DealLawyers.com Blog

This recent FTC blog provides a helpful walk-through of the HSR process, and addresses frequently asked questions about how the timing of HSR review could affect a pending deal. This excerpt talks about how long an HSR filing is valid in the event of a delay in closing:

Once a transaction receives early termination (ET) or the waiting period expires, the acquiring person has exactly one year from that date in which to cross the filed-for HSR threshold. The one-year period ends on the same date, one year later, regardless of whether it falls on a weekday, weekend or holiday. In addition, in the interest of ensuring that HSR filings reflect current information and intentions, the HSR Rules contain expiration dates. Here are the potential scenarios:

– If a Second Request was not issued, the filing will expire one year after the date on which ET was granted or the waiting period expired.

– If a Second Request was issued and the parties certified substantial compliance, the HSR filing will expire one year after the end of the extended waiting period that was triggered by the certification of substantial compliance.

– If a Second Request was issued but the parties never certified substantial compliance, the HSR filing will expire 18 months after the date on which the HSR filings were submitted to the agencies.

If the HSR notification expires and the filed-for threshold has not been crossed, the parties must submit a new HSR filing – including any new 4(c) and 4(d) documents – and will be subject to a new transaction number, new fee, and a new waiting period, if they wish to proceed with the transaction. As with waiting periods, timing agreements cannot toll the one-year or 18-month periods.

The blog also addresses questions on when the HSR waiting period will be deemed to commence, the length of the waiting period, the early termination process, the “withdraw and refile” procedure, & the second request process.

– John Jenkins