The agencies’ proposed rulemaking would add significant complexity, substance, and time to US antitrust premerger notifications.
On June 27, 2023, the Federal Trade Commission (FTC) in collaboration with the US Department of Justice (DOJ) announced a Notice of Proposed Rulemaking consisting of dozens of amendments to the premerger notification rules that implement the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the Act or HSR) as well as to the HSR filing instructions. If adopted, the FTC’s proposed rulemaking would dramatically change the notification procedures that parties in the United States have been following for decades. Under the new process, parties to transactions that exceed the HSR thresholds must submit a broader range of substantive documents; more detailed information about corporate structure, capitalization, and management of the parties; and narrative advocacy about the deal and competition itself. In effect, the FTC has proposed changing the HSR reporting process from today’s relatively simple notice-filing format to a much more substantive and involved filing process as seen in Europe, the United Kingdom, China, and other jurisdictions.
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