State Filing Requirements
Before discussing the specific changes to the federal form, Mary asked Luke to provide an update on state-law merger enforcement mechanisms. He explained that 15 states have notification laws for healthcare transactions—some of which apply only to hospitals, while others apply to any kind of healthcare provider (potentially including retail pharmacies). As with the HSR Act, in many states, the merging parties must file notice and observe a statutory waiting period before closing. While most of these state statutes do not include a fine for failure to file, many states maintain the ability to unwind a transaction for failure to file—an even harsher result for the merging parties.
2025 HSR Form Changes
Mary asked Rita to discuss the major changes to the HSR form that were rolled out in February. Rita highlighted the introduction of specific forms for the buyer and seller, the lighter filing requirements for transactions that fall under 16 CFR § 801.30, the new narrative descriptions of overlaps between the parties, the officer and director requirements, expanded information about past transactions, and the broader document production requirements—including the production of certain draft documents, documents related to a newly-created “Supervisory Deal Team Lead,” and documents created in the ordinary course of business. Sarahi, as in-house counsel at a private equity firm, and Saralisa, as in-house counsel at a large public company, shared their perspectives on the impact of the new requirements to their practices.
A. Supervisory Deal Team Lead
Rita explained that companies must now submit responsive documents prepared by or for the Supervisory Deal Team Lead (“SDTL”)—which the new rules define as the one individual who has the primary responsibility for supervising the strategic assessment of the deal and may or may not be an officer or director of the party. The agencies added this category on top of the existing document production requirements for documents from officers and directors to account for all relevant documents in circumstances where a person with the primary responsibility for supervising the strategic assessment of the deal is not an officer or director.
Saralisa shared that the new SDTL production requirement is one of the changes that gives her more heartburn than the others. “The question of, first of all, who the quarterback is at a large company tends to be pretty straightforward. That usually is not too challenging. It’s typically your head of M&A…and that person typically tends to be pretty sophisticated about antitrust,” she said. “What gives me heartburn about the new rule is that now lower people within your corporate development or your M&A team may send emails/docs/Slacks/Teams channels/what have you to the Supervisory Deal Team Lead. Those lower-level deal team folks, their documents are now potentially coming into the picture as well.” As in-house counsel, she emphasized the need for “really doubling down on antitrust sensitive document creation and training… You really want to be on a basis where…for some of the junior folks who are going to be corresponding a lot with your SDTLs you want them to be very comfortable picking up the phone and calling you or a member of your in-house antitrust team to run things by you, especially at the beginning, if they’re not already doing that.”
Sarahi shared how her perspective differs from that of a large public company, because her deal teams are very small (the SDTL is probably one of only 5 people), but often change in the middle of the deal. For her, the SDTL addition cannot be addressed with a uniform policy but presents a complexity that must be strategically analyzed for each transaction. In particular, she emphasized, “As deals become bigger and as structures are so different transaction-to- transaction in the PE world, there’s a lot of different considerations.” On the flip side, the smaller team sizes in Sarahi’s PE work alleviate her concerns of creating unfactual or insensitive documents because the teams are easier to train.
B. Draft Documents
Rita explained that under the new rules, parties must now produce draft documents containing responsive content that are viewed by any single member of the Board. After the rules were finalized, the Premerger Notification Office (“PNO”) clarified that this applies only when the board member is acting in their capacity as a director (the “Two Hat” rule).
Saralisa emphasized that the PNO’s Two Hat clarification was crucial—otherwise there would be massive restructuring at large corporations so that documents would not get pulled in just because someone happened to be a director on some of the entities. Given the more narrow interpretation, Saralisa expressed that this requirement is not too heavy a lift for large companies. There’s typically a very disciplined process on which documents go to directors.
The rule is more complicated for Sarahi, who noted that it creates questions in the private equity context where officers and directors might not be established until right before signing.
C. Horizontal Overlap Descriptions
Next, Rita explained that each filing party must now, in addition to identifying the NAICS code overlaps, also draft a narrative that describes their respective products and services that actually compete or could compete with the other party. “In other words,” she said, “each party must self-report existing or potential overlaps.” These descriptions should reflect what each party’s ordinary course documents show about the other party. For every individual product or service overlap described, parties must report some sales metrics and customer metrics. Rita noted four important details on this rule: (1) the overlap request does not have a minimum threshold of sales or competition; (2) the overlap request does not have geographic limitations (the overlap must be reported even if it is only outside the United States, with no revenue in the United States); (3) the parties are instructed not to coordinate on their responses; and (4) the rule is not intended to be an antitrust assessment or white paper, but rather, is intended to be a brief description. Due to the similarity of this request to the requirements of other jurisdictions, Rita pointed out a potential opportunity for synergies in preparing filings that also require ex-US reportability.
For Sarahi, this rule presents the most heartburn. “From the PE side, we own over 200 companies,” she said. “I don’t know every single line of business of every single portfolio company… Does this let the agencies bounce a filing if we miss some $500 overlap in a $500 billion deal? There’s not a clear path on how to get there.”
Saralisa reiterated Sarahi’s concerns. She also pointed out that the narratives are inherently more subjective than the NAICS code overlaps, and queried whether such subjectivity offers the agencies leverage to bounce filings. “I don’t know how it’s playing out in practice,” she said, “but when I look at key differences in the new rules, subjectivity creates different points of leverage.”
Luke jumped in to highlight that, for healthcare transactions, the parties must be careful that these narratives are consistent with state laws because they may ultimately be reviewed by a state enforcer.
D. Vertical Overlaps
After the Horizontal Overlap discussion, Rita passed the floor back to Mary to discuss new requirements for disclosure of supplier and customer relationships. Unlike the EU and other jurisdictions, which have required a white paper-like description of these relationships for many years, the new HSR form requires the data be provided “in the form of lists—that include lists of products or services that one has sold to the other party or its competitors or bought from the other party or its competitors.” Mary also clarified that the $10 million threshold for these relationships is not contract-specific. Thus, the threshold is not whether each particular contract is worth $10 million, but “whether or not you as the filing person either buys or sells $10 million worth of this particular product that you could sell to the buyer or competitors.” For each product or service that has to be reported, the filing person must put the revenues at a certain level, along with their top 10 customers/suppliers and a brief description of the nature of the agreements with those customers/suppliers.
Saralisa discussed how some aspects of this new requirement are challenging, particularly where the supply relationship isn’t a main product but is “more subsidiary.” She said that the folks on the deal team may or may not know the extent of the overlap, so the question becomes: “Who do you go to?” Ultimately, Saralisa said, this new rule puts smaller and medium-sized deals “out of the category of simple things into more burdensome filings, where to some extent it doesn’t warrant that.”
E. Officers and Directors
Mary then mentioned the new requirement for the acquiring person to report any of its officers’ or directors’ positions as officers or directors of third parties that may competitively overlap with the other merging party. Both Saralisa and Sarahi expressed their view that this is the least onerous of the new requirements, as their companies already track this information.
F. Regularly Prepared Reports
Next, Rita discussed the two new requirements related to the production of plans and reports created in the ordinary course of business that relate to a product or service identified as an overlap between the parties. The first requirement is “to provide regularly prepared documents that are given to the CEO within the prior year leading up to the filing.” The second requirement calls for any regularly prepared plan or report “presented to the board during that year leading up to the filing of the notification. And it’s whether the document was prepared or modified in that year.” Notably, as Rita clarified, “regularly prepared” in this context means nothing more than quarterly.
Sarahi noted that the frequency limitation is helpful, and keeps the heartburn to a minimum for this requirement. “The fact that weekly stuff is off the table makes it easier,” she said. “But it’s tricky to make sure that deal teams are thinking about this one and keeping it in mind.”
Luke noted that clients in the healthcare context can vary greatly in the types of plans and reports they regularly prepare. “You need to know your client and ask them these questions,” he said. “They may not think about it in the same way [lawyers] do. It’s important to understand what they do and don’t do in their ordinary course of business.”
Saralisa explained, “Most large companies have a process in place where docs that are going to the board are already having legal review,” she said. “The challenge is if you[r company] do[es]n’t already have a review process in place for these regularly prepared docs that go to the CEO—you need to put that in place to make sure they undergo the same vetting.”
G. Prior Acquisitions
Next, the panel discussed the expanded production requirements for companies’ prior acquisitions. Whereas the old form only asked the acquiring party for information on previous acquisitions, the new rules ask both parties for a full report of prior acquisitions within the past 5 years involving any overlapping NAICS revenue codes.
Sarahi noted that this requirement necessitates more data collection since private equity companies frequently have a blindspot here for their portfolio companies—not every transaction will rise to the level of board review. At the same time, because this data collection is less transaction-specific, it is easier to regularly track.
Takeaways – Preparing for Deals
The panel concluded with a discussion of takeaways for antitrust attorneys to prepare for clients’ future dealmaking.
From the state enforcement perspective, especially for healthcare transactions, “Have a spreadsheet that lists the states’ requirements,” Luke said. “Create a standard information request for both sides. Figure out the timeline of what information should be provided when, and take this into account early in the process so there are no surprises later in the deal.”
As for ways potential filing parties can prepare for the new HSR form requirements ahead of the time when they are involved in a reportable transaction, Mary recommended: (1) identifying an overall strategic plan that will work for the coming year to keep transaction documents on point to the extent possible; (2) updating NAICS codes from the 2017 codes to the 2022 NAICS codes; (3) updating subsidiary lists and organizing them into operating business segments; (4) reviewing prior acquisitions, identifying not just NAICS codes, but also if there might be an overlap or supply relationship with a potential transaction party; and (5) identifying customer categories (certain public companies may already have this, but other companies may not).
Saralisa concluded with three categories of considerations for the new rules as in-house counsel:
First, the art of in-house is how you take complexity and make it actionable, how to drive change in a highly matrixed complex organization. Take a step back and think, “What needs to happen to do a filing under the new rules?” Additional documents are required to be produced, so ask: What am I going to do to make sure there are new processes in place for the Supervisory Deal Team Lead? What additional trainings do I need to give? Who else do I need to get in touch with?
The second consideration is “What can I do now to prepare and put on the shelf to pull down when I do need it?” A key question here is, “Is the juice worth the squeeze?” Is it worth identifying supply relationships and various categories of overlaps or are they deal-specific? The answers to these questions are client-specific—for a lot of these the juice is not worth the squeeze. But you should know now who to call for when you do need to figure it out.
The third category is to develop the narrative responses and other things that are incumbent on inside counsel working with outside counsel. These can wait until later in the process.
