In brief
The Fifth Circuit has refused the Federal Trade Commission's (FTC) efforts to delay implementation of a district court judgment invalidating the FTC's efforts to substantially increase the disclosure burden on parties to transactions triggering a filing obligation under the Hard-Scott-Rodino (HSR) Act. While the FTC continues its appeal on the merits, parties to transactions requiring an HSR filing may use the notification form that predated the invalidated one, which was adopted in February 2025.
Key takeaways
- Parties notifying the Antitrust Division of the Department of Justice (DOJ) and the FTC, may use the HSR form that (subject to limited amendments) has been used since the HSR Act was passed in 1976.
- The Fifth Circuit denied the FTC’s motion to stay the decision of the Eastern District of Texas that invalidated the February 2025 HSR form.
In more detail
Last month, a federal district court in the Eastern District of Texas invalidated the FTC’s “new” HSR rules, finding that the agency exceeded its statutory authority and failed to justify the rule’s significant costs through a meaningful cost benefit analysis. The FTC appealed the decision to the Fifth Circuit, simultaneously moving for a stay pending its appeal.
Following the Fifth Circuit's decision denying its motion, the FTC posted: the following announcement on its website: “the district court’s judgment vacating the new form is effective immediately” and the FTC will accept "the HSR filings using the Form and Instructions that were in place before the February 10, 2025, effective date of the new rule.” While the FTC post notes that parties may continue to submit the more burdensome HSR form adopted in February 2025, there is no apparent reason why a party would choose to submit their HSR filing using the invalidated form.
Notably, the FTC's appeal to the Fifth Circuit continues, and the February 2025 version of the HSR form may be deemed to be appropriate. However, a merits decision from the Fifth Circuit is not expected for months.
In the interim, any company considering a strategic M&A transaction should consult with counsel on the appropriate path forward with the FTC and DOJ.
We will continue to monitor the situation and keep you updated, as and when appropriate.