The ruling permits the use of the “old” HSR form in connection with HSR filings after March 19, 2026.
Background
In October 2024, the United States Federal Trade Commission (FTC) issued a Final Rule that significantly expanded the documentary material and information required in premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). As a result, the amount of time needed to properly complete such a filing substantially increased. Further details of the requirements of the Final Rule can be found in our previous article:
FTC Issues Final Rule Affecting HSR Act Premerger Notification Requirements – Dvorak Law
Legal Challenge to the Final Rule
On February 12, 2026, the United States District Court for the Eastern District of Texas vacated the Final Rule by granting summary judgment for the plaintiff in Chamber of Commerce of the United States of America, et al., v. Federal Trade Commission on two independent grounds, holding that (1) the Final Rule exceeded the FTC’s statutory authority under the HSR Act (finding that the FTC’s claimed benefits of the Final Rule did not reasonably outweigh its costs) and (2) the rulemaking was arbitrary and capricious under the Administrative Procedure Act of 1946 (finding, in part, that the FTC failed to show that the Final Rule’s benefits bore a rational relationship to its costs).
The Fifth Circuit has denied the FTC’s motion for a stay pending appeal. Accordingly, while the appeal proceeds, the “old” HSR form (which was the form in place prior to February 10, 2025) is in effect. The FTC confirmed that the United States District Court for the Eastern District of Texas’s judgment vacating the “new” HSR form is effective immediately and that the agency is now accepting filings using the “old” HSR form and instructions.
Implications and Practical Takeaway
For the time being, filers may prepare and submit filings using the “old” HSR form and instructions. However, filers who have already prepared submissions under the “new” HSR form may still submit them voluntarily. The determination for whether a transaction is subject to the requirements of the HSR Act, as well as the annual thresholds and filing fees, will not change as a result of this ruling.
Looking forward, filers should continue to pay close attention to future proceedings with respect to this case and to any challenges or related announcements from the FTC or the Department of Justice.
Whether subject to the reporting requirements of the HSR Act or not, the attorneys at Dvorak Law Group, LLC are available to provide analysis and insight regarding the transaction process to help guide you and your business through any type of merger, sale, or acquisition.
About Dvorak Law Group, LLC
Dvorak Law Group, LLC is a full-service business, estate and wealth transfer planning, and litigation law firm with offices in Omaha, Hastings, Sutton, and Columbus, Nebraska, and Sioux Falls, South Dakota. It serves individuals, businesses, non-profit organizations, and government entities in Nebraska, South Dakota, and throughout the country. To learn more about Dvorak Law Group, please visit www.dvoraklawgroup.com.
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