Antitrust Law Daily Wrap Up, ANTITRUST NEWS: HSR rule amendments addressing filing withdrawals take effect on August 9, (Jul 10, 2013)

By Jeffrey May, J.D.

Amendments to the Hart Scott Rodino (HSR) premerger notification rules regarding filing withdrawals were published in today's Federal Register. The rules will take effect on August 9, 2013.

The rule amendments formalize a long-standing practice permitting merging parties to withdraw and refile an HSR filing without paying an additional fee. The practice is utilized by parties hoping to avoid a costly second request. Parties sometimes withdraw and refile to provide the antitrust agencies—facing the expiration of the 30-day waiting period under the HSR Act—with additional time to review the transaction.

The amendments, which were announced by the FTC last month, add a new Rule 803.12. Rule 803.12(c) formalizes the withdrawal and refile process. Under new Rule 803.12(a), a party may withdraw its premerger notification filing by notifying the agencies.

The amendments also add a new paragraph to Rule 803.9, which covers filing fees. The new paragraph “(f)” states that parties utilizing the withdrawal and refile process of Rule 803.12(c) “shall pay no additional filing fee.”

New Rule 803.12(b) establishes a procedure for the automatic withdrawal of an HSR filing when filings are made with the U.S. Securities and Exchange Commission (SEC) announcing that a transaction has been terminated. The automatic withdrawal procedure is triggered by either the filing of a Schedule TO-A with the SEC announcing the expiration or termination of a tender offer, or the filing of a Form 8-K announcing the termination of a definitive agreement.

If a filing is automatically withdrawn due to an SEC filing, parties can resubmit within a two-day period with no additional fee. If, however, a filing is automatically withdrawn due to an SEC filing and the parties do not utilize the two-day resubmission process but later decide to move forward with the transaction, then a new filing and filing fee would be required.

The new rule aligns the treatment of abandoned transactions by the FTC and the Department of Justice with the requirements of the SEC regarding public announcements of the termination of a transaction, according to the agency.

The agencies contend that Rule 803.12(b) is intended to help the FTC and Department of Justice avoid “expend[ing] scarce resources on hypothetical transactions.”

News: Antitrust FederalTradeCommissionNews