by Carla A. R. Hine

Following the publication of proposed rules back in February, the Federal Trade Commission (FTC) has issued final rules to establish procedures for the withdrawal of Hart-Scott-Rodino (HSR) filings.  The rules, which do not differ from those originally proposed in February, codify the informal “pull and refile” practice parties sometime use to allow an agency an additional 30 days to review a transaction (in the hopes of staving off a Second Request).

The rules also establish a procedure for automatically withdrawing HSR filings when parties make certain filings with the Securities and Exchange Commission (SEC) announcing that a transaction has been abandoned.  In the interest of not spending resources on "hypothetical" transactions, HSR filings will be automatically withdrawn when, in the case of a tender offer (TO), the tender offer has expired, terminated or has otherwise been withdrawn, resulting in a filing of an amended Schedule TO with the SEC.  In the case of a non-tender offer, an HSR will be automatically withdrawn whenever an agreement between parties is terminated and results in the filing of a Form 8-K with the SEC.  Any subsequent transaction between the parties, if reportable, would be subject to a new filing and new filing fee.  This rule will not let parties continue the HSR process with deals that may or may not revive themselves.  The automatic withdrawal mechanism will not apply to transactions involving non-publicly traded companies and certain foreign companies.