USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn, Veltrop & Harkrider LLP
voting securities or non-corporate interests from third parties). If the initial waiting period expires without either Agency taking any action, the par - ties may consummate the transaction. During the initial waiting period, either Agency may open a preliminary investigation of the pro - posed transaction to identify competitive issues and determine whether further information is required. An Agency may request briefings with the parties and/or request that the parties pro - vide additional information on a voluntary basis. Under the HSR Rules, parties to a transac - tion may restart the waiting period once with no additional filing fee by withdrawing the fil - ing and refiling within two business days. This “pull-and-refile” process effectively extends the initial waiting period by an additional 30 days to allow time to address unresolved issues and potentially avoid a second request. Second Request Before the end of the initial waiting period, the reviewing Agency may choose to issue a “sec - ond request” formally requesting additional documents and information. The issuance of a second request suspends the waiting period while the parties respond and certify substantial compliance. Once each party has substantially complied with its second request, a second waiting period begins (typically 30 days, or 10 days in the case of a cash tender offer or bank - ruptcy filing). If the reviewing Agency does not seek to block the transaction during the second waiting period, the parties may consummate the transaction. 3.9 Pre-Notification Discussions With Authorities For most transactions, pre-notification discus - sions with the Agencies are not required. When a
transaction is likely to raise significant competi - tive concerns, parties may engage the Agencies in pre-notification discussions to provide addi - tional time to review the transaction and reduce the risk or narrow the scope of a second request. 3.10 Requests for Information During the Review Process Voluntary Access Letter If the reviewing Agency opens a preliminary investigation, the reviewing Agency may issue a “voluntary access letter” during the initial HSR waiting period. Historically, voluntary access let - ters requested information that was not required in the HSR filing; however, since the introduction of the new HSR form much of this information is now included. Follow-up information requests may now seek business planning documents not otherwise submitted with the filing, top customer contact information, customer win/loss data, competitor and supplier lists, and other infor - mation. Parties should be prepared to respond to a voluntary access letter within a few days. Prompt co-operation increases the likelihood that the reviewing Agency will be able to resolve competitive concerns within the initial waiting period. Second Request If competitive concerns are not resolved at the end of the initial waiting period, the reviewing agency may issue a “second request”, which generally extends the waiting period until 30 days after compliance. A second request is a voluminous demand for documents and data as well as detailed interrogatories. Second requests are extraordinarily burdensome and costly. A typical second request response includes mil - lions of pages of documents and compliance may take several months. Both Agencies have published model second requests that provide
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