As described in our Client Alert of July 6, 2023, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) proposed on June 27, 2023, a massive overhaul of the Hart-Scott-Rodino Act (HSR) pre-merger notification form. We focus here on antitrust risk and burden implications for private equity transactions specifically. The proposed new form would greatly expand the information and documents that parties must submit with their HSR notification. Both the FTC and the DOJ have recently voiced intensive concerns regarding the perceived anticompetitive effects of private equity strategies involving an investment in an initial platform company in a particular industry followed by that platform pursuing follow-on acquisitions in the same industry. Several state attorneys general have also criticized private equity strategies and sought to block transactions involving platform companies. The proposed new form would give the antitrust authorities new tools to use the HSR pre-merger notification process to launch more frequent, and more robust, investigations into transactions involving private equity funds and their platform companies, while greatly increasing the burdens associated with antitrust notifications of even non-controversial transactions.
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