A New HSR Era Begins: What Dealmakers Should Expect

Client Alert  |  February 10, 2025

Today marks the effective implementation of sweeping changes to the Hart-Scott-Rodino (HSR) Act Premerger Notification and Report Form (HSR form) and associated instructions, following unanimous approval by the Federal Trade Commission (FTC) on October 11, 2024, with concurrence of the Department of Justice (DOJ), and subsequent publication in the Federal Register on November 12, 2024. While markedly narrower than the FTC’s initial proposal on June 27, 2023, the new HSR rules represent a pivotal and comprehensive overhaul of premerger notification requirements for all HSR-reportable transactions.

Recap of Key HSR Changes

  • Additional Deal and Competition (formerly “Item 4”) Documents: Expanded to include (i) transaction specific documents created by or for the acquiring party’s “supervisory deal team lead,” in addition to its directors or officers and, (ii) where the filing parties have or anticipate having overlapping products or services, certain ordinary course documents created within one year of filing that discuss competitive or market information for the overlapping areas that were shared with the CEO or Board.
  • Narrative Responses on Transaction Details, Competitive Overlaps: Filings will now require narrative responses addressing (i) each party’s transaction rationale; (ii) the acquiring party’s operating businesses and products and services (current and planned), including whether any compete with those of the other filing party; (iii) the acquiring party’s pre-existing diagrams on deal structure; (iv) direct supply relationships between the parties, if any; and, critically, (v) for transactions where the parties have or anticipate having overlapping products or services, additional narrative and geographic data regarding the same.
  • Expanded Company Disclosures: Filings now call for additional disclosures relating to (i) the acquiring party’s ownership structure, directors and officers, and minority holdings and holders; (ii) both parties’ foreign subsidies and defense or intelligence contracts; and (iii) the acquired person’s prior acquisitions (in addition to just the acquirer’s) meeting certain requirements.

With these and other changes now in effect, deal teams should reassess transaction timelines and recalibrate internal processes to keep pace with the heightened filing demands. Below are five practical steps filing parties can take to stay on track.

Practical Steps to Optimize Filings Under the New HSR Regime

  1. Build in More Lead Time for HSR Compliance. The new HSR form will require significantly more time to complete and additional company resources due to expanded narrative requests and data and document requirements. What was once a relatively quick process may now take weeks.
    • Practice Tip: Build HSR compliance into the deal timeline and begin identifying appropriate stakeholders to support with filing at early stages. Internal templates for recurring disclosures—such as prior acquisitions and minority holdings—can help streamline current and future filings.
  2. Promptly Engage Antitrust Counsel to Form Strategy, Avoid Pitfalls. In addition to significantly expanding the scope of document requirements, the new HSR form requires that filing parties prepare detailed narrative responses that substantively address market dynamics for deals involving competitive overlaps, extending beyond former data-based reporting. The competitive overlap section of the new form also determines the scope of other required disclosures, including documents. These narratives not only demand significant business input but also expose filings to heightened regulatory scrutiny. Ensuring thoughtful coordination across narratives, document collections, and parallel global filings will be crucial to mitigate risk of filing delays or prolonged reviews.
    • Practice Tip: Engage antitrust counsel early. Counsel can help ensure narratives are accurate and consistent with documents to be submitted with the HSR filing. Counsel can also synchronize filings of different regulatory regimes to reduce risk and support a cohesive, defensible submission strategy.
  3. Standardize Coordination Across Business Units. The expanded disclosures will require input from multiple business teams, including finance and supply chain, and potentially decentralized data sources. Early coordination is critical to avoid bottlenecks and filing delays.
    • Practice Tip: Deal teams should adopt a clear division of labor, including designated liaison roles for relevant business units or data sources, and establish a centralized process for streamlining inter-departmental coordination. Securing executive-level support from corporate leadership and department heads will also help underscore the importance of timely cooperation across business units.
  4. Expect Accelerated, Heightened Agency Review. The expanded requirements will give the FTC and DOJ earlier and deeper insight into potential competitive issues, possibly leading to heightened agency scrutiny much earlier in the process.
    • Practice Tip: Prepare by identifying key deal documents early—such as strategic presentations and board materials—and ensure consistency with the information provided in the HSR filing. Discrepancies between internal documents and the filing could raise red flags with regulators, leading to further inquiry or delays.
  5. Manage Party Expectations Upfront. Acquisition targets, particularly smaller companies unfamiliar with HSR filings, may face challenges meeting the expanded data and document requirements, which can cause compliance delays.
    • Practice Tip: Ensure the acquired party understands filing expectations early. Incorporate HSR form preparation into deal negotiations and due diligence to avoid surprises and ensure timely collection of necessary information.

Looking Ahead

While the HSR updates introduce new complexities, they also offer dealmakers a clearer roadmap for regulatory review. With proper strategic planning—such as updating internal deal processes, closely coordinating with business teams, and proactively addressing competition concerns that may be raised by antitrust regulators—dealmakers can effectively navigate this new terrain with confidence.

The FTC’s Premerger Notification Office (PNO) has issued guidance in a series of Q&As clarifying expectations on key aspects of the new HSR form, including how to approach the expanded narrative requirements and scope of the required document submissions. Filing parties are encouraged to work with counsel to closely monitor future updates from the PNO, as additional clarifications will be critical for maintaining compliance and minimizing delays.

Looking ahead, the expanded disclosures may even streamline certain aspects of agency review, giving the FTC and DOJ a fuller picture of transactions early on and, in some cases, accelerating approval for straightforward deals through the recently reinstated early termination process. How these changes will ultimately reshape the merger landscape remains to be seen, but those who prepare early will be best positioned for smoother HSR filings and more predictable deal outcomes.

Gibson Dunn attorneys are closely monitoring these developments and are available to discuss these issues as applied to your particular business. Please reach out to your Gibson Dunn contacts in the Antitrust and Competition group if you have questions about how the updated rules may affect your M&A plans and how best to prepare. If you are interested in challenging the final rule as Gibson Dunn successfully accomplished against the FTC’s non-compete rule in Ryan, LLC v. FTC, please reach out to your Gibson Dunn contacts in the Administrative Law and Regulatory Practice group.

For further details on these developments, see our previous Client Alerts and related HSR resources:

The following Gibson Dunn lawyers prepared this update: Jamie France, Sophia Hansell, Kristen Limarzi, Josh Lipton, Michael Perry, Andrew Cline, and Jenna Raspanti.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding the new HSR size of transaction thresholds, or HSR and antitrust/competition regulations and rulemaking more generally. Please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any leader or member of the firm’s Antitrust and Competition, Mergers and Acquisitions, or Private Equity practice groups:

Antitrust and Competition:
Rachel S. Brass – San Francisco (+1 415.393.8293, rbrass@gibsondunn.com)
Jamie E. France – Washington, D.C. (+1 202.955.8218, jfrance@gibsondunn.com)
Sophia A. Hansell – Washington, D.C. (+1 202.887.3625, shansell@gibsondunn.com)
Kristen C. Limarzi – Washington, D.C. (+1 202.887.3518, klimarzi@gibsondunn.com)
Joshua Lipton – Washington, D.C. (+1 202.955.8226, jlipton@gibsondunn.com)
Michael J. Perry – Washinton, D.C. (+1 202.887.3558, mjperry@gibsondunn.com)
Cynthia Richman – Washington, D.C. (+1 202.955.8234, crichman@gibsondunn.com)
Stephen Weissman – Washington, D.C. (+1 202.955.8678, sweissman@gibsondunn.com)

Mergers and Acquisitions:
Robert B. Little – Dallas (+1 214.698.3260, rlittle@gibsondunn.com)
Saee Muzumdar – New York (+1 212.351.3966, smuzumdar@gibsondunn.com)
George Sampas – New York (+1 212.351.6300, gsampas@gibsondunn.com)

Private Equity:
Richard J. Birns – New York (+1 212.351.4032, rbirns@gibsondunn.com)
Ari Lanin – Los Angeles (+1 310.552.8581, alanin@gibsondunn.com)
Michael Piazza – Houston (+1 346.718.6670, mpiazza@gibsondunn.com)
John M. Pollack – New York (+1 212.351.3903, jpollack@gibsondunn.com)

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