Business Documents Requirements Under HSR Rules

Overview of Requirement

The “Business Documents” section of the revised Hart-Scott-Rodino (HSR) form requires filers to submit certain documents that may be relevant to an antitrust review of the proposed transaction. There are two separate sets of requirements: “Transaction-Related Documents” and “Plans and Reports.”

The submission of Transaction-Related Documents is required for acquiring persons (buyers) in all transactions and for acquired persons (sellers) in almost all transactions (the only exception is for “Select 801.30 transactions,” where the seller will often have no such documents to produce).

The submission of Plans and Reports only applies for transactions for which a competitive overlap is identified in the “Overlap Description” of the HSR form; when such a competitive overlap is identified, then both the buyer and the seller must provide relevant Plans and Reports.

Transaction-Related Documents

Transaction-Related Documents mean:

• All studies, surveys, analyses, and reports prepared by or for any officer(s), director(s), or supervisory deal team lead for the purpose of evaluating or analyzing the transaction with respect to market shares, competition, competitors, markets, potential for sales growth, or expansion into product or geographic markets.
• All confidential information memoranda (CIMs) prepared by or for any officer(s) or director(s) within the past year that specifically relate to the sale of the target. If no CIM exists, then provide any documents that were given to an officer or director of the acquiring person that were meant to serve the function of a CIM.
• All studies, surveys, analyses, and reports prepared by investment bankers, consultants, or other third-party advisors for any officer(s) or director(s) within the past year for the purpose of evaluating or analyzing the transaction with respect to market shares, competition, competitors, markets, potential for sales growth, or expansion into product or geographic markets.
• All studies, surveys, analyses, and reports prepared by or for any officer(s) or director(s) for the purpose of evaluating or analyzing synergies or efficiencies from the transaction.

For these purposes, the phrase “officer(s)” and “director(s)” includes individuals who serve similar functions in the case of a noncorporate entity (e.g., a partnership or LLC), even if that entity does not formally have “officers” or “directors.” An “officer” means an individual that is (i) designated by the bylaws or articles of incorporation, (ii) appointed by the board of directors, or (iii) appointed by any other person that has delegation or authority to appoint officers (or, in any case, an individual designated or appointed in a similar way for a noncorporate entity). With minor exceptions, any “officer” or “director” of any legal entity on either the buy side or the sell side (including commonly controlled affiliates) qualifies as a relevant individual.

The “supervisory deal team lead” is defined as “the individual who has primary responsibility for supervising the strategic assessment of the deal, and who would not otherwise qualify as a director or officer.”

Additional instructions for Transaction-Related Documents include:

• Responsive documents that are in a language other than English must be translated.
• Any draft of a responsive document that went to a member of the board of directors must be produced. However, drafts that did not go to a board member do not need to be produced so long as the filing party provides the “final” (or, if different, last-in-time) version of the document. This rule, in turn, has two caveats:
  • Where a person is a board member but also serves another role within the company, then only drafts of a responsive document that went to that person in their capacity as a board member need to be included.
  • If a board member had access to a collaborative drafting tool (e.g., Microsoft Teams or Google Docs), then in lieu of providing every iteration of a draft document, the filing party may instead provide a statement describing the board member’s access rights.

Plans and Reports

Unlike Transaction-Related Documents (which, as their name implies, relate to the transaction), the requirement to submit “Plans and Reports” applies to ordinary-course business documents that may have no connection to the transaction whatsoever. Importantly, however, the requirement to submit Plans and Reports only applies when the parties identify a competitive overlap in the “Overlap Description” section of the HSR form. When a competitive overlap is identified, then the filer must submit certain ordinary-course documents that analyze market shares, competition, competitors, or markets and that relate to the products or services for which the filing parties have an overlap. Specifically, a responsive Plan or Report must have been:

• Provided to the Board of Directors of an entity on the buyer or seller side within the past year; or
• Provided to the Chief Executive Officer of an entity on the buyer or seller side within the past year, and it must be a document that is regularly prepared annually, semiannually, or quarterly (but not monthly, weekly, irregularly, or on a one-time, limited basis).

Responsive documents that are in a language other than English must be translated.

Comment ces informations sont utilisées

The Business Documents section of the form is arguably the most important part of the entire HSR filing. It often also is the most labor-intensive part of the filing. The Federal Trade Commission and Department of Justice (the Agencies) review Transaction-Related Documents to understand how the parties describe the transaction in competition-related terms. Where the parties have a competitive overlap, the Agencies review Plans and Reports to understand how the parties talk about the industry in the ordinary course of business.

Illustration

The FTC has provided a sample form that includes an illustration of how to report Transaction-Related Documents and Plans and Reports:

Please note that authors and job titles are only required for transactions where the parties identify either a NAICS code overlap, a competitive overlap, or a supply relationship. In such transactions, when a responsive document is prepared by a third-party organization (e.g., an investment bank or consultant), then the filer should identify not only the name of that third-party organization (e.g., “ABC Consulting, LLC”) but also the name and title of the person at the company for whom the document was prepared or who supervised its preparation. In the case of unsolicited documents (e.g., an unsolicited pitch book), it is sufficient to identify the name of the third-party organization without identifying its recipients.

Conseils pratiques

• Generally speaking, if any part of a document is responsive, then the whole document must be produced. Unrelated portions of documents cannot be redacted on the basis of irrelevance (except for board minutes, where the FTC will allow redactions of unrelated content).
• To the extent a responsive document contains content that is subject to the attorney-client privilege or attorney work product doctrine, then the document may be redacted or withheld from production as appropriate. However, in these situations the filer must include a detailed privilege log and must submit any portion of the document that is not privileged.
• Business Documents can include formal documents (like memoranda or presentations) as well as informal documents (like emails and handwritten notes).
• When identifying the date that a document was prepared, it is sufficient to identify a month and year (e.g., “February 2025”) rather than a specific date.
• When identifying the authors of a document, you should identify the principal author(s) by name(s) and job title(s). When a large group of individuals contributed to the creation of the document, it is not necessary to identify every single person who may have had a role.

Questions fréquemment posées

Q. What kinds of documents are the Agencies looking for?

A. The Agencies are looking for documents that will help them understand the competitive effects, if any, of the proposed transaction. There is no one “type” of document the Agencies are looking for, but a non-exhaustive list of documents that filing parties typically provide include a CIM, a “teaser,” one or more management presentations between the parties, investment committee presentations, presentations to the board of directors authorizing the transaction and meeting minutes from same, due diligence analyses, integration plans, and emails and notes relating to any of the above.

Q. What if the “supervisory deal team lead” is already an officer or director? Do I have to designate somebody else as the “supervisory deal team lead” for purposes of the Transaction-Related Documents requirement?

A. The “supervisory deal team lead” is the defined as “the individual who has primary responsibility for supervising the strategic assessment of the deal, and who would not otherwise qualify as a director or officer.” Therefore, if the person who is functionally running the transaction is already an officer or director, then you generally do need to designate one additional person as the “supervisory deal team lead” for purposes of the Transaction-Related Documents requirement. That person should be the one individual who had the primary responsibility for leading the deal team but who is not otherwise an officer or director.

There is an exception for situations where the only persons who were responsible for leading the deal team are already officers or directors. In these cases, there is no need to identify an additional person as the supervisory deal team lead.

Q. Do we need to produce every single “draft” of a responsive Business Document?

A. Generally speaking, only the “final” version of a responsive Business Document needs to be submitted. But there are two exceptions to this rule. First, if a document was never truly “finalized,” then the filer must submit the latest-in-time version of that document that exists at the moment the HSR filing is made, even if it is still considered a “draft.” Second, when a “draft” Transaction-Related Document is shared with a member of the board of directors, then that draft must be submitted unless either (i) that individual simply received the draft by virtue of having access to a collaborative drafting tool (e.g., Microsoft Teams or Google Docs), in which case the party can simply explain as much, or (ii) that individual received the draft document in some different capacity (e.g., if an individual on the deal team happens to be a member of the board of directors for some indirect subsidiary that is not involved in the deal process).

If you have questions about business documents requirements under HRS rules or related issues, contact the authors or your Foley & Lardner attorney. Click here to access all of the Foley Antitrust & Competition Practice Group’s HSR Primers.