Checklist · Antitrust

Filing an HSR Notification: A Practical Checklist

15 U.S.C. § 18

Type: Checklist
Jurisdiction: National
Date: 2024-10-25
Topic: Antitrust

Hart-Scott-Rodino premerger notification is a strict-liability regime: if a deal is reportable and you do not file, the parties face civil penalties that accrue every single day the transaction sits unreported, and the government can unwind the deal. This checklist walks the filing team through the sequence that actually matters — testing reportability under the size-of-transaction and size-of-person tests, identifying the ultimate parent entity on each side, valuing the deal and aggregating existing holdings, screening the exemptions, assembling the Notification and Report Form, and running the Item 4(c) and 4(d) document collection that the agencies read first and remember longest. It then covers computing the tiered filing fee, timing the filing against the deal calendar, coordinating with the merger agreement's efforts clause and outside date, preparing for a Second Request, staying inside the gun-jumping lines before closing, and sequencing foreign merger control filings. Every phase ends with a plain-English explanation of why it matters and where filing teams go wrong. HSR thresholds, fee tiers, and the content of the form itself change — the form was substantially expanded in the 2024 rulemaking that took effect in 2025 — so verify current requirements with the FTC's Premerger Notification Office before you file.

Filing an HSR Notification: A Practical Checklist

Antitrust > Merger Review | Published 25 October 2024 - Updated 3 March 2026 | UpLaw - uplaw.us

HSR is not a merits test. It is a tollgate. The government does not ask whether your deal is a good idea — it asks whether you told them about it, on the right form, with the right documents, before you closed. Get that wrong and the penalties run by the day.

Keywords: HSR filing, Hart-Scott-Rodino, premerger notification, size-of-transaction test, ultimate parent entity, Item 4(c) documents, HSR exemptions, filing fee tiers, waiting period, second request, gun-jumping, pull and refile, timing agreement

How to use this checklist

Work the phases in order. Phases 1 through 4 answer a single question — must we file? — and that question has to be answered before anyone drafts a form, because the answer drives the deal timeline, the merger agreement's conditions, and the fee. Phases 5 through 8 build the filing. Phases 9 through 13 manage what happens after it goes in.

The doctrinal background — what Clayton Act § 7 actually prohibits, how the agencies define markets, what makes a merger anticompetitive — lives in Merger Review and HSR Clearance: A Comprehensive Guide and Antitrust Law: A Comprehensive Guide to the Sherman, Clayton, and FTC Acts. This document assumes you have a deal and need to file.

A standing warning, repeated because filing teams keep getting burned by it: the HSR jurisdictional thresholds and the filing-fee tiers are adjusted every year, and the Notification and Report Form itself was substantially expanded by an FTC rulemaking finalized in October 2024 and effective in February 2025. Nothing in this checklist should be used as a source for a current dollar figure. Pull the operative thresholds and fee schedule from the FTC's Premerger Notification Office (PNO) before you run the tests.

Our worked example. Vantage Ridge Industrial, a privately held maker of hydraulic components, agrees to buy 100% of the equity of Copperline Fluid Systems for $150 million in cash. Vantage Ridge is owned by a family holding company; Copperline is owned by a private equity fund. We will follow them through the filing.

Phase 1 — Is the transaction reportable? Run the size-of-transaction and size-of-person tests

[ ] Confirm the transaction is an acquisition of voting securities, non-corporate interests, or assets — the three things HSR reaches (15 U.S.C. § 18a(a); 16 C.F.R. § 801.1).
[ ] Run the size-of-transaction test: is the value of the voting securities, non-corporate interests, and assets the acquiring person will hold as a result of the deal above the current threshold? The statutory base is $50 million, adjusted annually to GNP (15 U.S.C. § 18a(a)(2)(B)(i)); the operative figure is now well north of $100 million.
[ ] If the transaction exceeds the higher statutory threshold — base $200 million, as adjusted (15 U.S.C. § 18a(a)(2)(A)) — stop testing size-of-person. The deal is reportable regardless of the parties' size.
[ ] If the deal falls between the two thresholds, run the size-of-person test: one person must have total assets or annual net sales of at least the adjusted $100 million base, and the other at least the adjusted $10 million base.
[ ] Confirm the commerce test is met (the parties are engaged in or affect commerce). In practice this is almost always satisfied.
[ ] Pull the party financials you will actually rely on: the last regularly prepared annual balance sheet and the last regularly prepared annual income statement of each ultimate parent entity (16 C.F.R. § 801.11).
[ ] Diary the date the current thresholds were published and the date they will next be revised. A deal that signs in December and closes in March may be tested against two different threshold sets.

Why it matters, and the traps. HSR liability is strict. Section 18a(g)(1) authorizes a civil penalty for each day a person is in violation — failing to file, or closing before the waiting period expires — and the per-day maximum is itself inflation-adjusted upward every year. There is no "we didn't realize" defense, and the FTC has repeatedly extracted eight-figure settlements from sophisticated investors who convinced themselves a filing was unnecessary.

The traps cluster in three places. First, teams test the purchase price rather than the value of what will be held as a result — a distinction that matters enormously when the buyer already owns a stake (Phase 3). Second, they use the wrong financials: the size-of-person test runs on the last regularly prepared annual statements of the ultimate parent, not a deal model, not a pro forma, and not a stub-period statement prepared for the transaction. Third, they test once and never retest, even though the thresholds move each year and the deal value can move with an earnout or a price adjustment.

Vantage Ridge: at $150 million, the deal clears the size-of-transaction threshold. Because it does not exceed the higher adjusted $200 million threshold, size-of-person still matters — and it is met, because the Copperline fund's portfolio easily exceeds the adjusted $100 million figure while Vantage Ridge's balance sheet exceeds the adjusted $10 million figure. Reportable.

Phase 2 — Identify the ultimate parent entity (UPE) on each side

[ ] For each side, walk the ownership chain upward until you reach an entity or natural person not controlled by anyone else. That is the UPE (16 C.F.R. § 801.1(a)(3)).
[ ] Apply the correct control test. For a corporation: holding 50% or more of the voting securities, or the contractual power to designate 50% or more of the directors. For an unincorporated entity (LLC, LP, partnership): the right to 50% or more of the profits, or 50% or more of the assets on dissolution (16 C.F.R. § 801.1(b)).
[ ] Remember that a natural person can be a UPE, and that person's UPE includes their spouse and minor children's holdings.
[ ] For fund structures, identify the correct fund-level UPE — not the management company, unless the management company actually controls the fund under § 801.1(b).
[ ] Determine whether the acquiring person and acquired person are the same person (an intraperson transaction), which is exempt under 16 C.F.R. § 802.30.
[ ] Map every entity the UPE controls; that whole "person" is what files, and what gets aggregated.

Why it matters, and the traps. HSR does not care about the entity signing the purchase agreement. It cares about the person — a defined term meaning the UPE and everything it controls. The UPE files, the UPE certifies, the UPE's revenues and assets are tested, and the UPE's other holdings are aggregated. Get the UPE wrong and every downstream number is wrong.

The two recurring traps: (1) a special-purpose acquisition vehicle is named as the filing person when the real UPE is a fund or a family holding company two levels up; and (2) an entity that is not controlled by anyone — a widely held LLC where no member has 50% of profits — is its own UPE, which surprises deal teams who assume the sponsor is on the hook. Where a natural person is the UPE, the filing exposes personal financial information that clients rarely anticipate. Flag that early.

Vantage Ridge: the acquiring person is the family holding company, not the newly formed merger sub. The acquired person is the private equity fund, not Copperline itself.

Phase 3 — Value the transaction and aggregate existing holdings

[ ] Determine the acquisition price if it is determined. If it is not determined, the UPE's board (or its delegee) must make a good-faith determination of fair market value (16 C.F.R. § 801.10).
[ ] Document the board's valuation determination in a resolution or written consent. Keep the record. See Board Governance, Minutes, and Corporate Formalities: A Practical Checklist for how to paper it.
[ ] Include everything the buyer is giving: cash, stock, assumed liabilities that count under the rules, and (where applicable) contingent consideration. Contingent payments and earnouts are notoriously fact-specific — confirm treatment with the PNO if they move the deal across a threshold.
[ ] Aggregate voting securities of the same issuer the buyer already holds with what it is acquiring (16 C.F.R. § 801.13). The test is what the buyer will hold as a result of the acquisition.
[ ] For assets, aggregate assets acquired from the same acquired person within the prior 180 days (16 C.F.R. § 801.13(b)(2)).
[ ] Identify which notification threshold you are crossing for voting securities (the adjusted $50M, $100M, $500M, 25%, and 50% tiers under 16 C.F.R. § 801.1(h)) — this drives both the fee and the five-year effectiveness of your filing under § 802.21.
[ ] Consider whether secondary acquisitions — minority stakes in other issuers held by the target — are separately reportable (16 C.F.R. § 802.4 and § 801.4).

Why it matters, and the traps. "As a result of" is the phrase that catches people. A hedge fund that already owns 8% of an issuer and buys another 3% is tested on the full 11% it will hold, not on the incremental purchase. The same logic sweeps in creeping acquisitions, open-market purchases, and stock issued on conversion.

The board-valuation rule is a second trap. Where price is undetermined — an asset deal with a formula price, a stock-for-stock deal — the board must value the deal in good faith, and it must do so within 60 days before filing. A CFO's spreadsheet is not a board determination. If the deal is later challenged as unreported, that missing resolution is the first document the agency asks for.

Vantage Ridge: the price is determined ($150 million, all cash, no assumed debt above the line), and Vantage Ridge holds nothing in Copperline today. No aggregation issue. Valuation is simple — which is exactly why nobody documents it. Document it anyway.

Phase 4 — Screen the exemptions before you file

[ ] Run the transaction against 16 C.F.R. Part 802 systematically. Do not stop at the first plausible exemption; several can apply, and several look like they apply and do not.
[ ] § 802.1 — acquisitions of goods or realty in the ordinary course of business. Narrow. It does not cover the acquisition of an operating business.
[ ] § 802.2 — certain realty (new facilities, unproductive real property, office and residential property, hotels, recreational land).
[ ] § 802.4 — acquisitions of voting securities of an issuer whose non-exempt assets are below the threshold.
[ ] § 802.9 — the "investment-only" exemption: 10% or less of an issuer's voting securities, held solely for investment. Treat this as a trap, not a safe harbor (below).
[ ] § 802.30 — intraperson transactions. § 802.35 — employee trusts. § 802.63 — bona fide credit transactions and acquisitions by creditors in a workout or foreclosure.
[ ] §§ 802.50–802.51 — acquisitions of foreign assets and foreign issuers with insufficient U.S. sales or assets.
[ ] § 802.64 — acquisitions by certain institutional investors of 15% or less.
[ ] If the exemption is close, get a PNO informal interpretation. Memorialize the call, the staff member, and the answer — but understand what you are getting (below).
[ ] If you conclude the deal is exempt, write the memo. Six years later, that memo is the only thing standing between the client and a per-day penalty claim.

A word on what a PNO interpretation is worth. Informal interpretations are exactly that: informal. They are staff views, not rules, not adjudications, and not binding on the FTC, on the DOJ, or on a court. They are enormously useful — the PNO's accumulated interpretations are the working law of reportability, and a documented, good-faith reliance on staff guidance is powerful mitigation in a penalty proceeding. But they are not immunity, and they are not law. That distinction has sharpened: courts no longer defer to an agency's interpretation of an ambiguous statute simply because the agency offered one. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), overruled Chevron and restored de novo judicial interpretation of statutes, leaving agency views to earn only the persuasive weight their reasoning deserves under Skidmore v. Swift & Co., 323 U.S. 134 (1944). The practical upshot for HSR is modest but real: the Part 801–803 rules themselves are legislative rules adopted under an express grant of rulemaking authority in 15 U.S.C. § 18a(d) and remain binding, but staff-level glosses on those rules are guidance you rely on with your eyes open. Document the reliance; do not treat it as a shield.

Why it matters, and the traps. The exemptions are where confident lawyers lose money. The investment-only exemption under § 802.9 is the classic example: it requires not just a stake at or below 10% but a genuine passive intent, and the agencies have taken the position that an acquirer forfeits it by doing the things activists do — proposing board candidates, meeting management to press for a sale, communicating with other shareholders about strategic alternatives. Enforcement actions against activist funds that relied on § 802.9 while working to influence a target's basic business decisions have produced multimillion-dollar settlements, including an eight-figure payment by a well-known activist fund in 2016 over stakes it accumulated while advocating for a merger. If your client is doing anything other than watching the stock price, the exemption is gone.

The foreign exemptions are the other minefield. They turn on U.S. sales attributable to the foreign assets or issuer, not on where the seller is incorporated. A German target with a substantial U.S. distribution business is reportable.

Vantage Ridge: Copperline is a domestic operating business acquired for its business, not in the ordinary course. No exemption fits. File.

Phase 5 — Assemble the Notification and Report Form

[ ] Confirm you are working from the current form. The FTC's 2024 rulemaking (effective February 2025) substantially expanded the filing, adding narrative descriptions of the transaction and of competitive overlaps and supply relationships, expanded ownership and minority-holder disclosure, prior-acquisitions reporting, and broader document requirements. Do not reuse a pre-2025 template.
[ ] Prepare the form on the FTC's electronic filing platform; both the acquiring person and the acquired person file (16 C.F.R. Part 803).
[ ] Compile revenues by NAICS code for the required reporting years, on both the acquiring and acquired sides, and reconcile them to audited financials.
[ ] Identify overlaps and supply relationships honestly, in the narrative the new form demands. This is the section the agency staff reads first.
[ ] List prior acquisitions as required — the rollup history the agencies now use to assess serial acquisition strategies.
[ ] Attach the required balance sheets and financial statements (16 C.F.R. § 803.2, § 803.5(a) sub-items).
[ ] Execute the affidavit (16 C.F.R. § 803.5) attesting to a good-faith intention to complete the transaction — for a non-tender-offer deal, that means an executed agreement or at least a letter of intent with enough specificity.
[ ] Execute the certification (16 C.F.R. § 803.6) by an officer or director of the UPE, or an authorized individual. It is signed under penalty of perjury.
[ ] Have the certifying officer actually read the form. This is not a formality; it is a criminal-exposure document. See White-Collar Crime and Corporate Criminal Liability: A Comprehensive Guide.

Why it matters, and the traps. The form is a sworn statement to two federal law enforcement agencies. A false or incomplete HSR filing is not a paperwork problem; 15 U.S.C. § 18a(g)(2) authorizes injunctive relief for non-compliance, and false statements to a federal agency carry their own criminal exposure. Meanwhile the post-2025 form is dramatically more burdensome than its predecessor — the narrative and overlap sections in particular require the deal team to characterize competition in writing, in a document adverse counsel may one day read.

The operational trap is scheduling. Under the old form, a straightforward filing could be assembled in a week. Under the current form, the NAICS reconciliation, the prior-acquisitions history, and the narratives routinely take three to five weeks for a mid-market deal. Build that into the signing-to-filing covenant, not into your weekend.

Phase 6 — Item 4(c) and 4(d) documents: the deal documents the agencies actually read

[ ] Collect Item 4(c) documents: all studies, surveys, analyses, and reports prepared by or for any officer or director (or, for unincorporated entities, individuals exercising similar functions) for the purpose of evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, or potential for sales growth or expansion into product or geographic markets.
[ ] Collect Item 4(d) documents in three buckets: (1) confidential information memoranda relating to the transaction; (2) studies, surveys, analyses, and reports prepared by third-party advisors (investment bankers, consultants) for officers or directors that address competition, competitors, markets, or growth; and (3) synergy and efficiency documents prepared by or for officers or directors.
[ ] Apply the correct lookback periods for the Item 4(d) sub-items (generally one year prior to filing) and confirm the current form's requirements — they changed.
[ ] Search the files of the deal team lead and supervisory personnel as the current form requires, not just the board book folder.
[ ] Search email, chat, Slack/Teams, and personal drives of custodians. Responsiveness turns on content and authorship, not on where a file is stored.
[ ] Do not withhold a responsive document because it is embarrassing. Privilege is not a defense to Item 4(c) production for a business document; a genuinely privileged legal memo may be a different matter, but the categories are narrow and the agencies police them.
[ ] Produce drafts where they are responsive and were seen by an officer or director. A "final only" collection is a classic misstep.

Why it matters, and the traps. Item 4(c) is the single most consequential item on the form. Merger challenges are built on the parties' own words — the banker deck describing the target as "our most disruptive competitor," the board memo projecting a "price umbrella" after the deal, the synergy model that quantifies the pricing power the combination creates. A single sentence in a single slide can convert a clean filing into a Second Request.

The trap is the definition's breadth. "Prepared by or for" an officer or director sweeps in materials the officer never asked for. "For the purpose of evaluating or analyzing the acquisition" sweeps in documents drafted before the target was even identified, if they analyze the acquisition once it exists. And the discipline required is a document-collection discipline, not a drafting one.

Vantage Ridge: the collection turns up a management deck from six weeks before signing, sent to Vantage Ridge's CEO, with a slide headed "Rationalize overlapping SKUs; recapture pricing in the OEM channel." That is a hot Item 4(c) document. It is responsive. It goes in. What Vantage Ridge can do is prepare — assemble the countervailing evidence (the deck was a sales pitch, not a business plan; the OEM channel has four other credible suppliers; the pricing "recapture" is a cost story, not a market-power story) and be ready to explain it in the first agency call rather than in a motion for preliminary injunction eighteen months later.

Phase 7 — Document collection discipline and the "hot documents" problem

[ ] Issue a document preservation notice to all deal custodians as soon as a filing is contemplated. See Issuing a Litigation Hold and Preserving ESI: A Practical Checklist.
[ ] Train the deal team, before the deal starts, on how to write about competition. Deal documents should describe the business rationale in the language of the business — cost, capability, customers, capacity — not in the language of market share and price increases.
[ ] Run a privileged pre-filing document review to find the hot documents before the agency does.
[ ] Build a privilege log discipline now; if a Second Request follows, you will need it. See Building a Privilege Log: A Practical Checklist.
[ ] Prepare a document defense memo: for each hot document, the author, the audience, the context, and the answer.
[ ] Never edit, backdate, or "clean up" a responsive document. That is obstruction, and it is how a civil merger review becomes a criminal referral.

Why it matters, and the traps. Antitrust counsel earns their fee in the eighteen months before the deal, by teaching the client's commercial team not to write the sentence that kills the transaction. The advice generalizes far beyond merger control — it is the same hygiene taught in Antitrust Compliance: A Practical Checklist.

Phase 8 — Compute and pay the filing fee (tiered and adjusted annually)

[ ] Determine the fee tier from the size of the transaction as valued in Phase 3. The Merger Filing Fee Modernization Act of 2022 replaced the old three-tier structure with a six-tier schedule, and the tiers and amounts are adjusted annually.
[ ] Confirm the current fee schedule with the PNO. Do not rely on last year's number or on this checklist.
[ ] Remember the acquiring person pays the fee (absent contrary agreement), and that the merger agreement should say who ultimately bears it.
[ ] Wire the fee per current PNO instructions and confirm receipt — the waiting period does not begin until the fee is received.
[ ] For multi-step or multi-threshold acquisitions, confirm whether an additional fee is owed on crossing a higher notification threshold.

Why it matters, and the traps. The fee is the most mechanical item on this list and it still delays deals, because the clock does not start on the day you upload the form; it starts when the fee lands. A wire sent Friday afternoon that settles Monday costs you a business day of a 30-day waiting period, and on a deal with a tight outside date, business days are the currency you have least of. Allocate the fee in the merger agreement — see The Commercial Contracts Toolkit: Drafting, Reviewing, and Enforcing Business Agreements for how cost-allocation covenants are drafted — and wire early.

Phase 9 — File, and start the waiting period; timing and pull-and-refile strategy

[ ] File both sides through the FTC's electronic system, on the same day where possible.
[ ] Calendar the waiting period: 30 days for most transactions; 15 days for cash tender offers and for acquisitions out of a bankruptcy estate under 11 U.S.C. § 363(b) (15 U.S.C. § 18a(b)(1)).
[ ] Confirm expiration mechanics: if the waiting period would expire on a weekend or federal holiday, it runs to the next business day.
[ ] Do not assume early termination will be available. The FTC suspended the routine grant of early termination in February 2021; confirm the current practice before you promise a client a short clock.
[ ] Watch for the "pull-and-refile" decision (16 C.F.R. § 803.12): the acquiring person may withdraw and refile without a new fee, restarting a fresh 30-day period. Use it when the staff signals that more time will avoid a Second Request.
[ ] Track the filing's effectiveness window: for voting securities, a filing generally permits acquisitions up to the notified threshold for five years (16 C.F.R. § 802.21); for assets, the filing supports a closing within one year.
[ ] Open a channel with the staff. A voluntary white paper and an early call are often worth more than a perfect form.

Why it matters, and the traps. The pull-and-refile is the single most useful lever in HSR practice and the most misunderstood. It is not an admission of weakness; it is a purchase of thirty more days of staff investigation in exchange for avoiding the crushing burden of a Second Request. The trap is deciding too late — a pull-and-refile made on day 28 while the staff is already drafting a Second Request buys nothing.

Phase 10 — Coordinate with the merger agreement: efforts clauses, outside date, ticking fee

[ ] Negotiate the efforts standard for antitrust clearance: "commercially reasonable efforts," "reasonable best efforts," or a full "hell-or-high-water" covenant obligating the buyer to divest whatever is required.
[ ] Specify who controls the antitrust strategy — who talks to the agencies, who decides whether to litigate, who decides whether to offer a remedy.
[ ] Set a realistic outside date with automatic extensions tied to a Second Request.
[ ] Consider a reverse termination fee or a ticking fee that compensates the seller for a long review.
[ ] Build a covenant requiring the parties to file within a fixed number of business days after signing (10 business days is a common formulation).
[ ] Address who pays the filing fee and who bears Second Request compliance costs.
[ ] Align the antitrust condition with the rest of the deal — see Mergers and Acquisitions: A Comprehensive Guide from Letter of Intent to Closing and The Mergers and Acquisitions Toolkit.

Why it matters, and the traps. Delaware courts take regulatory efforts covenants seriously and read them for what they say. In Akorn, Inc. v. Fresenius Kabi AG (Del. Ch. 2018, aff'd Del. 2018), the Court of Chancery parsed the parties' covenants closely in deciding whether a buyer could walk — a reminder that "reasonable best efforts" is a real obligation with content, not deal-lawyer throat-clearing. The party that agreed to hell-or-high-water and then refuses to divest is in breach, and the party that agreed to a bare "commercially reasonable efforts" standard cannot force its counterparty to fight the government.

The trap is that the antitrust covenant is usually drafted by M&A counsel at 2 a.m. and read for the first time by antitrust counsel after signing. Get antitrust counsel into the covenant before signature. The diligence that informs that covenant — overlap mapping, customer concentration, market-share estimates — is the same work described in Conducting Merger and Acquisition Due Diligence: A Practical Checklist.

Phase 11 — Prepare for a Second Request and negotiate a timing agreement

[ ] Understand the mechanism: the agency may issue a Request for Additional Information and Documentary Material — a Second Request — which suspends the waiting period until both parties substantially comply (15 U.S.C. § 18a(e)).
[ ] Know the post-compliance clock: 30 days after substantial compliance (10 days for a cash tender offer or § 363(b) sale).
[ ] Immediately negotiate a timing agreement: the parties get modifications and narrowing of the Second Request; the agency gets a commitment not to close for a set number of days after certification of compliance, plus depositions and advance notice.
[ ] Negotiate custodian counts, date ranges, and search terms. This is the entire cost of the exercise.
[ ] Stand up an e-discovery workflow — collection, processing, TAR/analytics, review, privilege log, production specifications. The mechanics are the same as civil discovery; see Responding to Rule 34 Document Requests: A Practical Checklist.
[ ] Prepare witnesses for investigational hearings (FTC) or depositions (DOJ). The posture is closer to a government investigation than to a deposition in a commercial case; see Responding to a Government Subpoena or Investigation: A Practical Checklist.
[ ] Build the economic case early: retain an economist, gather transaction-level pricing data, identify entry and expansion evidence, and be ready to show that the structural presumption — the inference of illegality from high concentration recognized in United States v. Philadelphia National Bank, 374 U.S. 321 (1963) — is rebutted. United States v. Baker Hughes Inc., 908 F.2d 981 (D.C. Cir. 1990), remains the canonical statement of how a defendant rebuts.

Why it matters, and the traps. A Second Request is a corporate event, not a legal task. Substantial compliance on a mid-size industrial deal routinely means dozens of custodians, millions of documents, and a seven-figure bill. Deals die here not because they are anticompetitive but because the parties run out of time and money. The single highest-leverage act in the entire HSR process is the negotiation that narrows the Second Request in the first two weeks.

Phase 12 — Gun-jumping: what you may NOT do before closing

[ ] Do not close, in whole or in part, before the waiting period expires. Partial closings, escrowed transfers, and "sign and operate" arrangements are still closings.
[ ] Do not give the buyer operational control of the target pre-closing. Interim operating covenants may protect the value of the business; they may not run it.
[ ] Do not exchange competitively sensitive information (current and future pricing, customer-specific terms, strategic plans, unredacted bid data) outside a clean team with a written protocol.
[ ] Do not coordinate pricing, allocate customers, or jointly bid before closing. That is a Sherman Act § 1 problem independent of HSR.
[ ] Do not integrate systems, transfer employees, or begin joint sales before closing.
[ ] Do paper the clean team: named members, no line-management role, aggregated or redacted data, counsel oversight, and a written non-disclosure protocol.

Why it matters, and the traps. Gun-jumping has two engines. Under HSR, 15 U.S.C. § 18a(g) penalizes closing before the waiting period expires — day by day. Under Sherman Act § 1, 15 U.S.C. § 1, pre-closing coordination between two firms that are still competitors is simply an agreement between competitors, and the merger agreement is no defense. DOJ has brought and settled gun-jumping cases over exactly this conduct, including consent decrees in the early 2000s addressing a buyer that assumed control of the target's operations before clearance and another arising from pre-closing coordination in a technology acquisition.

The everyday trap is diligence itself. The data room that hands the buyer's sales VP the target's customer-by-customer pricing file is a gun-jumping incident even if nobody ever acts on it. Route that data through a clean team. The compliance architecture is the same one described in Antitrust Compliance: A Practical Checklist and sits inside the broader program described in The Corporate Compliance Toolkit.

Phase 13 — Foreign merger control filings and global timing

[ ] Map every jurisdiction where a filing may be required. The EU (Council Regulation (EC) No 139/2004, the EU Merger Regulation), the UK (voluntary regime with CMA call-in power), China (SAMR), and dozens of others each have their own thresholds.
[ ] Identify the long pole. Global timing is set by the slowest mandatory suspensory regime, not by HSR.
[ ] Check whether any regime is suspensory (you cannot close) versus non-suspensory (you can, at risk).
[ ] Assess CFIUS: is there a foreign person acquiring a U.S. business, and does it involve critical technology, critical infrastructure, or sensitive personal data (50 U.S.C. § 4565; FIRRMA)? Mandatory CFIUS filings exist and are separate from HSR.
[ ] Confirm consistency: the story you tell Brussels about the market must be the story you tell Washington. Foreign agencies talk to each other, and waivers of confidentiality are routine.
[ ] Screen the counterparties and the target's business for sanctions and export-control exposure, which can independently kill or reshape a deal. See Export Control and Sanctions Compliance: A Practical Checklist and Export Controls and Economic Sanctions: A Comprehensive Guide to the EAR, ITAR, and OFAC.

Why it matters, and the traps. The trap is assuming HSR is the deal's critical path. On a deal with European operations, it usually is not. The second trap is inconsistency: parties routinely argue a broad market to the DOJ (to dilute share) and a narrower one to a foreign regulator (to fit an exemption), and then discover the two agencies have compared notes.

Common mistakes to avoid

Testing the price instead of what will be held. Aggregation under § 801.13 is the most commonly missed rule in the entire regime.
Naming the wrong UPE. The merger sub is not the person. Walk the chain to the top.
Treating "investment only" as a safe harbor. Ten percent or less is necessary but nowhere near sufficient. Any activism forfeits § 802.9.
Skipping the board's fair-market-value determination when the price is undetermined.
Using last year's thresholds or last year's fee schedule. Both change annually.
Reusing a pre-2025 form template. The form was substantially expanded; the old template will produce a deficient filing and a bounced clock.
A "final documents only" Item 4(c) collection. Drafts and decks seen by officers and directors are responsive.
Withholding a hot document because it is bad. It will surface in the Second Request, and its late arrival is worse than its content.
Wiring the fee late. The clock starts when the fee is received, not when the form is uploaded.
Drafting the efforts covenant without antitrust counsel. The covenant allocates the entire risk of the review.
Missing the pull-and-refile window. Decide by day 20, not day 29.
Diligence gun-jumping. Competitively sensitive data must go through a clean team, always.
Assuming HSR is the critical path when a foreign suspensory regime is slower.
Forgetting the filing goes stale. Assets: one year. Voting securities: five years, to the notified threshold, under § 802.21.
Treating a PNO phone call as immunity. Informal interpretations are staff guidance, not binding law. Get them, document them, rely on them — and still write the memo.

The consolidated HSR checklist

Reportability

[ ] Voting securities / non-corporate interests / assets identified
[ ] Size-of-transaction test run against current thresholds
[ ] Size-of-person test run (or excused by the higher threshold)
[ ] UPE identified on both sides; control test applied correctly
[ ] Transaction valued; board FMV determination documented if price undetermined
[ ] Existing holdings aggregated (§ 801.13); notification threshold identified
[ ] Part 802 exemptions screened; PNO interpretation obtained if close
[ ] Reportability memo written and filed

Filing

[ ] Current Notification and Report Form confirmed (post-2025 version)
[ ] NAICS revenue data compiled and reconciled
[ ] Overlap / supply-relationship narratives drafted
[ ] Prior acquisitions compiled
[ ] Item 4(c) collection complete (officers/directors, all custodians, drafts included)
[ ] Item 4(d) collection complete (CIM, banker materials, synergy documents)
[ ] Hot documents identified; defense memo prepared
[ ] Affidavit (§ 803.5) and certification (§ 803.6) executed by the right person
[ ] Fee tier determined from the current schedule; fee wired and receipt confirmed
[ ] Both sides filed electronically

Post-filing

[ ] Waiting period calendared (30 days; 15 for cash tender offers and § 363(b) sales)
[ ] Staff contact opened; white paper prepared if warranted
[ ] Pull-and-refile decision diarized by day 20
[ ] Second Request readiness: e-discovery vendor, custodian list, economist retained
[ ] Timing agreement negotiated if a Second Request issues
[ ] Gun-jumping protocol in force; clean team papered
[ ] Foreign filings and CFIUS mapped; global critical path identified
[ ] Merger agreement covenants aligned: efforts standard, outside date, fee allocation, ticking fee

Primary authority

Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a — the premerger notification statute. § 18a(a) (reportability and thresholds); § 18a(b) (waiting periods); § 18a(e) (Requests for Additional Information); § 18a(g) (civil penalties for failure to comply and for closing early).
Clayton Act § 7, 15 U.S.C. § 18 — the substantive prohibition on acquisitions whose effect "may be substantially to lessen competition, or to tend to create a monopoly."
Sherman Act § 1, 15 U.S.C. § 1 — the independent prohibition on agreements between competitors, which governs pre-closing coordination (gun-jumping).
FTC Act § 5, 15 U.S.C. § 45 — the FTC's independent unfair-methods-of-competition authority.
16 C.F.R. Part 801 — coverage rules: definitions of "person," ultimate parent entity, control, notification thresholds, valuation (§ 801.10) and aggregation (§ 801.13).
16 C.F.R. Part 802 — exemptions, including § 802.1 (ordinary course), § 802.2 (realty), § 802.4, § 802.9 (investment-only), § 802.21 (five-year effectiveness), § 802.30 (intraperson), §§ 802.50–802.51 (foreign), § 802.63 (creditors), § 802.64 (institutional investors).
16 C.F.R. Part 803 — the Notification and Report Form, transmittal rules, the affidavit (§ 803.5), the certification (§ 803.6), and withdraw-and-refile (§ 803.12).
Merger Filing Fee Modernization Act of 2022 — replaced the three-tier filing fee structure with six tiers, adjusted annually.
Defense Production Act § 721, 50 U.S.C. § 4565, as amended by FIRRMA — CFIUS review of foreign investment, including mandatory declarations in defined circumstances.
United States v. Philadelphia National Bank, 374 U.S. 321 (1963) — the structural presumption: a merger producing an undue percentage share of a concentrated market is presumptively unlawful.
United States v. Baker Hughes Inc., 908 F.2d 981 (D.C. Cir. 1990) — the canonical framework for rebutting the structural presumption with evidence of entry, expansion, and market realities.
Akorn, Inc. v. Fresenius Kabi AG (Del. Ch. 2018, aff'd Del. 2018) — Delaware's close reading of efforts and interim-operating covenants in a merger agreement. (Cited here for its treatment of the covenants; note that Delaware corporate and contract law governs the merger agreement, and other states' law may differ.)
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) — overruled Chevron; courts now interpret statutes de novo and do not defer to an agency's reading of an ambiguous statute. Relevant to the weight of agency guidance, including PNO informal interpretations.
Skidmore v. Swift & Co., 323 U.S. 134 (1944) — agency guidance carries the persuasive weight its reasoning earns; the surviving standard after Loper Bright.

Currency warning, restated. The HSR jurisdictional thresholds, the size-of-person thresholds, the filing-fee tiers, and the § 18a(g) per-day maximum civil penalty are all revised annually. The Notification and Report Form was substantially expanded by an FTC rulemaking finalized in October 2024 and effective in February 2025, and further guidance continues to issue. Confirm every operative figure and every form requirement with the FTC's Premerger Notification Office before filing. Nothing in this checklist is a substitute for the current rules.

Secondary sources

ABA Section of Antitrust Law, Premerger Notification Practice Manual — the standard practitioner reference, organized around the PNO's informal interpretations.
Areeda & Hovenkamp, Antitrust Law — the treatise, for the substantive § 7 analysis behind the filing.
FTC/DOJ Merger Guidelines (2023) — the agencies' statement of how they analyze the transactions you are reporting.
FTC Premerger Notification Office informal interpretations and the PNO blog — the working law of reportability.

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This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. HSR thresholds, filing fees, and form requirements change annually; verify current requirements with the FTC Premerger Notification Office and consult qualified antitrust counsel before filing or closing.