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 Forman criticized the existing rules as outdated, saying they are both overinclusive—requiring more information than necessary from the parties—and underinclusive—not requiring information necessary to assess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.

Photo of Jim O’Connell Jim O’Connell

Jim O’Connell advises clients on their critical antitrust matters, including mergers and acquisitions, joint ventures, and other transactions; licensing arrangements and other business practices; government investigations; and litigation. In connection with his merger practice, he also regularly helps clients assess and comply with…

Jim O’Connell advises clients on their critical antitrust matters, including mergers and acquisitions, joint ventures, and other transactions; licensing arrangements and other business practices; government investigations; and litigation. In connection with his merger practice, he also regularly helps clients assess and comply with their obligations under the HSR Act and comparable merger control regimes around the world.

Clients and peers recommend Jim for his knowledge of antitrust law and his ability to provide expert and practical guidance. He is also recommended for his detailed understanding of the people and processes of the U.S. antitrust enforcement agencies, which he applies to help his clients navigate their most critical antitrust challenges successfully and efficiently. Legal 500 has described him as a “well-respected” practitioner who is “well connected with the DOJ” and recognized by clients for his ability to “quickly develop a high level of company-specific expertise.”

Jim has represented clients in a broad range of industries and sectors, including leading companies in the e-commerce, pharmaceutical, medical device, financial services, telecommunications, electronics, cable, broadcast, alcoholic beverages, consumer products, industrial products and heavy manufacturing, energy and natural resources, steel, aerospace, defense, chemicals, gaming, and software industries.

Jim joined Covington after over five years of public service with the Antitrust Division of the U.S. Department of Justice, where he served in several leadership roles, including as Deputy Assistant Attorney General and Chief of Staff. As Deputy AAG, he had responsibility for the Division’s appellate program and for the development of its major legislative and policy positions, such as those regarding intellectual property and the enforcement of Section 2 of the Sherman Act. His duties also included managing the Division’s relations with its enforcement counterparts around the world. This extensive international enforcement experience enables him to provide his clients highly informed and practical assessments of their U.S. and non-U.S. antitrust risks. Prior to his government service, Jim practiced antitrust law at an international New York-based firm.

A frequent speaker and writer on antitrust law and policy issues, Jim has also been a leader in the Antitrust Section of the American Bar Association for many years, serving in such positions as Chair of the editorial board of Antitrust, the Section’s magazine, and as Co-Chair of the Section’s Federal Civil Enforcement Section. He is currently a member of the Section’s leadership Council. He has also testified before the U.S. Congress and the Antitrust Modernization Commission, and he has served as a non-governmental advisor to the International Competition Network, which brings together competition enforcement authorities, academics, and leading practitioners from around the world to foster the development of best practices and encourage convergence on matters of antitrust policy.

Photo of James R. Dean Jr. James R. Dean Jr.

James Dean practices in the antitrust and energy regulatory areas and serves as vice-chair of the Antitrust Practice Group.  As part of his antitrust practice, Mr. Dean advises clients on all aspects of antitrust law, including mergers, joint ventures, distribution agreements, and trade…

James Dean practices in the antitrust and energy regulatory areas and serves as vice-chair of the Antitrust Practice Group.  As part of his antitrust practice, Mr. Dean advises clients on all aspects of antitrust law, including mergers, joint ventures, distribution agreements, and trade association activities.  He has represented numerous clients in responding to government investigations and as both plaintiffs and defendants in private antitrust litigation.  Mr. Dean also regularly handles issues related to pre-merger notification filings under the Hart-Scott-Rodino Act and foreign merger control regimes.

Mr. Dean also has significant experience with energy regulatory matters.  He advises both regulated utilities and financial investors on the federal and state regulation of both natural gas and electricity, including market restructuring issues, obtaining regulatory approval for energy-related transactions, and rate filings.

Photo of Ross Demain Ross Demain

Ross Demain advises clients in complex antitrust matters, including government investigations; mergers and acquisitions, joint ventures, and other transactions; litigation; compliance; and trade association activities.

He has represented clients in civil and criminal investigations before the Department of Justice, Federal Trade Commission, and…

Ross Demain advises clients in complex antitrust matters, including government investigations; mergers and acquisitions, joint ventures, and other transactions; litigation; compliance; and trade association activities.

He has represented clients in civil and criminal investigations before the Department of Justice, Federal Trade Commission, and state antitrust enforcers, and as both plaintiffs and defendants in private antitrust litigation. Mr. Demain also regularly helps clients assess and comply with their obligations under the HSR Act.

Mr. Demain has significant experience helping clients achieve positive outcomes across a variety of industries and sectors, including technology, electronics, cable, broadcast, industrial products, energy and natural resources, defense, pharmaceuticals, medical devices, sports, and financial services.

Recent litigation victories in which Mr. Demain has been involved include obtaining dismissal of an antitrust claim in a precedent-setting case at the International Trade Commission that confirmed that the antitrust injury requirement applies to claims brought under Section 337 (ITC 2018); achieving one of the first dismissals of a corporate defendant on jurisdictional grounds in the sprawling In re Automotive Parts Antitrust Litigation, 2013 U.S. Dist. LEXIS 80337 (E.D. Mich. 2013); attaining dismissal of a purported class action antitrust suit brought by retired NFL players alleging a conspiracy to restrain a market for the sale of their images and likenesses, Washington v. National Football League, 2012 U.S. Dist. LEXIS 89401 (D. Minn. 2012); and obtaining an early dismissal of novel resale price maintenance claims brought in federal court under New York’s Donnelly Act. Worldhomecenter.com, Inc. v. KWC America, Inc., 2011 U.S. Dist. LEXIS 104496 (S.D.N.Y. 2011).

Photo of Ryan Quillian Ryan Quillian

Ryan Quillian, former Deputy Assistant Director of the Technology Enforcement Division at the U.S. Federal Trade Commission (FTC), advises clients on the full range of civil antitrust issues, including conduct and merger investigations, civil litigation, and counseling and compliance.

Ryan joined Covington after…

Ryan Quillian, former Deputy Assistant Director of the Technology Enforcement Division at the U.S. Federal Trade Commission (FTC), advises clients on the full range of civil antitrust issues, including conduct and merger investigations, civil litigation, and counseling and compliance.

Ryan joined Covington after eight years of public service with the FTC, where he worked on antitrust investigations in a variety of industries, including technology, pharmaceutical and life sciences, retail, distribution, consumer goods, and healthcare. In addition to his investigation experience, Ryan also developed strong relationships with staff throughout the agency, routinely interacted with agency leadership, communicated directly with foreign competition agencies, and provided technical assistance on proposed legislation.

As a manager of the FTC’s Technology Enforcement Division, Ryan supervised complex investigations into potentially anticompetitive mergers and conduct involving technology companies. Prior to joining the Technology Enforcement Division, Ryan served as Counsel to the Director of the Bureau of Competition, Attorney Advisor to Commissioner Noah Joshua Phillips, Acting Deputy Assistant Director of the Mergers IV Division, and a staff attorney in the Mergers IV Division.

Photo of Stacy Kobrick Stacy Kobrick

Stacy Kobrick focuses on counseling clients on Hart-Scott-Rodino (HSR) premerger notification requirements. She represents clients in a variety of industries, including private equity, energy, software, and telecommunications.

She has particular experience advising clients on general antitrust compliance issues, including information exchange and integration planning.

Photo of John Kendrick John Kendrick

John Kendrick represents clients in antitrust matters before government agencies (both domestic and foreign) and in federal court. His experience includes complex, high-profile antitrust litigation spanning multiple jurisdictions. He also represents clients in antitrust investigations, including merger investigations under the HSR Act.

John…

John Kendrick represents clients in antitrust matters before government agencies (both domestic and foreign) and in federal court. His experience includes complex, high-profile antitrust litigation spanning multiple jurisdictions. He also represents clients in antitrust investigations, including merger investigations under the HSR Act.

John has advised clients in the cellular, medical device, retail, semiconductor, and travel industries. He has particular experience handling complex issues for technology companies and intellectual property licensing companies.