The AT&T-Time Warner Merger and a Hart-Scott-Rodino Update

Updates and speculation regarding the forthcoming merger between AT&T and Time Warner have dominated the recent news cycle. Many pundits and business professionals have debated whether a vertical merger of such magnitude will survive regulatory scrutiny. The transaction will be reviewed by the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) as per the Hart-Scott-Rodino (“HSR”) Antitrust Improvements Act of 1976 (the “Act”).

The Act requires that parties who are planning to complete certain mergers, acquisitions, and transfers of assets or securities make a comprehensive filing with the FTC and the DOJ. The parties may not finalize the transaction until a determination is made by the agencies as to whether the transaction will negatively influence United States commerce in violation of antitrust laws. Parties may complete due diligence and make plans for post-transaction activities during the agencies’ review.

Effective as of September 1, 2016, the FTC, with the concurrence of the DOJ, adopted new standards concerning HSR filings which are meant to make the process easier and more efficient for filers.

With the new changes, the FTC has authorized filers to make HSR filings by submitting a DVD containing the filing. Filers will retain the option to submit a paper filing, but may not file on any other format, including CDs, flash drives, or SD cards. The filer should submit two DVDs to the FTC and two DVDs to the DOJ for review. If the DVD contains a virus or is either encrypted or password-protected, the submission will be rejected. Any errors with the DVD or the files on the DVD will require a replacement DVD. The DVD filing must include paper copies of the cover letters, original affidavits, and certification pages. All other documentation must be submitted on the DVD if the filer wishes to file by DVD, as there is not an option to file a combination DVD/paper filing.

Additionally, the FTC updated the instructions that apply to the HSR form. While some of the updates relate to filing by DVD, most were implemented in order to streamline the instructions and make them less complicated for filers. The form itself is not affected by these amendments.

The FTC vote to publish the Federal Register Notice was unanimous at 3-0. The Federal Register Notice and the new instructions to the form may be viewed at the following link.

To expedite review, the FTC encourages filers to follow the recommendations located on the “Style Sheet.”