Second request (law)
Encyclopedia
In United States antitrust law, a second request is a discovery
procedure by which the Federal Trade Commission
and the Antitrust Division
of the Justice Department
investigate mergers and acquisitions
which may have anticompetitive
consequences.
, before certain mergers
, tender offer
s or other acquisition transactions can close, both parties to the deal must file a "Notification and Report Form" with the Federal Trade Commission
(FTC) and the Assistant Attorney General
in charge of the Antitrust Division
.
If either the FTC or the Antitrust Division has reason to believe the merger will impede competition in a relevant market
, they may request more information by way of "Request for Additional Information and Documentary Materials", more commonly referred to as a "Second Request".
s representing parties to a transaction in which a second request has been issued often must hire contract attorney
s to review all the documents involved
.
Parties to a transaction who feel that the second request is unnecessary or needlessly duplicative of information discovered earlier may appeal to either the FTC or the Antitrust Division (whichever agency issued the request).
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
procedure by which the Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
and the Antitrust Division
United States Department of Justice Antitrust Division
The United States Department of Justice Antitrust Division is responsible for enforcing the antitrust laws of the United States. It shares jurisdiction over civil antitrust cases with the Federal Trade Commission and often works jointly with the FTC to provide regulatory guidance to businesses...
of the Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
investigate mergers and acquisitions
Mergers and acquisitions
Mergers and acquisitions refers to the aspect of corporate strategy, corporate finance and management dealing with the buying, selling, dividing and combining of different companies and similar entities that can help an enterprise grow rapidly in its sector or location of origin, or a new field or...
which may have anticompetitive
Competition (economics)
Competition in economics is a term that encompasses the notion of individuals and firms striving for a greater share of a market to sell or buy goods and services...
consequences.
Legal basis
Under the Hart-Scott-Rodino Antitrust Improvements ActHart-Scott-Rodino Antitrust Improvements Act
The Hart–Scott–Rodino Antitrust Improvements Act of 1976 is a set of amendments to the antitrust laws of the United States, principally the Clayton Antitrust Act. The HSR Act was signed into law by President Gerald R. Ford on September 30, 1976...
, before certain mergers
Mergers and acquisitions
Mergers and acquisitions refers to the aspect of corporate strategy, corporate finance and management dealing with the buying, selling, dividing and combining of different companies and similar entities that can help an enterprise grow rapidly in its sector or location of origin, or a new field or...
, tender offer
Tender offer
Tender offer is a corporate finance term denoting a type of takeover bid. The tender offer is a public, open offer or invitation by a prospective acquirer to all stockholders of a publicly traded corporation to tender their stock for sale at a specified price during a specified time, subject to...
s or other acquisition transactions can close, both parties to the deal must file a "Notification and Report Form" with the Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
(FTC) and the Assistant Attorney General
United States Assistant Attorney General
Many of the divisions and offices of the United States Department of Justice are headed by an Assistant Attorney General.The President of the United States appoints individuals to the position of Assistant Attorney General with the advice and consent of the Senate...
in charge of the Antitrust Division
United States Department of Justice Antitrust Division
The United States Department of Justice Antitrust Division is responsible for enforcing the antitrust laws of the United States. It shares jurisdiction over civil antitrust cases with the Federal Trade Commission and often works jointly with the FTC to provide regulatory guidance to businesses...
.
If either the FTC or the Antitrust Division has reason to believe the merger will impede competition in a relevant market
Relevant market
In competition law the Relevant market defines the market in which one or more goods compete. Therefore, the Relevant market defines whether two or more products can be considered substitute goods and whether they constitute a particular and separate market for competition analysis.The relevant...
, they may request more information by way of "Request for Additional Information and Documentary Materials", more commonly referred to as a "Second Request".
Substance of request
A typical second request asks to gather information about the sales, facilities, assets, and structure of the businesses which are party to the transaction. This frequently requires a large amount of documents to be produced, and law firmLaw firm
A law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients about their legal rights and responsibilities, and to represent clients in civil or criminal cases, business transactions, and other...
s representing parties to a transaction in which a second request has been issued often must hire contract attorney
Contract attorney
A contract attorney works on legal cases on a contract basis. Such work is generally of a temporary nature, often with no guaranteed employment term.A contract attorney is-Civil litigation:...
s to review all the documents involved
Document review
Document review is a task performed by attorneys in anticipation of legal proceedings or during the discovery phase of litigation. Document review requires the attorneys to assess the relevance and/or responsiveness of documents, using knowledge about the facts of the case and the issues of law...
.
Parties to a transaction who feel that the second request is unnecessary or needlessly duplicative of information discovered earlier may appeal to either the FTC or the Antitrust Division (whichever agency issued the request).
External links
- Federal Trade Commission Introductory Guide to Pre-Merger Notification Procedures
- Article from Cooley Godward Kronish about reforms to the Second Request process