.\49\
---------------------------------------------------------------------------
\49\ 15 U.S.C. 18a(d)(1).
---------------------------------------------------------------------------
A. The Final Rule requires the disclosure of some information not
currently required by the old HSR rule. That information is ``necessary
and appropriate'' to the execution of our premerger-review mandate
under the Act, and the burdens the disclosure requirements impose on
merging firms are justified by the requirements of effective premerger
review.
Mergers and acquisitions have become increasingly complex since
1978. The Antitrust Agencies review a large number of deals involving
corporate structures that were rare when we adopted our first HSR rule.
For example, twenty years ago, only ten percent of acquiring firms were
funds or limited partnerships; now, that figure is close to forty
percent.\50\ Such firms may be shell companies that disclose little
public information about their holdings or operations, and, in many
cases, have no other assets. But these deals can still present
competitive problems through the acquiring person's relationships with
other entities. Minority investors, including limited partners, might
pull the strings for the acquiring person. And those minority investors
might also control entities that compete with the transaction target,
creating potential antitrust concerns.\51\ The current rule does not
require disclosure of investors in entities between the parent company
and the acquiring person, nor does it require disclosure of any limited
partners, even if they have management rights for the acquiring person.
The Final Rule addresses this shortcoming. It requires disclosure of
investors that own at least a five percent share in certain entities
related to the acquiring person; if those entities are limited
partnerships, filers must disclose limited partners that have certain
management rights, such as a board seat. But unlike the NPRM, the Final
Rule sensibly does not require disclosure of limited partner investors
without any management rights.\52\ The Final Rule's minority investor
disclosures are a reasonable way to address what the Antitrust Agencies
fairly determined was a shortcoming of the previous rule, and are
necessary and appropriate to determining the competitive effects of a
transaction involving limited partnerships or complex corporate
structures.\53\
---------------------------------------------------------------------------
\50\ See SBP, supra note 5, at 25.
\51\ See id. at 225-27 (``some limited partnerships function as
aggregation vehicles that allow private equity or other investor
groups to direct the strategic business decisions of the portfolio
companies in which they invest.'').
\52\ See FTC, 16 CFR part 803--appendix B, Notification for
Certain Mergers and Acquisitions: Acquiring Person Instructions, 4-5
(Oct. 10, 2024) (hereinafter ``Acquiring Person Instructions''); SBP
at 226-27.
\53\ See SBP at 28-31; 15 U.S.C. 18a(d)(1).
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The Final Rule also requires merging firms to disclose information
about their potential vertical relationships--that is, whether the two
merging firms currently interact with each other at different levels of
the supply chain.\54\ HSR rules long required disclosure of information
about vertical relationships, but a 2001 amendment to the HSR rules
removed that requirement.\55\ Since 2001, however, the Antitrust
Agencies under the leadership of both parties have increased their
scrutiny of, and rate of enforcement actions against, vertical mergers.
During the Trump Administration, the Antitrust Division litigated the
first vertical merger challenge in decades.\56\ The Antitrust Agencies
released the 2020 Vertical Merger Guidelines, the first major revision
to agency guidance on vertical mergers since 1984.\57\ The Commission
released its 2020 Commentary on Vertical Merger Enforcement, which
demonstrated the breadth of Commission investigations and consent
agreements involving vertical transactions.\58\ And the Commission
investigated Illumina's proposed acquisition of Grail, which ultimately
led to a successful 2023 Fifth Circuit opinion that effectively blocked
the vertical transaction.\59\ These efforts continue today. I recently
joined a unanimous Commission vote authorizing a complaint to challenge
a vertical merger between America's leading mattress supplier and its
leading mattress retailer.\60\
---------------------------------------------------------------------------
\54\ FTC, 16 CFR part 803--appendix A, Notification and Report
Form for Certain Mergers and Acquisitions: Acquiring Person, 6-7
(Oct. 10, 2024) (hereinafter ``Acquiring Person Form'') (requesting
``other agreements between the acquiring person and target'' and the
``supply relationship description'').
\55\ See SBP at 327 (describing past requests for information on
vendor-vendee relationships); 66 FR 8680 (Feb. 1, 2001) (HSR rule
amendment removing that request).
\56\ See United States v. AT&T Inc., 310 F. Supp. 3d 161, 193-94
(D.D.C. 2018) (``the Antitrust Division apparently has not tried a
vertical merger case to decision in four decades''), aff'd 916 F.3d
1029 (D.C. Cir. 2019).
\57\ Press Release, FTC, FTC and DOJ Issue Antitrust Guidelines
for Evaluating Vertical Mergers (June 30, 2020), https://www.ftc.gov/news-events/news/press-releases/2020/06/ftc-doj-issue-antitrust-guidelines-evaluating-vertical-mergers.
\58\ Press Release, FTC, FTC Issues Commentary on Vertical
Merger Enforcement (Dec. 22, 2020), https://www.ftc.gov/news-events/news/press-releases/2020/12/ftc-issues-commentary-vertical-merger-enforcement.
\59\ Illumina, Inc. v. FTC, 88 F.4th 1036 (5th Cir. 2023).
\60\ Press Release, FTC, FTC Moves to Block Tempur Sealy's
Acquisition of Mattress Firm, (July 2, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/07/ftc-moves-block-tempur-sealys-acquisition-mattress-firm.
---------------------------------------------------------------------------
Since 2001, however, the Antitrust Agencies have had to rely on
limited acquisition-related documents and publicly available
information to identify potential vertical-competition concerns. Not
every competitive issue shows up in transaction documents or is
apparent to Commission staff without experience in the industry. As a
result, some anticompetitive transactions have likely slipped through
the cracks. The Final Rule will also provide the Antitrust Agencies
with other information that they can use to quickly identify (or rule
out) potential vertical-competition problems. The new Supply
Relationships Description requires filers to identify whether they
supply, or are supplied by, the other merging party or its
competitors.\61\ The buyer must also now indicate whether it has
certain types of existing contracts with the seller.\62\ This
information is ``necessary and appropriate'' to carrying out Congress's
command that the Antitrust Agencies review mergers--including vertical
mergers--to determine whether they violate the antitrust laws.\63\
---------------------------------------------------------------------------
\61\ See Acquiring Person Instructions at 10.
\62\ See Acquiring Person Form at 6.
\63\ 15 U.S.C. 18a(d)(1).
---------------------------------------------------------------------------
The Final Rule requires the disclosure of additional information
that will facilitate effective premerger review. Filers must now
provide some regularly prepared plans and reports that analyze market
shares or competition.\64\ Such information, particularly market-share
[[Page 89411]]
data, often is not available publicly, nor does it always appear in
transaction documents. But market-share data are critical to antitrust
enforcement. The Supreme Court many decades ago concluded that mergers
of competitors constituting thirty percent or more of the relevant
market presumptively violate the Clayton Act.\65\ And one of the
leading metrics for assessing the competitive effects of a transaction
is the Herfindahl-Hirschman Index (HHI),\66\ which uses market shares
to assess the level of concentration in the relevant market, and the
change in concentration that the merger would create.\67\ Market-share
data therefore are not only ``necessary and appropriate to . . .
determin[ing] whether [an] acquisition may, if consummated, violate the
antitrust laws.'' \68\ They are vital to our enforcement mandate.
Requiring the provision of these data also promotes efficiency. If the
market shares of the two firms are small, the Antitrust Agencies may
swiftly conclude that little further investigation is needed--and,
thanks to the concurrent lifting of the unfortunate ban on early
termination, may also facilitate the grant of early termination in
appropriate cases once the Final Rule becomes effective. And the cost
of compliance is modest; parties must collect only documents provided,
within the past year, to individuals already subject to other document
requests.
---------------------------------------------------------------------------
\64\ See Acquiring Person Instructions at 9.
\65\ See United States v. Phila. Nat'l Bank, 374 U.S. 321, 363-
65 (1963) (``Without attempting to specify the smallest market share
which would still be considered to threaten undue concentration, we
are clear that 30% presents that threat.'').
\66\ ProMedica Health Sys., Inc. v. FTC, 749 F.3d 559, 568 (6th
Cir. 2014) (``Agencies typically use the Herfindahl-Hirschman Index
(HHI) to measure market concentration.'').
\67\ See FTC v. H.J. Heinz Co., 246 F.3d 708, 716 (D.C. Cir.
2001) (``Sufficiently large HHI figures establish the FTC's prima
facie case that a merger is anti-competitive.'').
\68\ 15 U.S.C. 18a(d)(1).
---------------------------------------------------------------------------
In addition, the Overlap Description will require filers to
identify whether they compete with the other merging party.\69\ Under
the current form, parties identify overlaps only through Census Bureau
NAICS revenue codes.\70\ These codes can be painfully vague or
overinclusive, particularly for new sectors. For example, NAICS code
518210 covers ``companies that provide computing infrastructure, data
processing, web hosting, and related services'' such as ``data entry
services, cloud storage services and cryptocurrency mining.'' \71\
Despite a NAICS overlap, many firms within this broad category
undoubtedly do not compete. Many other NAICS codes present similar
concerns, flagging overlaps where none truly exist. Misleading or
overbroad NAICS code overlaps may lead to unnecessary investigations.
The Overlap Description will mitigate this problem by permitting filers
to explain misleading NAICS code overlaps up front.\72\
---------------------------------------------------------------------------
\69\ See Acquiring Person Form at 6.
\70\ See SBP at 301. Federal statistical agencies use the North
American Industry Classification System to classify businesses. See
id. at 147, n.296 (citing U.S. Census Bureau, North American
Industry Classification System (rev. Sept. 10, 2024), https://www.census.gov/naics/).
\71\ Id. at 300.
\72\ See id. at 301.
---------------------------------------------------------------------------
Improving the type of information the Commission receives in an HSR
notification is likely to improve the merger-review process for many
merging parties. If Commission staff believes that a proposed merger
merits investigation beyond the initial HSR filing and publicly
available information, it must formally open an investigation and
obtain clearance for that investigation from the Antitrust Division.
Most such investigations show that the transaction poses little risk of
competitive harm and are closed without a second request for additional
information.\73\ Once the investigation is begun, however, the
Antitrust Agencies can fall victim to bureaucratic inertia. We, like
all law-enforcement agencies, have limited resources. Commencing an
investigation and obtaining clearance eats up some of those resources.
Commission leadership may therefore resist recommendations to close an
investigation quickly even if the early stages of the investigation
demonstrate that the merger presents no competitive concerns.
Additionally, even investigations that do not lead to a second request
can still involve significant cost and delay for merging parties.\74\
The information required by the Final Rule will mitigate the risk of
false positives. It can reveal that a merger presents no competitive
threat at all, and the Commission can avoid crawling down rabbit holes
in unnecessary investigations.
---------------------------------------------------------------------------
\73\ In Fiscal Year 2023, the Commission received clearance to
investigate 124 transactions but only issued second requests for
additional information for 26 transactions. See FTC and DOJ, HSR
Annual Report Fiscal Year 2023, at Exhibit A, Table 1, https://www.ftc.gov/policy/reports/annual-competition-reports.
\74\ See SBP at 89 (``[A]n average of 73 transactions each year
. . . were delayed by an additional 30 days and filers were burdened
by having to submit additional materials on a voluntary basis even
though the investigation did not lead to the issuance of Second
Requests. These delays impose costs on the parties and the Agencies,
as well as third parties contacted during the extended initial
review period.'').
---------------------------------------------------------------------------
Third parties will benefit, too. Commission staff regularly
requests voluntary interviews with the merging parties' customers,
suppliers, and competitors following an HSR filing. These third parties
often cooperate, at the cost of their senior executives' time and legal
fees paid to outside lawyers. As these third parties explain the
industry and competitive landscape, the lack of any competitive issues
can quickly become apparent. By providing the Antitrust Agencies with
greater information upfront, the Final Rule can remove the need to
burden third parties with such fruitless engagement.
B. The Final Rule must be considered in light of another decision
the Commission announces today: the lifting of the suspension on early
termination. ``Early termination'' describes the Commission practice of
informing merging parties that the Commission is terminating its
investigation into the merger before the conclusion of the statutory
waiting period, thereby freeing them to consummate the merger
immediately. The benefits of early termination are obvious. It reduces
financing costs associated with the delay inherent in premerger review,
and it allows companies and consumers to realize the benefits of
procompetitive mergers more quickly.
Until 2021, Commission staff routinely granted early termination of
the initial HSR review period for acquisitions that obviously presented
no competitive issues.\75\ In February 2021, however, the then-Acting
Chairwoman announced a ``temporary suspension'' of early termination
due to ``the confluence of an historically unprecedented volume of
filings during a leadership transition amid a pandemic.'' \76\ The
Antitrust Agencies announced that they ``anticipate[d] the suspension
[to] be brief.'' \77\
---------------------------------------------------------------------------
\75\ See id. at 16, n.22, 95; see also Statement of Comm'r Noah
J. Phillips and Comm'r Christine S. Wilson Regarding the
Commission's Indefinite Suspension of Early Terminations, at 2 (Feb.
4, 2021), https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/statement-commissioners-noah-joshua-phillips-christine-s-wilson-regarding-commissions-indefinite.
\76\ Press Release, FTC, FTC, DOJ Temporarily Suspend
Discretionary Practice of Early Termination (Feb. 4, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/02/ftc-doj-temporarily-suspend-discretionary-practice-early-termination.
\77\ Ibid.
---------------------------------------------------------------------------
The ``confluence'' has been over for some time. The pandemic long
ago subsided. We have had a permanent Chair since June 2021. And merger
filings have slowed to about half the
[[Page 89412]]
number we saw in 2021 and 2022.\78\ Nevertheless, the ``temporary
suspension'' persisted. The Final Rule recognizes that this persistence
is no longer tenable: ``if the Agencies can determine from review of an
HSR Filing that a transaction does not present [competitive concerns],
the Agencies can more quickly and confidently determine that the
transaction does not require a more in-depth review and may proceed to
consummation.'' \79\
---------------------------------------------------------------------------
\78\ See FTC and DOJ, HSR Annual Report Fiscal Year 2023, at
Appendix A (showing 7,002, 6,288 and 3,515 HSR filings for 2021,
2022, and 2023, respectively), https://www.ftc.gov/policy/reports/annual-competition-reports.
\79\ SBP at 16.
---------------------------------------------------------------------------
Indeed, maintaining the ban would have been absurd in light of the
Final Rule's explicit recognition that many transactions pose no
competitive risks. Specifically, the Final Rule takes a tailored
approach to identify and reduce compliance costs for transactions with
lower risks of harm. The Final Rule creates a new category--``select
801.30 transactions''--for acquisitions that almost never present
competitive concerns, such as executive compensation agreements. For
these deals, filers are excused from many new requirements, including
descriptions and some document requests.\80\ The Final Rule also
recognizes when enough is enough. It tailors the burdens of acquiring
and acquired persons, rather than requiring both sides of a transaction
to provide the same information. Accordingly, it significantly pares
back the requests for acquired persons.\81\ Finally, the Final Rule
also employs a conditional-request format--a series of if/then
queries--to omit certain requirements for acquisitions that do not
involve an overlap or vertical relationship.\82\ Again, the burden is
reduced commensurate with the lower risk of harm.
---------------------------------------------------------------------------
\80\ See id. at 150-51.
\81\ See id. at 152.
\82\ See id. at 152-54.
---------------------------------------------------------------------------
I am pleased that today the Commission announces that it will lift
the categorical ban on early termination and restore this important
feature of the merger-review process once the Final Rule becomes
effective. It should have happened earlier. I have objected before to
the majority's tendency to use our HSR authority to accomplish
political objectives.\83\ An indefinite ban on early termination was
just more of the same. Maintaining the ban after the Final Rule's
effective date would have undermined the efficiencies that justify the
new information that the Final Rule requires. I am glad it is gone.
---------------------------------------------------------------------------
\83\ See Dissenting Statement of Comm'r Andrew N. Ferguson, In
the Matter of Chevron Corp. and Hess Corp., FTC Matter No. 2410008,
at 6 (Sept. 30, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/chevron-hess-ferguson-statement_0930.pdf; Joint Dissenting Statement
of Comm'r Melissa Holyoak and Comm'r Andrew N. Ferguson, In re
ExxonMobil Corp., FTC Matter No. 2410004 (May 1, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/2410004exxonpioneermh-afstmt.pdf.
---------------------------------------------------------------------------
IV. The Final Rule must stand on its own feet. An arbitrary-and-
capricious rule is not lawful merely because it is better than a bad
NPRM. And the NPRM with which the Commission launched today's Final
Rule was about as bad as it gets. It was indefensible bureaucratic
overreach and could not have survived judicial review. It drew no
distinctions between merger filings that presented little risk of
competitive harm--such as executive compensation agreements--and those
that raised potentially serious concerns. Instead, the NPRM applied the
same blunderbuss approach to every filing. To make matters worse, the
NPRM proposed a deluge of new onerous requirements the benefits of
which could never have justified the burdens imposed on merging
parties. In fact, several would have added little or no value to the
Antitrust Agencies at all during their brief window to identify
transactions that warrant further investigation. Had today's Final Rule
been identical to the NPRM, I would not have voted for it.
Although today's Final Rule is a logical outgrowth of the NPRM,\84\
it dramatically curtails the NPRM's wild overreach. That curtailment
unsurprisingly followed the arrival of Republican Commissioners. A
Final Rule identical to the NPRM would have been little more than a
procedural auxiliary to the majority's general suspicion of mergers and
acquisitions.\85\ I would not have voted for it. The changes adopted
after the arrival of Republicans to the Commission, however, rescued
the Final Rule from the NPRM's lawlessness. The Final Rule, unlike the
NPRM, is a reasoned decision about what is ``necessary and
appropriate'' to carrying out Congress's premerger-review mandate. It
also reasonably addresses shortcomings in the old HSR rule. It
therefore satisfies the requirements of both the HSR and APA. None of
this was true about the NPRM.
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\84\ Mock v. Garland, 75 F.4th 563, 583 (5th Cir. 2023) (``After
the required NPRM is published in the Federal Register, with either
the terms or substance of the proposed rule or a description of the
subjects and issues involved, the final rule the agency adopts must
be a logical outgrowth of the rule proposed.'' (cleaned up)); Env't
Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005)
(``Given the strictures of notice-and-comment rulemaking, an
agency's proposed rule and its final rule may differ only insofar as
the latter is a `logical outgrowth' of the former.''); see also Long
Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 160 (2007) (``The
Courts of Appeals have generally interpreted this to mean that the
final rule the agency adopts must be a logical outgrowth of the rule
proposed.'' (cleaned up)).
\85\ See infra pp. 11-14; Statement of Comm'r Melissa Holyoak,
Final Premerger Notification Form and the Hart-Scott-Rodino Rules,
File No. P239300, at 7-19 (Oct. 10, 2024).
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Although the Final Rule's lawfulness does not turn on how much
better it is than the NPRM, the changes from the unlawful NPRM
demonstrate that the Final Rule is in fact the product of reasoned
decision-making, which required us to respond to valid objections about
the NPRM's many problems.\86\ The most important climbdown from the
NPRM is the abandonment of the proposed Labor Markets section.\87\ This
section would have forced merging parties to classify their employees
by job category codes from the U.S. Bureau of Labor Statistics,\88\
even though few companies use such codes in the ordinary course of
business. And it would have required filers to classify their employees
by the U.S. Department of Agriculture's ERS commuting zones, even
though companies do not use them in the ordinary course of business and
these zones have not been updated since 2000 and are unreliable. The
new burden would have been massive, and commenters understandably
objected vociferously.\89\
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\86\ See, e.g., Perez, 575 U.S. at 96 (``An agency must consider
and respond to significant comments received during the period for
public comment.''); Chamber of Commerce of the U.S. v. SEC, 85 F.4th
760, 774 (5th Cir. 2023) (An agency must ``consider all relevant
factors raised by the public comments and provide a response to
significant points within. Comments the agency must respond to
include those that can be thought to challenge a fundamental premise
underlying the proposed agency decision or include points that if
true and adopted would require a change in an agency's proposed
rule.'' (cleaned up)); Bloomberg L.P. v. SEC, 45 F.4th 462, 476-77
(D.C. Cir. 2022) (``[A]n agency must respond to comments that can be
thought to challenge a fundamental premise underlying the proposed
agency decision. Indeed, the requirement that agency action not be
arbitrary or capricious includes a requirement that the agency
adequately explain its result and respond to relevant and
significant public comments. In sum, an agency's response to public
comments must be sufficient to enable the courts to see what major
issues of policy were ventilated and why the agency reacted to them
as it did.'' (cleaned up)).
\87\ For a fulsome accounting of the economic and legal errors
that infected the Labor Markets instruction, see Statement of Comm'r
Melissa Holyoak, Final Premerger Notification Form and the Hart-
Scott-Rodino Rules, File No. P239300, at 7-13 (Oct. 10, 2024).
\88\ NPRM, 88 FR at 42197.
\89\ See, e.g., Comment of A.B.A. Antitrust L. Sec., Doc. No.
FTC-2023-0040-0723 at 10-12; Comment of Wachtell, Lipton, Rosen &
Katz, Doc. No. FTC-2023-0040-0670 at 6-10; Comment of Dechert LLP,
FTC-2023-0040-0659 at 3-5.
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Beyond the major burden and methodological problems, the NPRM's
[[Page 89413]]
Labor Markets instructions were a clear abuse of Congress's mandate
that the Commission require only information ``necessary and
appropriate'' to identify transactions that ``violate the antitrust
laws.'' \90\ In the nearly half century since Congress passed HSR, the
Antitrust Agencies have never successfully challenged any transactions
based on labor market theories that could have been identified by the
proposed requirements.\91\ Until recently, the Antitrust Agencies had
never even tried.\92\ It is not for a lack of effort. For years, the
Commission and Antitrust Division looked for viable labor market
theories when investigating transactions that present other competition
concerns. The lack of any success lays bare that the Commission never
could have justified the immense cost of requiring every single filer
to provide extensive labor-related information. Fortunately, my
colleagues on the Commission agreed to jettison the Labor Markets
section that likely would have doomed the Final Rule.\93\
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\90\ 15 U.S.C. 18a(d)(1).
\91\ The NPRM identified two successful merger challenges with
purported labor theories. See NPRM, 88 FR at 42197, n.47. The first,
the Antitrust Division's challenge to Penguin Random House's
acquisition of Simon & Schuster, did not involve harm to employees
of the merging firms. Instead, the alleged harm was in the market
for ``publishing rights to anticipated top-selling books.'' United
States v. Bertelsmann SE & Co. KGaA, 646 F. Supp. 3d 1, 12 (D.D.C.
2022). The second, the Commission's challenge to Lifespan
Corporation's acquisition of Care New England, did not include a
labor market count in the complaint. See Compl., In the Matter of
Lifespan Corp. and Care New England Health Sys., FTC Matter No.
2110031 (Feb. 17, 2022). Commissioner Bedoya identifies another
purported merger challenge based on a labor theory, specifically
``decrease[d] fees paid to blood plasma donors.'' Statement of
Comm'r Alvaro M. Bedoya, In the Matter of Amendments to the
Premerger Notification and Report Form and Instructions and the
Hart-Scott-Rodino Rule, File No. P239300, at n.20 (Oct. 10, 2024)
(``Statement of Comm'r Bedoya''). But, like the Antitrust Division's
Bertelsmann challenge, the complaint did not allege harm to the
merging parties' employees and therefore could not have been
identified by the NPRM's proposed demands for employee information.
See Compl., In the Matter of Grifols S.A. and Grifols Shared
Services North America, Inc., FTC Matter No. 1810081 (Aug. 1, 2018).
\92\ Given the pendency of litigation within the Commission's
administrative tribunal, I withhold comment on the strength of the
Commission's labor market theory in its challenge to The Kroger
Company's acquisition of Albertsons Companies, Inc.
\93\ Commissioner Bedoya defends the NPRM's Labor Markets
section, reasoning that because the antitrust laws apply to the
labor markets, the Commission should screen every single merger
subject to HSR for potential labor-competition problems. Statement
of Comm'r Bedoya, supra n.89, at 2, 4. I do not disagree that the
antitrust laws apply to labor markets. But that fact would not have
made lawful a rule that was identical to the NPRM. Under ordinary
principles of administrative law, the Commission would have to
``examine the relevant data and articulate a satisfactory
explanation for its action, including a rational connection between
the facts found and the choices made.'' State Farm, 463 U.S. at 43
(cleaned up). That means the Commission would need enough evidence
of labor-competition problems in mergers to establish that the
labor-markets instruction's onerous costs were reasonable. The
evidence marshalled by Commissioner Bedoya--a couple papers and a
book--comes nowhere near to clearing that bar. Statement of Comm'r
Bedoya at 3. The majority made the same mistake in the Noncompete
Rule by relying on sparse social-science research to justify massive
regulatory burdens. See Dissenting Statement of Comm'r Andrew N.
Ferguson, Joined by Comm'r Melissa Holyoak, In the Matter of the
Non-Compete Clause Rule, Matter No. P201200, at 37-45 (June 28,
2024), https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-noncompete-dissent.pdf (``The handful of academic papers cited in
the Final Rule cannot justify its incredible reach and relying on
them to prohibit noncompete agreements categorically is a clear
error of judgment.'' (cleaned up)); Ryan LLC v. FTC, No. 3:24-CV-
00986-E, 2024 WL 3879954, at *13-14 (N.D. Tex. Aug. 20, 2024)
(finding the Noncompete Rule arbitrary and capricious because
``[t]he record does not support the Rule.''). Making that mistake
here would have been a ``clear error of judgment'' requiring vacatur
under the APA. Huawei Technologies USA, Inc. v. FCC, 2 F.4th 421,
434 (5th Cir. 2021) (cleaned up).
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The Final Rule also eliminates the NPRM's requirement that merging
parties provide all drafts of transaction-related ``document[s] that
were sent to an officer, director, or supervisory deal team lead(s).''
\94\ Commenters rightly pointed out that this requirement would have
imposed an undue burden on merging parties,\95\ with the American Bar
Association noting that this provision could have forced filers to use
e-discovery tools to capture every draft.\96\ The cost of this
information demand is high. But the value to the Antitrust Agencies
would have been low. Commission staff would have struggled to comb
through a dozen versions of the same document. And insofar as the goal
was to catch merging parties giving honest appraisals about the
anticompetitive effects of mergers, I doubt demanding drafts would have
succeeded. Knowing that such drafts would have to be produced, parties
would just create methods to avoid exposing their honest thoughts in
documents that are guaranteed to wind up in the hands of enforcers.
Demanding drafts of documents in every transaction would have likely
increased the expense of merging--of great benefit to antitrust
lawyers--without giving the Antitrust Agencies the sort of ``hot docs''
for which they were hoping. The Final Rule appropriately eliminated
this requirement for every transaction. The Commission can obtain
drafts under the only circumstances it would ever need them--when it
opens investigations into those few mergers that the HSR filings reveal
present a genuine risk of anticompetitive effects.
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\94\ NPRM, 88 FR at 42214.
\95\ SBP at 270-71.
\96\ Comment of A.B.A. Antitrust L. Sec., Doc. No. FTC-2023-
0040-0723 at 15-16.
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Similarly, the Final Rule curtailed several of the NPRM's other
burdensome requirements for merging parties to produce documents. It
revises the definition of ``supervisory deal team lead'' to limit it to
a single individual, eliminating the need to review multiple employees'
files to fulfill this request for transaction-related documents.\97\
The Final Rule also removes the NPRM's demand for ordinary course plans
and reports that were shared with senior executives but not the CEO.
Commenters rightfully noted that this would have forced filers to
search the files of additional custodians, greatly increasing the
burden on merging parties.\98\ Instead, the Final Rule limits the
request to certain plans and reports directly provided to the CEO or
board of directors.\99\ Lastly, the Final Rule no longer forces merging
parties to produce all agreements between them. The NPRM's requirement
to produce every single agreement between the parties would have been
burdensome and expensive, but likely would have shed little light on
the potential competitive effects of the merger. Some agreements
between merging parties might shed light on competitive effects, but
the vast majority would tell us nothing. The Final Rule acknowledges
this mismatch of costs and benefits, and instead requires parties to
note only whether they have particular types of agreements.\100\
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\97\ See SBP at 203-05.
\98\ E.g., Comment of U.S. Chamber of Com., Doc. No. FTC-2023-
0040-0684 at 22, 24.
\99\ See id. at 274-77.
\100\ See id. at 291-93.
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The Final Rule makes many additional changes to the abusive NPRM.
It makes clear that filers do not need to disclose any individual's
role in a ``non-profit entity organized for a religious or political
purpose.'' \101\ This exception is important. Requiring a Catholic
hospital, for example, to disclose its membership rolls merely because
it wishes to make a reportable acquisition, without regard to the
competitive effects of that acquisition, would raise serious First
Amendment concerns.\102\ The Final Rule also creates
[[Page 89414]]
de minimis exclusions, which remove the need for filers to note tiny
prior acquisitions, supply relationships, and defense contracts that
could not plausibly move the competitive needle.\103\ The Final Rule
shortens lookback periods for many requests, including prior
acquisitions, which limits the burdens associated with digging through
dated company records.\104\ It removes demands for filers to create
some new documents, such as deal timelines and organization
charts.\105\ And the Final Rule includes other important, burden-
reducing changes from the indefensible NPRM, all of which help tailor
the Final Rule to only those things that are necessary and appropriate
to carry out the requirements of HSR.\106\
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\101\ See Acquiring Person Instructions at 5.
\102\ See, e.g., Americans for Prosperity Found. v. Bonta, 594
U.S. 595, 606 (2021) (``This Court has `long understood as implicit
in the right to engage in activities protected by the First
Amendment a corresponding right to associate with others.' Protected
association furthers `a wide variety of political, social, economic,
educational, religious, and cultural ends,' and `is especially
important in preserving political and cultural diversity and in
shielding dissident expression from suppression by the majority.' ''
(quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984)); id. at
608 (forbidding mandatory disclosure of donor rolls unless the
disclosure requirement is narrowly tailored to vindicate an
important government interest); NAACP v. Alabama ex rel. Patterson,
357 U.S. 449, 462-63 (1958) (holding that mandatory disclosure of
membership rolls without a sufficient justification violates the
First Amendment).
\103\ See SBP at 153-54.
\104\ See id. at 151-52.
\105\ See id. at 6, 293-95.
\106\ See id. at 6-8, 147-56.
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I still would prefer a deeper cut. For example, I would not have
included the transaction rationale requirement.\107\ Our requests for
transaction-related documents already cover the same ground, in the
parties' own words. I expect most transaction rationales will be
heavily lawyered essays designed to ensure that the rationale matches
these transaction documents. Indeed, I cannot imagine any lawyer worth
his or her salt ever permitting the rationale to depart meaningfully
from other parts of the notification. I therefore doubt that the
rationales will provide any valuable information that we could not
glean elsewhere. Perhaps in some cases parties may use the transaction
rationale to explain why a merger that appears suspect at first blush
presents no competitive problems. But on the whole, I doubt the
transaction rationale will benefit the Antitrust Agencies in the mine
run of cases, and I would not impose the burden on every filer.
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\107\ See SBP at 253-56.
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This example highlights an important consideration the Commission
must bear in mind for the future. If post-promulgation experience
teaches us that some parts of the rule are not working well, we can and
should get rid of them in subsequent rulemakings. We have done that in
the past.\108\ If, for example, my prediction about the value of the
transaction rationale proves correct, we can and should jettison it.
The same is true of all provisions of the Final Rule. Although we have
satisfied the APA's requirement that the Final Rule be the product of
reasoned decision making about what is necessary and appropriate to
carry the Act into execution, experience almost certainly will reveal
that the Final Rule can be improved. The Commission should abandon
whatever parts of the Final Rule do not work.
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\108\ E.g., 70 FR 73369 (Dec. 12, 2005) (amending Form and
Instructions to reduce the burden of complying with Items 4(a) and
(b)); SBP at 107, n.248 (summarizing numerous changes to HSR Rule
since 1978).
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Considered as a whole, however, the additional information sought
in the Final Rule is ``necessary and appropriate'' for the Antitrust
Agencies to identify transactions that may violate the antitrust
laws.\109\ Its benefits are many, and, by comparison, the added burdens
are reasonable.
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\109\ 15 U.S.C. 18a(d)(1).
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Because the Final Rule represents the Commission's reasoned
decision about what is necessary and appropriate to carry into
execution the requirements of HSR, and because I believe it lawfully
addresses shortcomings in the current HSR rule, I concur in its
promulgation.
[FR Doc. 2024-25024 Filed 11-8-24; 8:45 am]
BILLING CODE 6750-01-P