Washington is the first state to enact the Uniform Antitrust Premerger Notification Act, which requires merging parties that submit a federal filing under the Hart-Scott-Rodino (HSR) Act to also submit the HSR filing to the Washington attorney general if the deal has a sufficient nexus to Washington. Many states have merger notification requirements for certain industries, but Washington is the first state to enact a merger reporting policy that applies to all industries and includes significant penalties for noncompliance.
The Trump administration’s antitrust landscape continues to develop with key changes in industry and policy priorities, remedy expectations, and agency personnel. Among the updates, Mark Meador was confirmed as a commissioner of the Federal Trade Commission, President Trump signed an executive order to eliminate anticompetitive regulations, and the Department of Justice is partial to populist antitrust with the “America First” movement. These changes signal a shift in antitrust enforcement, with a focus on reducing regulatory burdens and addressing competitive issues in key sectors like healthcare, transportation, and entertainment.
The American Bar Association Antitrust Law Section held its annual Spring Meeting from April 2 to 5 in Washington, DC, where federal, state, and international antitrust enforcers shared key updates and enforcement priorities. At the Spring Meeting, antitrust agencies signaled continued scrutiny of mergers, noncompete agreements, and Big Tech – plus an uptick in state-level enforcement and continued consumer protection activity – regardless of changes in administration.
The Trump administration has initiated significant changes in antitrust policy through key appointments and policy announcements. The administration announced that the Federal Trade Commission (FTC) and US Department of Justice (DOJ) will continue using the 2023 Merger Guidelines and expressed support for new Hart-Scott-Rodino (HSR) rules. Additionally, the FTC outlined its goals, which include improving the merger review process by moving more quickly, accepting settlements where warranted, and combating Big Tech censorship.
Starting today, February 10, 2025, all merger filings will be subject to new Hart-Scott-Rodino (HSR) rules. The new HSR rules will fundamentally alter the premerger notification process, and substantially increase the burden on filing parties, who will need to provide significantly more information and documents with their initial filings.
Companies can take steps today to make filings under the new rules less burdensome and increase the likelihood of achieving antitrust clearance, such as collecting and regularly updating the “off-the-shelf” information needed for all filings, and engaging in earlier discussions with the legal team to identify potential overlaps and supply relationships and develop key themes around transaction rationales and impacts on competition that will need to be included in the filing.
On January 10, 2025, the Federal Trade Commission (FTC) released increased jurisdictional thresholds, filing fee thresholds, and filing fee amounts for merger notifications made pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act).
Merger Notification Threshold Changes
The HSR premerger notification regime requires transacting parties to notify the FTC and US Department of Justice (DOJ) of their intent to consummate a transaction that meets or exceeds certain jurisdictional thresholds, unless an exemption applies. The adjusted thresholds apply to all transactions that close on or after the effective date, which will be 30 days after the notice is published in the Federal Register.
The HSR thresholds are adjusted annually based on gross national product (GNP). The threshold changes are as follows:
The base statutory size-of-transaction threshold, the lowest threshold requiring notification, will increase to $126.4 million.
The upper statutory size-of-transaction test, requiring notification for all transactions that exceed the threshold (regardless of the size-of-person test being satisfied), will increase to $505.8 million.
The statutory size-of-person lower and upper thresholds (which will apply to deals valued above $126.4 million but not above $505.8 million) will increase to $25.3 million and $252.9 million, respectively.
HSR Filing Fee Changes
The FTC is also required to update filing fee thresholds and amounts on an annual basis. Filing fee thresholds are adjusted based on the percentage change in GNP and filing fee amounts are adjusted based on the percentage change in the Consumer Price Index. These changes will also take effect 30 days after publication of the notice in the Federal Register.
The adjusted filing fee thresholds and fee amounts are provided in the table below.
On January 20, 2025, President-elect Donald J. Trump’s administration will come into power. The McDermott antitrust and competition team has analyzed the first Trump term, compared it to the Biden administration’s actions, and reviewed statements from those involved in the upcoming Trump administration. While it appears that the new administration will be good for business, especially for companies planning to expand through mergers and acquisitions, this client alert takes a closer look at what is likely to change and what is likely to stay the same in antitrust enforcement throughout the next four years.
During a recent webinar, Jon Dubrow, Greg Heltzer, Lisa Rumin, and Ryan Tisch provided a comprehensive introduction to the new Hart-Scott-Rodino (HSR) rules and their impact on the US premerger notification filing process. The program concluded with a Q&A moderated by Reese Poncia and featuring Ty Carson, a former Federal Trade Commission Premerger Notification Office lawyer, who shared his insider’s perspective from six years with the agency.
On October 10, 2024, the Federal Trade Commission issued new final rules governing the US premerger notification filing process. These rules – the first major overhaul to the Hart-Scott-Rodino (HSR) filing form in the nearly 50-year history of the HSR Act – will fundamentally alter the premerger notification process. While the rules omit some of the more extreme aspects proposed in the 2023 draft rules, they impose substantially more burdens on filing parties than the current filing regime. The changes will have wide-ranging implications for all parties required to notify transactions under the HSR Act.
In a spectacular turn, on September 3, 2024, the Court of Justice of the European Union annulled the European Commission’s decision to review the acquisition of Grail by Illumina. The Commission had previously asserted its authority to examine the merger under Article 22 of the EU Merger Regulation, despite the transaction not meeting the EU or national turnover thresholds for review.
This ruling is significant because it challenges the Commission’s ability to review transactions that do not meet the relevant EU or national thresholds but are referred by EU Member States. This could impact how future mergers are reviewed within the EU, as the Commission is likely to find alternative ways to review transactions that do not meet the relevant EU or national thresholds.
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