Parties to certain acquisitions are required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the Act) to disclose information about the parties and their transaction to the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ). Earlier this year, the FTC, in concurrence with the DOJ, issued rules updating the premerger notification form used to disclose that information (HSR Form). Those rules were published in the Federal Register on November 12, 2024.

The new HSR Form will take effect on February 10, 2025, meaning notifications filed on or after that date must use the updated form. Additionally, the FTC announced that it will end the suspension on early termination of the 30-day waiting period once the new HSR Form becomes effective. The current suspension has been in place since February 2021.

The material changes to the new HSR Form include the following:

• Different versions of the HSR Form for the acquiring person and the acquired person.
• New requirements for document disclosures, including:
  • Producing certain documents from “supervisory deal team leads” in addition to officers and directors. A “supervisory deal team leads” is an individual who has primary responsibility for supervising the strategic assessment of the deal, and who would not otherwise qualify as a director or officer.
  • Producing certain documents related to competition even if they do not specifically relate to the transaction in question.
  • Parties will be required to describe their business lines and identify products and services where they compete and supply relationships between them.
• New requirement to disclose information regarding 5% or greater limited partners that have certain management rights (e.g., the right to appoint board members).
• New requirement to disclose certain officer and director information.
• Acquired person required to provide certain prior acquisition information (currently only required of acquiring person).
• In transactions in which a fund or master limited partnership is the ultimate parent entity, the acquiring person will be required to provide any existing organizational charts showing the relationship of any entities that are affiliates or associates.
• For all entities within the acquiring person responsible for the development, marketing, or sale of products or services identified in the HSR Form as overlaps or supply relationships, the acquiring person will be required to list all current officers and directors and those who served in such positions within three months before filing that also serve as an officer or director of another entity that derives revenue in the same NAICS codes reported by the acquired person.
• The acquiring person will be required to list, for (i) entities the acquiring person directly or indirectly controls, (ii) entities that directly or indirectly control the acquiring person, and (iii) entities within the acquiring person that have been or will be created as a result of the transaction:
  • All current officers and directors, as well as those likely to serve in one of those positions, who also serve as an officer or director of another entity that derives revenue in the same NAICS codes reported by the acquired person.
  • If the identities of prospective officers or directors are unknown, a description of those with the authority to select them must be provided.

Parties to transactions that are reportable under the Act should expect additional time and cost necessary to prepare the premerger notification under the new rules. Parties often make promises to one another in letters of intent or in principal transaction documents with respect to the timing of the filing of their premerger notifications. Consideration should be given to these commitments due to the additional time likely needed to prepare the notification. Additionally, parties preparing notifications close to the February 10, 2025, effective date of the new HSR Form will need to consider which form is the proper one to prepare or, alternatively, be prepared to file using both the old and the new forms. This might be particularly challenging given that certain antitrust practitioners anticipate challenges to the new rules, which may lead to uncertainty over which HSR Form to use.