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United States: Antitrust authorities propose revisions and additions to the premerger notification process

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In brief

On Tuesday, 27 June 2023, the Federal Trade Commission (FTC), with the concurrence of the Assistant Attorney General for the US Department of Justice’s Antitrust Division (DOJ), announced proposed changes to the premerger notification form and associated instructions and rules that implement the Hart-Scott-Rodino (HSR) Act.1 The proposed changes represent an expansion and reorganization of the information collected on the HSR form. This represents a “top-to-bottom review of the information in the HSR Form”—the first such review since the rules were originally adopted in 1978.2 The changes are aimed at increasing the breadth of documents and information filing parties must provide to the DOJ and FTC with an HSR filing. These changes would more closely align the US merger screening process with antitrust notification procedures of foreign jurisdictions, such as the European Commission, that require detailed, narrative submissions.

In depth

Citing higher deal volume as a motivating factor for the overhaul, FTC and DOJ indicated that changes are meant to help them more “effectively and efficiently” review merger filings during the initial waiting period. In a joint statement, FTC Chair Lina Khan and Commissioners Slaughter and Bedoya also stated that the current form does not provide adequate information to allow agency staff to assess the competitive impact of increasingly complex modern transactions in the limited 30-day waiting period.3

The new requirements include information and disclosures that would typically be requested in a Voluntary Access Letter during the waiting period or as part of a Second Request from the agencies. Some of the most notable proposed amendments include requiring:

  • Narrative responses detailing transaction rationale, investment vehicles, corporate relationships and structures
  • Narrative responses describing any competitive horizontal overlaps and vertical relationships (such as supplier relationships) between the parties to the transaction, including disclosures of certain customer information
  • Additional documents that must accompany the transaction filing, including more transaction-specific and ordinary-course documents
  • Expanded disclosures of past acquisitions, including extending the relevant period of time from five years to 10 years, disclosures of acquisitions by both filers, elimination of the threshold for reporting on acquisitions of entities with greater than USD 10 million annual net sales or assets, and the elimination of distinctions between acquisitions of all business assets and voting securities or non-corporate interests
  • New disclosures relating to potential effects of the transaction on labor markets, including disclosures regarding worker classifications, geographic market information regarding overlapping employee classifications, and worker and workplace safety information
  • New disclosures regarding any subsidies provided to parties by foreign governments or entities (to effectuate requirements of Merger Filing Fee Modernization Act of 2022)

A number of the revisions address existing antitrust enforcement priorities and examination for certain types of businesses. For example, the proposed amendments highlight the Biden Administration’s continued focus on assessing competitive impacts on labor markets. Additionally, new information requirements related to corporate structures and relationships suggest that the agencies will apply greater scrutiny to mergers involving private equity firms and other financial purchasers.4 Similarly, the new proposed requirements relating to previous acquisitions seem targeted at scrutinizing the competitive impact of acquisitions of allegedly nascent competitors.5

The agencies acknowledged that the proposed amendments will significantly increase the burden for many filing parties, including potentially adding an estimated 12 to 222 additional hours to the preparation time for filings depending on the complexity of the transaction and nearly tripling the amount of time required to prepare non-index filings on average.6

The agencies requested input from the public during the notice-and-comment period, specifically regarding:

  1. Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility
  2. The accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used
  3. Ways to enhance the quality, utility, and clarity of the information to be collected
  4. Ways to minimize the burden of these information collections on respondent

Those who wish to submit comments will have 60 days after the proposed rule is published in the Federal Register to provide comments electronically or via mail.

1 â€œFTC and DOJ Propose Changes to HSR Form for More Effective, Efficient Merger Review”, Press Release, Federal Trade Commission (27 June 2023), https://www.ftc.gov/news-events/news/press-releases/2023/06/ftc-doj-propose-changes-hsr-form-more-effective-efficient-merger-review?utm_source=govdelivery.
2 Q and A on the Notice of Proposed Rulemaking for the HSR Filing Process, Federal Trade Commission (27 June 2023), https://www.ftc.gov/legal-library/browse/federal-register-notices/16-cfr-parts-801-803-premerger-notification-reporting-waiting-period-requirements.
3 Statement of Chair Lina M. Khan Joined by Commissioners Slaughter and Bedoya Regarding Proposed Amendments to the Premerger Notification Form and the Hart-Scott-Rodino Rules (27 June 2023), https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/statement-chair-lina-m-khan-joined-commissioners-slaughter-bedoya-regarding-proposed-amendments.
4 Statement of Chair Lina M. Khan Joined by Commissioners Slaughter and Bedoya Regarding Proposed Amendments to the Premerger Notification Form and the Hart-Scott-Rodino Rules (27 June 2023), https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/statement-chair-lina-m-khan-joined-commissioners-slaughter-bedoya-regarding-proposed-amendments (“The Commission’s recent 6(b) inquiry into unreported acquisitions by Apple, Amazon, Facebook (now Meta), Google, and Microsoft during 2010-2019 also highlighted the importance of collecting more information on the firm’s history of acquisitions, including non-horizontal and small prior acquisitions. The study captured how these firms structured acquisitions, the sectors they had identified as strategically important for acquisitions, and how these acquisitions figured into the companies’ overall business strategies.”).
5 See, e.g., Proposed Text of Federal Register, Proposed Amendments to HSR Rules Form Instructions, Federal Trade Commission (27 June 2023), at 84, https://www.ftc.gov/system/files/ftc_gov/pdf/p239300_proposed_amendments_to_hsr_rules_form_instructions_2023.pdf (“While the Commission recognizes that investors have more limited information regarding entities in which only a minority interest is held, the proposed Instructions would continue to permit filing persons to rely on their knowledge or belief. The Commission believes that filers have done some level of diligence to determine the business lines prior to investing in these entities, and should have some basis to identify overlaps.”).
6 Proposed Text of Federal Register, Proposed Amendments to HSR Rules Form Instructions, Federal Trade Commission (27 June 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/p239300_proposed_amendments_to_hsr_rules_form_instructions_2023.pdf (noting that the average time required to prepare non-index filings will increase from 37 hours to 144 hours).

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Author

Brian Burke is a partner in Baker McKenzie's Washington, DC office. He draws on over 20 years of experience to counsel clients on all federal antitrust issues. He assists clients in successfully navigating the merger clearance process before the US as well as international antitrust authorities. Brian also has extensive experience advising clients on civil and criminal governmental antitrust investigations, commercial antitrust litigation, antitrust compliance programs, risk assessments, and pricing and distribution policies. Brian holds multiple leadership positions in the Firm. He is a member of the Steering Committee for the Firm's North American Antitrust Practice Group, as well of the Global Antitrust and Competition Taskforces for Healthcare, Energy Mining and Infrastructure, and Consumer Goods Industries. He also serves as the co-head of the Firm's Merger-Control Task Force.

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John Fedele is a member of Baker McKenzie's antitrust practice and is located in its Washington, DC office. While he has a broad range of antitrust experience, he most frequently represents clients before the Antitrust Division of the US Department of Justice (DOJ) and the Federal Trade Commission (FTC) in investigations of proposed mergers and acquisitions, and routinely analyzes and manages filing obligations under the Hart-Scott-Rodino (HSR) Act and foreign competition regimes. John is a member of the Washington D.C. office’s Diversity Advisory Committee, serves as a contact in the firm’s PointONE program designed to allow employees to raise workplace concerns in a safe space, and maintains an active pro bono practice. He also is a member of Baker McKenzie’s Global Merger Control Task Force.

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Mark H. Hamer is Global Chair of the Firm's Antitrust & Competition Practice Group, comprised of over 300 competition lawyers in over 60 offices across 43 countries. Mark has over 25 years of wide-ranging litigation experience, including first-chair roles in jury trials, bench trials and arbitrations. His primary focus is antitrust litigation. Before joining Baker McKenzie, Mark was a successful trial attorney in the Antitrust Division of the US Department of Justice. He was involved in some of the DOJ's highest-profile antitrust trials. Before joining the DOJ, Mark was a partner at another global law firm where he handled complex multidistrict antitrust class actions in courts across the nation.

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Teisha Johnson is a member of Baker McKenzie's antitrust practice in Washington, DC. She advises clients on a wide range of antitrust and e-discovery matters, and has considerable experience counseling clients in government investigations, proposed mergers and acquisitions, compliance, and litigation matters.

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Nandu Machiraju is a counsel in Baker McKenzie's North America Antitrust & Competition Practice Group. He has significant industry experience in antitrust matters affecting the healthcare, pharmaceuticals, chemicals, mining, and technology sectors. Nandu advises clients on a wide range of antitrust matters and has considerable experience counseling clients in government investigations, proposed mergers and acquisitions, conduct matters, compliance, and litigation. Before joining the Firm, Nandu worked as an attorney with the US Federal Trade Commission (FTC). Most recently, Nandu was an attorney in the Bureau of Competition’s Litigation Group where he served a critical role on merger litigation challenges in the hospital and medical-device industries. Before that, he served as an Attorney Advisor to FTC Chairman Joseph J. Simons where he advised on enforcement, appellate advocacy, policy, and congressional relations as well as matters relating to agency management. Nandu also was an attorney in the Mergers I Division where he worked on mergers involving pharmaceuticals, medical devices, retail pharmacies, and cement plants. Before joining the FTC, Nandu was an associate at an international law firm where he practiced antitrust and competition law in that firm’s Washington, D.C. and Brussels offices.

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Creighton Macy is the Chair of Baker McKenzie's North America Antitrust & Competition Practice Group. Creighton is recognized as a leading global antitrust practitioner.

Creighton has extensive experience representing clients in a wide variety of antitrust matters, including mergers and acquisitions, investigations by the United States Department of Justice and the Federal Trade Commission, private litigation, and counselling on issues such as antitrust compliance. Before joining the Firm, Creighton served as Chief of Staff and Senior Counsel in the DOJ Antitrust Division, working as a senior advisor to the Assistant Attorney General on civil and criminal antitrust enforcement and policy matters, as well as budget and personnel issues. During Creighton's time at the DOJ, the Antitrust Division undertook an unprecedented volume of high-profile civil and criminal matters.

Creighton began his career as a Trial Attorney in the Litigation III and Transportation, Energy, and Agriculture sections of the Antitrust Division, working on a number of notable merger and civil non-merger investigations and cases. Before rejoining the Antitrust Division as its Chief of Staff, he was a member of another global law firm's antitrust practice, where he advised clients on a wide range of US and international antitrust issues.

Creighton is consistently recognized globally for his market-leading antitrust practice with respect to high-stakes transactions, investigations, and compliance and counseling work. For example, clients have noted that Creighton “shines above the rest’ due to his first-rate cartel and merger control-related practice.’” He also regularly speaks and publishes articles relating to a variety of antitrust issues, and has been recognized many times for his contributions and thought-leadership on these issues.

Creighton is currently Co-Chair of the American Bar Association Antitrust Law Section’s Young Lawyers Task Force. In previous roles, he served as Reporter of the Presidential Transition Task Force, as well as Chair of the Trade, Sports, and Professional Associations Committee. He is highly involved in mentoring programs, including with the Antitrust Law Section, as well as Marquette University Law School, where he previously served as the DC Representative of the Alumni Board.

Creighton graduated from Marquette University, where he was an NCAA Division I Academic All-American tennis player. During his time at Marquette, he was awarded the Athletic Department’s Cura Personalis award by his peers, as well as several leadership awards. More recently, Creighton was named the Athletic Department’s Young Alumnus of the Year Award.

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Kayleigh Golish is an associate in Baker McKenzie's Antitrust & Competition Practice Group in New York. Kayleigh previously served as an antitrust associate at another large law firm, as a law clerk on Senator Dianne Feinstein’s Senate Judiciary Committee staff, and as a law clerk at the headquarters of Service Employees International Union in Washington, DC.

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Heidi Smucker is an associate in Baker McKenzie's North America Antitrust and Competition Practice Group in Washington, DC. Having worked for the Federal Trade Commission, Heidi has gained knowledge from an insider’s perspective on a wide variety of antitrust matters, including mergers and acquisitions, HSR investigations, and second request compliance. Prior to joining Baker McKenzie, Heidi was a staff attorney at the Federal Trade Commission in the Bureau of Competition, where she worked on matters involving microprocessors, silicon technologies, and industrial chemicals and commodities. During law school, Heidi served as Senior Articles Editor for the Administrative Law Review and competed in the International Trademark Association’s Saul Lefkowitz Moot Court Competition. She also worked as a research assistant for Professor Elizabeth Earle Beske and spent a summer clerking for The Honorable Judge Tanya S. Chutkan in United States District Court for the District of Columbia.

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