FEDERAL TRADE COMMISSION

Agency decision

Ask Donna

What actually matters in this document.

Text

GENERAL MANAGEMENT WORKSHOP

I N D E X

WORKSHOP

PAGE

Merger Best Practice Workshop

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

FEDERAL TRADE COMMISSION

In the Matter of:

MERGER BEST PRACTICES WORKSHOP)

------------------------------)

)

June 18, 2002

Federal Trade Commission

55 East Monroe Street

Suite 1860

Chicago, Illinois

The above-entitled workshop came on for comments,

pursuant to notice, at 12:00 noon.

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

APPEARANCES:

ON BEHALF OF THE FEDERAL TRADE COMMISSION:

STEVEN K. BERNSTEIN, Deputy Assistant Director

RHETT R. KRULLA, Deputy Assistant Director

600 Pennsylvania Avenue, N.W.

Washington, D.C.

20580

PETER RICHMAN, Attorney

601 Pennsylvania Avenue, N.W.

Washington, D.C.

20580

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

MR. BERNSTEIN:

Thank you all for coming here

today.

This is the fourth of seven Merger Best Practices

Workshops that the FTC is holding.

workshops is to see if there are some ways that we could

reduce the burden associated with the second request process

while making sure the FTC still gets the information they

need to evaluate the mergers in front of them.

My name is Steve Bernstein.

Assistant Director for the Mergers 1 Division.

here is Rhett Krulla, Deputy Assistant Director for Mergers

MR. KRULLA:

The purpose of these

I'm the Deputy

With me up

Good afternoon.

MR. BERNSTEIN:

the Mergers 3 Division.

MR. RICHMAN:

MR. BERNSTEIN:

Peter Richman, an attorney from

Good afternoon.

Each of these sessions is being

transcribed.

please first identify yourself and the organization that

you're with and then just go ahead and make your comments.

So, if you'd like to make some comments,

There's a few people that we've asked to come here

specifically who've had some recent experiences with the

second request process.

thought we'd start off by calling on them and seeing what

they have to say.

and open it up to everyone else.

We wanted to get their input and I

And after they're done, we'll go ahead

Mark, do you want to go first?

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

MR. MCCAREINS:

I'm happy to do that.

I'm Mark

McCareins, for the benefit of the transcriber.

law firm of Winston & Strawn.

express are not those of my clients, my partners or maybe

even myself.

that called me a while back and asked if I would participate

in this forum.

calendar.

I'm with the

The views I'm about to

But Mr. Krulla, the honorable Rhett Krulla,

And I gladly agreed and put it on my

And didn't think much about it until yesterday I

was looking at my calendar.

was my Little League play off game at 5:45.

So, I'm thinking while I'm coaching what should I say to

this august group.

controversy before the first pitch was even thrown.

are ten year olds.

And my major event yesterday

I'm a coach.

And we started off the ball game with a

These

The umpire had one version of how long the

pitching space should be.

The other team's coach had

another version.

brought out the measuring tape.

two folks were not lawyers.

whole legal profession for this problem.

very specific about what the pitching distance should be.

Yet three grown adults with a tape measure with finite

issues to measure could not readily conclude what the proper

pitching distance should be.

And I had a third version.

So they

And thankfully, these other

So, we couldn't just blame the

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

So, the rules are

And a light bulb went off in my head.

And I don't

know if it has in yours yet either, but I thought there was

a tie in to the Hart Scott rules.

seem to be pretty straight forward.

clear thinking adults, mostly lawyers.

this group we have disputes about interpreting these various

rules and how they apply to our perspective clients.

The rules of engagement

We're all intelligent,

Yet even amongst

So, with that, my comments, and Rhett had

indicated that I only had five minutes or so, so I thought

that opening reference might take up about 90 seconds.

I figured I had about three minutes.

my back pocket if I still need more time.

items I just wanted to address to the group.

The first was timing.

So,

I had another joke in

But I had three

I think that all parties

have a healthy respect for each other in the process and

want to arrive at an efficient solution.

point, however, sometimes the requests for additional

information at the end of the first waiting period come in a

little too close to that 30 day clock, the last tick.

at least from my perspective, and not speaking for the

private bar, but we aren't mind readers.

my baseball analogy, this is imperfect science.

hard for us, I think, sometimes to anticipate the types of

questions that you all may ask leading up to or trying to

forestall a second request.

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

From my vantage

And

And going back to

And it's

So, the later in the game that those request come

and the more detailed those requests are, the harder it is

for us, at least for me, to comply with those in an

efficient manner.

And I want to comply.

the information.

But sometimes, without reference to any

particular client, it may be difficult for the client with

somewhat limited resources and a number of offices spread

all over the country and the electronic issues, to get this

information compiled, reviewed, processed and off to you in

a short window of time.

I want to get you

So, from a timing perspective, I just want to make

the casual observation that the more time we have to process

that information the better.

boat.

sometimes, and I've had calls on the 28th and 29th day with

a list of 12 or 15 points.

back up.

4:00 o'clock.

forestall the process.

clients to collect that information.

And we're all in the same

We're trying to get you the information.

They want follow up.

And

They want

And I'm saying I'm trying to do my best but it's

And it's not a question of trying to

It's just difficult sometimes for

The second brief point I wanted to make was

establishing a good line of communication between your

office and ours.

being open.

been difficult, at least on the deals that I've worked with,

I'm a big believer for being pro-active,

Let's get going on things and on occasion it's

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

to find out who was the decision maker, is that a final

decision?

again, we're trying to conserve our resources too and

sometimes it's difficult when I get a request and it's

modified later in the day or the next day and I've launched

my client on a project and I find out later in the day or

the next day that things have changed.

Is that the final request for information?

And

I think it's very good and I'm all for it to get

whoever's working the file on the phone early, say who I am,

here's my interest.

give you my cell phone number but I think I'm probably the

only working lawyer that doesn't have a cell phone.

here's how you contact me and let's get this started.

I'm trying to get this deal done.

I'd

But

I know there's a bit of a cat and mouse game to

determine early on who actually has the file.

And I think

you probably have some bigger issues between the agencies

right now and these guidelines, who takes jurisdiction over

what.

But lines of communication I think are important to open

those, to get it on the record early and to try to get those

requests processed as quickly as possible.

So, this is probably the lesser of a couple of evils.

The last point I wanted to make before I adjourn

is I think maybe to dispel a perception or a myth that the

DOJ or FTC may have that, you know, we've all analyzed these

deals.

You spend tons of time, you've got an economist

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

engaged for months and, you know, this is a kind of hide the

ball situation.

information.

24 hours.

search, get something in.

It's not necessarily a hide the ball

You may get requests from clients, you know,

Get the Hart Scott done.

Let's do your 4C

I may not have the luxury of really having a

really good handle on the market definition when that first

Hart Scott is going in.

markets is not a precise science either.

us, at least on my end, to predict the types of questions or

the nature of concerns that you're going to have.

As a result, and defining relevant

And it's hard for

So, don't be surprised if you make some requests

and we express some chagrin that we hadn't thought about

that.

predict where your concerns are going to be.

least on behalf of my clients, we always try to be

responsive.

to our side of the fence as far as our motivations to stall

the process, hide the ball or whatever.

logistical issues, timing issues on our end that may impede

our ability to process your request.

Again, it's difficult from our side to somewhat

I think, at

But don't necessarily have a negative view as

There may be some

So, I don't know if that was in anyway responsive

to the request for the topic here today.

MR. KRULLA:

Yeah, it's very helpful, Mark.

Mark

raised several points relating to principally to the initial

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

30 day review period prior to issuance of a second request.

Why don't we stick with that topic for the moment?

anybody else have any thoughts on how we can make more

effective use of that initial review period?

MS. TAYLOR:

And does

Hi, I'm Pam Taylor of Bell, Boyd &

Lloyd in Chicago and I've seen cases where there's been

really effective use of the initial 30 day period, when the

staff is willing to meet with people very early on and

shortly after the Hart Scott is filed.

prepared to come in and talk to the staff about what the

issues are, it can be a very effective way of narrowing the

issues or eliminating them entirely.

If the parties are

It's particularly helpful in cases when, you know,

there really isn't an issue but it looks like there is on

the surface.

needs to be done to get the staff up to speed on the issues

and clarify that there really isn't a problem there.

also very effective in large transactions where there are

issues because you can eliminate questions that arise

initially and they turn out not to be a problem upon further

investigation.

and get them out of the way before the second request

issues.

And there's some explaining, educating that

It's

You can get them off them the table early

And that can be very effective also.

MR. BERNSTEIN:

Thank you, Pam.

thoughts?

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

Any other

MR. KEILER:

I would agree.

Louis Keiler with Sonnenschein law

firm.

problem and the recent protocol to divide responsibility

between the two agencies which are designed to solve that is

deciding which of the two agencies is going to handle the

transaction.

One problem I know is a common

So, who do you go and see?

And since we're not going to have the apparent --

division of responsibilities, I suggest that the agencies

commit to a much shorter period to resolve between

themselves which of the two agencies is going to handle the

transaction.

initial filing, you know who to go in and see.

So, that, say, no later than a week after the

MR. BERNSTEIN:

MR. DUBROW:

Thank you.

I'm John Dubrow from McDermott, Will

& Emery.

early interaction.

I found in some cases that getting up to senior management

really quickly, where senior management pushes themselves

down very quickly as basically eliminating what would have

been a very lengthy second request.

Just following up on what Mark said in terms of

It's obviously crucial to the staff, but

I had had a meeting where I was called in for the

first meeting by the staff attorney.

And basically all the

way up through senior and section chief, the DOJ managed

section chief was there.

problem here.

So, we thought we had a big

They were obviously very interested in it

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

but, you know, when you have a case where there's a

dispositive issue, which we had there, we were able to

bring, basically bringing in so things weren't getting

filtered so much and, you know, ultimately we were able to

cut it off in 30 days rather than having three months worth

of investigation on something that didn't really merit it.

MR. KRULLA:

What can we do during the initial 30

day period to better tailor the second request if we're

going to issue one to the issues at hand and to make it,

make the second request, data request compatible with how

the company keeps their records?

raised in prior forums about communication during that

initial period between the IT Department of this company,

the reporting company and the agency's IT people regarding

what kind of data is normally retained by the company and

the extent to which that might facilitate us fashioning our

questions with an eye toward the data that actually exists

as opposed to the data we can hypothesis.

that?

MR. BRUCE:

Suggestions have been

Any thoughts on

Greg Bruce, R. Shermer.

We have

worked with several --

COURT REPORTER:

MR. BRUCE:

Excuse me --

Greg Bruce with R. Shermer.

We've

worked with various respondents a number of different times.

And one of the things that they've talked about is just

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

having you guys meet with their managers.

It's bringing in

the business people beyond just the attorneys and sitting

down so it goes beyond the IT folks.

all of the various management.

guys to get a good feel for how they run the business,

what's going on and then that allows them to better target

whatever information.

MR. KRULLA:

MR. BERNSTEIN:

It's sitting down with

And as such, that allows you

Thank you.

Have any of you come in before the

waiting period even starts on certain transactions

recognizing that there might be some significant issues?

Has anyone tried that and if so, was the experience

positive?

Negative?

MR. KEILER:

We tried it once and never tried it

again because we went in and saw the wrong people.

worked with one agency and the other agency wound up getting

clearance.

MR. BERNSTEIN:

Again, for the record can you

state your name?

MR. KEILER:

Oh, Louis Keiler with the

Sonnenschein firm.

MR. BERNSTEIN:

MR. DUBROW:

Thank you.

John?

Jon Dubrow with McDermott again.

We've had some matters, including with your shop, Steve,

where we had major transactions that we knew were going to

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

get looked at.

We spoke with FTC and DOJ and said, please

work it out.

clearance, tell us and we'll come and start working with

you.

Tell us who gets clearance.

When you get

With that we've been able to take, spend the up

front time taking things that really shouldn't be part of an

investigation and get them off the table first.

you know, at an appropriate time start preparing the clock.

We have been effective and I don't think we've eliminated

second requests by doing that.

the scope of it.

you can do that, you can help yourself.

But we've probably narrowed

Sometimes it works against you.

MR. BERNSTEIN:

And then,

But if

The other question I wanted to

ask, and this is following up on something that Mark had

said.

for information, how consistent are those requests?

seems to me that there's a general set of information that

we often ask for like recent strategic plans, competitive

assessments, list of customers and things like that.

any of you seeing something different, more unusual requests

coming in during the initial period?

The request we make during the initial waiting period

MR. MCCAREINS:

This is Mark McCareins.

Are

Many of

the requests I've had in that time period are more market

related for industry type information, competitive files,

things that maybe a 4C document might have triggered the

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

question.

that together and you can go back to your business people

and your VP in charge of Sales and Marketing and they've got

some sort of competitive file that may not be available to

you on the Internet or whatever, you know, we can help and

have done so.

strategies that might be the next level of documents after

the 4C's.

And again, if you've got a couple of days to pull

But it's also usually the business plans and

MR. BERNSTEIN:

Do you think there might be any

benefit to us putting together a model excess letter that we

could put out on the Internet so at least the general stuff

that we consistently ask for in investigations would be out

there for people to incorporate into their planning and then

some of the more specific things would be things that would

still come up but at least that would be more limited?

MR. MCCAREINS:

I think for the bulk of the people

in this room, maybe all of us, I think as part of our anti-

trust counseling and planning, we probably already requested

those documents and tried to get access to them in our

evaluation period.

as frequently, that might not be a bad thing to do, to have

a template that people can look at as they're making their

Hart Scott filing, the type of information that your office

might reasonably expect if there is an issue.

MR. RAVEN:

But for some others who may not do this

Marc Raven from Sidley Austin.

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

think Mark McCareins is correct that we in this room tend to

know what kinds of things we're most likely to be asked for.

Although, my own experience varies from a totally open ended

request to a very focused inquiry on one line in a 4C

document.

But I think another benefit of having a form

letter maybe that it makes it a little easier for us to go

to find, certainly with ones who don't have experience with

this and say, this is what FTC says.

likely to want to see in the event there are any issues.

MR. BERNSTEIN:

MR. KEILER:

They are reasonably

That's a good point.

Louis Keiler again.

I would suggest

that if there were any guidelines of that nature, that they

be joint guidelines from both agencies because my own

experience, I see a greater divergence of dealing with the

Department of Justice than with the Federal Trade Commission

in terms of what the staff asked for, particularly when the

field offices handle the matter.

MR. MUTCHNIK:

Jim Mutchnik of Kirkland.

thought about having a template, I would be concerned that

the staff would have a expectation that we have to have the

document.

request for a third party studies or marketing studies.

don't have them and there's a sense of skepticism on the

staff that says, how can you run your business without the

One of the troubles we have now is we get a

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

document?

And if you set up a template, it may be held to a

higher standard than is necessary.

MR. BERNSTEIN:

MR. KRULLA:

Go ahead.

MR. BAKER:

Steve Baker.

Thanks, Jim.

One of the questions; I

had a call last night from a practitioner who had a request,

who said that there seemed to be at least a perception that

the second request was broader at the FTC than the Justice

Department now and that it's easier to narrow them and

negotiate it at Justice Department.

true or not but, I mean, obviously to the extent it is.

MR. KRULLA:

I don't know if that's

Sometimes at the end of the 30 day

review period, we come to the point where we determine that

there are unresolved issues and further information or

documents are required.

information in many of those instances.

we can make those supplemental requests more effective in

terms of getting us the information and the documents we

need to analyze the acquisition?

while minimizing the burden and expense and delay to the

parties of the transaction?

MS. TAYLOR:

We issue a supplemental request for

Any thoughts on how

Understand what's going on

Hi, I'm Pam Taylor again from Bell,

Boyd & Lloyd.

I'd just like to address the issue of back up

e-mails, which I'm sure you all have experience with.

just like to propose we stop asking for those.

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

I'd

And I have a

couple of reasons for that, my radical proposition.

is both a burden and fairness issue.

But one

I worked on a transaction once where one side had

two years of backup tapes.

The other side had 30 days.

And

the company that had 30 days said, you know, we'll give you

30 days but after that you're out of luck.

on the company that had two years backup was enormous.

it seems that just out of fairness and in an attempt to

reduce burden, it would be a good idea to eliminate that

request.

And the burden

So,

Secondly, I just think as a matter of practice

I've seen that when people get an important e-mail, they

either hit the print button and put it in a file or they

keep it in their in box, in which case it would be on their

hard drive and you'd easily be able to get it in a simple

request for production.

important and they go in the back-up files and then

ultimately they get disposed of some day.

People delete things that aren't

So I think that the likelihood that you're

actually going to get documents that are going to be helpful

to you for back up e-mail tapes is really minuscule in

comparison to the burden on parties who have to produce

them.

MS. SULLIVAN:

Simon, Arnold & White.

Lisa Sullivan, I'm with Howrey,

I'm actually filling in today for

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

Joel Chefitz, who you asked to come.

that point of we agree completely with that.

to have recently taken the attitude, with respect to e-mail

archive, that the burden is more on the company to prove

that there is zero possibility that there won't be any

relevant document in e-mail archives before the FTC is

willing to agree to eliminate the scope of e-mail archives.

I would follow up on

The FTC seems

And, again, to reiterate another point you just

made, the expense and the burden on the company is generally

quite huge.

the cost runs into tens of thousands of dollars and often

takes several months for companies to tell us that they

can't perform the restoration.

Even when using a document recovery company,

So, I think even if not eliminating all together

the e-mail archive requirement, there needs to be some

flexibility within the FTC staff to determine whether there

will be anything available in e-mail and to weigh the burden

and time against what benefit the FTC will get out of

requiring an e-mail search.

MR. RICHMAN:

Just one question.

When you're

talking about eliminating the burden, are you saying we're

just not going to search it or we're not going to ask you to

retain it in case we want it searched?

MS. SULLIVAN:

My suggestion would be that at the

beginning, maybe during the 30 day period, if the second

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

request seems like it would be likely, that the FTC contact

attorneys for the parties and suggest that at that point the

IT Department start preserving the e-mails or put the

company on notice that certain e-mails may be producible at

a later date.

creating a collection of e-mails that you can search later.

But requiring someone to go back two years, I do think is

burdensome and should be eliminated.

And at that point the company can start

MR. RICHMAN:

Just in terms of the number of deals

that you all see, how often have we actually asked somebody

to go back and search back up tapes?

MS. SULLIVAN:

I've had one with Mr. Krulla

recently.

deal where the FTC was insistent that e-mail archives be

searched going back a number of years.

The companies actually wound up calling off the

MS. TAYLOR:

Pam Taylor.

that point again.

variety of practices.

think some staff will say just give us what's on your hard

drive right now.

And there's just not a uniformity of practice.

it would helpful.

I'm sorry.

I just want to speak to

I have just seen a broad

I don't think there's uniformity.

And others are consistent on going back.

MR. KRULLA:

And I think

What happens to high level

confidential e-mails that are for eyes only that go to

senior managers and are not to be duplicated?

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

After those

are read, what steps can we take or how can we work with the

bar and the industry to assure that we get a glimpse of

those kinds of e-mails?

MR. MCCAREINS:

Mark McCareins.

I was going to

answer your other question, not specifically that one.

probably been involved in two to three second requests a

year for the last 20 years.

about my clients as opposed to me or maybe how I follow Hart

Scott rules in the first place.

never had these issues.

I've

And that may say something

But in any event, I've

I mean, we've had debates about translations and

back up e-mails.

But the way I've done it is just say early

on, okay, Rhett or whomever, I'm going to come in probably

after we get this second request within 24 hours, hopefully.

And in that first period, there will be an indication that

you're going to issue a second request.

in the position to know with our org chart who's who, how do

we keep our files, what's our record retention policy and

have an IT person available.

So, my people are

Take your broad, over-reaching, you know,

unconscionable second request, which I generally don't pay

much attention to, and sit down with the people who know

about the documents and what we have and say, okay.

let's make this work because my view is, the stuff that you

may be trying to get, it may help me.

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

But

I may want this

stuff.

I don't know what it looks like, but there may be

helpful documents that we haven't been able to find yet.

So, I'm in a pursuit for these documents as much

as you are.

steps in and says, are you crazy?

to cost $150,000 and five million man hours and our

computers will shut down.

you know, but I've never come to a situation where that's a

deal breaker on any of those situations.

Now, at some point in time, then the client

You know, this is going

We can't do that.

Now, that's,

Maybe my view is we're going to go through with a

deal.

all this stuff the Japanese translated and you think you're

entitled to it?

it happened once.

that is you need information.

We're not going to produce that, sue us.

I don't think so.

Sue us.

You want

I mean, I think

But I think there are bigger issues and

We need information.

We should know what information and how it's

stored out there.

questions.

come to a letter agreement.

chart are people whose files you want.

store our documents, how are document retention is operated.

And talk to our IT people.

And you should be permitted to ask some

And then we take your broad second request and

MR. RAVEN:

And you know who on the org

You know how we

Marc Raven from Sidley.

Rhett, let me

address your second question about, you know, a key e-mail

message and how you are sure that you pick it up.

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

Two

comments on that.

One is, I think the kinds of e-mails that

you're referring to are ones that are going to be generated

sometimes before the Hart Scott is filed.

So, you know, if they're sent, deleted, they're

presumably gone.

And I don't think there's really much you

can do to help parties to keep those.

recognize about back ups is that you're not necessarily

going to capture that e-mail message, particularly if, you

know, if the parties intend to handle it or a party intends

to handle it in a way that means it's not going to lie

around, you're not necessarily going to capture it on a back

up tape.

The other thing to

If it's sent on day one, received on day one and

the sender and the recipient delete it, it's not going to

get backed up.

that

course of one week, it's not going to get backed up.

Or if you're looking at weekly backups and

e-mail was sent and deleted any time over the

So, the difficulty is that, you know, we're going

through very voluminous back up tapes with very low yields.

You may, you know, find documents that are responsive to the

second request, but, you know, they're not going to provide

any information.

what's live on the systems, on the people's PC's and on

servers.

They're largely going to be redundant of

And you're already now, you're over the cost just

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

reviewing the stuff that's live is, I would say, not just

necessarily in the tens of thousands but it can be in the

hundreds of thousands of dollars.

MR. KRULLA:

Yeah, we're always looking for these

documents that are intended not to be preserved.

That would

be the equivalent of a confidential face to face statement

between high level executives.

of e-mail, I was on a discovery search going through

documents.

after you read this memorandum, destroy it.

handwritten it said, done, and the initials.

I recall prior to the days

And I found a document, a memorandum that said,

And below that

So, while companies may conscientiously implement

procedures to eliminate the record of memos like that that

now often take the form of e-mail, one of the challenges we

face in conducting our investigations is to figure out how

most cost effectively, cost effectively for the companies,

and most expeditiously for the staff, how to get a glimpse

of that because as you noted, these kind of documents are

things that are typically generated prior to the HSR filing,

often prior to the time when the company is expecting to

make an HSR filing because after that period there may be

greater sanitization of the files.

So, one of the questions we could explore is how

can companies to the extent they maintain back ups of e-

mails, if they anticipate that they're going to be doing HSR

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

filings in the future, how can they preserve material in a

manner that will minimize the burden and expense on the

companies in complying with a government request for

information or documents, if that request comes in?

Any thoughts on that?

MR. ROBERTSON:

Ellis, -- for now anyway.

MR. KRULLA:

MR. ROBERTSON:

Robbie Robertson, Kirkland &

But --

Welcome to the FTC.

Thank you.

But I've had the same

problem.

Not just merger cases but in conduct cases.

And

it is extraordinarily expensive to search e-mails,

especially if you're going back to back up tapes.

change the way companies do business in terms of keeping

back ups.

over the last ten years, most big companies have changed

their systems three or four times.

generally.

You can't

What happens is it's done by accident because

They do keep the tapes,

They don't know what else to do with them.

But then trying to find a set of documents and

trying to weed out the privileged documents and weed out the

documents that you may think are highly sensitive is very

expensive.

which I've been working for on a lot of these cases, you can

be talking about 800, $900,000 of expense, not lawyer's

time.

there.

And a typical case, if it's a large company,

And at the end of the day you find there's not much

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

And what you find that really is helpful, this

stuff is currently on I Drives or in some other form when

you actually get your hands on it.

that stuff.

them in other places.

all on shared drives and things like that where they tend to

park these documents.

But you'd like to see

And e-mails, a lot of time people will keep

And a lot of large companies, they're

So, I think that at some point there needs to be

some better sophistication both on the FTC side and also on

the lawyer's side for both in house and in law firms to

figure out how to do this because you don't want to spend a

million dollars chasing something that's not there.

could have spent a little bit less time and a lot less money

finding something you really want to look at.

You

And I think part of it is a lack of understanding,

at least from my part when I first got into these big cases,

and knowing how much it does cost and how expensive it

really is.

that I've dealt with at the FTC really understood it either.

And we had to get some of the technical people inside the

FTC to talk about, can we just give you the tape?

we don't know what to do with the tape.

machine that can even read it.

And how you have to do it mechanically.

Nobody

Well, no,

No, we don't have a

That kind of problem.

I think that there could be a little bit more done

to develop a way to systematize getting at these older

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

documents or older e-mails and not spend so much money doing

it.

MR. KRULLA:

How can we use sampling techniques to

minimize the burden?

million dollars or x million dollars, the next question I

would raise is, well, how many tapes are we talking about

and can the company identify the departments or

organizations or the persons or the time periods covered by

those tapes?

burden on the companies while focusing in on, through

sampling, focusing on those back ups that may be most likely

to yield useful information?

If there's a cost estimate of a

With that information, can we reduce the

Any thoughts on that?

MS. SULLIVAN:

Again, Lisa Sullivan from Howrey.

I think that in certain circumstances you can but it does

require the FTC to have experienced IT people communicating

with the IT people at the client.

their e-mail archives on a person by person basis or

department basis or an office basis.

daily or weekly.

go in and say, we would like to sample the CEO's e-mail

archives for a certain month.

stored like that.

Some companies will store

Other store them on a

So, for some companies, it is possible to

In other companies it's not

Restoring the CEO's e-mail will require restoring

the entire office's e-mail for an entire day or for an

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

entire week or for an entire month.

So, it is possible but

it's going to vary from company to company.

needs to think cognizant of that.

MR. BERNSTEIN:

And the FTC

And I think that's probably why,

Pam, you're not seeing the consistency from case to case is

because so often we try to balance what the company needs to

go through to get us the information we want versus the

value of that information.

you mentioned, they may, it may be easy to search for a year

but impossible to search for three years.

our best to understand that and then make appropriate

modifications.

MR. RAVEN:

And for certain companies, as

And we try to do

Marc Raven from Sidley.

The other

comment I want to make is that I think it can be a mistake

in many instances to start out a merger investigation with

the assumption that it's a conduct investigation and

therefore you're looking through old or deleted e-mails for

some sort of a smoking gun.

often than not, are going to be decided on economic facts or

at least they should be.

that people are going to go through and sanitize.

going to be, you know, the current business documents that

are still going to be live on the systems.

These cases, you know, more

And that's not the kind of stuff

That's

So, I think, you know, you have to approach the

problem from the right perspective to begin with and not

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

assume that, you know, every merging party has something,

you know, buried in a deleted e-mail somewhere.

MR. BERNSTEIN:

Yeah, Mark, that's a point we've

MR. ROBERTSON:

Robbie Robertson, again.

heard.

I think

e-mails are where all the good and bad documents are.

love e-mails.

that one thing, what I'm talking about is not that you

shouldn't look at e-mails.

think there's a lack of understanding as to how you do it

mechanically.

The hard part is getting to it.

And I think

You need to look at them.

I didn't understand it.

But I

I had to go to an outside

company to have them explain it to me when I had three

different e-mail systems and all these different computer

things, how do you actually search it?

with the search terms that lead to something less than 400

boxes of e-mails?

How do you come up

When we went through a process like that recently

and did the search terms, we tried to negotiate it between

the lawyers.

came up with great terms.

the process that well because we're not the ones who are

actually doing the work.

were good search terms and we still ended up with 400 boxes

of e-mails.

We came up with great terms.

The FTC lawyers

But we really didn't understand

We came up with what we thought

And it wasn't that helpful.

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

So there has to be, I think, a better technical

understanding of how to get to the documents that you really

want.

MR. HUEBNER:

Pete Huebner with Applied Discovery.

To Mr. Robertson's point; the key here, I think, is you want

to be efficient.

your documents electronic throughout the review process,

then you can apply automated search facilities.

case, instead of getting 400 boxes, by keeping those

documents always electronic for review process, you can

apply your key word searches throughout the entire process.

You're not necessarily shuffling through paper.

If you could find a process that keeps

So, in your

The other advantage to that, that type of a

process where everything's kept electronic, is all the set

up is up front that converts these electronic documents into

paper is removed.

of deadlines and how you're going to get to the actual start

of the review can be eliminated by, again, keeping the

documents in their original forms, which is electronic.

So a lot of your timing issues, in terms

MR. DUBROW:

This is John Dubrow.

Even if you do

that, you don't have 400 boxes but you still have the same

amount of stuff that somebody's got to sit in front of a

computer screen --

MR. MCCAREINS:

Review still has to take place,

absolutely.

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

MR. DUBROW:

Which is really where the burden

lies.

I mean, we can get copiers that cost money.

But you

can copy a box of documents for a couple of hundred bucks

when you can just pay $5,000 --

MR. HUEBNER:

But by doing key word searches, his

original process was to crawl through all the raw data and

look for items that everybody agreed was going to, you know,

take off the table or we were going to be concerned about.

By continuing to apply that search capability you can,

instead of necessarily read through every document, you can

go right to the documents that have those critical key

words.

relevant to the situation at hand.

Look at those first and determine if these are

Review will always have to take place.

you can't, you can't avoid it.

MR. DUBROW:

I mean,

You're right.

But what you're saying is you might

be able to put this in on the search terms, but it still

might be privilege stuff.

MR. HUEBNER:

It still might have --

Absolutely.

You still have to go

through that.

You still got to designate it as privilege or

responsive or whatever.

automating the process, you can reduce the human error

involved with reading, looking for those key words.

basically the computers will find those key words for you

and pull up those documents that trigger those key words.

But it's appropriate.

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

But by

And

MR. RAVEN:

Marc Raven.

This again goes to the

burden when you have to go to multiple layers, you know,

repetitive back ups and so forth.

files that are difficult or impossible to word search.

we ran into that situation recently where we had, you know,

a very good system where we're trying to find certain types

of documents by looking for key words.

There are some types of

And

But because we were trying to err on the side of -

- we still had a lot to review.

looking for certain, looking at certain types of files such

as image files or spreadsheets, which can, you know, be

numerous, word searching is problematic.

MR. ROBERTSON:

And even then, when you are

I was going to say, my example of

400 boxes, that was nine percent of the document set.

did the first search.

understand how to do the search to get stuff that is

relevant.

more expertise with lawyers here but also with the FTC,

because nobody really understood how to get out what you

really wanted to get.

MR. KRULLA:

The problem is we didn't really

And that's an area where I think we could use

For the record that was Robbie

Robertson.

MR. ROBERTSON:

Robbie Robertson.

MR. BERNSTEIN:

Steve, did you want to add

So we

something?

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

MR. BAKER:

Yeah, one of the questions people seem

to be kind of asking is how many cases you've asked for

these kind of details and of the ones we do ask for, how

often do they end up being valuable to your investigations?

I don't know if you guys are free to answer that.

can, it would probably help people understand kind of what

we're doing.

MR. RICHMAN:

If you

I think we strayed, sorry, Steve.

think we strayed from the archive issue to electronic files

that are kept in an easily accessible fashion.

sure, I think we were mixing Pam's original archive issue,

please don't make us go through data tapes, especially if

they're on legacy systems that we have to recreate to just a

general electronic discovery issue.

those two out, I think it would be most helpful because one

burden is we're asking you to build a system that no longer

exists or recreate a system or have a third party vendor do.

The other is how do we narrow these exceedingly large

electronic document productions, in large parts because

nobody deletes, nobody throws away paper.

there's nobody who deletes files off their hard drive.

then, when you go to a LAN-based system, there's absolutely

nobody that ever goes through a LAN-shared space for a group

or for even an individual's files and deletes old files

there because you never know whose they are and who wants

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

I'm not

So, if we can separate

Well, nobody,

And

them.

So, you know, we've taken what used to be a

horrible process on paper, and technology has expanded the

universe of things we're asking you to search.

there's an iterative process that we might be able to get

to.

I think

This is in response to Robbie Robertson.

MR. ROBERTSON:

MR. RICHMAN:

Robertson.

Your original point is

if we come up with search terms and it turns out that you

get a lot of junk, as we might say if you were to come to me

and say, “I don't think you want this type of document which

anybody could do.

sample, let me look at it."

Here's a thousand boxes of it.

Give me a

The same thing, if you do a search electronically,

I think it's possible that if we can agree on the initial

group search terms, give us a sample and we can figure out

relatively quickly or the IT people can what the terms are

that are bringing in the 400 boxes and maybe we can add

another search term to cull out the extraneous information

you don't want to provide, you don't want to review and we

don't want to have to read.

MR. ROBERTSON:

Robbie Robertson again.

And I

agree with that.

I think that we just need to get more

sophisticated about it because all this, just learning how

to do this sometimes is a plus.

I mean, years ago I would

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

find a thousand cases to finally find the one I like.

And

then, I can get 10 or 12 because I know how to search that.

But there's a certain thing about doing searches

on emails that can lead you astray very quickly.

you're looking for a document that has a the word marketed,

that might get you a list on who's going to the grocery

store to any section that has the name marketed for that

particular group of, a respondent, for example.

looking for an acronym, often that will be the name of a

group and wind up with millions of documents.

that there are outside companies that are getting better at

this that we can use that are learning how to do the

searches.

learning how to do the searches in the first place.

If you're

And I think

So, I think that all this, we're better off

Now, it would help if it was all electronic and

you guys could look at it in that form, too.

fight that we all have to go through.

Now,

MR. McCAREINS:

Mark McCareins.

But that's a

Remember that

we're dealing with all these issues on a daily basis, not

with you or DOJ but in private litigation.

what is the federal district judge going to order me to do

or magistrate under the federal rules.

folks practitioning in this area would say that the courts

are a half step or two behind the technology.

front of our magistrates across the street and we're trying

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

So, my focus is

And I think most

And you go in

to educate them about the difference and they try to cut the

baby in half and maybe there's a reported FRD decision that

may go up to a district court judge.

But there's a huge body of law there that maybe my

humble suggestion is that the best solution is to appoint a

task force on electronic discovery issues within your shop.

And the ABA section on litigation has a multi-volume trader

seller electronic discovery.

coming out with a civil discovery handbook later this year

that is about 40 to 50 pages, single-spaced with footnotes,

because I've had it in some of them, on current trends,

issues just like this.

The ABA anti-trust section is

So, maybe I'm wrong but you're bar should not be

any higher on what should be produced or what can be

compelled to be produced.

than what the federal judges are doing in a court, on a

daily basis in the federal courts and federal discovery.

So, these issues are not unique to many of us and maybe we

just need to transfer what we're doing in this other room to

you folks.

That bar shouldn't be any higher

Maybe a task force may help.

MR. RAVEN:

Marc Raven.

One other quick thought

is that while word searching can do you a lot of good in

limiting the volume of documents, sometimes a broader brush

approach is really the only way that you can deal with these

massive volumes.

And with that, I mean, for example, in

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

settling for a year shorter time frame than for the paper

documents or deciding that you only need electronic

documents from half or two-thirds of the people whose files

are being produced.

I believe it makes a huge difference because again

while you can oversimplify by thinking you word search it,

it pops up and you produce it; of course, it also has to get

read, privilege reviewed and processed.

know, time consuming and expensive.

adds to the bill, this is not just the cost of using the

vendor.

MR. BERNSTEIN:

And that is, you

It's lawyer time that

Just to go back to Steve's

question a while back which was whether we're actually

getting anything useful from archive email.

around our division and asked people what their experience

has been, and it's varied but some folks have said that in

some cases, it's been the most critical and most important

material they've gotten.

some cases it's been very important.

point I wanted to make.

And I went

Now, that's not every case, but in

So, that's just one

Also, in terms of negotiating issues relating to

electronic documents, whether it be archive emails or just

electronic documents generally, I think one of the reasons

people are reluctant to make cuts, whether it be going on

term searches or cutting back to one year instead of three

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

years, is the fear that they're going to completely miss

something.

and a whole category of documents isn't going to show up.

The wrong word is going to be in the term search

I think you're more likely to get a modification,

I'm only speaking if you're negotiating with me because I

don't know what others think, but if you create some kind of

safety net.

we're going to search them for the full three years.

going to search them, not by key search terms, we're going

to search them completely.

less important employees on the organizational chart, give

us a break on these.

do search terms, something like that.

In other words, you say, for these key people,

We're

But on these, what we consider

Either cut it back to one year, let us

I would be less reluctant to agree to some kind of

modification like that knowing that I had a safety net there

that some people would be searched completely so that we

didn't inadvertently modify it in a way to cause us to miss

a category completely.

MR. ROBERTSON:

Robbie Robertson again.

I'll say

one more thing.

What can aggravate all this, why we're all

so paranoid about emails and document -- for, it is the

attorney-client privileges or how it says in the document

that's an issue in that case.

afraid that you're going to turn over something privileged,

not because there's something bad in it but because you may

And you're always deathly

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

inadvertently waive something.

That's the fear.

And if you're dealing with a civil litigant and

you inadvertently produce something, you write them a

letter, say I inadvertently produced something, you get the

document back.

can complain about it and get the document back.

usually an embarrassing thing but it's not a big deal.

And if you don't, you have the judge, you

It's

Well, there isn't, as far as I can tell, a

consistent view from not just the FTC but the government

side at any agency, as to how to deal with this issue.

most people will tell us that if you produced it, that's too

bad,

and that you won't get it back or we'll talk about it

later.

And there had been some position by the FTC in the

past that these rules don't apply to them, the ABA rule on

this particular point.

And maybe that's the right decision.

And

But if

deters people from handing over what you have if you've done

the search and you think you culled out all the attorneys'

names and all that kind of stuff.

over in electronic form until you have a bunch of outside

counselors you hire culling them page by page through every

document and every email.

extraordinary amount of time and added expense.

maybe that's an issue that may need to be brought up as

well.

You're afraid to turn it

And that's what takes an

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

And so,

MR. BRUCE:

I'm Greg Bruce, and I don't want to

sound like a broken record but that actually has come up a

number of times from the different respondents we've worked

with, -- one of those.

you know, look, we're not trying to hide anything here.

It's

business.

than willing to comply.

sit down with you guys up front, attorneys as well, but as

the general operating business, to sit down and understand

what it is your looking for, understand what your concerns

are, and then figure out the best way to deliver those to

you, record search or email search or whatever it is.

So, they'll come up to us and say,

something that -- earlier about, this is just

This is a business transaction, so we're more

We would love to come in and just

It's having that opportunity to sit down with you,

that is probably the thing you've heard the most across the

board.

you know, our attorneys sometimes are the ones keeping us

out.

talk directly with, you know, the implication that they're

in that business, people along with their counsel, outside

counsel.

you're there for, how can we best comply, because, again, a

lot of us, we've got nothing to hide.

to comply, just tell us what you need.

And you always feel like there's this barrier, and

But other times, there is just the feeling of we don't

It could go a long way in knowing what is it that

MR. RAVEN:

I'm Mark Raven.

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

We're more than happy

To go back from the

constructive suggestions, just to quit whining for a second,

one other thing that I was reminded about with Robbie's

comment about privilege review is that as I think you're,

I'm sure you're all aware that the privilege log that's

required for a second request production is more detailed

than the privilege log that's normally required in

litigation.

and in any event a lot more time to get down on paper.

that, you know, again, when you consider the volumes of

electronic documents that clients, particularly

sophisticated companies, tend to have nowadays, you can just

tack that on to all of the other burdens that have already

been identified.

And it requires something, more investigation

And, you know, it's obviously essential, just by

the time doing the privilege from you but you can't forget

about it at the time of the hearing and submitting the law

to, which can then, you know, slow down back into the

process.

MR. MUTCHNIK:

This is Jim Mutchnik.

I have a

comment.

I think the fact that we've been talking about

this for a half hour may be indicative of the fact we come

to you to try to negotiate these issues.

month or two months to work out the rules where we may be

better served in making the calls that Marc was discussing

under the federal rules about, should we be entitled to

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

It may take a

this, and just make your decision and produce and assume

that's good enough until you tell us it's not.

question the utility of the thing.

I'm sure --

And I just

Not today, of course.

MS. SULLIVAN:

Lisa Sullivan, and I'll comment

just on Mr. Mutchnik's comments.

find helpful is a little more clarity or information on the

appeals process.

I've been told you would either have to comply with X

instruction, whether that be email archives or something

else, or else there's an appeals process.

just produce and say sue us.

One thing that we would

We've been, I've had the experience where

But you can't

If there were published opinions on what went

through in the appeals process or if the FTC would explain

past decisions that had been made in the appeals process

appealing different instructions, then it would give a lot

of guidance to the companies to know whether we can go ahead

and just produce without searching email archives.

ahead and produce without complying with instruction X, Y or

Or go

But the companies are operating essentially in a

void when they're told, well, you can go ahead and certify

compliance but you're not in compliance with our rules and

you're supposed to go through the FTC's appeals process, not

certify compliance.

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

MR. BERNSTEIN:

And that is a suggestion we've

heard a couple of times to make that process more

transparent and make those decisions public.

something we are considering right now.

MR. RAVEN:

And that's

Just to add to that, Marc Raven here,

what's a good analogy is the pre-merger office now has its

informal opinions online which is greatly helpful.

can search them and come up with, you know, half a dozen

examples to give you some instruction that's, information

that's been floating around that's just a little easier to

get your hands on.

MR. BERNSTEIN:

And you

Has anyone been through the appeal

process at DOJ, and any thoughts on whether that works

better or worse than our current process?

MR. McCAREINS:

A short rebuttal, I mean,

ultimately the test is substantial compliance, and what does

that mean?

know.

reasonable effort.

exactly what they want.

percent.

this is all we can do.

I mean, that's like the reasonable man test, you

There's a little gray, you make a good faith

99 or 98 times out of a 100, they get

We're fighting over the two

We've made an effort.

We've made a tender that

Rhett says, I know you can do more.

I say I can't

and, you know, I fish or cut bait and say, I think with a

substantial compliance you do what you got to do and tell me

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

if I'm not.

open and, I think you can convince them that you're making a

good faith reasonable effort and you're all trying to speed

this process up.

that point where somebody just said, you know, well, the

deal is going to create or we're fighting over one of these,

what I would call hyper-technical discovery issues.

But if you've got those lines of communication

I mean, I personally have never gotten to

When the record has been made on both sides as to

what you want and why you can't do it, that we shouldn't

even involve the appeals process.

use the time in the appeals process.

stuff going on on whether that's an expedited appeal, when I

can get a ruling in 36 hours which I'm sure I can't or I go

up on Justice and it takes me a little bit of time.

want to lose the time.

production, make a judgment call and go forward.

that's just me.

MR. KRULLA:

Frankly, I don't want to

We got so much other

I don't

I'd rather make a decision, make the

And maybe

Now, there is a middle ground

approach that we've developed between what's required by the

literal terms of the second request and what the responding

companies may be inclined to produce or may be comfortable

producing within the time they have available.

to negotiate modifications to the second request.

And that's

Does anybody have thoughts on how that process has

worked and how we can improve that process?

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

MS. SULLIVAN:

Lisa Sullivan again.

For the most

part, the modification process, in my experience, has been

very good.

experienced is that typically, I've been negotiating with

junior people of the FTC who tell me or the other people I'm

working with that they don't have the authority to make the

modification.

However, the essential problem that I've

So, what happens is there's an extensive dialogue

between the attorneys and the junior staff people of the FTC

where it's explained the basis for the request for

modification and the reasons that we're asking for a

modification, and we'll even go to the extent to memorialize

that in a letter to that staff attorney.

attorney then tells us that they don't have the authority to

make the modification.

to several days to get a decision from the FTC, and perhaps

because of not clear lines of communications, we don't

always get a modification that makes sense based on the

explanation that we've given to the staff attorney.

But that staff

It takes anywhere from several hours

If we were dealing with the staff attorney that

has the power to make modifications, I think the

modifications will make a lot more business sense for the

companies.

MR. RICHMAN:

Has that been anybody else's

experience where the person you're talking to doesn't have

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

the authority to modify?

MR. MUTCHNIK:

This is Jim Mutchnik.

Yes, and

it's my experience with modifications that it's a lot of

work with very little gain.

well, we understand your position, and move forward at your

own risk and then we certify substantial compliance.

fact, very few staff attorneys go I agree during compliance

that's usually

under this sort -- So, I question the utility of full-blown

negotiations to the extent that it's --

What you're blocking with is,

And in

preserving their right to challenge you

MR. BERNSTEIN:

We talked about, a lot about the

email issue, are there other specific areas involving

modifications or things in the second request that are

particularly troubling?

specs?

areas where you are running into trouble?

Data

Anything out there that sticks out as one of the

MR. RICHMAN:

Is translation a big problem?

Somebody's got to be upset about

data specs.

MR. DUBROW:

This is John Dubrow.

It's not really

a big issue but the spec-ing requirement seems to add a

burden that I think doesn't really add much value.

the DOJ standard second request doesn't include it any

longer, you know, why do you need Mr. Smith's file program

in three different specs.

folders.

I think

It just adds time and file

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

MR. RAVEN:

Marc Raven.

I'll second that and also

question whether at the end of the day you really get much

benefit when you, you know, parties typically have the

responsibility to decide what spec improves the document.

And you know, frankly, I think it invites mischief whereas

if you just ask people to produce documents that's been kept

in the normal course of business, you know, that's what

you're going to get and you get all these people's files to

look at for particular issues.

MR. KRULLA:

Any suggestions for how staff can

ascertain whether the companies have produced what we've

asked for under a particular specification if the production

is not identified by spec?

MR. DUBROW:

John Dubrow.

I mean, I think that's,

stands with the, you know, parties' efforts to certify

compliance.

you come up with a list of people, you put them on a search

list and say, well, we searched for adding whether or not

that person, in moving the document to spec need, I don't

think it has any additional value.

doesn't add any additional value, just maybe it's pertinent

for somebody to certify if you're saying I've looked for all

documents that responds to that spec or as that's modified.

You can't certify compliance if you haven't, if

MR. KRULLA:

Well, mind you, it

What about as we move from a HSR

supplemental request production to litigation?

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

What

latitude do you believe that defendant should have to pull

out documents and use those in the defense that are on their

face responsive to the second request?

companies failed to produce in response to the second

request, or (b) negotiated out of production because, for

example, it would be too burdensome to locate those

documents.

And, either (a)

What comfort can the Commission staff have in

preparing a case that if we go to litigation, the defendants

are not going to confront us with the very documents that

they've asked us to negotiate out of the investigation?

MR. McCAREINS:

Mark McCareins.

I have an answer.

Again, under the federal rules, in using the private

litigation analogy, your process is much like a preliminary

injunction where there's expedited discovery and we move

heaven and earth in a 60-day period to try to do expedited

discovery and you may not get everything.

any bad faith, but you've got other things to do.

got briefing, you got witnesses, you got experts, and you

got a preliminary PI hearing set 60 days out.

Not that there's

You've

Depending on the outcome of that PI hearing, you

have a full-blown trial on the merits.

additional documents are discovered after that first wave,

I've never seen anybody preclude it from introducing those

documents at the permanent injunction hearing and trial on

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

The fact that

the merits because they weren't produced by either side of

the PI hearing.

back of my hat when somebody does that to me, but I've never

seen that successfully used.

isn't perfect but it's still, I think it's apt to what

happens in the second waiting period.

It's an argument that I might keep in the

MR. KRULLA:

So, I mean, maybe the analogy

Well, if a responsive document is

found after the certification, it's produced as part of the

defense evidence.

bounce the production and say, well, it turns out you were

not in substantial compliance because here you've identified

a document that you believe is significant, relevant to the

examination of the acquisition and you failed to produce it.

And we didn't know you failed to produce it because we

didn't know it existed until you confronted us with it.

Should that be grounds for the agency to

MR. McCAREINS:

Mark McCareins.

this road, I'll continue, Professor.

out document in your hypothetical?

MR. KRULLA:

I started down

Is this a negotiated-

Let's say it's one that was not

addressed, that appears to be responsive to the second

request but is now produced by the defendant from its files

without a Bates Number identifying it as a second request

document.

So, it has not been negotiated out.

MR. McCAREINS:

But it appears to be responsive?

Or I mean, there's some question about it?

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

MR. KRULLA:

All right, let's say it's responsive.

MR. McCAREINS:

MR. KRULLA:

MR. McCAREINS:

And it's not negotiated out?

Right.

I still take the position that

what we're talking about here is substantial compliance and

we're producing literally tens of thousands of documents,

and the fact that I didn't produce one document doesn't mean

you should decertify substantial compliance.

MR. DUBROW:

This is John Dubrow.

I don't -I strongly

agree with that.

a vast amount of documents.

takes on a life of its own and becomes, you know, I think

that's wrong for the result that that gets you which is

what's the substance of the transaction?

We are, as Mark said, having to turn over

To the extent that the process

I've had different experiences with different

jobs, different agencies.

You know, you find some of those

documents sometimes.

says, you know, there's a document referred to and I can't

find it, there's two approaches to that.

bounce you, and the other is which just leads to, well,

fight about whether it's responsive or whether it exists or

you say, look, you know, I'll get this thing.

You know,

I'll give it to you tomorrow, if it exists.

And in part,

it's, you know, who you're dealing with and trying to get to

the right result in the process.

But if the person calls you up and

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

One is I got to

MR. KRULLA:

Does the failure to produce the

document in response to the second request, if it's clearly

responsive, call into question the authenticity of document

if it's later produced by the defendant in court?

where did this document come from if it wasn't previously

produced?

MR. ROBERTSON:

I'll try the next one.

I'll speak up.

And just

Robbie

Robertson.

And I have been precluded in

that trial in using that -- that is civil litigation, and I

think that that also caused other people not to deal.

use their documents by moving to exclude them.

issue always in court is, in a regular civil litigation

context, is have you prejudiced the other side?

usually the standard the judge would use.

We'll

But the

That's

And if I find something and I didn't produce it in

civil litigation, I'd better get it over to the other side

pretty quick; otherwise, I may be precluded later on after

the depositions have taken place, after the discovery has

already taken place, even in a PI hearing.

under those circumstances, you absolutely should seek

preclusion and you'll probably get it in court from the

FTC's side, any party can do that and will likely have that

about it.

And I think that

If there's no prejudice at all, if you simply trip

over a document, those happen, you do find documents after

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

the second request has already been complied with, or in the

case of civil litigation, after you've done all your

production, you find something.

authenticity and I think that you want to go and make that

argument, that maybe the authenticity is questionable, but

it may be an honest mistake.

It does question its

There are other remedies that the FTC has, of

course.

You can say that there wasn't compliance with the

second request.

clock out and start over again, that happened on at a case

some of us know about.

Not that -- was involved but we've

had that happen to us.

There are remedies that the

government has, that civil claimants don't have.

You can change the, you know, take your

But I think that the issue ought to be fairness

and being able to make sure that the government, like any

other party, in any case is not prejudiced.

it, you ought to turn it over right away.

happen and the depositions haven't yet started, if you're

having depositions or a hearing that hasn't yet started and

you're not prejudicing something, then any government agency

should be accommodating.

ways.

So, if you have

If that does

But I also think it goes both

That's my personal view.

MR. MUTCHNIK:

This is Jim Mutchnik.

While we are

on the topic of hiding or pulling things out of your pocket,

I was wondering why the FTC was taking a position not to

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

provide our clients with copies of their own transcripts, I

mean, here in front of you for interviews and depositions?

MR. KRULLA:

Do you believe it would be useful in

the course of the investigation to have those copies of the

transcript?

MR. MUTCHNIK:

Sure, and a lot cheaper than having

somebody come in and have to transcribe it, you know, at

$250 bucks an hour plus traveling.

MR. KRULLA:

MR. MUTCHNIK:

MR. KRULLA:

Is the concern that --- the cross question and answer.

Raised from time to time from the

staff that having the transcript may facilitate coaching of

the next witness.

Is that a valid concern or specious?

MR. MUTCHNIK:

I don't think it's very valid

because that's our job, to make certain that we provide the

information and make sure the witnesses are well prepared

and the fact that you're lining up the particular sentence

or word is probably not going to carry the day with you guys

anyways.

knowing what your people have said and where you're going

and making sure our evidence is lining up the same, that

we're not pulling things out of the hat later on, that seems

like a fair place to go.

MR. BERNSTEIN:

So, I think the concept of preparedness and

Jim, has it been your experience

that you're not getting the transcripts at all or they're

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

making you wait until the end of the depositions before they

hand them over?

MR. MUTCHNIK:

Oh, well after the end of the

depositions and heading towards a heap of trouble, so you're

unable to use the stuff as your, before you're heading to

trouble, you try to use it affirmatively with management,

getting a sense of where management was thinking based on

all of the evidence of having those shared between both

sides.

MR. BERNSTEIN:

Okay, thanks.

MR. ROBERTSON:

Robbie Robertson again.

And I've

just been casing all these views and I'll just tell you what

my personal view is on that subject.

litigation, they were on a roll except for -- And I think we

even did that.

lawyers are there and their witness is there and they know

what they said.

substantially large companies is to be able to inform other

people what happened.

comes back and tells his boss or his CEO, hey, maybe that

position ain't going great.

Well, guess what?

Everybody at every

And I think that people do coach, but the

What the transcripts need to be used for in

Because what happens is the witness

Nothing came up about you.

Something did.

I think it can

help us with the honest flow of information so that

decisions can be made, not just in how to litigate, how to

prepare somebody as Jim mentioned, but also how to kind of

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

make sure that the senior management in a large company know

what really is happening so they can make the right decision

whether to try to resolve the case.

really is the right answer.

can't really convey it to the people who are the decision-

makers who weren't there getting busted.

other uses for it.

And many times, that

You may have a problem, but you

So, there a lot of

I think the coaching issue is real.

I think that

people do it under civil litigation all the time so people

can say they're not lying.

it's relatively small considering the fact that a lot of

people in the DC Bar will take with him an associate and

write down word for word what happens at every one of these

hearings.

just don't have the real transcript.

That is an issue.

But I think

And so, they know exactly what was said.

You

So, I don't know that it really is preventing me,

even when I'm coaching, if that ever happens.

view.

you're all witnesses, I don't think you ought to necessarily

get those --

I think it ought to be a moral thing, that is, if

MR. KRULLA:

Any other thoughts on investigational

hearing transcripts or on modification negotiations?

MR. ROBERSTON:

MR. KRULLA:

But that's my

I'm sorry?

Any other thoughts on modification

negotiations or on the investigation hearing transcripts?

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

Not from the person who just spoke.

MR. BERNSTEIN:

From anyone else?

Going back to the backup emails,

in your civil litigation, what has your experience been in

terms of those backup emails?

information there or have you found that not to be useful?

Have you continued to ask for it in your civil litigation?

MR. McCAREINS:

Have you found useful

Mark McCareins.

A lot of it just

depends on the case and the amount of resources that our

clients can spend on those cases.

million-dollar case and I go to the client and say it's

going to cost $600,000 dollars to kind of flush out this

issue, they're going to fire me and get another law firm.

If I've got -- company case and we've got resources to do

it, then we'll make the effort.

If I've got a three-

So, a lot of it is a sliding scale, but recently,

in the Third Circuit, in the price fixing case, we used a

sampling solution which worked out well.

independent consultants come in and talk to each other and

the sample is devised and the client goes out and responds

to the sample.

deal.

the mediator and is going to balance the burdens.

if one side or the other takes a too aggressive position,

it's not going to fly with an industry, so the sampling

issue is I think --

And the

I mean, I haven't seen it as being a big

And ultimately, you know the court is going to ask as

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

And so,

MR. MUTCHNIK:

have a miscellaneous question.

have any statistics to make available about the number of

companies that file and then pulled and refiled?

that's on the rise or steady?

information?

MR. KRULLA:

I have a, this is Mutchnik again, I

Have you been studying or

On whether

Particular trends

In my experience, it's a phenomenon,

I think, that started in the 1990's.

it prior to that.

MR. McCAREINS:

MR. KRULLA:

I don't recall seeing

You're dating yourself.

I think it's increasingly being used.

I think in the beginning, companies were very wary that, oh,

this is a trick by the staff to get more time.

these model second requests.

were able to turn around the second requests very quickly.

Ultimately, it's up to the chairman whether to issue it, but

staff sometimes have input in drafting it for the chairman.

So, we don't usually need the extra time in order

We have

We have word processors.

to get our act together.

We have been instructed by

successive bureau directors, successive management, that we

are not to encourage companies to withdraw and refile unless

we have a good faith belief that it could obviate issuance

of a second request.

ask us, candid assessment when they say how about if we

withdraw and refile.

So, we provide companies, when they

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

Our mind is never closed.

Our feet are not cast

in cement.

do, I'm going to issue a second request or I'm going to ask

the chairman to issue one in 30 days.

But we will provide our best candid assessment as to whether

we think it might be in the company's interest to withdraw

and refile.

So, it's hard to say, look, no matter what you

I can't say that.

I don't know that we have any actual statistics on

how many of those withdrawals wind up in a second request.

I think more often than not, a second request is not issued

when that additional period is extended.

took out of all HSR filings, the ones that withdrew and

refiled, the number of second requests that issue out of the

total universe as a percent would be a lower number than the

number of second requests that issue out of the ones that

withdrew and refiled.

that withdrew and refiled recognized that there is, at least

on the face of it, outstanding questions that need to be

addressed.

I think if you

That's, I suspect, because the ones

So, you're going to see a higher fraction than the

few percent out of the total universe that gets second

request.

certainly my experience has been that when companies

withdraw and refile, more often than not we can eliminate

the problem in 30 days.

But I think more often than not, our experience,

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

Part of the problem we face and welcome your

thoughts on is the filing fee issue that if we identify in

the first 30 days or first 15 days on the cash tender offer

a problem, there is the vehicle of withdrawing and refiling

within 48 hours or two business days without paying a new

filing fee.

concerns in that next 30 days and we had an experience last

year where we wound up issuing a second request.

several weeks after issuance of the request, we were able to

resolve the concerns.

Sometimes we're not able to eliminate the

But within

Any suggestions in terms of the obligation, if you

want to avoid the refiling fee of resubmitting, starting

that clock again within two days?

the bar if there were more latitude on that front?

MR. MUTCHNIK:

Would it be helpful to

This is Mutchnik.

In response, I'm

glad to hear a sort of, from what you just said, I didn't

quite understand who was making decisions and how much we

could really trust and that's good to know.

like to see some statistics like I mentioned, and then start

trending that out for us to get a sense of what your lists

are.

making the suggestion that a refiling would be useful, at

what level of a commitment recognizing that you haven't made

a full commitment not to issue a second request.

I think I'd

I'd like to see some better understanding of who is

I'd like to, I think that was my big comment -For The Record, Inc.

Waldorf, Maryland

(301)870-8025

MR. ROBERTSON:

Robbie Robertson again.

I think

it's a good idea to have some monitoring on the 48-hour

window in some cases.

encourage clients to file even though the closing is not

going to happen way down the line because we want to get

everything done and cleared and make sure that all the

issues have been resolved before other people start making

financial commitments and things like that.

helpful if you know that when there's a question that comes

up, we can resolve the question and hopefully give the FTC

what they need.

There are some cases where we

And so, it is

The problem comes with the specter of the second

request coming over the horizon.

threat but it's more of a business decision point that in

any businesses, especially the smaller ones, when they see

the second request is actually an issue, then they'll decide

whether to go on with the transaction or not because they

have this fear that it's going to be inordinately expensive

to get through the process which may or may not be true.

It is a little bit of a

But it just, it's a matter of history that that's

how a lot of businesses operate, especially with private

equity companies where they buy and sell companies all the

time.

it and decide are we going to stick with the deal or not,

regardless of what the outcome is going to be.

If they see a second request, they are apt to look at

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

And so, I

think that in a case where you could help resolve the issue

without having to trigger another time period, at least the

parties can agree to do that, I think makes sense.

Jim and I have had cases where that has happened,

where we've gotten to that point, the second request did

come down and actually the deal was off.

could have gotten the deal through.

result, I think, for the economy, a bad result for the

process.

MR. BERNSTEIN:

And we felt we

And that one's a bad

Jim, to try to answer your

question dealing with whether there is a trend, I have not

seen any statistics but my guess is that when the clearance

process is working well, there is not as many pull and

refiles.

there tends to be more because the experience I've had has

been that most of the pull and refiles have come about

because we didn't have enough time to investigate up front.

When the clearance process isn't working well,

And while, again, I can't give you statistics on

how those have turned out, I can tell you in every one of my

cases where it was pulled, had it not been pulled, there

would have been a second request.

me, Steve, I'm thinking of pulling and refiling, and there

wasn't going to be a second request I would have told you,

don't do that, there's not going to be a second request, let

the waiting period run.

Because if you had told

So, to the extent that helps answer

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

your question.

MR. RICHMAN:

And just one other thing to add on

that is, I've had recent experience with a couple of

situations where the pull and refile decision came from the

parties.

going to issue, but to give us a little more time to take

out of any potential responsibility the burden of searching

for markets that we were ultimately able to dispense with

and, you know, on the order of half the delivery of ultimate

documents.

And in full knowledge that a second request was

So, I mean, there is, occasionally, I think this

came up in the lines of communication.

long to get us the information when we have, on some of

these cases, potentially thousands of overlaps to get those

out of the way.

property, it takes you a long time to get the people who

understand it to us and then there is a learning curve for

us, even in industries that we know about, just to make sure

that we're not missing the boat.

divisions or we can cut out countries, I'd rather do that

before the issuance of the second request because then we

don't have to negotiate.

MR. BERNSTEIN:

MR. BAKER:

It just takes too

And those, especially in an electronic

And if we can cut out

Steve.

I've got a question for you guys.

You've been hearing from them on everything and I'm sure

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

there are some things that a private counsel do to you guys

during the course of the mergers that drive you nuts, that,

you know, maybe have given you a bad feeling or makes you

really be on guard with a lot of other people where the same

issue doesn't come in.

particular that's kind of a pet peeve that you'd like to see

people avoid that you think that doesn't advance the process

that could be --

MR. KRULLA:

Have each of you got something in

Well, I think in initiating

negotiations on modifications to a second request, it's

important for counsel to have done their homework, to come

in with organization charts, to have some familiarity with

what the production involves, where relevant documents are

likely to reside, how the data is kept.

where counsel, as soon as they get the second request, say,

okay, I want to come in, I want to negotiate, I want

modifications, and they don't have a clue as to what's

involved in complying with the request or why they need the

modifications other than that they believe they're entitled

to them.

I've had instances

So, I think there's a lot more credibility with

staff and staff are going to be more sensitive to the

concerns if counsel for the parties have done their

homework, made an assessment as to who's got the documents,

what the flow of documents is, who are the people

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

responsible for organizations.

org charts and they say, well, we want to exclude these

people, I say, well, what do they do?

Well, they should have at least done enough homework so they

can explain to me why those people should be excluded.

MR. BERNSTEIN:

When they come in even with

Oh, I don't know.

That's probably the biggest

problem that I see.

the second request issues, opposing counsel comes in and

they say, now, tell us what you really want.

know, the second request just issued two days ago, that's

what the Commission asked for.

give us concrete suggestions, bring samples and bring the

org chart.

bring in the org chart because I think that's the area that

people are most comfortable with.

Very often at that first meeting after

Well, you

The more you can come in and

The quickest place to make real cuts is just

So, that's usually the most productive area.

And

I think it's important to focus on those areas where you

know we can have productive negotiations at the beginning.

But the more homework you do, the better off we are.

And also, going back to the initial waiting

period, again, there are certain types of information we're

always going to ask for if there's an overlap in the case, a

significant overlap.

strategic plans, recent business plans, things like that.

And we're asking that, it's totally voluntary, we're asking

That's the customer list, the recent

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

that because we think that that information could help

resolve the issues early on.

So often when we put out this request, a voluntary

request in the initial waiting period, we start getting

yelled at.

information, that's fine.

help us understand the markets better and see if we can

resolve something quickly.

Well, if you don't want to give us the

But we're only asking for it to

So, someone made the comment about the process

maybe not being open enough or not cooperative enough, that

goes both ways.

We're happy to sit down and talk to you

about the case.

We want to be as open as possible.

every time we explain that we have a concern, we start

getting berated.

But if

It's so unpleasant that, you know, it doesn't

foster a cooperative relationship.

point I would like to add.

MR. KRULLA:

So, that's the other

I think this, the approach Steve

mentioned of coming in early and saying, well, what do you

really want, does serve a useful purpose in one context.

It's not useful in terms of the modification at the second

request.

we have not been able to resolve concerns; so, our only

recourse is to issue the second request and we issue it

based on available information.

Where it is useful is we're in the first 30 days,

And at that point, the fact

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

we have issued the second request obviously does not mean

that we're heading off to litigation.

We may determine based on documents, information,

hearings, third party input, that the investigation can be

terminated at any point.

information that would enable us to make that determination,

get us some high level up-front documents, can be very

useful in terms of giving us a sense early on as to whether

this matter is worth pursuing.

So, the key documents, key

Second, it may be that in a given transaction, we

identify one or more markets or product areas where there's

a problem and perhaps other aspects of the transaction do

not appear to be a problem where we can identify where the

problem lies and can identify a fix to the problem, and the

parties are willing to work with us on a consent that fixes

the problem.

In those instances, if we can identify, reach a

level of confidence so we can advise the Commission what the

problem is and that the fix fixes the problem, then the

question of substantial compliance or compliance with the

second request is really a moot issue.

do we have sufficient information and documents to give us

the confidence we need and give the Commission the

confidence it needs to determine either that there is no

problem or there is no problem in certain markets, that

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

The real question is

we've identified the problem in other markets, and that the

fix cures the problem, then the exercise of going through

the full production of the second request or modifying the

request to get to that end is mooted.

And, I think, the problem I've seen are counsel

who don't want to get to the issues, don't want to get to

the merits, they just want to get to compliance.

to start the clock, put the gun to our heads, defy us to

bring a case, rather than working with us in, through the

second request process to educate us on where is the

problem, where is there not a problem, and how can the

problem evaporate or be fixed.

They want

So, I think, early on, that's constructive.

In my

experience, frequently that process doesn't begin to happen

as a matter of tactic by the defense counsel until after

they've started the clock.

through this million-dollar production, and now we'll sit

down and confront what's been staring us in the face all

along, that there's an anti-trust problem and that needs to

be fixed.

MR. BERNSTEIN:

They say, first, we want to go

Just to follow up on that.

Over

the past three years in our division, very few matters have

even resulted in substantial compliance, regardless of which

way they came out.

encourage you to come talk to us early and try to be

So, there are ways to do it and I just

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

cooperative about it.

MR. KEILER:

Yes, I was just going to comment on

the last point based on -- I would suggest it would be

helpful, but I know it's not the staff's position, or bureau

director or in the case of the Justice Department,

management of the anti-trust agreement.

that process in two different situations where we did not,

in fact, go through a substantial compliance.

we thought we would answer the problem or we thought we had

a fix.

was no clock on it.

I've been through

It was either

And the process went on interminably because there

MR. KRULLA:

Is that FTC or DOJ?

MR. KEILAR:

One was with the FTC and one was with

MR. RICHMAN:

Just one point, and this was, very

DOJ.

quickly, I mean, it was something that Greg brought up and

Mark, you actually started with which is communication.

the outset of negotiations for a second request, bring in

the one person in the company that actually knows what the

boxes on the org charts mean, and the person who knows

whether the person in that seat has been there for longer

than three weeks, whether their position predates the

announcement of the merger.

the burden is by cutting out the bodies.

don't have to search the people at all, then, we're not

I mean, there's, the bulk of

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

I mean, if you

going to ask, we're going to get the information.

But before we can make those cuts, we actually do

need to know what people do, and I'm one of those horrible

people who said, I know that her files are in the trunk of

her car but I want her trunk searched because, historically,

I know for that industry, for that person, that job title,

that's where the documents are.

and they're actually relevant to the broader case.

you bring somebody in who actually knows it and you don't

rely on the homework that you've done which is good

homework, but we're going to look at a job title and you may

have just missed it because the org chart isn't clearly

printed, we're going to ask and it delays the process.

That's where they reside

But if

Secondly, we need to know, especially now, post-

Y2K changeover, we need an IT person to talk, not to us, but

to our IT people to explain the issues about data storage

and legacy systems.

migrate something from an old system to SAP, then it's

probably not especially relevant to the company's

operations, we need to understand that.

it may have been an expense issue and we may actually want

that data and you may want that data because if we have to

do econometrics, that may be the data that is dispositive in

dismissing an issue.

If the company didn't see fit to

On the other hand,

So, we need those two groups in and we need to

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

have open discussions on our end.

going to be 90 percent of the burden, the truly unnecessary

burden and can be discussed fairly quickly.

MR. BERNSTEIN:

I want to wrap this up.

add something?

MR. BAKER:

And I think that that's

Well, we're already past 1:30, so

But I think, Steve, did you want to

I just have one question.

Obviously

people have been talking about second request as a process

for years and years and years and years, the model second

request, and I guess a lot of people here have done this for

a long time.

anything the FTC has implemented in recent years

particularly that's improved the process?

Has any of the stuff gotten better?

MR. DUBROW:

John Dubrow.

Okay.

Is there

Maybe not.

To continue the

tribute here that there used to be an index requirement that

actually made you close out every document.

pretty useless, but they've made that pretty simple now

where you can say this range belongs to this and this

demand.

right now.

made things more simple.

MR. BERNSTEIN:

And it was

That spec-ing issue, but you don't have to do index

So, there were some things like that that have

I also want to add that we're

accepting written submissions, so if there is something that

you didn't have a chance to discuss here that you want to

put in writing, you can submit that to one of us and we'll

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

make sure it gets put into the record of what we're doing

here.

Okay.

really helpful.

Thank you all for coming.

This was really,

(Whereupon the meeting was concluded at 1:35

p.m.)

C E R T I F I C A T I O N

O F

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

R E P O R T E R

DOCKET/FILE NUMBER:

CASE TITLE: Merger Best Practice Workshop

DATE:

June 18, 2002

I HEREBY CERTIFY that the transcript contained herein

is a full and accurate transcript of the notes taken by me

at the hearing on the above cause before the FEDERAL TRADE

COMMISSION to the best of my knowledge and belief.

DATED: JUNE 19, 2002

RITA LANGLEY

C E R T I F I C A T I O N

O F

P R O O F R E A D E R

I HEREBY CERTIFY that I proofread the transcript for

accuracy in spelling, hyphenation, punctuation and format.

NANCY SMITH

For The Record, Inc.

Waldorf, Maryland

(301)870-8025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.