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Federal Trade Commission (FTC) Update*
Background Note: As highlighted in the recent blog post, “Making the Second Request Process Both More Streamlined and More Rigorous During this Unprecedented Merger Wave” by Holly Vedova, the new director of the Bureau of Competition, the Hart-Scott-Rodino (HSR) Act requires that companies provide the FTC and Department of Justice with advance notice of certain transactions above a certain threshold to provide the agencies 30 days to pursue an initial investigation and to determine whether additional information is needed to assess the legality of the transaction. If the FTC or DOJ seeks additional information through what is known as a “second request,” the law forbids merging firms from consummating a transaction until the companies have substantially complied with the additional investigatory request. When the FTC issues a second request, FTC staff typically engage in negotiations with merging companies to tailor the search scope to meet the specific needs of the investigation and to consider modifications requested by the companies under investigation. The blog post goes on to share that the FTC anticipates revising the Model Second Request that is posted on its website to reflect recent changes ranging from the requirement of each company under investigation to provide information on how it intends to use eDiscovery tools before it applies those tools to identify responsive materials, to the need for full vs. partial privilege logs. Provided below is the anticipated update to the Model Second Request now published by the FTC.
Model Request for Additional Information and Documentary Material (Second Request)
October 2021 Update
Introductory Guide III Oct 2021 Model Second Request
Additional Reading
- An Abridged Look at the Business of eDiscovery: Mergers, Acquisitions, and Investments
- Hart-Scott-Rodino Act Transaction Updates
Source: ComplexDiscovery
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