This article is co-authored by Daniel Meyers, President of Consulting & Information Governance, and Stefan Nigam, Director of Consulting & Information Governance, at TransPerfect Legal, alongside Patrick English, Partner, and Nathaniel Amann, Associate, at Latham & Watkins.

On October 10, 2024, the Federal Trade Commission (“FTC”) published new and expansive regulations for filing notifications under the Hart Scott Rodino (“HSR”) Act. Among other things, HSR notifications now require the submission of substantially more documents to the Federal Trade Commission and Department of Justice (collectively referred to as the “Agencies”).¹ Further enhancing the complexity of complying with this newly-expanded scope is the continued global transition towards modern working environments, which frequently involve new and unique document types and collaborative work tools. Navigating this new and expansive document environment is likely to present challenges to filing parties. Fortunately, filing parties can substantially lessen the complexities of the new filing requirements by (1) assessing and understanding internal company document systems, (2) implementing systems to rapidly identify relevant information, and (3) if necessary, engaging consultants ahead of time to assist in the collection of relevant documents for filing.

Expanded Document Scope

The revised notification rules require parties to submit an expanded set of documents across multiple fronts, including from a brand-new document custodian. Specifically, the new rules now require:

• Documents from the Supervisory Deal Team Lead: Under the prior rules, transaction-related documents containing competitive content (e.g., discussions of markets, market shares, competition, competitors, sales growth potential, expansion into new geographies and markets, and similar subjects) only had to be disclosed if they were prepared by or for officers or directors of the filing party. The updated rules expand this to also require such documents from the filing party’s “Supervisory Deal Team Lead”, who is the person that “has primary responsibility for supervising the strategic assessment of the deal, and who would not otherwise qualify as a director or officer.”² The filing party must identify this person and undertake a search of his or her documents and electronically-stored information (“ESI”).
• Documents presented to any officer or director: Under the prior rules, draft (i.e., anything less than the final or last version of) transaction-related documents containing competitive content did not have to be submitted. Draft documents were only considered “final” if they were presented to the full board of directors (or equivalent thereof). The new rules clarify that a draft must be submitted if it is presented to any officer or director (even if not the full board). Notably this poses a new challenge for companies where the CEO is also on the board.
• Business plans and reports: The new rules now require that a filing party submit one year’s worth of ordinary-course regularly-prepared (e.g., monthly/quarterly/yearly) business plans and reports provided to the filing party’s CEO containing certain content regarding any product or service that the transaction counterparty also produces or offers. Filing parties must also provide copies of documents with content on overlap products or services that were presented to the board of directors, regardless of whether the documents were “regularly prepared” or not.
• Complete agreements: Filing parties now must submit complete copies of the agreements related to the proposed transaction, “including but not limited to, exhibits, schedules, side letters, agreements not to compete or solicit, and other agreements negotiated in conjunction with the transaction that the parties intend to consummate.”³
• English translations: The new rules require that all submitted foreign-language documents also be translated into English. While the new rules do not “require any particular method of translation,” the Agencies have specified that “whatever translation method the parties choose, all verbatim translations must be readily understood, materially accurate, and complete.”⁴

Practical Considerations for HSR Filings Under the Amended Rules

Given the expanded document requirements of the new HSR rules, planning and implementing the right technology-driven workflows will go a long way towards ensuring efficient compliance with the new rules. Actionable steps that companies can take to effectively prepare for the new rules include:

• Creating and maintaining a data map of the company’s IT systems: Understanding where documents are located will ensure smooth document collection for filings and guard against last-minute discoveries that could create delays. The data map should include “shadow IT” used by specific business units but not monitored by the company’s central IT department (e.g., a marketing team’s Dropbox account that corporate IT is unaware of).
• Understanding company document creation, usage, and storage tendencies: The expanded document requirements make it more important than ever for filers to understand how their company tends to create, use, and store documents. For example, do company employees usually work out of email and Microsoft Office with minimal usage of collaborative tools? Do employees use cloud storage or local storage? Who is usually responsible for presenting documents to the CEO and how often? Having an in-depth understanding of internal document workflows can help to more easily and efficiently identify documents responsive to an HSR filing.
• Creating a centralized corporate repository for transactions and filing-related documents: Well-organized businesses can more easily and efficiently capture the documents required under the new HSR rules with a simple targeted collection if relevant documents are consistently stored in a centralized corporate repository. This may be something as simple as a specific shared folder or a virtual data room. Keep in mind that a repository should be maintained for both transaction-related documents and “plans and reports” provided to the CEO or board.
• Knowing your data sources and how to preserve each source: The Agencies have recently taken a particular interest in document preservation and “have taken steps to update their guidance related to obligations to preserve ephemeral messages and similar communications systems.”⁵ Given this emphasis on preservation, as well as the new HSR rules’ focus on document submission, fully understanding how to preserve the document sources that the company uses will help in ensuring proper compliance.
• Develop a plan for collecting “modern attachments” to emails: Parties that search emails to locate documents for disclosure will likely need to confront the issue of “modern attachments.” Modern attachments are documents that are hyperlinked in emails and chat messages, such as a link to a Google Document or shared drive. These documents may be “live” in the sense that various corporate employees may share and collaborate on these documents simultaneously, creating a library of different “versions” that are stored in hidden locations within the underlying data repository. Email systems have different abilities to capture hyperlinked documents when exporting and/or searching emails, including various capabilities and workflows to extract prior versions of hyperlinked documents, including the version most contemporaneous in time to the date of the underlying message or chat. It is important to understand the capabilities of your system with respect to modern attachments prior to an HSR filing.
• Adjust collection timeline consistent with new HSR requirements: The time required to preserve, collect, search, and disclose the required documents under the new rules is likely to be materially longer than under the prior regime. Deal contracts should account for this likely-extended timespan in their HSR-related provisions.

¹The Agencies estimate that the new scope of required information will result in an average of 68 additional hours in preparation time, resulting in an increased cost of $39,644 per filer per HSR notification (applying a blended hourly rate of $583/hour). Statement of Basis and Purpose (“SBP”) at 127-128, 381-82.
²Statement of Basis and Purpose at 202–04.
³Id. at 436. This requirement also extends to letters of intent, which, depending on the comprehensiveness of the letter, may require the submission of additional documents detailing the agreement to be undertaken.
⁴Id. at 192.
⁵Id. at 366. The Agencies provided language in the Model Second Request to reflect document production and retention obligations for these communication systems. See https://www.ftc.gov/system/files/ftc_gov/pdf/Final-Rev-Model-Second-Request-01-26-2024.pdf.