Washington and Colorado have now enacted laws that require entities that file Hart-Scott-Rodino (“HSR”) notifications to provide copies of their HSR filings—the HSR form and, in some cases, any accompanying documents—to their respective Attorneys General if certain conditions are met. The Washington Act is effective July 25, 2025, and the Colorado Act is expected to take effect on August 6, 2025.
Five other states and the District of Columbia are currently considering similar laws, which are modeled on the Uniform Law Commissions’ Uniform Antitrust Pre-Merger Notification Act (the “Uniform Act”).
This alert outlines the key aspects of the Washington and Colorado Acts and some of the policy implications if it is adopted more broadly.
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The Washington and Colorado Premerger Notification Acts
The Washington Act and the Colorado Act require that a “person” who submits an HSR filing also “file contemporaneously a complete electronic copy of the Hart-Scott-Rodino form with the [Washington or Colorado] attorney general” if the person:
(1) has its principal place of business in Washington or Colorado, as appropriate, or
(2) had annual net sales of the goods or services involved in the transaction in the state of at least 20% of the then-current HSR filing threshold.
In addition, the Washington Act requires a person to submit a copy of their HSR filing if they are a healthcare provider as defined under Washington state law. A separate Washington law (RCW 19.390.060) already required healthcare providers involved in HSR reportable transactions to submit their HSR forms to the state Attorney General, so this provision does not impose new filing requirements on Washington State healthcare providers.
If the filing person has its principal place of business in Washington, or, upon the request of the Washington Attorney General if the person satisfies either criterion (2) above or is a healthcare provider as defined under Washington state law, the person must also submit a complete set of documentary material (i.e., the additional documentary material filed with the FTC and DOJ with the HSR form) along with the HSR form itself. By contrast, the Colorado Act requires the filing person to submit a complete set of documentary material along with the HSR form if it satisfies either criteria (1) or (2) above. Failure to file in either state exposes the company to civil penalties of up to $10,000 per day of noncompliance.
Both Acts impose confidentiality protections that—subject to certain exceptions—prevent the Washington and Colorado Attorneys General from disclosing the HSR filing and associated documents, the existence of the transaction, or the fact that the filing occurred. The Acts also exempt HSR materials from public inspection and copying under Washington’s Public Records Act and Colorado’s Open Records Act. The Acts contain exceptions that, among other things, allow the Washington and Colorado Attorneys General to share information with the FTC, the Antitrust Division, or Attorneys General in other states that have enacted the Uniform Act or a substantive equivalent with confidentiality provisions at least as protective as those in the Acts.
The Washington and Colorado Acts encourage the sharing of filings and related information between and among Attorneys General in states that have passed “the uniform antitrust premerger notification act or a substantively equivalent act.”
Part of a Broader Trend?
Washington and Colorado are the first states to enact a version of the Uniform Act, but at least five other states—California, Hawaii, Nevada, Utah, and West Virginia—and the District of Columbia have also introduced legislation to do so (see here). Other states may be considering whether to follow suit.
According to the Uniform Law Commission, which drafted the Uniform Act and formally adopted it in July 2024, the American Bar Association's House of Delegates approved the Uniform Act in February 2025 as “appropriate [ ] for those states desiring to adopt the specific substantive law suggested therein.”
Policy Considerations
According to the Uniform Law Commission, “[t]he anticipated effect is to facilitate early information sharing and coordination among state AGs and the federal agencies” and the Uniform Act “will balance the needs of state enforcers for information with the burdens and risks to filers.”
There are, however, some practical realities that may frustrate the Uniform Law Commission’s anticipated effects and the intended balance between enforcers’ needs and the burdens and risks these laws impose on filers. These policy considerations include:
- Confidentiality and Data Security. Neither the Uniform Act nor the Washington or Colorado Acts require the states to develop or implement a process for protecting the highly confidential information that companies submit in their HSR filings. For example, there is no requirement that the states establish or use a secure file transfer protocol, and transmitting these materials by email may not be sufficient to ensure confidentiality (and many of the files may be too large to transmit by email to government servers).
- Differences in Public Records Disclosure Requirements. Although the Uniform Act, the Washington Act, and the Colorado Act state that materials filed pursuant to these laws should be exempt from the Freedom of Information Act or the state equivalent, not all state public records laws are alike. For example, in Florida, public records, defined broadly to include all types of documents and other materials regardless of form and characteristics, made or received by any agency may be—subject to certain exceptions—open for personal inspection and copying by “any person.” Thus, there is a risk that any document submitted to a state agency, such as a business record, may be considered a public record and available for public review. While there are various exemptions in other Florida statutes (e.g., for tax returns) and within Florida’s public record law itself (e.g., for personal information, trade secrets, and criminal investigation materials), these exemptions are limited and many documents submitted to state agencies can nonetheless become public.
- Lack of Certainty as to When a Filing Is Required. The second prong of the filing analysis in the Washington and Colorado Acts does not provide certainty as to when merging parties must file. In particular, the Acts require the parties to calculate what percentage of “annual net sales of the goods or services involved in the transaction” are within the state. The Acts do not define net sales, nor do they provide any guidance about what it means for a good or service to be “involved in the transaction.” Without additional guidance, parties will be left to their own devices—and potentially subject to penalties for non-compliance—when determining whether a filing is required.
- Burden on Filing Persons. Although the burden of notification may be relatively limited initially, there is already divergence in filing requirements for the two states that have passed the Uniform Act. Additionally, to the extent the states want to conduct their own investigations, the burden could increase significantly, particularly with no requirement that they coordinate with each other or with the federal antitrust agencies. Managing up to 52 separate investigations (50 states plus the District of Columbia and the federal government) would significantly alter the balance struck in the Uniform and Washington Acts and put much more burden and costs on the filing parties.
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Our antitrust practice group includes attorneys, including several who served at the Federal Trade Commission or the Antitrust Division of the U.S. Department of Justice, with decades of experience in advising on HSR matters. Our team can provide detailed and practical insight into how these rules and new state notification requirements may apply to various types of entities and transactions.
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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