The final Hart-Scott-Rodino Antitrust Improvements Act (HSR) rule is finally here. Delayed long beyond most predictions (including ours), the final rule pulls back on some of the most onerous provision of the proposed rule, but still marks a substantial increase in burden, risk, and cost for any US premerger filing. Here, we provide a summary of the final HSR rule's provisions, comparing them to the existing rule.
For a more in-depth look, Steptoe has developed a series of recommendations for steps that companies can take today to reduce the burden and risk when making an HSR filing under the new rules – preparation now can make a big difference when it is time to file. If interested in learning more about these recommendations, please contact Lee Berger or John Kavanagh.
Overview
The updates, while not as extensive as initially proposed last year, mark the most significant changes to the US premerger notification filings since the enactment of the HSR Act in 1976.
The final rule will be effective 90 days after it is published in the Federal Register, which has not yet occurred as of October 28. While any potential litigation could delay the implementation of the new rule, we do not believe this is likely. Unlike the FTC's now-set-aside rule on non-compete agreements, the HSR Act gives the FTC broad rulemaking authority to implement the statute. One area that might face a challenge is the requirement for disclosure of information relevant to Section 8 of the Clayton Act (interlocking directorates), but even that argument seems unlikely to prevail. Overall, we recommend that companies proceed under the assumption that the rule will take effect in January or February 2025.
The FTC's Premerger Notification Office has promised to provide further compliance guidance in advance of the final rule's effective date.
Key Changes
A summary of the key changes in the new HSR rule is provided in the table below.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
