Dramatic Changes to the FTC and DOJ’s HSR Act Premerger Filing Requirements Have Arrived

On February 10, 2025, the Federal Trade Commission and Antitrust Division’s new premerger notification form and requirements under the Hart-Scott-Rodino Act (HSR Act) will go into effect, despite the pendency of a lawsuit attacking the new notification form and filing instructions. Barring a last-minute reprieve, the new HSR form and requirements will become the most substantial update to the premerger program in over 40 years.

All mergers and acquisitions meeting the updated HSR filing thresholds must be filed using the Premerger Notification Office’s new form. As a result, transacting parties should be prepared to submit substantially more information and documents to comply with the new HSR rules, all at increased time and costs.

HSR Basics

Pursuant to FTC’s rulemaking authority under the HSR Act, certain qualifying mergers and acquisitions must submit forms and information disclosing relevant information prior to deal consummation. A statutory waiting period, typically 30 days, allows the FTC and DOJ to review the parties’ information and conduct premerger investigations to determine whether proposed transactions may substantially lessen competition under Section 7 of the Clayton Act.

New Filing Requirements

The FTC has acknowledged that the new HSR filing requirements may necessitate much more time—perhaps hundreds of extra hours—to prepare the filing form and identify required documents. Key additional rules causing this dramatic jump in resources for filing include:

• Transaction Rationale

Merging parties must “describe all strategic rationales for the transaction.” This narrative response must explain the proposed transaction, and parties must “identify which documents submitted with the HSR Filing support the rationale(s) described in the narrative.” In addition, if 4(c) documents “provide inconsistent rationales, filers should address these inconsistencies.”

• Ordinary Course of Business Documents

Filing parties will be required to produce documents created in the course of business even though “not created specifically for analyzing the filed-for transaction.” This includes “all regularly prepared plans and reports”, which were (a) created within the year prior to the HSR filing, and (b) provided to the CEO or any member of the board of directors, if the plans and reports “analyze market shares, competition, competitors, or markets pertaining to any product or service” that the other merging party offers or plans to offer.

• Draft Transaction Documents

The new Rule requires submission of any “Transaction-Related Documents” shared with any board member, regardless of whether it was a “draft.” These documents include any “studies, surveys, analyses, and reports” prepared “for the purpose of evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth, or expansion,” prepared by or for any officer, director or “supervisory deal team lead” (i.e., the executive primarily responsible for supervising the strategic assessment of the deal).

• Minority Shareholder & Corporate Structure Information

The new Rule requires greater disclosure of the corporate structure, minority shareholders, and limited partners. All minority shareholders holding more than 5% of the acquiring entity, or who control or are controlled by the acquiring entity or entities who are/will be created by the transaction, must be reported. Qualifying limited partners will also now have to be reported rather than just the general partner. Lists of subsidiaries must be organized with their “doing business as” name as well as their legal name.

• Overlapping Business and Top 10 Customers

The Rule requires expansive information on any overlap in both horizontal and vertical relationships, as well as the “top 10 customers in the most recent year,” and the “top 10 customers for each customer category identified.” This includes records of products, services, competitors, and customers. It also requires information on existing or potential purchase or supply relationships. Transaction diagrams, overlap descriptions and expanded narratives are now expected, if applicable. The acquiring persons must now include a transaction diagram and information on the formation of the acquiring entity. Information on overlapping officers and directors of entities is also required.

• Prior Acquisitions

To address the FTC’s concerns about serial acquisitions (or roll-up) or similar strategies, both parties must provide information on acquisitions in overlapping industries for the preceding five years where the acquired party had at least $10 million in sales or assets.

• Translations

The new Rule requires documents or sections of documents not in English to be translated verbatim.

• Foreign Disclosures & Intelligence

The Rule requires disclosures of subsidies by foreign entities or governments “of concern” pursuant to the Merger Modernization Act. Entities must also disclose defense or intelligence contracts with U.S. intelligence agencies. The Rule also offers a voluntary waiver to allow the FTC to share typically confidential transaction information with other enforcement agencies.

Conclusion

Absent a last-minute injunction or a reprieve from Congress (which has other priorities) or the FTC (which voted 5-0 to approve the new rules and is unlikely to change its mind, unless somehow persuaded by the recent “regulatory freeze” memorandum), next week fundamental changes to the HSR form and required submissions of documents and data will take effect. As a result, parties considering deals that trigger premerger filings to the U.S. antitrust authorities should plan for a whole new world of labor-intensive notification.

16 C.F.R. pts. 801 & 803, ; see also Press Release, U.S. Dep’t of Justice, Justice Department Concurs with Federal Trade Commission’s Changes to Premerger Notification Form Used in Merger Review (Oct. 10, 2024), .

Premerger Notification Program, Fed. Trade Comm’n, (“IMPORTANT NOTICE: The new HSR Form is effective on Monday, February 10, 2025. The deadline for filers to submit the current Form is Friday, February 7, at 5:00PM EST. All filings made after that time must be submitted on the new HSR Form.”).

89 Fed. Reg. at 89,299.

89 Fed. Reg. at 89,300.

89 Fed. Reg. at 89,303.

89 Fed. Reg. at 89,386.

89 Fed. Reg. at 89,370-89,371.

89 Fed. Reg. at 89,288-89,292.

89 Fed. Reg. at 89,371-89,372, 89,388.

15 U.S.C § 18b.