Last summer, the antitrust agencies proposed sweeping changes to the Hart-Scott-Rodino (“HSR”) Act premerger notification form and associated rules. Covered in detail here, the proposed changes would significantly increase the time, burden, and costs on merging parties to prepare an HSR filing. The public comment period ended on September 27, 2023. Since then, the agencies have given little indication what changes would be made in response to the comments or when the proposed rules would be finalized.
Yesterday, DOJ antitrust officials provided updates on both fronts during the American Bar Association’s annual Antitrust Spring Meeting. Speaking on a panel with others from DOJ’s Antitrust Division, Andrew Forman (Deputy Assistant Attorney General) said the new HSR rules will be finalized “in a matter of weeks, as opposed to months.” He noted, however, that his prediction was uncertain, in part because the FTC leads the HSR rulemaking process.
DOJ officials also previewed the forthcoming rules’ content. Forman expects that, compared to the current proposal, the final rules will have “material differences” that reduce the burden on merging parties. Speaking on a separate panel, Suzanne Morris (Deputy Director, Civil Enforcement Operations) echoed these comments. She explained that the agencies are reconsidering whether they need certain types of information to assess deals and will revise the proposed rules to alleviate burdens “as appropriate.”
Parties should still expect significant differences between the new HSR rules and the rules currently in place. Forman criticized the existing rules as outdated, saying they are both overinclusive—requiring more information than necessary from the parties—and underinclusive—not requiring information necessary to assess antitrust risk.
You can learn about other recent developments in merger enforcement at Covington’s content hub on the topic.