Business Groups File Lawsuit Challenging HSR Rule Changes

On Friday, January 10th, 2025, the US Chamber of Commerce, American Investment Council, Business Roundtable, and Longview Chamber of Commerce (collectively the “Plaintiffs”) filed a joint lawsuit challenging the FTC’s and DOJ’s (the “Agencies”) changes to the premerger notification form requirements under the HSR Act (“Final Rule”), initially announced in June of 2023 and finalized in October of 2024. Notably, the Final Rule was unanimously approved by all five FTC Commissioners, with concurrence by the DOJ.

The lawsuit challenges the Final Rule under the Administrative Procedure Act and requests a declaratory judgment that the Final Rule exceeds the Agencies’ statutory authority, is arbitrary and capricious, and requests an order either setting aside the Final Rule in its entirety or enjoining the Agencies from enforcing the Final Rule or any requirement therein. Specifically, the lawsuit alleges the following:

• The Final Rule exceeds the limits Congress placed on the Agencies’ authority to require information and documents in the HSR Form, as it requires information far beyond what is necessary and appropriate to enable the Agencies to review deals that may violate antitrust laws.
• The Agencies did not establish that the benefits of the rule outweighed its costs and further, could not have rationally made that determination.
• The Agencies did not adequately justify the need for the significant changes and redesign of the HSR notification process.
• The Agencies failed to explain why the investigative tools at the Agencies’ disposal (e.g., voluntary access letters and Second Requests) are insufficient to prevent anticompetitive mergers.

As covered in our prior alert, the new HSR rules are set to go into effect on February 10, 2025.

At this point, it is too early to determine the impact of this lawsuit, although if the Plaintiffs are successful in this challenge, the Final Rule could be enjoined entirely or its implementation could be delayed beyond the February 10, 2025 effective date.

There are several other procedural obstacles, apart from this lawsuit, which could delay the implementation of the new HSR regime:

• Most notably the Trump administration may issue a 60-day regulatory freeze on its first day in office, which would push the effective date to the end of March.
• Albeit a less likely outcome, Congress has the power to override the Final Rule pursuant to the Congressional Review Act.

Despite uncertainty regarding the implementation of the Final Rule, we still encourage clients to be prepared to make filings under the new HSR regime for transactions filed on or after February 10, 2025.

The Goodwin Antitrust & Competition team will continue to track all developments regarding this matter. Please contact a member of our team with any questions.

This informational piece, which may be considered advertising under the ethical rules of certain jurisdictions, is provided on the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin or its lawyers. Prior results do not guarantee a similar outcome.