[Merger Pre-Approval ] – [ February 2, 2016]
Topic:
Merger-Pre-Approval
Question by:
Kathy Sachs
Jurisdiction:
Kansas
Date:
February 2, 2016
Jurisdiction
Question(s)
We have a new attorney who is questioning whether we have authority to pre-approve mergers. His concern is that we are
giving legal advice. We simply tell customers whether we will file or not file and if no, what will be the reason for rejection.
My understanding is that almost all jurisdictions provide this service but I want to make sure I am correct. Does your jurisdiction
provide this service?
Manitoba
Corporations
Canada
Alabama
Alaska
Arizona
Arizona does not offer preclearance. This was a "policy" established before my time here. I believe it was a matter of
resources, not necessarily because there were legal barriers.
Arkansas
California
Colorado
Connecticut
Connecticut offers preclearance services. We limit our review to the reasons for potential rejection and we refer the filer to the
appropriate statute for legal clarification of what is needed. Sometimes you can get around dispensing "legal advice" by
formulating a response along these comparative analysis lines: "Other filers have done x in this situation and we have
accepted it." On the whole, we find that preclearing complex docs is helpful to our filing office in addition to being helpful to the
customer. We do not charge for the service.
Delaware
Delaware does offer preclearances for any document type.
In DC we do not have the formal service established but myself and my senior paralegal specialists do it for customers from
time to time. We do not charge any fee for it for the time being.
Florida, too upon special request will review a document for statutory compliance, nothing else.
We do provide this service. We review the documents to make sure that it meets the requirements of our state code.
District of
Columbia
Florida
Georgia
Page 1 of 5
[Merger Pre-Approval ] – [ February 2, 2016]
Jurisdiction
Question(s)
We have a new attorney who is questioning whether we have authority to pre-approve mergers. His concern is that we are
giving legal advice. We simply tell customers whether we will file or not file and if no, what will be the reason for rejection.
My understanding is that almost all jurisdictions provide this service but I want to make sure I am correct. Does your jurisdiction
provide this service?
Hawaii
Hawaii does provide this pre-approval service and it is not specified in statutes.
Idaho
Illinois
Indiana
Indiana provides pre-approvals as you have described. The service is not specified in statute, but it has been around since
time began. Anyone requesting a pre-approval is also told that there is no guarantee it will be accepted for filing (sometimes
things change).
Iowa
Kansas
Kentucky
Louisiana
Maine
Louisiana is same as Indiana.
Maine is the same as PA!
Maryland
Maryland offers preclearance services for merger and other documents. We charge $275 for regular service or $425 for
expedited preclearance. Our statute specifically refers to "review", not "legal review"...but we do have attorneys performing the
preclearance review.
Massachusetts does provide preclear services for mergers and other complex documents; simple statement of changes and
annual reports are not available for preclear. We only review for the filing standards of law and if the document presented
complies with those standards. No legal advice is giving regarding the document or transaction.
Michigan has a policy statement that allows documents to be submitted for preclearance. The Policy Statement on
Preclearance of Documents (C-38) is available at: http://www.dleg.state.mi.us/bcsc/forms/corp/pol/c-38.pdf
Massachusetts
Michigan
Minnesota
Minnesota provides pre-clearance services pursuant to Minnesota Statutes, section 5.39. There is a $250 fee.
https://www.revisor.mn.gov/statutes/?id=5.39
Mississippi
Missouri
Montana
Missouri is like Nevada in regards to preclearance filings.
Montana will review documents for any errors/omissions for anyone taking the time to come into our office. We always have
one of our Compliance Officers assigned to help walk in customers. We do not charge an additional fee for this service and no
legal advice is ever given.
Page 2 of 5
[Merger Pre-Approval ] – [ February 2, 2016]
Jurisdiction
Question(s)
We have a new attorney who is questioning whether we have authority to pre-approve mergers. His concern is that we are
giving legal advice. We simply tell customers whether we will file or not file and if no, what will be the reason for rejection.
My understanding is that almost all jurisdictions provide this service but I want to make sure I am correct. Does your jurisdiction
provide this service?
Nebraska
Nevada
Nevada has the authority to preclear filings before submission. This preclearance only pertains to the statutory requirements
for filing and whether or not the filing would be acceptable for filing. There is no legal advice given. There is a fee for this
service and it is used frequently for amendments and mergers.
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
In North Carolina we call it an Advisory Review of documents and there is a $200 fee. This can be done for any type of
document. The statute reference is http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_55D/GS_55D12.html
Like Pennsylvania, our preclearance process is set forth in our fee schedule in the law, but otherwise not specified. AS you
stated, we simply tell customers if they form is completed correctly – I see our review of a document at this stage just as it is
when submitted for official filing- we are looking to see if the customer is complying with filing requirements for our office, but
we are not looking at the underlying transaction or validity of the statements which would be considered legal advice.
If the attorney in your office wants to talk through this with anyone else, feel free to pass on my contact information, I would be
glad to discuss in more detail if that is helpful.
Oklahoma
Oregon
Pennsylvania
Pennsylvania provides pre-approvals as you have described. It is called “preclearance of document” here and has been in our
fee schedule for decades, but not otherwise specified in statute.
Same as with Indiana and Louisiana, anyone receiving a preclearance is also told that there is no guarantee the precleared
document will be accepted for filing. i.e. filer changes something, attachments do not have operative dates, etc.
Rhode Island
Page 3 of 5
[Merger Pre-Approval ] – [ February 2, 2016]
Jurisdiction
Question(s)
We have a new attorney who is questioning whether we have authority to pre-approve mergers. His concern is that we are
giving legal advice. We simply tell customers whether we will file or not file and if no, what will be the reason for rejection.
My understanding is that almost all jurisdictions provide this service but I want to make sure I am correct. Does your jurisdiction
provide this service?
South Carolina
South Dakota
Tennessee
Texas
Texas does provide pre-clearance of any document, including mergers. Like Kansas, we simply review the draft for
compliance with the minimal statutory filing requirements to determine whether it would be accepted for filing as drafted once it
is executed and the appropriate filing fee is submitted. The fee for preclearance of a filing instrument is set by statute and is
$50. The most frequent filing that is submitted for preclearance is a merger.
Utah
Utah is the same as most of the others and our preclearance ONLY covers the statutory requirements for filing....does not
authenticate the merger elements as to legality.
Vermont
Virginia
Washington
We offer preliminary review of a business entity document for $50 with a two-day turnaround as an option under our expedited
services policy. The 'legal advice' is the same that is provided when a document is presented for filing - whether it meets the
requirements for filing under Virginia law.
Several years ago, we started having two examiners look at all pre-reviews. This practice began after a couple of documents
that were pre-reviewed were submitted for filing and we discovered a deficiency, making the document unacceptable
(notwithstanding the pre-review). This practice also provides a good training tool to make sure all of the examiners are on the
same page.
Washington State offers a type of pre-clearance. For $10 we will check the items for completeness, meaning it contains all of
the required items from statute, we do not review the actual content for correctness. Just that it meets our ministerial minimums
for filing.
West Virginia
Wisconsin
Wyoming
Additional comments:
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[Merger Pre-Approval ] – [ February 2, 2016]
Full text of email:
We have a new attorney who is questioning whether we have authority to pre-approve mergers. His concern is that we are giving legal
advice. We simply tell customers whether we will file or not file and if no, what will be the reason for rejection.
My understanding is that almost all jurisdictions provide this service but I want to make sure I am correct. Does your jurisdiction
provide this service?
Sent by Kathy Sachs
Page 5 of 5