On February 19, 2026, the US Court of Appeals for the Fifth Circuit granted the Federal Trade Commission’s (FTC) motion to temporarily stay the US District Court for the Eastern District of Texas’s order vacating the 2024 Hart-Scott-Rodino (HSR) Premerger Notification Rules “until further order” while the parties brief the FTC’s motion to stay the district court’s order pending appeal. In the order granting the temporary stay, the Fifth Circuit set an accelerated briefing schedule as to whether the stay will apply for the pendency of the appeal on the merits. The FTC filed its brief on February 18, 2026; business association plaintiffs/appellees’ response to the motion for stay pending appeal is due February 23; and the FTC’s reply is due February 26. The temporary stay keeps the 2024 rules and HSR form in effect as of now.
We will continue to provide updates as this matter progresses.
On February 12, 2026, the US District Court for the Eastern District of Texas set aside and vacated the Federal Trade Commission’s (FTC) new premerger notification form and instructions. The 2024 Final Rule that amended the Premerger Notification Rules under the Hart-Scott-Rodino (HSR) Act, which became effective February 10, 2025, requires merging parties to submit substantially more documents and information to the FTC and US Department of Justice. In its decision, the court held that the new HSR rules were “arbitrary and capricious” under the Administrative Procedure Act and exceeded the FTC’s statutory authority under the HSR Act because the FTC had not shown that the additional information required was “necessary and appropriate” to determine if a proposed acquisition would violate the antitrust laws.
The court’s order is stayed for seven days to allow the FTC time to seek emergency relief from the United States Court of Appeals for the Fifth Circuit, which could include extending the stay until resolution of the case on the merits. If the order goes into effect, the new HSR rules will be vacated, and merging parties will need to make HSR filings using the prior, simpler HSR form. This development will not affect which transactions must be reported under the HSR Act – only the level of documents and information that must be included with the initial filing.
This is an evolving situation, so please stay tuned for continued updates and reach out to the authors with any questions.
On January 21, 2026, the Indiana Senate Committee on Judiciary voted unanimously to advance Indiana’s version of the Uniform Antitrust Pre-merger Notification Act (the Act). Indiana is poised to become the third state with a “mini-HSR” regime, following Washington and Colorado in 2025. Pending passage by the full legislature and signature by the governor, the Act is drafted to go into effect July 1, 2026.
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 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.
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.
While they have long taken a back seat to federal merger reviews, US states are becoming increasingly involved in merger reviews, including potentially requiring premerger notifications on a broad scale. On July 24, 2024, the Uniform Law Commission adopted its Uniform Antitrust Pre-Merger Notification Act (Model Act) as model legislation for states to use to implement premerger filing regimes.
The Act functions as a template for states to adopt their own premerger notification legislation and provides uniform suggested guidance to states that are considering their own premerger notification regimes.
The Model Act requires parallel filing of the Hart-Scott-Rodino (HSR) form in a state when:
The filing person has its principal place of business in the state; or
The person “directly or indirectly had annual net sales in [the] state . . . of at least 20 percent” of the threshold mandated under the HSR Act. §3(a)(1)-(2). Under the current HSR thresholds, that means sales of approximately $24 million in a state would satisfy the state-level filing requirement.
The Model Act also provides for automatic confidential treatment of materials submitted to the state.
Additionally, the attorneys general may communicate with the federal agencies about filing materials.
This can avoid the current practice of having to negotiate individual confidentiality agreements with any state interested in reviewing a transaction.
The Model Act does not impose any waiting or suspension period for notified transactions.
This continues a trend of government agencies obtaining more notice of M&A transactions. At the end of last year, Congress inserted Section 857 into the National Defense Authorization Act, which requires parties to provide their HSR materials to the US Department of Defense (DoD) for any proposed merger or acquisition that will require DoD review.
BACKGROUND
State attorneys general have broad investigatory and enforcement powers with respect to transactions implicating local competition concerns. States generally have the authority to issue investigative subpoenas, compelling production of documents and information to parties who merely sell products in a state without any further physical connection to the state.
Typically, states focus their efforts on transactions that have a particular impact on the state’s consumers or an industry important to the state’s economy.
For example, transactions involving hospitals or retail locations are traditionally more likely to draw the attention of a state’s attorney general than transactions involving national markets or consumer goods.
However, state enforcers have increasingly initiated their own efforts to challenge transactions.
This trend is illustrated by the Colorado attorney general’s lawsuit that seeks to block the Kroger-Albertsons merger.
Colorado is seeking a nationwide injunction and not merely an injunction on the acquisition in the state, raising a novel question with potentially significant impact on antitrust enforcement by the states.
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