Friday, March 31, 2023

Antitrust - An HSR Filing Cannot Be Made on a Hypothetical Deal


Competition Law

 

Antitrust

 

Hart-Scott-Rodino Compliance

 

Premerger Notification

 

An HSR Filing Cannot Be Made on a Hypothetical Deal

 

 

 

FTC

Republication

Spring Meeting updates

March 31, 2023

 

https://www.ftc.gov/enforcement/competition-matters/2023/03/spring-meeting-updates?utm_source=govdelivery

 

 

 

An HSR filing cannot be made on a hypothetical deal. The PNO (Premerger Notification Office) receives thousands of filings every year and sometimes it is important to remind the antitrust bar of some very basic principles of HSR compliance. For instance, the HSR Rules do not permit filing on hypothetical deals. This has been true from the beginning of the premerger program. Here is what the Commission said back in 1978: “because of the time and resource constraints on agency staff, the Agencies should not expend resources to review transactions so lacking in specifics that they could be considered merely hypothetical.” (43 Fed. Reg. 33,450 at 510-511). That means that for transactions in which a definitive agreement has not yet been executed, there must be an agreement in principle or letter of intent executed by the parties. A mere indication of interest or a document that is no more than an agreement to file HSR and wait to see what the Agencies do is not sufficient. The certification requirement is meant to ensure that the parties each have a good faith intent to consummate the transaction they describe

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