DealLawyers.com Blog

Back in March, we shared that the Premerger Notification Office was accepting the old HSR Form again — after a US District Court vacated the new rules and the FTC’s motion for a stay pending appeal was denied by the Fifth Circuit. This Baker Botts alert shares that, in May, the FTC and DOJ filed an unopposed motion to hold the appeal challenging the new rules in abeyance through the end of the year. In support of their motion, the FTC and DOJ cited their request for public comment and noted that they are evaluating potential changes to HSR requirements in light of the comment file with the goal of publishing a notice of proposed rulemaking by year’s end. They also indicated that the Agencies would continue to accept HSR filings using the old form.

The alert highlights these practical implications for parties making HSR filings:

Pre-February 2025 HSR rules remain in effect. Filers should continue using the less burdensome pre-February 2025 form and associated documentary requirements unless further changes are implemented.

The Agencies are pursuing continued consideration of revisions rather than abandonment of reform. The motion indicates that the Agencies are continuing to evaluate potential revisions to the HSR reporting framework while the appeal remains pending.

Further rulemaking may occur. The Agencies continue to view the prior HSR framework as insufficient for modern merger review and are likely to pursue expanded disclosure requirements.

The Agencies are emphasizing reduced burdens on non-problematic transactions. Recent statements reflect an effort to balance more effective merger screening with reduced compliance burdens for transactions unlikely to raise competitive concerns.

Areas of continued regulatory focus include: nontraditional transaction structures (including acquihires, reverse acquihires, convertible securities, and certain non-exclusive intellectual property licensing arrangements); and the scope of investment and real estate exemptions.

The Agencies are also continuing to evaluate disclosure obligations relating to: sovereign wealth funds, CFIUS, and defense-sector disclosures; supplemental filing obligations for materially restructured transactions or late-stage remedies; and the use of AI tools in identifying and selecting documents for HSR submissions and in responding to Second Requests.

– Meredith Ervine