DealLawyers.com Blog

On Wednesday, the FTC and DOJ announced the launch of a public inquiry into the effectiveness of the updated HSR form that was in place for a year until a Fifth Circuit ruling last week. The announcement explains:

The Commission continues to believe that the prior, nearly 50-year-old form is insufficient to review modern mergers and acquisitions. Regardless of the outcome of the litigation challenging the Updated Form, the FTC is considering engaging in a new rulemaking process.

Through the joint request for information, the FTC and DOJ seek to understand whether the requirements of the Updated Form effectively fulfill their intended purpose to:

– Enable the Agencies to identify potentially anticompetitive mergers more efficiently; and

– Allow the Agencies to more quickly determine whether a deal would require the issuance of Second Requests to conduct an in-depth antitrust investigation.

Under the HSR Act, parties to certain mergers and acquisitions are required to submit premerger notification forms that disclose certain information about their proposed deal and business operations. The Agencies use this information to conduct a premerger assessment in the short time allowed under the HSR Act, typically 30 days.

In the joint request for information, the Agencies want to ensure that the requirements of the Updated Form do not impose burdens on filers that outweigh the usefulness of the information provided to the FTC and DOJ. As elaborated in more detail in the RFI, the Agencies are also evaluating whether additional modifications to the Updated Form may be warranted to address developments affecting the HSR review process that have emerged over the past year.

Comments must be received by May 26 and can be submitted at Regulations.gov.

– Meredith Ervine