The Merger Review Process: A Step-by-step Guide to U.S. and Foreign Merger Review

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American Bar Association, 2006 - Law - 901 pages
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This comprehensive guide to the process and procedures of merger review at the federal agencies makes the federal review process more comprehensible and accessible to parties and their counsel.
 

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Contents

Chapter I
1
B Overview of the Enforcement Agencies and the Review
22
Chapter V
28
Confidentiality Considerations
32
The SarbanesOxley Act of 2002 and its Implications
46
A Making the Initial Substantive Assessment
52
B Understanding and Explaining the HartScottRodino
60
Determining Whether the Transaction Is Reportable under
67
Resolution Revisions to the National Association of Attorneys General PreMerger Disclosure Compact
6-1
Protocol for Coordination in Merger Investigations between the Federal Enforcement Agencies and State Attorneys
7-1
General
7-7
FTC Organizational ChartDOJ Organizational Chart
7-11
FTC Expertise List by Litigation and Regional Offices
9-1
North American Industry Classification System Codes 101
10-1
Sample Waiver Forms 111
11-1
Sample RetentionConfidentiality Agreement for an Economic Consultant 121
11-21

Valuation of Transactions
73
F Analyzing and Shaping the Parties Contractual Obligations
83
G Preparing the HSR Filing
94
H Prefiling Communications with the Enforcement Agencies
104
J The Role of InHouse Counsel
112
Chapter III
119
B Preclearance Review
127
The Clearance Procedure
134
G Tactical Options Available to Counsel
142
Chapter IV
157
B Potential Alternatives to Full Compliance
175
Substantial Compliance and Compliance Disputes
193
E What the Agency Staff Is Doing While the Parties
204
F What Counsel Can Be Doing beyond Compiling
215
After Responding to the Second Request
223
B Meetings with the Section Chief or Assistant Director after
232
Timing and Extensions
247
Chapter VI
259
Chapter VII
273
B Representing Third Parties Who Receive Compulsory Process
288
Representing Third Parties Wishing to Object to a Merger
295
Chapter VIII
301
B Procedures at the FTC
314
Typical Provisions of Consent Orders
336
b Differences between DOJ and FTC Consent Orders
338
Seeking Federal Trade Commission Approval for Divestiture
342
Seeking Antitrust Division Approval for Divestiture
344
Hold Separate and Asset Maintenance Requirements
345
Trustee Provisions
347
Prior Approval Provisions
349
Order Termination Provisions
351
Clayton Act Sections 7 7a 54
1-7
Sherman Act Sections 1 2 4
3-1
HSR Notification and Report Form and Instructions
4-1
ABAs Guidance for Federal Merger Investigations and Complying with Second Requests
5-1
Sample Contractual Provisions Allocating Risk 131
11-23
Sample Joint Defense Agreement 141
11-25
Sample List of Questions to Client for Completion of an HSR Filing 151
11-27
Sample Section 1746 Declaration 161
11-31
FTCDOJ Clearance Procedure 171
17-15
Model Second Request 191
19-1
Second Request Internal Appeal Procedure 201
19-21
FTCDOJ Announcement on Quick Look Procedure 211
19-23
Identifying Privileged Material and Maintaining Privilege when Complying with Second Requests 221
22-1
Sample Agency Assurance of Protection of Confidential Information 231
23-1
Sample Protective Order 241
24-1
Sample Letter Advising of Substantial Compliance with Second Request 251
24-7
Sample Letter Extending Waiting Period 261
24-9
Sample Letter Setting Deadlines for Antitrust Division Investigation 271
24-11
Sample Letter Containing Notice Agreement 281
24-13
Sample Withdrawal Letter and Agency Response 291
24-15
Sample Letter Waiving Confidentiality to Allow Communications Between Federal Agency and State Attorney General 301
24-17
Sample Letter Waiving HSR Confidentiality for Other Regulatory Agencies 311
24-21
Sample Letters Containing Set and Rolling Extensions 321
24-23
Sample Letter from Compliance Division Following Issuance of Consent Order 331
24-27
Sample 15 U S C 16G Filing 341
24-34
Best Practices on Cooperation in Merger Investigations 351
35-1
Statement of the FTCs Bureau of Competition on Negotiating Merger Remedies 361
36-1
Antitrust Division Policy Guide to Merger Remedies 371
37-1
Merger Review Process Initiative 381
38-1
The Most Frequently Asked HSR Questions 391
38-9
Introductory Guide III to the PreMerger Notification Program 401
40-1
FTC Revised Jurisdictional Thresholds for Section 7 A of the Clayton Act 411
40-25
Horizontal Merger Guidelines 421
43-1
Style Sheet for HSR Filings 441
43-11
Sample Letter Setting Forth the Understandings between the DOJ and the Acquisition Parties 451
43-17
Statement of the FTCs Bureau of Competition on Guidelines for Merger Investigations 461
46-1
FTCs Frequently Asked Questions about Merger Consent Order Provisions 471
47-1
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