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Best Practices In Second Request Document Review: Eliminating the Fear Factor
HSR second requests have become increasingly common in mergers or acquisitions that meet the premerger reporting threshold, which in 2022 was a transaction value of more than $101 million. The burdens of complying with second requests are onerous. The mere thought of undergoing such an exercise tends to strike fear in the heart of the legal department. In this article series, we'll outline the major challenges of second requests, suggest strategies to overcome them, and discuss how to face a second request with equanimity and confidence.
The Hart-Scott-Rodino (HSR) Act established the federal premerger notification program whereby the parties to certain proposed transactions must submit premerger notification to the FTC and DOJ. Premerger notification also comes with ability to submit documents in support of the merger, often called a voluntary submission. Agencies have 30 days to pursue an initial investigation and determine if additional information is need. If the FTC or DOJ seek additional information, they do so via a "Request of Additional Information and Documentary Materials," otherwise known as a "Second Request."
Changing data dynamics have made a monster out of the HSR second request process. Data volumes are doubling approximately every three years, and approximately 80% of corporate data is unstructured, residing outside traditional databases. Currently, corporations deploy more than 100 systems to create content, a number that is growing, and data types are increasingly diverse. For example, businesses are using more collaboration applications rather than email, creating a plethora of new, meaningful content in a variety of locations like collaboration and productivity sites; operational, financial, and human resource management systems; and more.
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