On Aug. 13, 2010, the Federal Trade Commission (FTC) announced that it was issuing a Notice of Proposed Rulemaking (Notice) regarding certain provisions of the HSR Act Premerger Notification and Report Form (Notification Form).1 The Notice contains a number of proposed modifications that the FTC said were necessary in order to eliminate items that the FTC found “not as helpful as originally anticipated” and to include information that the FTC believes would be useful in evaluating a transaction’s potential competitive impact.2 The FTC also asserts that the proposed revisions “will, on balance, reduce the overall burden of completing the Form.”3 Though the FTC believes that a number of its proposed revisions will reduce a party’s burden in filing the Notification Form, the FTC included two new items in its Notice, i.e., Item 4(d), and a new term, “associate,” that have the potential to create a great deal more expense and uncertainty for notifying parties.

By way of background, the Notification Form is required under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act).4 The HSR Act obligates acquiring parties to file the Notification Form with the FTC and the Department of Justice prior to certain mergers and combinations.5 The HSR Act also imposes premerger waiting periods and prohibits the parties from closing a transaction prior to the expiration or early termination of the waiting periods. A party’s failure to file the Notification Form or otherwise substantially comply with the HSR Act’s requirements can result in significant delay and civil penalties. Here is a preview of the changes that the FTC proposes, along with some of the land mines.

The Inclusion of Item 4(d)