First 100 Days of the New HSR Rules

One hundred days ago, sweeping revisions to the Hart-Scott-Rodino Act Premerger Notification Form took effect. The revisions have significantly increased the time and effort to prepare HSR filings and have led filing parties to adopt new tools and methods to ensure compliance, particularly for filings involving competitive overlaps or supply relationships.

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The New HSR Rule and its Requirements

The Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (the “HSR Act”) requires parties to transactions that cross the statutory thresholds to file notification with the Federal Trade Commission (“FTC”) and the Department of Justice’s Antitrust Division (“DOJ”) and abide by a suspensory waiting period before closing. The recent revisions to the HSR Act Form, which went into effect on February 10, 2025, have increased the burden on filing parties, who must now provide additional transaction-related and ordinary course documents (“Business Documents”) and information on topics such as buy-side structures, officers and directors, and minority shareholders, among other topics.

• The additional requirements around Business Documents (formerly known as “Item 4” documents) greatly increase the scope of documents that must be provided with filings. These Business Documents are divided into two categories: (1) transaction-related documents, which analyze the transaction in question, and (2) “Plans and Reports,” which are certain ordinary course documents shared with certain officers and directors and which relate to industries or markets in which the filing parties compete.
• Filers must also provide responsive draft documents that were shared with any individual director or equivalent (the prior rules required the submission of such documents only when shared with the entire Board or its equivalent).
• All filing parties must also now designate a “Supervisory Deal Team Lead” – the individual responsible for supervising the transaction and who is not otherwise an officer or director – and provide responsive documents that were created or received by that individual.
• Filers must provide a transaction rationale that explains the logic behind the transaction and that provides citations to Business Documents where appropriate.

The revised Form also includes certain portions that need only be completed when parties identify current or planned competitive overlaps or customer-supplier relationships. For these overlap products and services or supply relationships, filing parties must now provide narrative descriptions, as well as sales data, top customer data, and information on R&D and pipeline products. This information is not limited to the United States.

For a more detailed overview of the changes instituted by the new Rule, please refer to V&E’s prior guidance.

2025 HSR Filing Statistics

FTC data shows a drop in the number of filings since the new Rules were released in mid-February. The table below provides the number of HSR filings received by the FTC and DOJ together over the last six months, as published on the FTC website.

The relatively large number of filings received by the agencies in February 2025 is likely a result of parties seeking to submit filings prior to the implementation of the new HSR Rule on February 10. Although the steep drop in filings received in March 2025 may have been influenced in part by this large number of February filings, it is likely also a result of larger macroeconomic trends, including general economic uncertainty. The new Rules do not change the rubric used to determine which transactions must be filed. We expect filing rates to continue to trend upwards in Q2 and Q3 as M&A picks up.

Emerging Trends under the New HSR Rules

In adapting to the new HSR Rules, merging parties have given themselves more time for HSR preparation in acquisition agreements and adapted their Business Document collection processes with new e-discovery tools and processes. Filers are also again making use of Early Termination to seek expedited HSR clearances. Regulators have also maintained an active dialogue with filers and members of the antitrust bar as all parties continue to digest the changes to the HSR process.

The new HSR Form places additional burdens on filing parties and, as a result, increases the time required to prepare and submit a filing. Many acquisition or merger agreements between parties today allow for twenty to twenty-five business days from signing to HSR filing.¹ If filing parties anticipate a particularly burdensome process or there is uncertainty about how much time it will take to prepare the filing, parties have also negotiated an “as soon as practicable” HSR timing requirement.² To minimize the time between signing and closing, some filers are beginning their document collection and information gathering processes well in advance of signing or are filing under non-definitive agreements such as a Letter of Intent.

Parties are also adapting their Business Document collection and fact gathering processes to account for changes in the HSR form. The two most notable changes to document collection are (1) the creation of a new custodian, the Supervisory Deal Team Lead, and (2) the need to provide some ordinary course materials shared with the Board or a CEO (or, for non-corporate entities, equivalent individuals). As a result of these changes we are seeing the following trends:

• Filers are increasingly considering, and using, e-discovery tools for collection and review of potentially responsive documents, particularly for transactions with large deal teams or where competitive overlaps may draw scrutiny.
• Filers are designating an individual as the Supervisory Deal Team Lead early in the process and maintaining thoughtful document hygiene for his or her communications.
• Filers are increasingly focused on capturing transaction-related Business Documents that may come in the form of “ephemeral messaging”, such as instant messages on Slack, Microsoft Teams, Salesforce, and other collaborative work platforms. This is particularly true with respect to Business Documents captured under the new Supervisory Deal Team Lead concept.
• Filers are maintaining a record of documents shared with the Board or CEO. Companies whose CEO is also on the Board of Directors are maintaining a clear distinction between materials sent to or from the CEO in his or her capacity as CEO vs. his or her capacity as a board member.
• Filers are adopting clear document protocols early in the process, given the wider array of custodians and responsive documents.

Filers must now also provide narrative descriptions and additional data regarding current or future competitive overlaps and supply relationships between the parties and their competitors. FTC guidance and official HSR instructions state that these narrative descriptions are not intended to be “onerous” or to require legal analysis, but rather call for short, factual explanations reflective of a company’s ordinary course views. Filers are therefore focusing on how they categorize their lines of business in the ordinary course. Public companies have the benefit of being able to rely on (and mirror) their SEC filings, particularly Form 10-Ks, when identifying and describing competition descriptions or supply relationships.

The FTC Premerger Notification Office has maintained an active dialogue with filing parties and their representatives in light of these changes. Although the agencies have the authority to “bounce” or reject filings for omissions, mistakes, and other inaccuracies, the agencies thus far have sought clarity in instances where submissions do not conform to a particular requirement and have accepted minor corrections without delaying the start of the waiting period. The FTC continues to post updated guidance and other information on its website – guidance posted during the first one hundred days of the new HSR Form include a Q&A section covering various topics and a tip sheet on changes to NAICS code reporting. We expect the FTC to continue to adapt its guidance as the number of filings submitted under the new Rule increases.

Early Termination, which allows filing parties to request that he agencies end the waiting period prior to expiration, has also returned with the new Form. Early Termination, if requested, may be granted before the statutory 30 day waiting period has expired, allowing parties to close earlier. In an encouraging sign for filers, the FTC has granted early termination in at least forty instances since the new rules came into effect, including in transactions with competitive overlaps.

We anticipate that filers and regulators alike will continue to adapt and remain flexible in light of the new HSR regime. Do not hesitate to reach out to the members of the V&E antitrust team below with any questions about your next HSR-reportable transaction.

¹ For example, the March 6, 2025 definitive agreement for the acquisition of Walgreens Boots Alliance by Sycamore Partners included a 25 business day HSR timing requirement.

² The March 9, 2025 definitive agreement for the acquisition of Redfin by Rocket Companies included an “as soon as practicable” timing requirement for HSR filing submission. 

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.