1205001 Informal Interpretation

The third paragraph from the end which begins "Other informal staff opinions" addresses the "two hats" interpretation which is no longer our position (see below). The bulk of the interpretation, however, deals with documents prepared by officers or directors at the request of counsel for the sole purpose of engaging FTC staff on the antitrust implications of the transaction and to collect information that is expected to be the subject of an anticipated request by FTC staff for voluntary submission of additional information. Ignoring the two hats issue, I think there is still an argument that these documents, even though they were prepared by officers or directors and have 4(c) content, are not responsive, because they are being used to present information to the Agency to convince it that the transaction should be allowed to proceed, rather than being used by officers or directors to evaluate or analyze the acquisition with respect to markets, market shares and other competitive issues. On two hats: our current approach to this is you make the call. I think it is a very difficult line to establish and if I were advising a client I would have them provide all docs prepared by or for a director of the filing party, regardless of which hat he is purportedly wearing at the time. That said, if you think there is enough of a firewall to insulate the director in his role as venture capital fund representative from his role as director of the filing party, don't provide the document. You need to make sure you have a strong argument supporting this because if the document shows up in a second request production I'm sure it will get questioned by a litigation shop.