FTC and DOJ, Your Least Favorite Marriage Counselors


You and another company fall in love and now you want to make it official by merging. It’s like a big corporate romantic comedy starring Jennifer Aniston and…well…you. But before the big climactic kiss, the Federal Trade Commission (FTC) and the Antitrust Division of the U.S. Department of Justice (DOJ) jump in and say “Whoaaaaaa! Not-so-fast!” They can’t just let the kiss happen. You need to fill out some forms and get their approval first. And now, among other things, the forms have changed.

The FTC and DOJ have modified the form and instructions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). Under the HSR Act, companies of a certain size involved in a merger or acquisition must each file a “premerger notification form” (HSR Form), and wait 30 days prior to closing the transaction. That way the DOJ and FTC have time to assess the competitive aspects of a transaction before its consummation.

What’s Your Roll In The New HSR Rules?

If you’ve ever seen an HSR Form, you’ll see some changes, particularly when it comes to referring to the parties involved, aka “associates.” Under the new regulation, 16 CFR §801.1(d)(2), “associates” are defined as an entity that is not an affiliate of such person but:

• Has the right, directly or indirectly, to manage the operations or investment decisions of an acquiring entity (a ‘managing entity’); or....

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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