Changes mean filers will face significantly increased burden and expense
On June 27, 2023, the Federal Trade Commission (FTC), with the concurrence of the U.S. Department of Justice (USDOJ), released a 133-page Notice of Proposed Rulemaking (NPRM) seeking to overhaul the Hart-Scott-Rodino Act of 1976’s premerger notification process.[1] Under the HSR Act, parties to mergers, acquisitions, joint ventures, and other types of transactions that meet certain jurisdictional tests and are not otherwise exempt from HSR filing requirements must file premerger notification and report forms with the FTC and USDOJ and then wait 30 days (15 days in the case of certain bankruptcy proceedings and cash tender offers) before they may close their transactions.[2] The HSR Act gives regulators an opportunity to review transactions for potential antitrust concerns before they close. Enacted in 1976, the HSR process has remained substantially the same since its implementing rules were adopted in 1978. The NPRM does not propose substantive changes to the HSR Act, so the HSR Act’s jurisdictional tests and exemptions remain unchanged. The NPRM does, however, contemplate an unprecedented overhaul to the HSR premerger notification and report form and instructions, and with that comes substantially greater burden and expense for filing parties. Extensive additional information and significant new categories of information not previously necessary would be required by the proposed form.
