As described in our Client Alert of July 6, 2023, the Federal Trade Commission and the Department of Justice proposed on June 27, 2023, a massive overhaul of the Hart-Scott-Rodino Act pre-merger notification form. Although the proposed new form would increase burdens and costs and extend deal timelines and potentially increase antitrust risk for all types of transacting parties, it would present particular challenges for private equity firms and their platform companies, especially given antitrust enforcers' intensive focus on potential harm to competition from transactions involving private equity.
This memorandum identifies key changes the proposed new form would bring and issues and challenges they would create, with a focus on private equity. We also discuss some bigger picture implications from the proposed new form and measures firms can take to address the new challenges. Although the proposed new form may not become operational for a year or so and there could be changes from the proposal (although we do not expect they will be dramatic), now is the ideal time for firms to begin preparing for the new form, especially because many firms likely are currently evaluating potential transactions that might not be signed until the new form comes into effect.
WilmerHale has created the New HSR Form Working Group, an interdisciplinary group including lawyers with antitrust (federal and state), private equity, and general corporate experience to help our clients efficiently, effectively, and quickly address the challenges the proposed new HSR form would create. We intend to provide our perspectives as the proposal moves forward and is implemented, including through additional client memoranda and webinars. We look forward to working with current and new clients that will be transacting under the proposed new form to help minimize the antitrust enforcement risks, burdens, delays, and expenses that it would create.
We hope this memorandum is helpful to both private equity and other types of firms that will be navigating transactions under the proposed new form. We are here to help!
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