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Extreme Makeover: US Merger Notification Edition

 |  September 18, 2023


The Biden Administration is pushing forward with a substantial overhaul of US merger control, introducing sweeping modifications to the US premerger notification form. Proposed by the Federal Trade Commission and the Department of Justice’s Antitrust Division, these alterations will have a significant impact on all reportable transactions. Parties will now need to furnish a substantially larger amount of information, including additional data, a plethora of additional documents, and detailed narratives pertaining to the competitive impact of the transaction. These changes will also affect standard filing practices, such as the ability to submit a basic letter of intent.

Presently, transactions with no issues can typically expect clearance within 5 to 6 weeks after signing. However, these proposed changes would disrupt this timeline considerably. Preparation is likely to take significantly longer, and Parties may engage in extended back-and-forth discussions with the FTC regarding the contents of the filing before the waiting period commences. Parties will have to incorporate greater flexibility into their schedules, as the current expected timeline of 5 to 6 weeks will become much less feasible.

In this evolving landscape, the Agencies assert that the suggested modifications will introduce “critical” information, enabling more efficient and effective reviews. They argue that these changes are necessary because transactions with substantive issues will be easier to identify during the initial waiting period. Since the HSR Forms have seen minimal alterations since 1978, the Agencies now consider them inadequate. They believe the economy has become overly concentrated over time due to underenforcement and missed transactions. Additionally, the changes reflect a perspective that transactions have grown more intricate, markets are more dynamic, and the US has lagged behind practices in other jurisdictions…