January 24, 2025
Chamber Seeks to Block New HSR Enforcement
Per this Freshfields blog, the Chamber — along with the Business Roundtable, American Investment Council, and the Longview Chamber of Commerce — filed a lawsuit in early January seeking to enjoin the enforcement of the recently finalized overhaul of the HSR filing regime on the basis that the changes violated the APA. The blog says:
– The court could enjoin enforcement of the entirety of the Final Rules, or the court could enjoin enforcement of only those changes that it finds to be out of bounds. The Final Rules do have a “savings clause,” meaning that if any part is held to be invalid, the remainder stays in effect. Further, the parts of the Final Rules relating to foreign subsidies are mandated by Congressional statute and likely will remain in place.
– The challenge to the HSR rules could provide relief to merging parties more quickly than a new Republican majority at the FTC if they decided to streamline the rules using APA rule-making procedures. President-Elect Trump has indicated that, upon taking office on January 20, he will designate sitting Republican FTC Commissioner Andrew Ferguson to serve as FTC chair. Both Commissioner Ferguson and fellow Republican Commissioner Melissa Holyoak voted with the Democratic majority to adopt the changes to the HSR rules, but view the final product as “not perfect.” Any attempt to streamline the rules would require a Republican majority, which will arise only upon Senate confirmation of President-Elect Trump’s additional FTC Commissioner selection, Mark Meador. Revising the HSR rules under the APA procedures, which would be required, could take 12 months or more (the APA process for the current rules changes took more than 15 months).
With the changes set to be effective next month, the blog reminds readers that parties with deals expected to sign after February 10 should assume and plan for the final rules to be effective at that time — until the court rules or Congress or the FTC acts.
– Meredith Ervine