Ascertain the size of the transaction according to the HSR rules and determine whether it meets the reporting threshold. This determination is done differently depending on whether the transaction is a stock or asset deal. Typically, the size of the transaction determination is made by the lawyer assisting with the filing.
Determine the "ulimate parent entity" of each party
Again, using the HSR rules, the "ultimate parent entities" of the acquiring and acquired persons in the transaction must be determined. Typically, the determination of the ultimate parent entities of the parties is made by the lawyer assisting with the filing.
Determine whether the "size of the person" test is met
The size of the ultimate parent entities involved is another threshold determination that must be undertaken in accordance with the HSR rules. Typically, the size of the person determination is made by the lawyer assisting with the filing.
Determine whether exceptions apply
The HSR rules provide for a number of exceptions to the HSR notification filing requirements. The determination of which, if any, exceptions apply, is typically made by the lawyer assisting with the filing.
If notification is required, complete the notification form.
The notification form must be completed and filed with the FTC and DOJ. The form requires the parties to gather and report some detailed financial information. The form is typically completed by the lawyer assisting with the filing working closely with the company's CFO. In addition, the acquiring party must pay a filing fee that ranges from a low of $45,000 to a high of $280,000.
The typical way in which clearance is obtained for the transaction is through the expiration of the waiting period without comment from the regulators. There are other considerations that are best left to discussion with the lawyer assisting with the filing.
Cautionary note and other matters
Hart Scott Rodino compliance is a complex area of the law and truly requires the involvement of a attorney experienced in HSR compliance. This guide is solely meant to provide an overview of the process and should not be relied on in any way to determine whether a filing is required. Fines for violation of the HSR notification requirements can be quite significant. For example, a 2009 matter resulting in a $1.4 million fine. It should also be noted that, in certain circumstances, economists may need to be engaged to assist in the analysis of the transaction in conjunction with the filing an HSR notification.
Additional resources provided by the author
The Federal Trade Commission's HSR website is helpful.