For decades, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) has required certain business combinations and related transactions to be reported to the Federal Trade Commission (FTC) and the Antitrust Division of the U.S. Department of Justice (DOJ) according to the federal premerger notification program. As part of the premerger notification program, parties to large business combination transactions must provide the FTC and DOJ with specified information about each party’s business by filing a Notification and Report Form for Certain Mergers and Acquisitions (the HSR Form) with such agencies. The FTC and DOJ then review the information before the transaction is finalized to assess potential anticompetitive and antitrust risks.
On February 10, 2025, the HSR Form was overhauled to include several new rules and information requests to aid the FTC and DOJ in their premerger review, including the following:
- Reduced reporting requirements for select 801.30 transactions;
- Additional documentation outlining key terms of the transaction (if no definitive agreement was in place at the time of filing);
- A narrative description covering the strategic rationales of the transaction and deal structure diagrams;
- Transaction-related documents prepared by or for the “Supervisory Deal Team Lead”;
- Additional transaction-related documents shared with any member of the board of directors;
- Additional information about minority equity holders, directors, and officers of certain entities within the organizational structure of the parties to the transaction;
- Competitive product and service overlap and supply relationship descriptions between the parties;
- Certain plans and reports prepared in the ordinary course of business;
- Information about the author of submitted documents when there is an existing relationship between merging parties;
- Translations of foreign-language documents to English;
- Ranges of revenues attributed to each NAICS code instead of precise amounts; and
- Foreign subsidy and international business information.
While arguments in support of the 2025 changes to the HSR Form include greater simplicity, readability, and enhanced review of transactions in the modern age, many filers found the 2025 changes significantly increased the overall burden of filing. However, these complaints were recently alleviated—at least for now.
On February 12, 2026, approximately a year after the 2025 changes to the HSR Form went into effect, a federal district court vacated the new HSR Form, which was then appealed by the FTC. And soon thereafter, the FTC posted the following notice after a decision from the Fifth Circuit Court of Appeals:
“IMPORTANT NOTICE: On March 19, 2026, the U.S. Court of Appeals denied the Commission’s motion for a stay pending appeal. Therefore, the district court’s judgment vacating the new form is effective immediately. The Agencies are now accepting HSR filings using the Form and Instructions that were in place before the February 10, 2025, effective date of the new rule. The Commission is in the process of updating its website to effectuate the court’s order and will be making relevant HSR filing materials available for filers soon. The Agencies will continue to accept HSR filings made pursuant to the February 10, 2025, Form and Instructions should filers voluntarily decide to submit them. (03/19/26)”
As a result, the FTC and DOJ are now accepting HSR filings using the pre-2025 HSR Form. Importantly, however, many HSR rules remain in place such as current filing fees and jurisdictional thresholds. While many will find the return to the previous HSR Form as a welcome reprieve, the future of HSR notification requirements remains uncertain as the FTC’s appeal is still pending with the Fifth Circuit. In fact, FTC stated in a March 25, 2026, press release that it “continues to believe that the prior, nearly 50-year-old form is insufficient to review modern mergers and acquisitions. Regardless of the outcome of the litigation challenging the Updated Form, the FTC is considering engaging in a new rulemaking process.”
In the meantime, filers should coordinate with counsel to best navigate the pre-2025 HSR Form and related HSR considerations. And we will aim to provide additional developments as they occur.
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Contact:
Tanner Brennan I 214.745.5836 I tbrennan@winstead.com
Tanner Brennan is a member of Winstead’s Corporate, Securities/M&A Practice Group. Tanner represents public and private companies in connection with public offerings and private placements of debt and equity securities, mergers, acquisitions, reverse takeovers, divestitures, private equity and venture capital transactions, joint ventures, entity structure and formation, corporate governance, securities law compliance (including public reporting and disclosure obligations under the Securities Act of 1933 and the Securities Exchange Act of 1934), securities exchange listing requirements and general commercial transactions.
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Sources:
FTC Website
FTC Press Release
FTC – HSR-Form-Updates.pdf