When submitting a Hart-Scott-Rodino (“HSR”) Premerger Notification and Report Form and documentary attachments, parties are required to include what are known as “4(c) documents” and “4(d) documents.” Under the HSR requirements, 4(c) documents are “all studies, surveys, analyses and reports which were prepared by or for any officer(s) or director(s) (or, in the case of unincorporated entities, individuals exercising similar functions) for the purpose of evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into product or geographic markets.”

Recognizing that the broad description above of 4(c) documents may be subject to multiple interpretations, the Federal Trade Commission (“FTC”) created a “Tip Sheet” to help parties identify 4(c) documents. The Tip Sheet provides guidance on when ordinary course documents would become a 4(c) document, how emails should be treated, and when and if a draft document needs to be included as a 4(c) document. That guidance also applies to 4(d) documents.

Documents that are 4(d) documents include confidential information memoranda as well as documents analyzing the transaction (as described above), created by third-party consultants. The FTC guidance for 4(d) documents provides insight into the interplay between 4(c) and 4(d) documents, including when a 4(d) document may also be a 4(c) document. The FTC periodically updates and modifies its guidance on 4(c) and 4(d) documents, so reviewing the current guidance when preparing for an HSR filing can be instructive.

* * *

For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte:

E. John Steren
Member of the Firm
esteren@ebglaw.com

Patricia Wagner
General Counsel / Chief Privacy Officer
pwagner@ebglaw.com

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.