On this episode of "Fierce Competition," Skadden’s Joseph Rancour, Joseph Ciani-Dausch and Rita Sinkfield Belin break down the recent updates to the Hart-Scott-Rodino Act premerger notification form. The three antitrust/competition attorneys discuss new and significant form requirements, their rollout and what lies ahead. They also cover the potential effects of these new rules on the substantive review of transactions and the implications for cross-jurisdictional mergers notified to the European Commission, the Competition and Markets Authority and other regulatory bodies worldwide.
Episode Summary
Antitrust premerger notification just became more complex. The Hart-Scott-Rodino (HSR) Act premerger form underwent substantial changes in February 2025, requiring significantly more information from merging parties. Host Rita Sinkfield Belin and her Skadden colleagues Joe Rancour and Joe Ciani-Dausch offer insights on the new requirements. The discussion highlights the 10 most notable changes, explores how these updates are being implemented and provides initial observations on what may lie ahead.
Voiceover (00:00):
Welcome to Fierce Competition, a podcast from Skadden's global antitrust and competition group that explores antitrust policy and enforcement around the world. Join our colleagues from across the continents as we discuss the latest developments and what they mean to you in an increasingly complex legal and regulatory landscape.
Rita Sinkfield Belin (00:21):
Hi, everyone, and welcome to another episode of Fierce Competition. I'm Rita Sinkfield Belin, counsel in Skadden's antitrust group in the New York office, and I'm joined here today by two colleagues, Joe Rancour, who's an antitrust partner in the DC office, and Joe Ciani-Dausch, who's antitrust counsel also in our DC office.
(00:43):
In this episode, we'll be discussing the updates to the Hart-Scott-Rodino Antitrust Improvements Act premerger notification form. These changes recently went into effect less than a month ago. We'll discuss the new, more significant HSR form requirements implemented in the final rule, how they are being implemented, and their future prospects. And we'll also look into the potential effects of the new rules on the agency's substantive review of transactions, as well as implications for cross-jurisdictional mergers which are notified at the EC, CMA, SAMR or other regulatories across the globe. Joe Ciani-Dausch, for context, would you provide us with a little background on HSR and how we got here, just to level set the context for everyone?
Joe Ciani-Dausch (01:33):
Yeah. Happy to, Rita. So for those who may not be as intimately familiar with HSR as we are, the government's always had the ability to challenge anticompetitive mergers since way back in 1890, when the Sherman Act was first passed, but there was no pre-notification requirement back then. So the government was often in the position of trying to unwind anticompetitive mergers after they happened.
(01:59):
As you can imagine, that is quite a difficult task, one that has often been analogized to unscrambling eggs. So in 1976, Congress decided to pass the HSR Act, and that required parties to certain transactions valued above a certain level to pre-notify the FTC and DOJ before closing their transactions and observe a 30-day waiting period to enable the FTC and DOJ to do a preliminary investigation, a screen, and decide if they wanted to challenge or further investigate that merger.
(02:34):
Now the HSR Act itself doesn't really spell out what type of information needs to be in the notification itself. It grants the FTC with the concurrence of the DOJ authority to define that. And over time, the HSR form has remained relatively the same, with fairly minor adjustments along the way, requiring basic information about the transaction, the parties, and a limited set of deal-related documents analyzing competition and markets and other subjects. So a fairly technical, straightforward notice document compared to the premerger filings in a number of other jurisdictions.
(03:15):
But these new rules, they really represent a fundamental re-imagining of the form itself and a dramatic expansion in the types and amount of information required with the HSR form. So really a sea change and the reason we're here today to make sure folks understand that and get some help in trying to navigate that. So Rita, can you give us some more specifics on that front? What's really changed? What are the new requirements that filing parties really need to be most aware of?
Rita Sinkfield Belin (03:45):
Absolutely. So first and foremost, we want to make clear that these new rule changes do not affect the way transactions are analyzed under the antitrust laws. They simply and solely focus on the content and the kinds of categories of information and documents that are now required to go into the notification in order to start that waiting period.
(04:08):
So here we have Rita's top 10 list of the significant changes. One is the forms. Previously, there was one form for everybody. Now the buyers have their own form and the sellers have a form. And then within each form, there's some variations depending on the type of transaction.
(04:26):
Number two, early termination. Yes, it's back in operation. So it's possible for a transaction that's notified to not have to run the entire 30-day period because if they requested early termination and the agencies don't have any concerns and they answered all their questions, they may decide to close their investigation and end it, in which case HSR gets checked off the box.
(04:50):
Number three, minority shareholders. Buyers must now identify all the minority shareholders within the chain of entities that runs from the top of the company, from the filing person all the way down to the purchaser. So basically that acquisition stack, to the degree there are investors who are third parties and they have 5% or more, but less than 50%, they have to be identified, and these can include limited partners in some instances.
(05:19):
Number four, narratives. We now have to write a strategic rationale that is based on the party's documents that talk about their rationale, and we also have to write an overlap description that affirmatively identifies any overlaps, whether it's products or services between the parties. And completing that narrative, if it's applicable, triggers a series of other questions.
(05:44):
Number five, new custodian category. So you know that previously, we focused on the officers and directors of a party. Now the agencies have created this new category called the supervisory deal team lead, and this is the person who has primary responsibility for the strategic assessment of the transaction. This person might be an officer, might not be, but it varies by transaction, and so that has to be considered. And if this person is not an officer, this person will have to provide the traditional ... What we call 4(c) documents, and analyze the competitive aspects of the transaction.
(06:23):
Number six, drafts. There was a lot of discussion about drafts, but we landed on having to provide drafts that are reviewed by any directors on a board of directors, if that director was reviewing the document in their capacity as a director. And board of directors can include supervisory boards, investment committees, and any other equivalents.
(06:49):
Number seven, ordinary course of business documents. Here, there are two categories. One is a request for documents that are prepared and reviewed by the board of directors. In the ordinary course, there's a one-year look-back period. If a document that was reviewed by the board analyzes or discusses the competitive aspects of the filing party or the target, then those documents may need to be provided. The other category focuses on documents that are reviewed by the CEO at any level. Here, the request is only for periodic reports. So those quarterly, semi-annual, or annual documents that similarly have competitive information about the parties could be responsive in a filing when the overlap narrative is completed.
(07:38):
Number eight is a request for officers and directors. And again, this is triggered when there is an overlap between the parties. And there are various restrictions and nuances to the rule, but it is new and something that the parties will need to consider.
(07:53):
Number nine relates to prior acquisitions. You may recall that previously only the buyers had to report this information. Under the new rules, both the buyer and the target side have to identify their prior acquisitions under an overlap code or in an overlap area.
(08:11):
And number ten is relating to information that pertains to defense contracts or contracts with the intelligence agencies if the value of the contract is at least a hundred million dollars. And the other part to that is a request for information on subsidies that are received in certain countries, and the countries are China, Iran, North Korea, and Russia.
(08:34):
So those are the top 10. Joe Rancour, I mentioned early on that one of the new rules pertains to these narratives. Can you tell us more about this and how it compares to other jurisdictions and whether there's any benefit or disadvantage, in fact, of having to write these now?
Joe Rancour (08:50):
Yeah. Thanks, Rita. And that was a very concise 10 out of a very extensive set of changes. But yeah, it's a good question on the narratives because it's one of the changes that I think has created a lot of questions from companies thinking about how they're going to react to this. And at least conceptually, HSR filings will be moving a bit more towards other jurisdictions that require a lot more upfront explanations and disclosures along the lines of those horizontal and vertical areas that you were just discussing.
(09:22):
And I think that that's going to, in a sense, bring them a little bit closer to those other jurisdictions like Europe and the UK where that's pretty much standard, but I think it's going to still be different. Clearly, we're moving past just a notice filing in the HSR form, so we'll have to put forward some of the explanation that ordinarily in the US you would be doing in a first meeting with the agencies or in some other form of advocacy but not necessarily, or not at all, in the HSR filing itself.
(09:51):
But I don't think it means that we're going to really shift over all the way to what would be considered a Form CO type of filing like we have in Europe, for example, where you're having a very extensive filing with a lot of information.
(10:04):
I do think that it's going to be a learning experience as folks adapt to the new normal with the new HSR form and figuring out how do we strike the right balance of what disclosures we're going to make in terms of explaining those overlaps in those verticals. Of course, if there's a mismatch between the new additional documents that are going to need to be produced and the narrative that goes in there as well as what the agencies find out during the course of their investigation, that's going to cause issues down the line.
(10:33):
But in terms of the breadth and the scope of the filing itself, I do think that the HSR form will likely still be more concise, but it does bring up the second point, which is how do you coordinate that with what's going on in other jurisdictions if it's a cross-border deal that involves filings in Europe, filings in the UK, filings in China, for example. And I think that this really ... There's an advantage, of course, in leveraging the information that's already been gathered in order to complete those other filings or prepare those filings.
(11:00):
But it also brings another point to bear, which is it's really critical that the parties take the effort to tell a very consistent story, make sure that when the filings are going in across the world, there's not a mismatch between how the transaction's being described in the US versus how it's being described in Europe, particularly around the essence of the transaction. Of course, there's going to be regional differences in the deals. That's pretty common, but making sure that the way you're describing the products, the way you're describing the nature of competition is consistent in that regard.
(11:31):
I think the other difference in terms of the narratives is that, for example, in the European process, there's this back and forth with the regulators where it takes a while to create a draft of the Form CO document and then it gets submitted as a draft, and then there's this whole premerger notification period with the regulators where there's this back and forth where essentially that filing is treated almost as a working document, and that'll issue requests for information. Those will go back and forth, and then the filing will be updated. Here, you'll still have basically the same kind of HSR process where you're going to put that information in the filing and then submit it and then the clock starts. So I think it's going to be different in that regard as well.
(12:10):
I do think the timing is going to be different. We're used to doing the HSR filing very quickly and getting it on file. It's usually one of the first filings that goes in. Here, as I'm sure we'll talk more about, it's going to take some more time to get this prepared. So that's going to be the other major shift. But Rita and Joe, the new rules have now been in effect since February 10th. What are some key learnings thus far in terms of how the new rules are being implemented?
Joe Ciani-Dausch (12:36):
Rita, I have a few things on my list.
Rita Sinkfield Belin (12:39):
Okay.
Joe Ciani-Dausch (12:40):
But I'll let you go first.
Rita Sinkfield Belin (12:41):
Definitely parties need to permit enough time to work through the different categories. We've highlighted the more significant changes, but the form itself has many subparts. And I think to the point that you made earlier, Joe, about needing more time, and the more overlaps there are, the more time will be needed to describe those overlaps, to pull the requisite customer data. If there are supply relationships, that also needs to be worked through. If there are other arrangements or other agreements between the parties that may not be directly a result of the new transaction, those relationships and those dynamics will have to be described and included. And so I think there's just no underestimating the need to talk in advance and start thinking about HSR, even before the transaction signs, and start identifying what's going to be relevant and who the point people will be.
Joe Ciani-Dausch (13:39):
Yeah. I would definitely echo the element of more time being required. The FTC itself estimated that it would take three times as much time on average to prepare the filing, even more in the case where there are overlaps between the parties. And as we're preparing filings under the new rules, we're definitely seeing that that is, if anything, I think an underestimate. It is going to take much longer than that. Because of that extra time, there probably have not been very many filings that have actually been made, if we're talking about four to six weeks, in some cases, to prepare a filing and the new rules have only been in effect for about four weeks. And if you had a transaction that there was any possibility of getting your filing before the new rules took effect, you probably did that.
(14:28):
So there's still a limited amount of learnings that we've really been able to glean from the agencies. They've only issued a limited set of published guidance. One of the ones, just to reference something Rita mentioned earlier on the drafts point, that was something a lot of people were concerned about. Interestingly, they did release some guidance, essentially suggesting that you could exclude documents or drafts that were submitted to a director, but not in their capacity as a director. So if you had, an example, of someone who is an officer and a director at the same time, if they received a draft in their capacity as an officer but not a director, you could exclude the draft on that basis.
(15:12):
That was interesting because that, what we call a two hats argument, had seemed to fall out of favor at the FTC in other contexts for 4(c) documents over the years, but they seemed to resurrect it a bit to deal with what could have really resulted in an explosion of draft documents that would need to be submitted.
(15:32):
But the other thing I think we're seeing with the premerger notification offices, they're climbing the learning curve as much as we are. It's new for everybody. So there's definitely going to be a significant transition period where the government is trying to feel out and come up with answers that they haven't anticipated, questions that they haven't anticipated or had to deal with before. So stay tuned. There'll be a lot more learning to come.
(15:57):
But certainly, even more so than in the past, filing parties are going to have to make sometimes a difficult decision of whether to ask the PNO for guidance on a particular question, how the rules should be applied to a fact scenario, or just make their own judgment. See how the PNO reacts. So there will still be a significant transition period where all sides are trying to feel this out and see how it gets implemented.
(16:23):
Joe Rancour, I wanted to ask you, the FTC and DOJ, they suggested when they issued these rules that all this new information would help them make better decisions about which deals get closer looks, which don't. Do you think all this new information will actually result in clearance for deals earlier in the process since they'll have all this new information? And how can clients use this new form to highlight where deals have no issues in a proactive way?
Joe Rancour (16:52):
Yeah, it's a great question. And I think with all things antitrust, it's really going to be fact-specific. It's going to depend on the deal, it's going to depend on the industry, it's going to depend on the competitive dynamics, and it's going to depend on what's in the documents that are new to the mix, right? You're putting in additional ordinary course documents into the filings now. So that's going to be information that the agencies would not necessarily be getting under the old form.
(17:16):
Now, I think certainly we would welcome to see more early termination, and I think everyone is glad to see that early termination is back on the table because there's a lot of transactions that we've all worked on since early termination was suspended that really should have gone through faster. So it's great, reintroducing early termination. And hopefully, with the additional information that they get as a matter of course, they don't have to reach out to the parties and ask for it. Hopefully that will help clarify, in a lot of cases, that there's no real issues in a particular transaction, and they'll be comfortable enough closing the investigation early.
(17:53):
Now, I think there's a flip side to that, which is under the old regime, parties would basically be providing things voluntarily in the first 30 days. And there's always a strategic question of what types of documents might we want to produce, what sorts of information. I think those voluntary requests are going to continue at the agencies, but the difference now will be there's a certain category of documents that are now mandatory.
(18:14):
So I think it's really going to be the case that, in certain industries or certain complex markets, the ordinary course documents might create confusion, they might create more questions, they might introduce uncertainty or issues that may have not occurred to staff looking at just the traditional Item 4 type documents. So that might lead to more of a back and forth with the parties during the 30-day waiting period.
(18:37):
And in some cases, that might be a really good thing. It'll help clarify the issues. The staff will be able to look through that, get up to speed more about how these companies work and what makes them tick. But there may very well be instances where the documents just create more issues, and that they dig in deeper because they want to get clarity on certain things that wouldn't have been clear in the transaction-focused classic Item 4 type documents. So I think it's really going to depend on the case. I'm reserving judgment on whether on net it's going to result in earlier clearances and speedier resolutions. I think it's going to be a mixed bag, really, at the end of the day.
(19:10):
But also, I think that it helps in the sense that, because you know these mandatory documents that are new are going to be in, it really is an incentive for parties to start the antitrust assessment early in the process, get your arms around the facts, get your arms around the documents that are in your client's files, and really figure out how that fits into the narrative and the rationale for the transaction, because that's going to be really important to make sure that all these pieces fit together in a way that makes sense to the staff and makes sense to the stated purpose for the transaction.
(19:41):
So in that sense, getting an early jump on that may help streamline the process a bit in getting to an early joinder of issues with staff about what the key things are as you go through that first 30-day period.
(19:55):
So Joe, do you think that the new rules are here with us to stay? Also, Rita, I welcome your thoughts. I mean, there was a lot of speculation about what might happen post-election, as we go into the new Trump administration. Certainly a lot of folks thought these would be revisited, maybe changed, maybe modified, but any chance they could still be overturned or modified?
Joe Ciani-Dausch (20:15):
Yeah. It's a good question, and I think slim hope but I wouldn't get your hopes up, I guess, is the way I would put it. As you referenced, Joe, I think when President Trump won the election, there was some thought that perhaps the FTC would withdraw or at least modify the new HSR rules because they weren't scheduled to go into effect until February 10th, particularly after President Trump issued an executive order at the very beginning of his term, directing regulatory agencies to freeze all pending regulatory actions for at least 60 days, to enable them to consider whether any changes were needed.
(20:55):
I think folks maybe thought that the FTC might do that. Chair Ferguson and Commissioner Holyoak, while they voted for the issuance of the HSR rules, I think they both made clear in their statements that they had certain issues with them and they're not the rules that they would've written were they the sole decision makers. So I think there was maybe some hope that they would, if nothing else, pause them or delay the effective date to consider what changes they might want to make. But obviously, that didn't happen. And in fact, on the day they went into effect, Chair Ferguson tweeted out essentially a celebratory statement ringing in the new HSR rules and how great it was that they'd be getting more information.
(21:37):
So I think that the ship has pretty much sailed in terms of hoping for any meaningful action by the Federal Trade Commission and the DOJ themselves to withdraw or make significant modifications to the rules.
(21:51):
Now, there are a couple of other options that are still out there to overturn the rules. The US Chamber of Commerce filed suit in January to overturn the rules as violating the Administrative Procedure Act. You may recall that they filed a similar challenge to the FTC's Noncompete Rule and were successful on that basis. They filed a lawsuit challenging the new HSR rules on similar bases, essentially that the vast amount of new information that the HSR rules require are not necessary and appropriate under the HSR Act. There is that qualifier in the statute. While the FTC has authority to issue rules, the information has to be necessary and appropriate for them to determine whether the transaction will violate the antitrust laws. And they argue that an element of that test is essentially whether the benefits outweigh the cost. And the Chamber argues that here, the costs greatly outweigh the benefits.
(22:49):
That case though is moving pretty slowly. There hasn't been much activity since it was filed, though. So we're keeping an eye on it, but I wouldn't expect any near-term results that overturn the new HSR rules.
(23:02):
The other avenue that folks were keeping an eye on is action in Congress. There is the Congressional Review Act procedure that has been used a lot of times at the beginning of a new presidential administration to overturn regulatory rules that were passed at the end of the previous administration. That requires a joint resolution of Congress and signature by the president. If you get that, the benefit is that it revokes the rule but also prevents the agency from enacting a substantially similar rule in the future without specific congressional authorization.
(23:35):
Now the chair of the House Judiciary Subcommittee with authority for antitrust, Congressman Fitzgerald of Wisconsin, the day after the new rules went into effect, he actually introduced a resolution pursuant to the Congressional Review Act to overturn the HSR rules. But like the chamber suit, there really hasn't been much activity since then. And it may be that, just with the other competing demands of what's happening in Congress or the now fairly clear support from Chair Ferguson for the new rules, that won't go anywhere. So again, something we'll keep an eye on and is still out there, but I wouldn't expect any near-term relief from that effort either.
(24:16):
So takeaway is I think these are for the foreseeable future, and we all have to adjust ourselves to the new normal of these rules. If the courts or Congress come to the rescue somewhere down the line, probably a lot of folks will be pleased about that, but I think in the meantime, folks need to be prepared to operate under these new rules for the foreseeable future.
(24:37):
Joe and Rita, we could talk probably for hours about this, but we're trying to keep things a bit brief. So to close out our episode today, can you give us a few key takeaways that you have in your mind that clients keep in mind as they're trying to adjust to the new HSR regime and how to navigate it?
Rita Sinkfield Belin (24:55):
Sure. I'll start. I think that being very mindful of these new requests and new categories as the transactions are being developed and organizing around what kinds of information will need to be required will be very important. And so identifying early on who might be the supervisory deal team lead, understanding whether it's going to be an officer who typically has already been covered or some other person will be vital because if it is not an officer, that separate person's documents will need to be tracked and not only collected and reviewed, but also even as they are being prepared, you just want to be mindful that what this person writes, that person's notes, if they don't go to an office or a director, become responsive if they have the requisite analysis or content.
(25:44):
In addition, we want to be mindful in educating all the business people around what we're putting in ordinary course of business documents. So as Joe Rancour mentioned, sometimes these kinds of documents have been handed over in the past as part of a voluntary access letter, but now they are front and center for strategic transactions in particular because if there is an overlap, then it's going to be required to produce these ordinary course of business documents that are prepared and provided to the board and to the CEO. And so sometimes when those strat development plans are being created or other kinds of periodic reports, the writers may not be thinking about some future transaction six months later or thinking about a particular target and what they're saying about that target today.
(26:35):
But we need to be more mindful of that just because that will come into view. These requests have a one-year look-back period. So anything that you thought about in March of last year in the ordinary course and wrote about as you're writing about the competitive marketplace and who is a front-runner and who you need to be mindful of as a close competitor, those writings are going to give the agencies a view of what you thought about the industry, of what you thought about the marketplace before a transaction was contemplated. And so it is important to start thinking about the kinds of documents that are being prepared and what's being said and who they're being distributed to, even now, before transactions are in view, so that a year from now, in 2026, when we have to pull those, we can feel good about the consistency and just that there'll be less to have to explain or reconcile, perhaps.
(27:28):
I also just wanted to note that as we've said, I think all of us, in one form or another, this is a developing process. And so early termination hasn't been granted yet so far, as of today, but we're keeping an eye on the first one that happens. And as Joe mentioned, we are expecting more advice to be given. When the rules were issued, the agencies did represent that they would be providing advice because it was apparent to everyone that there were some things that were unclear and some ambiguity, and so there was room for interpretations to be issued so that we can understand how to apply these new rules.
(28:08):
They definitely have issued interpretations. They've also provided templates of forms for the buyer and the seller that have completed. And in fact, just today or last night, they issued another set of template completed forms for guidance, which are slightly different from the last set. So it is an evolving process. And how broad or how narrow we can respond to some of these requests, we may be saying something today and then, who knows, three months from now, saying something else based on new guidance and the FTC's experience with the data that it's received with the requests for clarification that it's gotten. So I do think they're here for the foreseeable future, and it's still manageable. It's still doable. It's just that it's going to take perhaps a little bit more time. And the sooner parties get started, the better.
Joe Rancour (29:01):
Yeah. I couldn't agree more, Rita. I think preparation and self-awareness are going to be the name of the game under the new regime. The aperture is widening in terms of what the government's going to see early in the process. And that doesn't mean that it's a cause for concern. It means that you have to know what's in your files. You have to know what the business people are doing in the ordinary course and how that gets reported up to management, and make sure that there's an intersection between how those documents are developed and then what the deal thesis is and what the corp dev people are doing when they're putting together the rationale for a transaction that's under consideration, just to be looking ahead because the information will be going to the FTC and the DOJ, and parties are going to need to be ready to explain things that are in the ordinary course documents and how that maps onto what the stated merger rationale is, both for advocacy and in terms of what a public explanation for the transaction is.
(29:58):
So it's just more data points that are going to be available earlier on in the process. Same stuff that you would potentially give in a voluntary request submission or in the second request, but it's just moving the ball forward in that regard. So again, preparation and being able to anticipate what these questions are going to look like is going to be key.
(30:17):
The other thing that's interesting about the widening of the aperture is under the last administration when the proposed rules came out, and then also the 2023 merger guidelines came out, there was a lot of discussion about how these two things would be complementary to one another and how the new form, the new rules, would allow the agencies to pursue some ... At the time, were described as novel theories, and use the new information coming in through the HSR process to build up theories around what were represented in the 2023 merger guidelines.
(30:48):
Just as people were speculating that with the new administration, there may be a revisiting of the HSR rules, there was also a lot of speculation that there may be a revisiting of the 2023 merger guidelines. Very recently, we've heard from both agencies, DOJ and FTC, that they're going to leave the 2023 merger guidelines in place. They, of course, caveated that in saying, "They may not be perfect and we may, down the road, revisit them," but they sent a very clear message that for now those are going to be in place.
(31:15):
I think that the common thinking around the new administration is they may not take as many flyers on what some might consider novel theories of harm compared to the last administration, but the fact that they're leaving this toolset out there in the public as guidance is a clue, I think, that they may look and see, for any given deal, what issues are out there and they're not just saying, "We're going to fundamentally change the guidance on what we might be concerned about in any given transaction."
(31:45):
So that's all to say, with more information, you just have to be ready to go down the rabbit holes with the agency and explain how the facts are consistent with what the merger rationale is.
(31:56):
And then as I said before, the other thing is that because you're going to be putting more substantive information in the filing, you just, again, need to be coordinated with the other jurisdictions around the world in terms of how the deal is being described, how the products are being described, and making sure that that's consistent with the documents and those other filings as well because more and more, and this has been true for years, but the agencies around the world all seek waivers. They all want to talk to each other for some of these big global transactions. So coordination, preparation, and self-awareness are going to be key.
Joe Ciani-Dausch (32:27):
The only other point I would add to that is that while these new rules are a significant change, they're pretty daunting to try to have to grapple with for the first time, and they represent a significant increase in the amount of information that's going to be required and the time that will be required to prepare these filings.
(32:47):
I don't think we should anticipate a correspondingly significant increase in antitrust enforcement overall. By that, I mean the number of second requests that the agencies issue, or the number of deals they challenge. Those enforcement outcomes are largely determined and capped by the resources that they have, and they are going to still face significant resource limitations going forward. So they're not able to just issue many more second requests or challenge many more deals.
(33:19):
So maybe just to end on a positive note, to reassure folks that there's going to be some pain involved in complying with these new HSR rules, but deals that should get done will still get done, and we're not going to see a significant increase in the number of deals that have to go through a second request or get challenged. A deal here or there, that may not have gotten a second request before, may get one now, or would not have been challenged may get one now. But overall, we would expect enforcement levels not to experience the same significant increase in the amount of work that's going to be required to prepare the filing upfront.
Joe Rancour (33:58):
I agree with that, Joe, and I think there was a lot of speculation about whether the new administration would be less aggressive on antitrust than the Biden administration. And I think the common thinking is that the new administration is going to be aggressive on antitrust. Like I said, they may not be taking as many novel positions as the last administration, maybe going back to what a lot would consider to be classic antitrust theory and less in the Neo-Brandeisian type of approach. But I think the fact that there's an expansion in information available to them, there's an expansion in the toolkits that are available to them, just means that there's more things to consider. But agree with your comment that ... Not an indication that the overall level of enforcement is going to go up.
Joe Ciani-Dausch (34:39):
So that concludes our episode for today. I'd like to thank Joe and Rita for their insightful contributions, as always. We'd like to thank all of you for listening or watching. I hope you enjoy the rest of your day, and hope you'll join us for the next episode of Fierce Competition.
Voiceover (34:55):
Thank you for joining us for today's episode of Fierce Competition. If you like what you're hearing, be sure to subscribe in your favorite podcast app so you don't miss any future conversations. Additional information about Skadden can be found at skadden.com.
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