When a merger review begins, counsel hopes that a Supplementary Information Request (SIR) will not be issued. Despite these hopes, it happens approximately 6%Footnote1 of the time. Responding to a SIR can be onerous and expensive. The Competition Bureau’s Merger Process Review GuidelinesFootnote2 are a useful resource for complying with the technical requirements of a SIR. However, in our experience, applying certain “soft skills” to the process can make responding to a SIR substantially more efficient.
I - USEFUL PRACTICES
1. Manage Expectations
Clients faced with their first SIR do not always immediately grasp the scope of the task ahead. In order to avoid any unpleasant surprises or frustration, counsel should provide clients with a comprehensive preview of what they can expect if a SIR is issued.
An initial package should include a sample or redacted SIR and a checklist that lays out each step of the process (from pre-issuance dialogue, to identifying custodians, to certification). Counsel should walk through these materials with the client. For example, a client may not initially appreciate the importance of how defined terms are used in a SIR or that the scope of the SIR can draw in materials that were not generated in connection with the deal under review.
In addition, it’s helpful to get the client thinking early about whether there are good reasons why the scope of a SIR should be limited and gather these thoughts in advance of pre-issuance dialogue. For example, perhaps certain possible specifications would not produce useful information, or the way certain records are stored will produce so much data as to be untenable for review purposes.
2. Build a Team
Responding to a SIR is about process and organization. A typical SIR generates so much work that it can become a second full-time job for one person. For this reason, and particularly for broad SIRs, we recommend having three key contact persons at the client company. First is the key IT contact, who will be the go-to person for all things technical, from imaging .pst files and hard drives to sitting in on custodian interviews to answer questions about how files are stored/archived at the client. Second is the key data contact, who will play point on coordinating the collection of required data. Third is the key SIR project manager (usually in-house counsel or the main client contact person), who will be responsible for staying on top of everything internally.
Some client personnel are naturally gifted in dealing with SIRs and can manage extremely well once the path is laid out for them. We have also found that with a particularly challenging SIR – where the client team could be overwhelmed – it can be useful to retain an outside consulting firm familiar with the client’s business to manage the logistics.
When it is more cost-effective to outsource the records review, selection of an outside document review team is equally important in complying efficiently with the “records” portion of the SIR. Some clients will have a firm contracted in advance for all such document requests in each jurisdiction they do business, so there is no scope for selection. Where there is a choice available, as in most things the lowest price is not always the best option. Check with your document management group, ask around and keep on top of what these firms are doing by meeting with them occasionally. Find out what kinds of innovative services and programs they can offer.
3. Develop Templates
To ensure that the client is providing the data requested by the SIR, we suggest developing data response templates for each data specification. A clear template helps the individuals tasked with pulling data to produce a complete and correct data set on the first try. We have found that using templates minimizes the number of follow-up questions on data specifications. Break the spreadsheets down into more digestible parts if necessary. Never underestimate the power of comprehensive row and column labels.
4. Get Tech Support
In determining the most efficient way to collect responsive records, consider the extent to which you can leverage technology. Technology-assisted review (TAR) programs are improving in reliability and malleability and can be used in a range of ways. It may not be appropriate to conduct an entire review using TAR, but selective use of these tools can save significant time and expense. For example, ask your document review services provider about using TAR to rank records by relevance or about how to leverage any other machine learning mechanisms to streamline the overall review process. This can eliminate time spent reviewing superfluous records like junk mail that includes a stray search term. It also provides the added benefit of highlighting the potentially most-pertinent documents that counsel needs to be aware of.
5. Select Custodians Carefully
One of the most important elements of a SIR response is correctly identifying the custodians of the records being sought. Read the SIR carefully to understand precisely which responsibilities the definition of “Senior Officer” includes, and how far down the client’s organizational ladder it reaches. Ask the Bureau what kind of information it hopes to receive. Then identify the individuals in the organization that are most likely to possess it. For example, in some companies, the setting of frequently changing retail pricing information has been centralized such that field personnel who recommended price changes in the past no longer have the authority to do so. People who used to perform these functions probably should not be captured as custodians.
There is a fine balance between selecting too few and too many custodians. If the case depends on a lot of contemporaneous records and there’s a good prospect of a challenge in the Competition Tribunal, it is better to have a healthy selection of custodians, so the client has a decent set of evidence to work with. If there are too few custodians selected, it’s possible the Bureau will push back and seek an expanded custodian list. In the worst case, the Bureau might take the position that a SIR response is deficient.
6. Roll the Productions
Rolling production of data responses as they are completed is appreciated by the Bureau. It can expedite their review and occasionally result in certain products or geographies being taken off the table mid-SIR. For example, if you can answer a data question quickly, the Bureau may be able to remove an item from the SIR’s scope before the records review begins, allowing counsel to remove search terms and correspondingly saving time and money. Make sure your submission emails to the Bureau are clear about what is and is not included in each production (e.g., flag for the Bureau the exclusions that will ultimately be in your certificate), so that there is no doubt about whether any data remains outstanding.
7. Be realistic on Timing
Responding to a SIR can be an all-encompassing endeavour. Understandably, a client wants to know when it will all be over. On average, parties take approximately two months to respond to SIRsFootnote3, though this can vary depending on the scope of the SIR and the resources available to counsel and the client. Breaking down the exercise into “bite-size” chunks can help in developing the timing estimate. Allow enough time for a reasonable pace of records review, privilege review and back-end quality control.
II - PROCESS IMPROVEMENT
While we have everyone’s attention, we thought we might also propose a few suggestions about improving the SIR issuance process more generally, particularly in light of comments made by the Bureau that response volumes are increasing to occasionally untenable levels. We recognize that the Bureau is investing resources to understand how the SIR process could be improved. It is also incumbent on counsel to reflect on what might work better. We hope these suggestions will resonate in this process.
1. Deeper Pre-Issuance Dialogue
Our experience is that, despite the considerable time required to respond to a SIR, the pre-issuance dialogue tends to be a very quick, perfunctory process. However, extra time at this point would be time well spent. For example, we have found that in complex industries that the Bureau has not encountered before, draft specifications can be confusing and may not effectively target the information that the Bureau expects to receive. The joint goal should be a concentrated, collaborative and considered effort to maximize the effectiveness of the SIR and the efficiency of the response process.
Where a SIR is inevitable, counsel should consider offering (and the Bureau should welcome) an earlier engagement to get to a better SIR.
A more in-depth pre-issuance dialogue may also produce creative opportunities for avoiding a SIR. For example, where the Bureau is planning to issue a SIR with a narrow scope, a more thorough discussion may lead to a collective view that perhaps a voluntary information request might suffice, combined with the parties’ pulling and refiling their notifications.
2. More “Made-to-Measure” and Less “Off-the-Rack”
We believe SIRs can be more tailored to the matter under review. In particular, the template data specification requests that are appended to SIRs should be reconsidered before each issuance. SIR data specifications often do not align with the nature of the product or industry in question (e.g., “Shipment ID” is not a universally applicable or relevant field). This can lead to confusion and unnecessary work at the client’s end.
3. Industry Crash Courses
Counsel and the client should focus more intensively on educating the Bureau about the industry in question. Strident advocacy by counsel on why a transaction doesn’t raise competition issues can be wasted if the Bureau is still in the process of understanding how the industry works. And this knowledge gap can be reflected in the draft SIR. At the pre-issuance stage, the Bureau may benefit more from an industry overview that can help it craft a better SIR.
While it could be part of an initial competitive effects presentation, counsel should consider a pre-issuance industry crash course, either via a conference call or an in-person meeting delivered by knowledgeable business people. The salutary knock-on effects of the resultant alignment around basic facts might include a greater degree of open communication (e.g., earlier and more collaborative pre-issuance dialogue) and a more tailored SIR that is better aligned with the business realities of the transaction.