Hart-Scott-Rodino Overhaul


As the latest evidence of increased antitrust enforcement, on July 7 the Federal Trade Commission and the antitrust division of the Department of Justice jointly published sweeping changes to Hart-Scott-Rodino rules. HSR enables the FTC and the DOJ to analyze the potential competitive effects of a proposed transaction and initiate a preclosing challenge if warranted, by requiring a filing and waiting period. Absent an exemption, the requirement applies to transactions meeting a relatively small “size” test of $66 million, often including the value of prior acquisitions involving the same seller or target.

The changes are the most comprehensive in HSR’s 33-year history. Several changes eliminate obsolete sections of the form, and the agencies responded to comments by carving back on some of the more extreme proposals. But several remaining changes raise HSR compliance burdens, increasing the cost and time needed to prepare filings, especially imposing new reporting obligations on private equity, other investment fund “families,” oil and gas master limited partnerships, or MLPs, and other partnerships or LLCs that are managed by another entity that does not control them.

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