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United States Competition Law 2004/05 Country Q&A United States United States Joe Sims, Montgomery Kosma and Sara Razi, Jones Day www.practicallaw.com/A44034 MERGER CONTROL HSR filing requirements and waiting periods apply if either: 1. Are mergers and acquisitions subject to merger control in ■ The acquiring person will hold voting securities or assets of your jurisdiction? If so, please describe briefly the regulatory the acquired person valued at more than US$200 million framework and authorities. (about EUR164.2 million). ■ All three parts of the following test are satisfied: US merger laws govern the following: ❑ the acquiring person will hold voting securities or assets ■ Traditional mergers. of the acquired person valued between US$50 million (about EUR41 million) and US$200 million (about ■ Stock or asset acquisitions. EUR164.2 million); ■ Joint ventures. ❑ one party has at least US$100 million (about EUR82.1 million) in total worldwide assets or annual net sales; ■ Transfers of interests in intellectual property, contracts or and real estate. ❑ the other party has at least US$10 million (about Any person is prohibited from acquiring stock or assets where EUR8.2 million) in total worldwide assets or annual net “the effect of such acquisition may be substantially to lessen sales. competition, or to tend to create a monopoly” (section 7, Clayton Act). The Clayton Act provides for enforcement by the Antitrust These thresholds are annually adjusted for inflation. A transac- Country Q&A Division of the US Department of Justice (Antitrust Division) and tion meeting either test is reportable unless one of several the Federal Trade Commission (FTC). Although less common, the exemptions applies. For example, a complex section of the HSR 50 state attorneys general and private plaintiffs can also Rules exempts certain transactions involving the acquisition of challenge an acquisition through a lawsuit under the Clayton Act assets or voting securities located mainly outside the US. (and, in some cases, under state laws). Exemptions also apply to, among other things: Transactions involving certain regulated industries may require ■ Certain acquisitions of goods (for example, for resale, con- notification to or approval by other federal or state agencies (see sumption or incorporation into finished products) in the ordi- Question 12). nary course of business. Under the 1988 Exon-Florio Amendments, the Committee on ■ Real property. Foreign Investment in the US (CFIUS) must receive written notice of an acquisition, merger or takeover of a US corporation ■ Mineral reserves. by a foreign entity. This type of transaction can be suspended or prohibited by the President if it threatens US national security ■ Non-voting securities. (see box, The regulatory authorities). ■ Passive investments. 2. What are the relevant thresholds/triggering events? Even if not reportable under the HSR Act, the Antitrust Division or the FTC can still investigate and seek to block a transaction from being consummated, or in rare cases, to unwind a Under the Hart-Scott-Rodino Antitrust Improvements Act of completed transaction. The investigation of these transactions 1976 (HSR), parties to a merger or acquisition that meets certain usually arises in response to complaints from customers or other jurisdictional thresholds must notify the Antitrust Division and potentially affected parties. the FTC, and must not consummate the transaction until a waiting period has expired (for an overview of the notification For a broad overview of the notification process, see box, process, see United States: merger notifications flowchart). Timeline for HSR-reportable transactions. For a description of a GLOBAL COUNSEL HANDBOOKS www.practicallaw.com/comphandbook 463 This article was first published in the Global Counsel Competition Law Handbook 2004/05 and is reproduced with the permission of the publisher, Practical Law Company. For further information or to obtain copies please contact [email protected], or visit www.practicalllaw.com/comphandbook Country Q&A United States Competition Law 2004/05 proposed rule that would harmonise the HSR treatment of ❑ their ownership interests; and corporations and "non-corporate entities” (currently, certain transactions involving non-corporate entities, such as partner- ❑ the affected industries. ships and limited liability companies (LLCs), are not reportable) (see Question 34). Item 4(c), the most critical part of the HSR filing, requires copies of all “studies, surveys, analyses and reports which were prepared by or for any officer(s) or director(s), for the 3. Please give a broad overview of notification requirements. In purpose of evaluating or analysing the acquisition with particular: respect to market shares, competition, competitors, mar- kets, potential for sales growth or expansion into product or ■ Is notification mandatory or voluntary? geographic markets.” ■ When should a transaction be notified? Item 4(c) is interpreted broadly, covering paper or electronic documents (including e-mail and handwritten notes) that ■ Is it possible to obtain formal or informal guidance prior to discuss the transaction (however briefly), and mention mar- notification? ket shares, competition, competitors or markets (whether or not US markets). Accordingly, completing the filing often ■ Who should notify? requires a thorough search for these materials. In addition, parties should seek legal advice to ensure that they and their ■ To which authority should notification be made? agents (such as investment bankers) take due care to avoid exaggerated statements in materials created by or for offic- ■ What is the form of notification? ers and directors. ■ Is there a filing fee? If so, how much? ■ Filing fee. The acquiring person must pay a filing fee based on the value of the acquired person’s assets and voting secu- ■ Is there an obligation to suspend the transaction pending rities that it will hold as a result of the transaction. The fee the outcome of an investigation? is: ❑ US$45,000 (about EUR36,961) for transactions valued ■ Mandatory or voluntary. Filing is mandatory for transactions at US$100 million (about EUR82.1 million) or less; that meet the HSR thresholds (see Question 2). The agen- cies will reject a filing (and refund fees) for a transaction ❑ US$125,000 (about EUR102,669) for transactions val- that fails to meet the thresholds. ued at more than US$100 million (about EUR82.1 mil- lion) but less than US$500 million (about EUR410.7 ■ Timing. There is no requirement that a filing be made in a million); and specific time after an agreement has been entered into. ❑ US$280,000 (about EUR229,979) for transactions val- ■ Informal guidance. Informal advice on issues relating to ued at US$500 million (about EUR410.7 million) or HSR pre-merger filing requirements or procedures is availa- more. (These thresholds will be adjusted annually for ble on an anonymous, confidential basis from the FTC’s Pre- inflation.) Country Q&A merger Notification Office. The Antitrust Division and the FTC will not offer informal guidance on the merits of mergers ■ Obligation to suspend. The HSR subjects any reportable and acquisitions or other transactions. transaction to a mandatory initial waiting period of 30 days (15 days for a cash tender offer or acquisition in bank- ■ Responsibility for notification. Generally, both the acquiring ruptcy). During this time, the parties must not consummate person and acquired person must provide separate notifica- the transaction. If both the Antitrust Division and FTC agree tion. For a tender offer, only the buyer must notify. that no further inquiry is warranted, they can grant early ter- mination of the waiting period, typically within two weeks ■ Relevant authority. Notification is made simultaneously to after filing. the FTC’s Premerger Notification Office and the Antitrust Division’s Director of Operations and Merger Enforcement If either agency decides to conduct a more complete investi- (see box, The regulatory authorities). gation by issuing a Second Request (see Question 4), the waiting period will be extended for a further 30 days (or ten ■ Form of notification. Parties must complete and file the HSR days for a cash tender offer) after the parties have complied Notification and Report Form, which requires information with that request. During any waiting period, the parties describing: must take care to avoid co-ordinated activities or premature integration of their businesses, either of which can be ❑ the transaction; unlawful “gun jumping.” ❑ the parties; 464 GLOBAL COUNSEL HANDBOOKS www.practicallaw.com/comphandbook This article was first published in the Global Counsel Competition Law Handbook 2004/05 and is reproduced with the permission of the publisher, Practical Law Company. For further information or to obtain copies please contact [email protected], or visit www.practicalllaw.com/comphandbook Competition Law 2004/05 Country Q&A United States UNITED STATES: MERGER NOTIFICATIONS Does the transaction involve an acquisition of assets or voting No Notification is not required. securities? Yes As a result of the transaction, will the acquiring person hold assets or voting securities of the acquired person valued at No Notification is not required. more than US$50 million (about EUR41 million)? Yes Does 1 party have at least US$100 million As a result of the transaction, will the acquiring person hold (about EUR82 million) in total worldwide assets assets or voting securities of the acquired
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