Introduction

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INTRODUCTION

This Premerger Notification Practice Manual contains

interpretations and summaries of cases relating to the premerger

notification requirements under Section 7A of the Clayton Act, 15 U.S.C.

§ 18a, enacted as Title II of the Hart-Scott-Rodino Antitrust

Improvements Act of 1976 (HSR Act or the Act) and the Federal T rade

Commission’s (FTC’s) implementing rules (Rules). The interpretations

are based on guidance from the FTC staff, which is charged with

administering the Act. The case summaries are of enforcement actions,

most of which are filed by the United States Department of Justice (DOJ)

based on a referral by the FTC.

The HSR Act and Rules

Section 7A of the Clayton Act specifies that certain acquisitions

must be reported to the DOJ and the FTC in advance of their

consummation. Reportability is governed in some cases by the sizes of

the parties to the proposed transaction and always by the size of the

contemplated transaction. Some acquisitions that satisfy the size tests,

however, are not reportable because they qualify for an exemption.

Where premerger notification is filed, the parties must thereafter wait

a period of time (normally about thirty calendar days) before completing

the proposed acquisition. That waiting period may be extended if either

of the federal antitrust enforcement agencies, the DOJ or the FTC, issues

a request for additional information or documentary material (a Second

Request) to either or both of the parties. The purpose of the statute is to

facilitate evaluation of the antitrust implications of the proposed

transaction and, where after investigation the anticompetitive

consequences appear substantial, to permit either agency to challenge the

legality of the transaction in federal district court and seek a preliminary

injunction to block its consummation. A detailed explanation of the

entire merger review process can be found in ABA SECTION OF

ANTITRUST LAW, THE MERGER REVIEW PROCESS: A STEP-BY-STEP

GUIDE TO U.S. AND FOREIGN MERGER REVIEW (4th ed. 2012). A

discussion of many of the substantive antitrust issues that arise in merger

investigations can be found in ABA SECTION OF ANTITRUST LAW,

MERGERS AND ACQUISITIONS: UNDERSTANDING THE ANTITRUST ISSUES

(3d ed. 2008).