New disclosure requirements for U.S. pre-merger notifications under the Hart-Scott-Rodino (HSR) Act took effect in February 2025 and have since been reaffirmed by the current administration.
While considerable information is available about the substance of the new HSR requirements, practical guidance on compliance remains limited.
These rules carry significant implications for counsel responsible for collecting information and documents necessary for HSR filings.
Evolving Role of In-House Counsel Under the New HSR Regime
In-house counsel now play two critical roles under the new HSR requirements. First, they must ensure broader awareness of new obligations, which may apply even before a filing is contemplated.
Second, they must engage in extensive pre-planning and real-time coordination to ensure readiness for gathering and reviewing materials required under the updated form.
Compliance processes should aim to minimize disruption to business stakeholders. Efficiency in this context involves not only reducing overall hours spent but also reallocating time away from the business side and toward legal teams.
For example, reducing business involvement from 25 to five hours can mark a substantial improvement in process efficiency.
The new regime introduces two distinct sets of requirements: one for transactions involving competitive overlaps and one for those without.
This distinction requires in-house counsel to make a definitive decision early in the process, eliminating the previously common back-and-forth about whether overlaps exist. Counsel must now choose the appropriate path at the outset.
Key Changes: Deal-Agnostic and Deal-Specific Requirements
The changes can be divided into two categories. Deal-agnostic changes apply to all filings regardless of overlap and include new requirements to produce final documents sent to or from the supervisory deal team lead (SDTL) and drafts sent to board members.
Deal-specific changes apply only to transactions with competitive overlaps and require more detailed information from internal sources not previously subject to review. These include CEO and board reports, overlapping directorates, and detailed customer and supplier data.
The requirement to produce draft documents and documents sent to an SDTL is a significant shift. The SDTL is defined as the individual responsible for the strategic assessment of the deal, though not an officer or director.
Depending on an organization’s size and structure, the SDTL role may vary or be combined with other roles such as day-to-day deal manager or board liaison.
Additionally, competition-related documents sent to individual board members, whether formally or informally, are now subject to production.
In-house counsel must engage early to understand how documents are routed to the board, including whether members act in advisory capacities or receive communications outside official channels.
This knowledge is critical for anticipating disclosure obligations and avoiding complications during the filing process.
Document Preservation and Practical Tools for Compliance
Practical steps can help manage the expanded documentation requirements. For board members who may receive individual communications, creating deal-specific mailboxes or folders facilitates document preservation and retrieval.
These practices must account for limitations with external board members using personal emails or devices, which may prevent the use of conventional administrative holds.
For SDTLs, establishing a deal-specific mailbox and enforcing its consistent use can greatly streamline the process. By directing all relevant communications and documents to a dedicated folder in real time, the scope of later document review is limited, avoiding time-consuming searches through entire inboxes.
Another key consideration is the use of collaborative platforms such as Teams, Slack, or GChat. If the SDTL accesses documents through these platforms, those materials must also be produced. In-house counsel should assess how the SDTL uses such tools to develop proportionate and practical responses.
For example, if the SDTL seldom accesses a platform, removing their access to deal-specific channels may reduce inadvertent risks. Conversely, if the SDTL is highly engaged, counsel must preserve documents without disrupting workflows.
Navigating SDTL Access and Collaboration Tools
If the SDTL rarely accesses documents on platforms like Teams, you might simply ask them to track what they open and review during the process. If they’re only logging in once per deal, the burden to monitor and preserve access logs may be minimal.
But if the SDTL is regularly accessing multiple documents a day, a more structured approach is likely needed. This could involve placing a litigation hold on the entire deal-specific channel or pulling metadata to track document access throughout the transaction.
Handling CEO and Board Reports Under New HSR Requirements
The new rules require production of regularly prepared CEO reports that mention competitive issues within overlapping markets, provided they were created within one year of filing.
These typically include annual, quarterly, or biannual reports. The challenge lies in the lookback period, relevant documents may predate the deal’s negotiation or signing.
To prepare, work early with the CEO’s staff to identify the full scope of reports the CEO receives. Give them advance notice that these documents will be collected. You may also consider reviewing them ahead of the filing.
Board reports face a slightly different requirement. Instead of only regularly prepared materials, any board report discussing competition in overlapping markets must be produced. Like the CEO reports, this also involves a one-year lookback.
This means the same type of organizational effort will be needed, understanding what board materials exist, prepping the team that prepares them, and potentially reviewing reports in advance.
You’ll also want to determine who will review these materials and train them if they’re not antitrust counsel. Conducting internal audits of board documentation is also smart to catch gaps before filing.
Tackling Interlocks and Revenue Disclosure Obligations
The revised rules now require disclosure of any interlocking directorates, meaning whether a director at the acquiring company also sits on a competitor’s board. Agencies will use this to assess potential violations of Section 8 of the Clayton Act.
To prepare, companies should track board affiliations in real time. When a director joins or takes on another board role, review the industries involved. Consider limiting external board affiliations to companies outside your ecosystem to reduce potential overlap. While you don’t want regulatory concerns dictating board composition, being proactive can help reduce HSR burdens.
If you discover an interlock that doesn’t qualify for an exception, consult outside counsel. Remedies often involve the director stepping down from one board. If you anticipate this issue during diligence, consider disclosing the situation in the filing itself and identifying the steps being taken to resolve it.
As for revenue-related disclosures, companies must report total revenue from overlapping products or services, plus the top 10 customers by category and overall. Unfortunately, there’s no shortcut here. You’ll need to dig into the data.