FTC Finalizes Long-Awaited Rules That Will Substantially Increase the Scope and Detail of Premerger Antitrust Filings Under Hart-Scott-Rodino Act
On October 10, 2024, the Federal Trade Commission (FTC), with the concurrence of the Department of Justice Antitrust Division (with the FTC, “the Agencies”), announced the culmination of a multiyear effort to reform premerger notification practice under the Hart-Scott-Rodino Antitrust Improvements (HSR) Act. The FTC finalized new rules that will significantly increase the scope, burden, and detail required in HSR filings. According to the Agencies, the goal of the changes is to provide the Agencies with more substantive information, earlier in the merger process, about the parties, their stakeholders, and their customers, all to help the Agencies use the initial, 30-day HSR “waiting period” to maximal advantage. The new rules will go into effect in January 2025 (but the exact date is currently uncertain).
Although the changes will substantially increase the time and complexity that will be required for HSR filings, the FTC, to its credit, did not go forward with some of the most extreme revisions that it had been considering. For instance, the FTC decided not to require parties to submit every single “draft” version of every single Item 4(c) document (e.g., analyses of the transaction with respect to markets or competition) — a proposal that was heavily criticized by this firm and many others. The FTC also decided not to require merging parties to submit information about overlaps they might have in labor markets — a surprising change given the priority the Agencies have recently put on labor in antitrust enforcement. The FTC also declined to adopt e-discovery disclosure and document-preservation duties on parties that make HSR filings and, more broadly, made a number of smaller, procedural changes from the original rulemaking, often in response to comments about unanticipated consequences.
