March 25, 2021

Antitrust: Make Sure the HSR Clock Has Started Running

Over on its “Competition Matters” blog, the  FTC recently provided some reminders to companies about the importance of making sure they’ve received official confirmation of their HSR filings.  This typically comes in the form of a “Waiting Period Letter,” and if you haven’t received one within a few days of filing, there may be a problem that you need to address.

The blog says that the Pre-merger Notification Office will only send Waiting Period Letters if both the FTC & DOJ have received complete filings from all parties. If your Waiting Period Letter appears to be delayed, there might be a filing deficiency needs to be addressed, or there may be problems with the filing fee.  The blog goes on to offer the following tips on making sure that the clock has started to run on your HSR filing:

– Until you receive a Waiting Period Letter confirming the dates, you should not assume that the waiting period is running or will expire on a certain day. Most of the time, the waiting period will start on the day the agencies receive the filing. Occasionally, if filing deficiencies are not cured promptly or for other reasons (as noted above), PNO staff must delay the start of the waiting period.

– You should not assume that the waiting period is running because the PNO has provided you the transaction number. If there are issues with your filing, PNO staff will give you the transaction number to ensure that corrections and updates are processed appropriately. The assignment of a transaction number, which creates a record of the filing, does not mean that the waiting period has started and is not a substitute for the Waiting Period Letter.

– In 801.30 transactions (such as tender offers or acquisitions from third parties), only the buyer will receive a Waiting Period Letter. 801.30 transactions are by definition non-consensual, and the buyer’s waiting period is confidential under the HSR Rules. After the PNO receives the seller’s 801.30 filing, the PNO will send an acknowledgement letter providing only the transaction number.

– If you need a confirmation that the PNO has received and downloaded your submission before you receive your Waiting Period Letter, use the tracking function of the Accellion FTP platform. You will need to go into your Sent folder in the Accellion FTP application, open the submission, and click on the “Track” button. There is no need to contact the PNO to confirm receipt of the filing.

John Jenkins