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Identifying 4(c) and 4(d) Documents for HSR Filings

When submitting a Hart-Scott-Rodino (“HSR”) Premerger Notification and Report Form and documentary attachments, parties are required to include what are known as “4(c) documents” and “4(d) documents.” Under the HSR requirements, 4(c) documents are “all studies, surveys, analyses and reports which were prepared by or for any officer(s) or director(s) (or, in the case of unincorporated entities, individuals exercising similar functions) for the purpose of evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into product or geographic markets.”

Recognizing that the broad description above of 4(c) documents may be subject to multiple interpretations, the Federal Trade Commission (“FTC”) created a “Tip Sheet” to help parties identify 4(c) documents. The Tip Sheet provides guidance on when ordinary course documents would become a 4(c) document, how emails should be treated, and when and if a draft document needs to be included as a 4(c) document. That guidance also applies to 4(d) documents.

Documents that are 4(d) documents include confidential information memoranda as well as documents analyzing the transaction (as described above), created by third-party consultants. The FTC guidance for 4(d) documents provides insight into the interplay between 4(c) and 4(d) documents, including when a 4(d) document may also be a 4(c) document. The FTC periodically updates and modifies its guidance on 4(c) and 4(d) documents, so reviewing the current guidance when preparing for an HSR filing can be instructive.

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About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney
Member

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

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Patricia M. Wagner, Epstein becker green, health care, life sciences
Member

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of Justice, and state antitrust authorities 

Advising clients on issues related HIPAA Privacy and security

Advising clients on issues related to state licensure and regulatory requirements

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