Insights

The pending overhaul of the Hart-Scott-Rodino (HSR) rules faces a new challenge. Published in the Federal Register in November, the final HSR modifications were set to become effective on February 10, but late last week the U.S. Chamber of Commerce, a local Chamber chapter, the Business Roundtable, and the American Investment Counsel filed a complaint seeking to block their implementation. While the complaint does not seek a temporary restraining order or a preliminary injunction, the case further highlights the expanded regulations and additional burden the agencies are seeking to impose on merging parties, and places a spotlight on the issue as the Trump Administration prepares to take control of the antitrust agencies.

The Federal Trade Commission has announced its annual updates to the thresholds and filing fees related to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act). These dollar thresholds are indexed annually based on changes in the U.S. gross national product and the Consumer Price Index.

The Federal Trade Commission announced its annual updates to the thresholds and filing fees related to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) on Monday. These dollar thresholds are indexed annually based on changes in the U.S. gross national product and the Consumer Price Index.

This week, after months of anticipation, the Antitrust Division of the Department of Justice and the Federal Trade Commission issued draft revised Merger Guidelines containing 13 principles that the Agencies use as a framework for evaluating all forms of transactions. As widely expected, the Draft Guidelines harken back to 1960s-era legal precedents and seek to roll back the modern structural presumptions adopted in the 2010 Horizontal Merger Guidelines. They also express a far more skeptical view of the benefits of mergers in ways that would subject more mergers to challenge. At the same time and in line with current DOJ and FTC practices, the Draft Guidelines expressly expand the reach of merger reviews into labor markets, take a skeptical view of serial acquisitions, add new provisions for multi-sided platforms, and espouse broader theories of harm.

This week, the Federal Trade Commission announced a massive overhaul of the Hart-Scott-Rodino (HSR) Act’s rules and instructions for premerger filings to the U.S. antitrust agencies. The proposed rule represents the most significant revisions to the HSR process since its inception in 1976, vastly expanding the scope of information required to be submitted by parties. The proposed rules would impose significant additional substantive and procedural burdens, substantially increase the time and cost to prepare filings, and raise critical strategic questions for filing parties.

The Federal Trade Commission announced yesterday the most significant changes to the jurisdictional thresholds and filing fees applicable to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) in several decades.

After seeing the first decrease in the HSR thresholds in over a decade last year, the Federal Trade Commission announced today that it will increase the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product.

On October 25, 2021, the FTC announced that it will seek to impose prior approval provisions on merging parties in all future consent decrees. These provisions will require parties to merger consent decrees to request formal Commission approval before closing any future transactions in the same market, and potentially adjacent markets, regardless of whether those subsequent transactions are reportable under the HSR Act. This shift reinstates a policy abandoned by the FTC in 1995, and seeks to provide the Commission the unilateral ability to block future transactions it views as problematic, without having to carry the legal burden in court. 

On March 30, 2021, the Federal Trade Commission announced that it voted in unanimous, bipartisan fashion (4-0) to file a complaint to block Illumina’s proposed acquisition of Grail. Illumina sells next-generation gene sequencing (NGS) equipment and consumables, while Grail is developing a multi-cancer early detection test that uses Illumina’s NGS platform. The FTC alleges a vertical theory of harm whereby the merger would give Illumina both the incentive and ability to disadvantage Grail’s multi-cancer testing competitors by raising their costs for, or by foreclosing them from, accessing Illumina’s must-have NGS technology. This is the first time in recent memory that the FTC is challenging a vertical merger in court; it represents the FTC’s first challenge under newly issued Vertical Merger Guidelines; and it is the first suit filed under Acting FTC Chair Rebecca Slaughter—all of which demonstrates that the FTC is likely to take a more aggressive approach to vertical merger enforcement for at least the next four years.

As if we needed further evidence of the impact of the COVID-19 pandemic on the U.S. economy, the Federal Trade Commission (FTC) announced yesterday that the minimum reporting threshold applicable to the Hart-Scott-Rodino (HSR) Act will decrease from $94 million to $92 million for the coming year. The HSR Act requires that certain transactions be notified and subjected to review by the U.S. antitrust agencies prior to their consummation. 

Yesterday, the Competitive Health Insurance Reform Act of 2020 (CHIRA) was signed into law, eliminating the longstanding federal antitrust exemption for health insurers provided under the McCarran-Ferguson Act. According to AAG Delrahim, head of the DOJ Antitrust Division, by “[l]imiting the scope of conduct exempt from the antitrust laws … [CHIRA] will strengthen the Antitrust Division’s ability to investigate and prosecute anticompetitive behavior.” While the new law will provide DOJ some additional scope for antitrust enforcement related to ratemaking, underwriting, and certain other activities, the law will not impact the Antitrust Division’s ongoing enforcement of price fixing and other collusion, monopolization, or merger and acquisition matters in the health insurance industry – all of which have been, and will likely remain, robust.

The Federal Trade Commission announced on Friday that it will return to processing requests for early termination for HSR filings following a suspension of such grants for the last two weeks.  On March 13, the FTC and DOJ announced the adoption of a temporary e-filing program for HSR filings as part of the agency’s response to the COVID-19 coronavirus pandemic and the agency’s shift to a remote working environment.  Among the changes implemented, the agencies announced they would suspend the processing of requests for early termination of the HSR Act’s waiting periods. 

The Federal Trade Commission announced today that it will increase the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product.

On Friday, the Federal Trade Commission announced that it will increase the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product.

The Premerger Notification Office of the Federal Trade Commission (FTC) issued new guidance last week that will require more hospital mergers and acquisitions to be notified under the Hart-Scott-Rodino (HSR) Act. Although billed as a clarification of existing rules, as a practical matter the new guidance means that more hospital mergers will be subject to the HSR Act’s prohibition on consummating mergers before notifying the agencies and observing a 30-calendar day waiting period, and it provides the FTC with a powerful tool to collect extensive information before allowing hospital mergers to close.

In recent decades, environmental permitting delays have become a major obstacle to investment and development of natural resources in the United States, particularly in industries such as mining, oil and gas, and alternative energy. Permitting delays have also hindered investment in new domestic manufacturing operations. One of the major sources of permitting delays is the Environmental Impact Statement (EIS) process required under the National Environmental Policy Act of 1970 (NEPA).1   This seemingly benign procedural requirement has been a major source of permitting delays ranging from four to 10 years, and typically adding multi-million dollar costs for associated data gathering and studies. The EIS process is also often the basis of protracted litigation seeking to enjoin new projects.