By: Kate Walsh and Ken Libby (FTC)
The FTC welcomes comments on its recent HSR Rulemaking initiative, and to facilitate a robust and thoughtful set of public comments, the Commission is holding a series of three live virtual workshops in November to answer the public’s questions before comments are due.
On September 21, the Commission announced that it would seek public comments on proposed changes to the rules and interpretations that implement the Hart-Scott-Rodino Act. This rulemaking initiative has two parts. The first is a Notice of Proposed Rulemaking (NPRM) that would, if adopted, make two changes to the existing rules. The first proposed change would require filers to disclose additional information about their associates and to aggregate acquisitions in the same issuer across those entities. The second change is a new proposed rule that would exempt the acquisition of 10 percent or less of an issuer’s voting securities unless the acquiring person already has a competitively significant relationship with the issuer.
The second part of this rulemaking initiative is designed to encourage a broad conversation about changes in corporate structure and investment activity since the late 1970s and whether those changes warrant modifications in HSR rules or interpretations. What was right for 1979 when the premerger notification program began may not be right for 2020, and we want to ensure that HSR rules and interpretations keep pace with new developments so that the antitrust agencies get notice of potentially problematic deals before they occur. The Advance Notice of Public Rulemaking (ANPRM) seeks to gather information on seven topics that will help determine the path for potential future amendments to the HSR rules and interpretations of those rules. These seven topic areas were identified based on our experience with reviewing thousands of filings every year, and answering questions about HSR filing obligations—and enforcing the rules when necessary to ensure HSR compliance…