The First 100 Days of the New HSR Rules: Assessing the Impact

Key Points

• Early returns from the first 100 days of the new HSR requirements are in and the results are as expected: the burden on HSR filers has multiplied. It is taking longer to prepare filings and more effort, not only from antitrust counsel but also from company employees. Transactions that require the disclosure of horizontal overlaps or supply relationships have been particularly hard hit, even where those overlaps or relationships do not give rise to competitive concerns.
• Early termination is back! Parties to deals that do not raise competitive concerns can once again ask for and receive early termination of the HSR waiting period (which is typically 30 days). Though the agencies’ efforts to reduce headcount could mean that granting ET is not a high priority.

Observations on the Real-World Impact of the New HSR Requirements

The new Hart-Scott-Rodino (HSR) requirements went into effect on February 10, 2025, meaning that May 21, 2025 marked their 100th day in effect. Here are just a few of our observations from the first 100 days of the new HSR form:

• The time to file HSR in transaction agreements has increased from the typical 5 to 10 business days (1-2 weeks) to about 15 to 30 business days (3-6 weeks). This longer timeline is particularly acute for deals involving private equity (PE) and investment funds whose transactions may not raise substantive antitrust issues but have not yet made a filing under the new rules and for transactions that involve a horizontal relationship and/or supply relationship.
• The new HSR requirements impose substantial additional burdens on company employees to not only help complete the HSR filing but also to consider its impact on future filings. The new requirements to identify specific horizontal overlaps and supply relationships—not just revenues in overlapping North American Industry Classification System (NAICS) codes, which can be quite general—means that parties must consider the competitive aspects of each HSR reportable transaction (even if on a cursory basis for a clear no-issues deal). This often requires that business personnel be involved in providing feedback and preparing the response. Where the parties disclose such overlaps or relationships, those business personnel often help draft the narrative response and collect the relevant information (e.g., sales data, top customer lists, terms of supply agreements). Moreover, filing parties (including their employees) must consider how the response provided in one HSR filing could impact the company down the line in future HSR filings. This gets even more complicated for PE and other investment funds that own multiple operating companies.
• Fortunately, the burden to produce documents has not changed much. Other than the new requirement to collect and produce certain “plans and reports” provided to the CEO or the board, there has been little practical change to the collection of Transaction-Related Documents (formerly called Item 4 documents).
  • First, our initial concern that the new HSR rules would require the collection of all drafts provided to directors (or their equivalent) that wear “two hats” (e.g., CEO and director; investment professional and Investment Committee member)¹ was put to bed by subsequent Federal Trade Commission (FTC) guidance. The FTC clarified: “If an individual holds both a board (or similar) position as well as other roles within the organization, only those drafts that were shared with the individual in their role as a board member need to be produced.”² Since drafts are typically shared with individuals that wear two hats in their non-director capacity, this clarification materially walks back what could have been an extremely burdensome requirement. Of course, drafts provided to directors in their capacity as director must still be produced under the new rules.
  • Second, the new requirement to produce final documents prepared by or for the “supervisory deal team lead” (SDTL) (the individual who has primary responsibility for supervising the strategic assessment of the deal, and who would not otherwise qualify as an officer or director) has in many cases not meaningfully impacted the scope of the search or the universe of responsive documents because the deal team’s (including the SDTL) files were often searched under the old HSR rules.³ No doubt, there will be circumstances where the addition of the SDTL will increase the burden, but this may be the exception rather than the rule.
• Parties filing on an LOI must now certify that the LOI “provides sufficient detail about the scope of the entire transaction that the parties intend to consummate.” As a reminder, the new HSR rules prohibit filing on a bare-bones letter of intent (LOI) and now require that an LOI contain some combination of the following elements: the identity of the parties; the structure of the transaction; the scope of what is being acquired; calculation of the purchase price; an estimated closing timeline; employee retention policies, including with respect to key personnel; post-closing governance; and transaction expenses or other material terms. The parties must state in their sworn certification accompanying the filing that the LOI meets this requirement.
• There are still potential “gotchas” where parties can be second guessed later. As we flagged in our initial assessment,⁴ the new HSR rules introduce significant subjectivity, which increases the risk that filers will be “bounced” for deficient filings, potentially even deep into investigations and even where the filers believe the information is accurate. The main areas of risk are in the identification of horizontal overlaps and supply relationships as well as the description of the transaction rationale. We are not aware of any filings that have been bounced on this basis, but the possibility remains.
• Early termination is back! Early termination (ET) allows the antitrust agencies to end the HSR waiting period (typically 30 days) early when they determine that the transaction does not raise substantive concerns. The agencies suspended grants of ET in February 2021 and resumed the ET program in March 2025, following the release of the new HSR rules. Given agency resource constraints, however, not every deal that warrants ET may receive it.

¹ https://www.akingump.com/en/insights/alerts/new-hsr-requirements-will-dramatically-increase-the-burden-on-filers.

² https://www.ftc.gov/enforcement/premerger-notification-program/hsr-notification-forms-instructions-guidance/hsr-form-changes-qa.

³ Drafts are only required to be produced if they were provided to directors. For officers and the SDTL, only the final version of a document must be produced.

⁴ https://www.akingump.com/en/insights/alerts/new-hsr-requirements-will-dramatically-increase-the-burden-on-filers.