HSR Rule Changes: A Look Back (and Ahead)

Jonathan Cheng, Adam Eckart, Deidre Johnson, Simone Waterbury, May 28, 2013

In August 2011, the Hart-Scott-Rodino premerger rules and form received their second major overhaul since the enactment of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”). While the rule changes did not impact the reportability of transactions, they altered a filer’s necessary disclosures, initially drawing the ire of the private bar which claimed that they would result in a substantial compliance burden.  Now, more than one year since the changes became effective, we reflect: How have the rules impacted filers (particularly the intended targets of part of the rule-making, private equity sponsors)? Have other filers faced increased disclosure unnecessarily? And has the agency accomplished its objectives in the rule-making?

Given that the Federal Trade Commission (“FTC”) has largely been mum on the successes and short-comings of the rule-making (and specifically declined comment on this article), we describe our experience-as a global law firm “frequent filer”-working through the rule changes with clients. Our opinions on the positive and negative aspects of the rule-making attempt to balance the burden on clients with the FTC’s articulated goal of requiring additional “helpful information” upfront in order to aid the federal antitrust authorities in clearing transactions more efficiently.

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