The revised Hart-Scott-Rodino (“HSR”) rules and new HSR forms are now in effect, and all HSR filings going forward must utilize the new forms promulgated with the Final Rule. As we noted when it was issued last October, the Final Rule fundamentally reshapes the HSR process—filings in most cases will become much more expensive and take additional time to prepare, which could extend deal timelines.
It remains possible that the expanded HSR reporting requirements could be set aside through either the Congressional Review Act—through which Congress may rescind certain new regulations by issuing a joint congressional resolution of disapproval that is subsequently signed by the President—or by a federal court (e.g., in response to the January 10, 2025 lawsuit filed by the Chamber of Commerce of the United States of America and others that challenged the revised rules and new HSR forms). The Federal Trade Commission could also initiate a formal rulemaking to revise the new rules and requirements. However, as of today the Final Rule is in effect.
As we outlined in October, the new forms require many of the same materials as the prior version, as well as new categories of information and documents, along with narrative descriptions of the transaction rationale, any competitive overlaps, and any supply relationships. In addition, the Final Rule includes new guidance from the antitrust agencies on how to comply with the new requirements, some of which is unclear. In that regard, the Federal Trade Commission Premerger Notification Office (“PNO”) has started to provide additional guidance on the revised rules and new HSR forms, including: What Filers Need to Know and HSR Form Changes Q&A. We expect the PNO to continue to issue guidance, particularly as parties ask more questions.
We have been and will continue to track these issues closely. We are actively advising clients now on steps that they can take to prepare for their first filing under the Final Rule, even if no transaction is currently on the horizon, as well as things to keep in mind when a potential transaction kicks off. Our team can provide detailed and practical insight into how your company can start getting ready now.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Antitrust/Competition practice.
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