DOJ/FTC Antitrust Highlights
Hart Scott Rodino Filings May Now be Done Electronically, if not Easily
· On June 20, 2006, the Antitrust Division and the Federal Trade Commission ("FTC") issued press releases announcing that parties could now file the Notification and Report Form for Certain Mergers and Acquisitions along with the supporting documentation electronically. This leaves parties with three options when filing their Hart Scott Rodino notifications: 1) the traditional hard copies, 2) an electronic form and electronic documents or 3) electronic form but paper documents. Due to the security requirements, however, filing electronically may not significantly decrease the amount of time needed for an HSR filing.
Under the prior filing rules, parties in a transaction had to make 5 copies of the filing and the supporting documentation: an original copy, one copy for the FTC, and 3 copies for the Department of Justice. In addition, these files had to be delivered to the FTC and the Antitrust Division in Washington, D.C., further increasing the costs of filing. Under the new regulations, however, parties may submit the forms through the website, https://www.hsr.gov, after downloading the appropriate programs. In addition, the affidavits required for the filing may be submitted electronically as well.
A major impediment to filing the forms electronically had been the privacy concerns of the parties. As the regulation and press releases noted, most of the documents contained in a filing are highly confidential. To ensure the privacy of the forms submitted, parties must download a certificate from the External Certification Authority ("ECA"). Obtaining an ECA certificate can take a while, though, as the ECA certificate request must be signed, notarized, and mailed to VeriSign, Inc., along with a copy of the two forms of identification used to obtain notarization. Once the ECA certificate is approved, it may be downloaded to the computer that will be used to submit the forms. Although the person submitting the notification form will receive an email acknowledging receipt of the form, the beginning of the waiting period is still the date on the notification letter from the reviewing agency.
These changes, although allowing for electronic filing, still require parties to plan the filing ahead of time, due to the delay in obtaining an ECA certificate. Because the certificate must match the name on the affidavits, each client in a transaction will have to obtain a certificate. The FTC did note that it would be easier just to issue certificates to the lawyer, so a lawyer could use a single certificate to do filings for multiple clients, but said that this had not been worked out, due to security requirements.
Although the changes could potentially save the costs of copying and delivering the filings, it does impose other financial and logistical constraints on the parties. In addition to the cost of the ECA certificate, $150.00, the parties will have to submit the form and the documents through the one computer that has the ECA certificate, and that will have to be the computer of the party signing the affidavit. Whether electronic filing's advantages over traditional filing outweighs its difficulties remains to be seen.
Authored by:
Christopher Bowen
202-772-5384
cbowen@sheppardmullin.com
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