Articles Posted in Mergers & Acquisitions

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Authors: Steve Cernak, Luis Blanquez, and Kristen Harris

The comment period on the FTC and DOJ’s request for information on the HSR premerger notification form closed May 26, 2026, with 55 comments on the docket (FTC-2026-0298). That’s a small number for a rule that governs every reportable deal in the country, but many of the filers are the ones who matter: state enforcers, a trade association that sued and won, industry groups with something concrete to lose, and the practitioners who fill out these forms for a living.

For the back story — the February 12 vacatur in the Eastern District of Texas, the Fifth Circuit’s denial of a stay, and the order holding the appeal in abeyance through December 31 — see our earlier posts, HSR in Turmoil and Old, Shorter Form Likely in Use Through At Least 2026. The agencies aim to issue a notice of proposed rulemaking by year-end. Here are our highlights of what the comments say.

The baseline fight: the Chamber’s procedural objection

The U.S. Chamber of Commerce — which sued to block the 2025 form and won — filed a comment making one sharp, narrow point: the agencies keep calling the 2025 version the “Updated Form” and treating it as the starting point for the new rulemaking, and that gets the baseline backwards. In the Chamber’s words, the 2025 form “is no longer an ‘Updated Form’ . . . instead, it is a vacated form that has been found to violate federal law. The only legally valid form is the current form, or as the district court described it, ‘the old Form — used for forty-six years.’”

This isn’t a stylistic quibble. If the 2025 form is the baseline, the agencies can frame the rulemaking as trimming an existing rule. If the pre-2025 form is the baseline, every new requirement has to justify itself from zero — a much higher bar under the Administrative Procedure Act. The Chamber seems to be laying groundwork for the next round of litigation if the agencies pick the wrong posture.

The recurring theme: cut the items that cost the most and return the least

The single most common thread across the docket — from the merger bar, the bar association, and industry trade groups alike — is a request to right-size specific, identifiable line items on the 2025 form rather than a wholesale fight over the form’s existence.

Dechert’s comment is the most granular practitioner-level guide to what actually costs filers time. It splits the 2025 requirements into keep, cut, and clarify:

  • Cut or fix: the move away from a bright-line standard for draft transaction documents toward a subjective “two hats” test that forces lawyers to assess whether a board member reviewed a draft “in their capacity as such”; supply-relationship disclosures reaching third parties a filer would never investigate in the ordinary course; officer-and-director listings duplicated across every subsidiary in the ownership chain; and a top-10-customer breakdown layered on top of the existing product-overlap breakdown.
  • Keep: the single supervisory deal-team lead, the overlap narrative that lets filers explain why two businesses don’t really compete, and streamlined NAICS reporting that dropped the older NAPCS codes.

Dechert also flagged a separate idea floating in the RFI — automatic supplemental filings triggered when parties propose a divestiture or other remedy — and argued a new waiting period with an uncertain outcome would chill timely remedies and push some filers toward litigation instead.

The ABA’s Antitrust Law Section filed the longest and most technical comment and its through-line tracks Dechert’s: keep what’s cheap and useful, cut what costs more than it returns. On the keep side: NAICS revenue reporting, short business descriptions, and the streamlined “Item 4(d)” designation for passive deals. On the cut side: the same pressure points Dechert named — officer-and-director listings, supply-relationship disclosures, and a “Plans and Reports” demand that 2025 informal guidance stretched to cover things as trivial as a news article forwarded to a board. The officer-and-director critique is the sharpest: that disclosure exists to police Section 8 of the Clayton Act, but the 2025 form swept in board service across commonly controlled entities that cannot, as a matter of law, conspire with one another.

The Section also asked the agencies to streamline four categories that rarely raise concerns — passive investment-only deals, executive-compensation grants, “backside” filings from rollovers and earn-outs, and fund-to-fund transfers — backed by the agencies’ own data showing second-request rates near zero for those deals.

The second most common theme: don’t expand reportability to new deal types

A near-equally common position across the bar and industry comments is resistance to the RFI’s invitation to extend HSR reporting into new territory — acquihires, non-exclusive IP licenses, CFIUS-adjacent disclosures, and AI/sovereign-wealth-fund questions the RFI specifically raised.

The ABA Antitrust Section made the clearest legal argument against reaching acquihires through the form: employees are not a statutory “asset” under Section 6 of the Clayton Act (“the labor of a human being is not a commodity or article of commerce”), and the agencies already have civil investigative demands and Rule 801.90 to pursue any deal structured to dodge a filing.

The Computer & Communications Industry Association (CCIA) and NetChoice — both technology trade associations — made overlapping arguments that the form should stay a screen rather than become a dragnet. CCIA’s specific concern is scope creep: sweeping in otherwise non-reportable “hire-and-license-out” deals or requiring duplicative filings during a second request. NetChoice’s comment leaned on the district court’s own finding that the FTC had not shown the 2025 form’s benefits “reasonably outweigh” its costs, and cited the Commission’s own pre-vacatur estimate that the Updated Form roughly tripled average preparation time — from about 37 hours to 105 hours, with the highest-burden filings (those involving competitive overlaps or supply relationships) running 120-plus hours.

The Small Business & Entrepreneurship Council struck a similar note for startups, tying expanded reporting to slower exits and weaker venture formation.

Industry carve-out requests

Two sector-specific comments stand out for asking to be left alone entirely, on largely empirical grounds.

The American Hospital Association wants hospital mergers excluded from any revised form, leaning on the district court’s finding that the FTC could not identify a single anticompetitive merger that escaped the prior form but would have been caught by the 2025 version. The AHA also cites Chairman Ferguson’s prior comment that a transaction-rationale requirement benefits “high-priced law firms,” not the agencies, and his stated preference for a deeper cut than the 2025 rule made.

CCIA and the Small Business & Entrepreneurship Council make the technology and startup versions of the same point (see above), arguing that friction costs are especially high right now given competitive pressure in AI.

The outlier: state attorneys general want more, not less

Five state attorneys general — California, Connecticut, Rhode Island, Washington, and the District of Columbia — filed jointly, and their position is the opposite of nearly every other comment on the docket. They want the 2025 form’s requirements reinstated and then expanded: narrowing the “solely for the purpose of investment” exemption, eliminating the REIT exemption outright, and requiring upfront disclosures on acquihires and serial acquisitions, with consolidation in healthcare, technology, and housing as the stated targets. This reads as much as a roadmap for state-level enforcement as a comment on a federal form, consistent with states’ own expanding merger-notification regimes (Washington’s and California’s new premerger filing laws among them).

What it signals

Strip away the labels and the comments sort into two camps, heavily lopsided. The state AGs want the 2025 form back and expanded. Nearly everyone else who filed — the Chamber, the merger bar, the ABA Section, hospitals, tech trade groups, and small-business advocates — wants the pre-2025 form treated as the floor, with the 2025 additions justified item by item, if at all.

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Author: Steven Cernak

Say you are the in-house lawyer at a big company — call it Grand Motors — and you are responsible for making sure Hart-Scott-Rodino filings are made. With some variations, this hypothetical also works if you are in-house at, say, Wolverine Investments, a private equity firm. One day, one of your corporate colleagues stops by to inform you a big deal is about to be signed. She asks how quickly you can get the HSR in.

To make the hypo a little easier, imagine she at least informed you about the deal a few weeks ago and, at that time, you convinced yourself that a filing was necessary but there were no substantive antitrust issues. Maybe that is why she did not feel a need to keep you up to date on the deal’s progress. Even so, if you have taken the steps below, you can answer your colleague’s question with a timeframe that should make her, and your CEO, happy.

Gather Information, Identify Sources

While some parts of the form and the documentary attachments are specific to each deal, many parts do not vary for deals by the same parent entity. Long before your colleague asks you about this HSR, you should have gathered a lot of the necessary information and documents and identified potential sources for some of the rest.

For example, Item 5 of the current form requires you to list the U.S. revenues of your appropriate entity for the most recent fiscal year broken down by North American Industry Classification System codes. Depending on how large and diverse Grand Motors is, that process can take some time. As soon as Grand issues its annual report shortly after the end of its fiscal year, you should obtain a copy or a link to it (you will probably need to include it in the filing) and meet with the finance folks who developed it. Some of them might understand NAICS codes and already have a helpful report for non-HSR purposes. If not, you should work with the finance folks at Grand’s HQ and at its subsidiaries to classify those revenues into NAICS codes that make sense. Then, you can drop that report into your HSR filings for the next year.

Item 6(a) requires a list of all the entities controlled by Grand Motors or the appropriate entity. It also requires a list of the minority shareholders of Grand Motors or the appropriate entity. While both of those lists can change periodically, you can still gather them now from your corporate secretary’s office. Asking for updates when you have a filing to make will be easier than creating it anew.

Obviously, the information responsive to Item 7’s overlap questions cannot be finalized until you compare NAICS codes with the other party; however, as you gather the information for Items 5 and 6 above, you can determine which subsidiaries earned U.S. revenues in which NAICS codes. That information can help you complete Item 7(b)(i). If you are really ambitious, you can even work with the right people at each subsidiary to determine in which state, or more specific geographic area, such revenues were earned so you can respond to Item 7(c), if necessary.

Documents responsive to Items 4(c) and (d) necessarily vary by transaction. Remember, these documents, very roughly, are those seen by an officer or director that discuss sales, competition, and similar topics related to this particular transaction. While you cannot collect them before knowing a filing is necessary, you can identify potential sources for some of those documents. Depending on Grand’s organization and its document habits, those sources could be someone in the board secretary’s office; the regular M&A team; administrative assistants for the top brass; and the deal lawyers like your colleague. Knowing where to look internally, before turning to third parties like bankers and the other party, will save time.

All HSR filings require someone at Grand to sign the Certification and Affidavit/Declaration. Who has the authority, and is willing, to attest to the necessary statements, often at a moment’s notice? Identify that person — and if that person is a busy officer often on the road, identify his or her assistant who can help obtain the necessary signatures.

If Grand Motors is the Acquiring Person, it will be responsible for the filing fee of between $35K and $2.46M. What level(s) of approvals are necessary for such a wire transfer and who can provide them? How long do those approvals take? Which bank will process the transfer and is the name on the bank account Grand Motors Co. or something else? Again, tracking down that information well before your colleague drops news of the signing will decrease the time to filing.

Caveats and Implicit Advice

In this hypothetical, I assumed away two large issues — even for those issues, however, there are steps you can take to speed up and improve the process. First, before you make any HSR filing, you should have some understanding of any substantive antitrust issues the transaction might create. While you cannot anticipate and evaluate every potential deal, you can and should be well aware of Grand’s products, strengths and weaknesses, and competitors. Second, the question of whether a filing is necessary varies by transaction. To be prepared for that analysis, you should have a good understanding of HSR’s various thresholds and the identity and size of Grand’s Ultimate Parent Entity.

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Authors: Steve Cernak, Luis Blanquez, and Kristen Harris

On May 18, 2026, the FTC and DOJ filed an unopposed motion asking the Fifth Circuit to hold their appeal in abeyance through December 31, 2026. The agencies say they are weighing revisions to the vacated 2024 HSR rule, building on the March 25, 2026 request for information (comments close May 26). They aim to issue a notice of proposed rulemaking by the end of the year and will report to the court every 60 days. The plaintiffs—the U.S. Chamber of Commerce and three other trade associations—do not oppose.

For the back story—the February 12 vacatur in the Eastern District of Texas, the short administrative stay, and the March 19 denial of the FTC’s stay motion—see our earlier post, HSR in Turmoil: Back to the Old Form, at Least For Now.

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Author: Aaron Gott

Seven U.S. cities have filed antitrust suits in five weeks against two manufacturers of “fire apparatus”—and the lawsuits are consolidating into a federal multidistrict litigation in the Eastern District of Wisconsin.

The case is about fire trucks. If you have ever been the parent of a five-year-old, you probably have heard about just how awesome fire trucks can be. But you probably don’t make fire trucks or use them in your business.

You should still take note of this litigation. Especially if you’re in private equity, at an acquisition-driven company, or serve markets involving specialized products or institutions like municipalities.

The defendants—REV Group and Oshkosh Corporation’s Pierce Manufacturing subsidiary, along with several entities connected to private equity investor American Industrial Partners—are accused of violating Sections 1 and 2 of the Sherman Act and Sections 3 and 7 of the Clayton Act. The theory is straightforward: through a series of acquisitions, two players came to dominate the fire apparatus market, and the alleged result is what antitrust lawyers call an “acquisition monopoly.”

This is not a new legal theory, but it is a legal theory that, just a few years ago, was unlikely to turn into a major MDL. A plaintiff’s burden on a monopolization claim under Section 2 is historically much more difficult to meet than a price-fixing claim under Section 1 because the latter is per se illegal, requiring no proof of anticompetitive effect, and face fewer doctrinal hurdles. So the antitrust class plaintiffs’ bar rarely brought them.

That’s changing, and acquisition-based monopolization claims could be a driving factor. The fire apparatus MDL is an example: just look at the pace at which top plaintiffs’ firms are filing cases, the involvement of municipalities as plaintiffs, and the rapid MDL consolidation. This could be a new era of sprawling antitrust blockbusters not centered on allegations of a price-fixing cartel.

Here is what you need to understand about acquisition monopolies.

What “Acquisition Monopoly” Actually Means

Section 2 of the Sherman Act prohibits monopolization—defined as (1) the possession of monopoly power in a relevant market, and (2) the willful acquisition or maintenance of that power, as distinguished from growth or development as a consequence of superior product, business acumen, or historical accident.

The word “willful” is where acquisitions get complicated. Courts have long recognized that a company can violate Section 2 not by outcompeting rivals, but by buying them. Where each acquisition is a deliberate step in a strategy to eliminate competition and entrench market dominance, the cumulative pattern can satisfy Section 2’s willfulness requirement even if any individual deal was commercially rational on its face.

The Clayton Act adds another layer. Section 7 prohibits any acquisition—of stock or assets—where the effect “may be substantially to lessen competition, or to tend to create a monopoly” in any line of commerce or any section of the country. Note the word “may.” Section 7 is forward-looking: it catches transactions at the point where competition might be substantially harmed, not only after the damage is done. When a series of acquisitions is alleged, plaintiffs can argue both that individual deals violated Section 7 as they occurred and that the pattern of acquisitions collectively violates Section 2.

That is the double-barrel structure: Clayton Act Section 7 targets the deals as they happened; Sherman Act Section 2 targets the market power that resulted. Both claims are in the fire apparatus complaints.

The Specialized Market Problem

Antitrust liability under Section 2 depends critically on how the relevant market is defined. Market concentration and power can more easily be established where product specifications are highly customized, procurement cycles are long, and the number of qualified suppliers is small by nature.

Fire apparatus is that kind of market. Municipal fire departments operate under precise technical specifications—apparatus must meet NFPA standards, comply with state fire codes, and satisfy local procurement requirements. Fire trucks are not commodity equipment. The design, engineering, and production timelines make this a market with high barriers to entry, long customer relationships, and limited competitive alternatives.

Plaintiffs in specialized-equipment cases have an easier time with market definition because the product’s own characteristics draw the boundary. When you make the only commercially viable product for a specific application—or one of two—that fact does much of the plaintiffs’ work and makes it harder for defendants to argue a broader market such that monopoly power disappears.

How Courts Evaluate Roll-Up Claims

Plaintiffs’ antitrust lawyers have learned how to structure acquisition-monopoly cases, and the template is worth understanding.

The theory typically runs like this: defendant or its PE sponsor conducted a buy-and-build strategy, acquiring companies A, B, C, and D over a period of years; each acquisition eliminated a meaningful competitor; post-acquisition, defendant raised prices, reduced product quality, or restricted output; and the cities or businesses that purchased the product paid more than they would have in a competitive market.

Courts do not require plaintiffs to prove that every individual acquisition was anticompetitive. The question is whether the acquisitions, viewed as a course of conduct, reflect a willful strategy to acquire monopoly power. Internal communications—board materials, deal memos, strategic plans—that discuss market consolidation, competitor elimination, or pricing power post-acquisition are among the most damaging documents defendants face in discovery.

Private equity creates a particular documentation problem here. PE sponsors routinely model acquisitions in terms of EBITDA multiples, synergies, and market positioning. Investor presentations may explicitly reference competitor acquisition as a strategy for pricing power. That framing, which is entirely normal in PE deal documents, can look incriminating in an antitrust complaint. The plaintiffs in fire apparatus cases almost certainly obtained public filings, investor presentations, and press releases in which the defendants’ market consolidation strategy was described in terms that plaintiffs’ counsel will characterize as an admission.

Private Plaintiffs, Treble Damages, and the Municipal Angle

What makes the fire apparatus MDL structurally significant is the identity of the plaintiffs: cities. Municipal governments purchase specialized equipment through formal procurement processes, maintain records of every competitive bid, and have institutional incentives to pursue antitrust damages aggressively. Unlike a private commercial buyer who might want to preserve a supplier relationship, a city has no such constraint. Seven cities have filed antitrust lawsuits in five weeks. Others almost certainly will.

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Authors: Steve Cernak, Luis Blanquez, and Kristen Harris

On March 19, 2026, the Fifth Circuit denied the FTC’s motion to stay a lower court’s February decision vacating the new HSR form and rules.

As a result, the FTC immediately said it would be accepting the old, less burdensome, form going forward, while recognizing that the agencies continue to wield significant investigatory tools beyond the filing itself At least for the time being, the new form will continue to be accepted too. The FTC will be updating its website with the old form and rules shortly.

The Agency has not announced if it will continue to appeal the lower court’s ruling or re-start the process to develop a different new form. So, the merits appeal remains pending at the Fifth Circuit, meaning the litigation is far from over. A future appellate decision could reinstate the expanded form, require further rulemaking, or affirm the vacatur. For now, however, the legal baseline has reverted to the pre‑2025 HSR regime.

  1. A Sweeping Rulemaking Meets Strong Opposition

In early 2025, the Federal Trade Commission undertook the most ambitious redesign of the Hart‑Scott‑Rodino premerger notification form since the statute was passed in 1976. The dramatically expanded filing framework required parties to submit far more information at the outset of the merger‑review process. The revised form demanded narrative descriptions of competitive dynamics, deeper maps of ownership and governance, detailed horizontal and vertical overlap disclosures, and, often, the submission of certain ordinary‑course business documents never previously required. The stated goal was to help the FTC and the Department of Justice identify problematic deals earlier and reduce friction later in investigations.

The business community was not persuaded. Trade associations, led by the U.S. Chamber of Commerce, argued that the new rule imposed crushing burdens on companies, with compliance costs soaring and preparation time roughly tripling. Many pointed out that the vast majority of HSR filings do not trigger substantial investigations, yet all filers would bear the heightened costs regardless of competitive risk. Even before the rule took effect in February 2025, these groups filed suit in the Eastern District of Texas, claiming the agency had exceeded its statutory authority and failed to justify the new demands.

Their challenge succeeded—at least initially. On February 12, 2026, Judge Jeremy D. Kernodle vacated the rule in its entirety. He found that the agency had not shown the new requirements were “necessary and appropriate” under the HSR Act and had failed to meaningfully weigh costs and benefits as required by the Administrative Procedure Act. The court also found the rule arbitrary and capricious—the FTC failed to show that the rule’s benefits “bear a rational relationship” to its costs. The ruling emphasized that the FTC could not identify even one past transaction that the expanded form would have flagged but the old form would have missed, while acknowledging the enormous cost imposed on every filer. For the court, the disconnect between burden and proven benefit was fatal.

  1. Procedural Whiplash: From Vacatur to Revival

Though the district court vacated the rule, it paused its own order for seven days to allow the FTC to seek appellate relief. The agency scrambled to preserve the status quo. It asked the district court for a stay pending appeal; that request was denied. It then immediately appealed to the Fifth Circuit, filing both an emergency motion for a stay and a separate, narrower request for a short administrative pause.

The Fifth Circuit moved faster than many anticipated. On February 19, 2026—one day before the district court’s stay was set to expire—the appellate court issued an administrative stay of the vacatur “until further order.” The effect was simple but consequential: the 2025 HSR form, despite the district court’s ruling, remained in force. The FTC’s own Premerger Notification Office quickly announced that filers must continue to use the new form while the appeal proceeds.

The court simultaneously set an expedited briefing schedule, requiring the appellees’ response by February 23 and the FTC’s reply by February 26.  On March 19, the court issued a brief per curiam opinion denying the stay. Within hours, the FTC announced on its website that the pre-February 2025 form would be accepted immediately, although filers could also continue using the new form. The FTC expects to further update its website with the old form and rules very soon.

  1. A Landscape of Uncertainty for Dealmakers

Even under the old form, the FTC and DOJ retain broad discretion to request voluntary information during the waiting period.

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Author: Sabri Siraj

In February 2026, Paramount Global signed a $110 billion agreement to acquire Warner Bros. Discovery, setting the stage for one of the largest media combinations in recent memory. The transaction follows a competitive process that included a proposal from Netflix late last year to merge with Warner Bros. Discovery. Netflix ultimately withdrew its bid, citing financial considerations.

While much of the public conversation has centered on personalities and politics, the more meaningful takeaway for businesses lies elsewhere. This transaction offers a clear window into how regulators, both state and federal, are approaching major mergers in industries that are consolidating after years of rapid growth.

For companies contemplating transformative deals in their own sectors, the Paramount–Warner transaction signals an important shift in merger review: agencies are looking beyond simple market share metrics and focusing more closely on how consolidation reshapes long-term competitive dynamics.

Transaction Background

Under the reported agreement, Paramount would acquire Warner Bros. Discovery in a transaction valued at approximately $110 billion, including assumed debt. The combined company would control a substantial portfolio of film studios, premium cable brands, broadcast networks, and direct-to-consumer platforms.

The deal emerges at a time when the media industry is recalibrating. Subscriber growth has slowed, content production costs remain high, and companies are under pressure to improve profitability. In December, Netflix explored strategic transactions involving studio and streaming assets, underscoring the broader industry push toward scale and operational efficiency.

If completed, the merger would reduce the number of diversified, large-scale competitors operating across film production, content licensing, advertising, and subscription services. As a result, the transaction is likely to receive scrutiny from U.S. federal and state and international enforcers.

The Legal Framework Governing the Review

Section 7 of the Clayton Act prohibits acquisitions whose effect “may be substantially to lessen competition, or to tend to create a monopoly.” The inquiry is forward-looking and predictive. Regulators assess whether a transaction is likely to reduce output, raise prices, diminish innovation, or otherwise weaken competitive rivalry.

In a conventional horizontal merger analysis, agencies examine relevant product and geographic markets, the degree of overlap between the merging firms, and changes in market concentration. Structural indicators often provide the starting point for the analysis.

Modern merger review, however, does not end there. Particularly in capital-intensive industries with relatively few major competitors, agencies increasingly evaluate how consolidation affects incentives and industry structure over time. That broader structural focus is likely to shape review of the Paramount–Warner transaction.

State antitrust enforcers have been increasingly active in reviewing mergers that affect the citizens and consumers of their states. For example, multiple state attorneys-general challenged the Kroger-Albertsons merger. Here, the California Attorney General, at least, has signaled that he plans to investigate the merger.

The Key Signal: Structural Scrutiny in Consolidating Industries

The most instructive aspect of this deal is not simply that two competitors are combining. Rather, it is how enforcement agencies are likely to assess consolidation in a mature, high-fixed-cost industry.

Media production and distribution share structural features common to many other sectors: significant upfront investment, repeated interaction among a limited number of firms, and publicly observable pricing and strategic behavior. When markets exhibit these characteristics, regulators may evaluate not only whether the merged firm could raise prices unilaterally, but also whether reducing the number of independent competitors makes coordinated outcomes more likely.

This coordinated-effects lens focuses on market structure. Agencies may ask whether having fewer major decision-makers increases the risk of parallel pricing behavior, output discipline, or softened rivalry over time—even in the absence of explicit agreement.

That analytical approach has implications far beyond media. Healthcare systems, aerospace and defense contractors, energy infrastructure providers, and industrial manufacturers all operate in industries with high fixed costs and limited numbers of national competitors. In those sectors, consolidation may attract scrutiny not solely because of market share thresholds, but because of how it alters competitive incentives across the industry.

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Authors: Steven Cernak, Luis Blanquez and Kristen Harris.

On January 14, 2026, the Federal Trade Commission (FTC) issued its usual annual announcement to increase the Hart-Scott-Rodino (HSR) Act thresholds. The 2026 thresholds will take effect 30 days after publication in the Federal Register.

HSR requires the parties to submit certain information and documents and then wait for approval before closing a transaction. The FTC and DOJ then have 30 days to determine if they will allow the merger to proceed or seek much more detail through a “second request” for information. The parties may also ask for “Early Termination” to shorten the 30-day waiting period, although for nearly two years this option has been––and continues to be––suspended.

The HSR Act notification requirements apply to transactions that satisfy the specified “size of transaction” and “size of person” thresholds. The FTC adjusts these thresholds annually to reflect changes in the U.S. gross national product.

Three thresholds determine the applicability of HSR filing requirements.

First, one of the parties to the transaction must be in commerce in the United States or otherwise affect U.S. commerce.

Second, the acquiring party must be acquiring securities, non-corporate interest, or assets of the target in excess of $133.9 million––the “size of transaction” threshold. A notification is thus not required when the value of the voting securities and assets is below this threshold.

Third, if the transaction exceeds $133.9 million but does not exceed $535.5 million—the “size of the persons” threshold––then at least one party involved in the transaction must have annual net sales or total assets of at least $267.8 million, and the other party must have annual net sales or total assets of at least $26.8 million.

Parties with transactions valued at more than $535.5 million must report them regardless of the size of the parties, unless an HSR Act exemption applies.

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Authors:  Steven Cernak and Luis Blanquez

Section 8 of the Clayton Act prohibits certain interlocking directorates between competing corporations. But while the prohibition has been around since 1914, most antitrust lawyers pay little attention to it, partly because companies can quickly resolve any issues voluntarily.

We first brought Section 8 to the attention of our readers in 2022 because of comments by then-AAG Jonathan Kanter. Even more recent actions by the agencies, detailed below, plus the Hart-Scott-Rodino (HSR) Act’s new requirements under the updated filing form—soliciting information on overlapping directorates—should be enough for everyone to keep a closer eye on the issue, in particular private equity firms.

Clayton Act, Section 8 Basics

The prohibitions of Section 8, in its most recent form, can be simply stated: No person can simultaneously serve as an officer or director of competing corporations, subject to certain jurisdictional thresholds and de minimis exceptions. Truly understanding the prohibition, however, requires understanding all those italicized terms.

First, Section 8’s prohibition applies only if each corporation has “capital, surplus, and undivided profits,” or net worth, of $10M or more, as adjusted. The Federal Trade Commission (FTC) is responsible for annually adjusting that threshold for growth in the economy.  Currently, for 2025, the thresholds are $51.380 million for Section 8(a)(1) and $5.138 million for Section 8(a)(2)(A). These new thresholds took effect on February 21, 2025.

Section 8 provides an exception where the competitive sales of either or each of the corporations is de minimis. Specifically for 2025, no interlocks are prohibited if (1) both of the entities have capital, surplus and undivided profits of $51,380,000 or less, or the competitive sales of either entity are less than $5,138,000; 2) the competitive sales of either corporation are less than 2% of that corporation’s total sales; or 3) the competitive sales of each corporation are less than 4% of that corporation’s total sales.

Originally, Section 8 applied only to directors of corporations; however, the 1990 amendments extended the coverage to officers, defined as those elected or chosen by the corporation’s Board. Despite the clear wording of the statute limiting it to officers and directors, some courts have considered the possibility that Section 8 might apply when a corporation’s non-officer employee was to be appointed a director of a competitor corporation.

The language of Section 8 clearly applies to interlocks between competing corporations. An interlock between a corporation and a competing LLC would not be covered by the statutory language or the legislative history of the original statute or amendment. The FTC and DOJ have not explicitly weighed in on application to non-corporations, although the FTC’s implementing regulations for Hart-Scott-Rodino cover LLC explicitly as “non-corporate interests” different from corporations. Still, the spirit of Section 8 would seem to cover any such non-corporate interlock. Also, any corporate director who also serves a similar role for a competing LLC would face an increased risk of violating Sherman Act Section 1.

Section 8 clearly applies if the same natural person sits on the boards of the competing corporations. It might also apply if the same legal entity has the right to appoint a natural person to both Boards, even if that entity appoints two different natural persons to the two Boards. That interpretation is consistent with the Clayton Act’s broad definition of “person” and has been supported by both the FTC and DOJ and the one lower court to consider the question.

As with other parts of the antitrust laws, the question of competition between the two corporations requires some analysis. The few courts to look at the question have held that corporations that could be found to violate Sherman Act Section 1 through an agreement would be considered competitors. On the other hand, these same courts did not define competitors more narrowly to be those corporations that would not be allowed to merge under the more extensive analysis of Clayton Act Section 7.

Recent DOJ and FTC Action

The DOJ has traditionally enforced Section 8’s prohibition on interlocking directorates, which has become a priority under the current Administration.

As a result, there have recently been an increasing number of instances where directors have resigned to resolve DOJ concerns.

In April 2024, two directors from Warner Bros. Discovery Inc. (WBD)–– Steven A. Miron and Steven O. Newhouse––resigned from the WBD board after the Antitrust Division expressed concerns that their positions on both the WBD and Charter Communications Inc. boards potentially violated Section 8 of the Clayton Act. Charter, with its Spectrum cable service, and WBD, through its Max streaming subscription services, both provide video distribution services to customers. The division’s enforcement efforts to date have unwound or prevented interlocks involving at least two dozen companies.

More recently, in September 2025, the FTC found that Sevita and Beacon Specialized Living Services, Inc.—both owned by private equity investors and providers of services for individuals with intellectual and developmental disabilities—had overlapping board members, violating Section 8 of the Clayton Act. As a result, three directors resigned from the board of Sevita Health following FTC enforcement actions. The FTC didn’t engage in any formal legal action against the companies, and the resignations were enough to resolve the FTC’s competition concerns without further legal action.

Recent DOJ Speeches

The DOJ action that led to the resignations is consistent with recent speeches by DOJ officials

In 2022, Jonathan Kanter, former assistant attorney general in charge of the Antitrust Division at the DOJ, made some significant remarks about Section 8. First, he highlighted the fact that the Division is committed to litigating cases using the whole legislative toolbox that Congress has given them to promote competition, including Section 8 of the Clayton Act. Second, he reminded everyone that Section 8 helps prevent collusion before it can occur by imposing a bright-line rule against interlocking directorates. Third, that for too long, Section 8 enforcement has essentially been limited to their merger review process. And last but not least, that the Division will start ramping up efforts to identify violations across the broader economy and will not hesitate to bring Section 8 cases to break up interlocking directorates. Another former head from the FTC made a similar statement back in 2019, indicating how Section 8 of the Clayton Act protects against potential information sharing and coordination by prohibiting an individual from serving as an officer or director of two competing companies.

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Authors: Pat Pascarella and Aaron Gott

The idea of Elon Musk purchasing TikTok might sound like a headline ripped from a speculative business column, and maybe it is. But as antitrust lawyers, we couldn’t resist. Obviously, Mr. Musk already owns X, and any such acquisition might raise antitrust concerns.

But could you head off those concerns by structuring the deal with an exception to the antitrust laws known as a Joint Operating Agreement? While JOAs were related to the newspaper industry and are largely seen as a relic of the past, their principles could provide a framework for addressing modern concerns.

A Brief History of Joint Operating Agreements

Joint Operating Agreements emerged during the 20th century as a mechanism to save failing newspapers thereby maintaining at least some level of editorial competition. By the mid-20th century, many U.S. cities had two major newspapers, but declining revenues and readership often left one teetering on the edge of closure. To prevent monopolization of the news market, Congress enacted the Newspaper Preservation Act of 1970, which allowed competing newspapers to enter into JOAs.

Under a JOA the two newspapers would be permitted to merge their business operations, so long as they agreed to maintain separate editorial teams. The goal was to preserve journalistic diversity in cities that were about to find themselves with only one surviving paper. But JOAs required approval from the Department of Justice (DOJ) and were contingent on demonstrating that one of the newspapers was “failing.”

JOA Requirements

For a JOA to be approved, the following conditions had to be met:

  1. Failing Firm Doctrine: One of the parties had to demonstrate that it was financially unsustainable and would likely exit the market absent the agreement.
  2. No less anticompetitive alternative: There must not be a less anticompetitive alternative to the joint operation agreement.
  3. Preservation of Competition: The agreement had to preserve a degree of competition, particularly in areas such as content creation or editorial independence.
  4. DOJ Oversight: The DOJ maintained the authority to review and approve any proposed JOAs, ensuring they aligned with antitrust laws.

Applying the JOA Framework to a Musk-TikTok Deal

Elon Musk’s ownership of X likely would raise antitrust concerns about the acquisition of TikTok. But a JOA (or JOA.2) could provide a creative solution to balance these concerns with broader policy objectives, such as ensuring competition with other tech giants like Meta and Alphabet while also addressing national security issues tied to TikTok’s current Chinese ownership.

A critical hurdle, however, would be demonstrating that TikTok meets the “failing firm” criterion. While TikTok is far from failing financially, isn’t “failing” simply another term for “about to involuntarily exit the market.”  Same outcome, hence same justification.

But this difference could mean a crucial difference under the JOA legal framework. As explained above, there must be no less anticompetitive alternative available. When it came to the failing newspapers, there was no alternative: failing newspapers did not have buyers lining up to buy them. But popular social media platforms do.

But there’s an answer here as well.  One idiosyncrasy of the TikTok situation is that the Chinese government has taken the position that the TikTok algorithm is a Chinese national security secret. So any sale of TikTok means, as a practical matter, that it is not likely to come with a functioning algorithm. This limits the potential pool of buyers to those who either have one they can adapt or who can put one together on the fly.

This likely narrows significantly the existing pool of willing buyers to those who already have social media companies, or possibly even to those people who are known to drive their teams to accomplish skunkworks-like missions on impossible timelines.

Political and Regulatory Considerations

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Authors: Steven Cernak and Luis Blanquez

On January 10, 2025, the Federal Trade Commission (FTC) issued its usual annual announcement to increase the Hart-Scott-Rodino (HSR) Act thresholds. The 2025 thresholds will take effect 30 days after publication in the Federal Register, which means February 10, 2025.

HSR requires the parties to submit certain information and documents and then wait for approval before closing a transaction. The FTC and DOJ then have 30 days to determine if they will allow the merger to proceed or seek much more detail through a “second request” for information. The parties may also ask for “Early Termination” to shorten the 30-day waiting period, although for nearly two years the agencies have suspended this option.

The HSR Act notification requirements apply to transactions that satisfy the specified “size of transaction” and “size of person” thresholds. These thresholds adjust annually to reflect changes in the U.S. gross national product.

Three thresholds determine the applicability of HSR filing requirements.

First, one of the parties to the transaction must be in commerce in the United States or otherwise affect U.S. commerce.

Second, the acquiring party must be acquiring securities, non-corporate interest, or assets of the target in excess of $126.4 million––the “size of transaction” threshold. Entities need not file notifications when the value of the voting securities and assets is below this threshold.

Third, if the transaction exceeds $126.4 million but does not exceed $505.8 million–the “size of the parties” threshold–– then at least one party involved in the transaction must have annual net sales or total assets of at least $252.9 million, and the other party must have annual net sales or total assets of at least $25.3 million.

Transactions valued at more than $505.8 million are reportable regardless of the size of the parties, unless an HSR Act exemption applies.

The FTC’s notice also implemented a new filing fee structure from the new legislation. The new structure will be in place starting with filings made on or after February 10, 2025. Below are the new fee thresholds:

2025 

Size of the Transaction                        Merger Fee 

$126.4 million – $179.4 million             $30,000

$179.4 million – $555.5 million           $105,000

$555.5 million – $1.111 billion               $265,000

$1.111 billion – $2.222 billion                    $425,000

$2.222 billion – $5.555 billion                   $850,000

$5.555 billion or more                                        $2,390,000

As a result of the new legislation, those fees will also adjust annually, based on changes to the consumer price index.

The FTC further published revised thresholds relating to Section 8 of the Clayton Act. Section 8 prohibits interlocking directorates in which one “person” serves simultaneously as an officer or director of competing corporations, subject to certain exceptions. Now, Section 8 of the Clayton Act applies when each of the competing corporations has capital, surplus, and undivided profits aggregating more than $51,380,000 and each corporation’s competitive sales are at least $5,138,000 again with certain exceptions.

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