May 10, 2022

Antitrust: Big Changes to Required HSR Information on the Horizon?

This Gibson Dunn memo says that the FTC is contemplating potentially significant changes to the information required to be filed under the HSR Act. Here’s the intro:

According to recent statements of agency officials, the Federal Trade Commission (FTC) is looking to revise the Premerger Notification and Report Form (the “HSR Form”) “to conform to changing market realities and global standards.” The FTC has not released details of the proposed changes, but recent statements from agency leadership provide some indication as to how the agency may expand the filing requirements.

FTC Chair Lina Khan recently announced that the agency is exploring “ways to collect on the front-end information that is more probative of whether parties are proposing an unlawful deal.” And FTC Bureau of Competition Director Holly Vedova explained that the FTC wants, as part of the HSR filing, “overlap information, customers, things like that.” The Bureau Director amplified that, under the proposed changes, the parties would “do that work ahead of time, and come in with that information, so that we don’t spend ten, twenty, thirty days trying to collect all that information.

The memo says that while the proposed changes won’t affect filing thresholds, they would affect the information & documents that companies have to provide in connection with an HSR filing.  If the changes ultimately require the type of detailed information often required in other jurisdictions, they could substantially increase the cost and time involved in making HSR filings, even those for deals that don’t raise competition concerns.

John Jenkins