UPDATE: On the heels of the Fifth Circuit’s order declining a stay, the FTC, along with the Department of Justice (DOJ), has launched a public inquiry regarding the effectiveness of the New Rules. The FTC announced that it continues to believe that the Old Rules are insufficient, and seeks public input on potential areas for further refinement of the rules in an effort to reduce the burden for non-problematic transactions while ensuring the rules are sufficiently rigorous. Per the FTC website, comments can be submitted at Regulations.gov and must be received by May 26, 2026.
The FTC has reverted its Hart-Scott-Rodino (“HSR”) premerger reporting requirements to the pre-February 2025 form.
In February 2025, the FTC instituted new, more burdensome reporting requirements on parties to a merger or acquisition (“New Rules”). But last month, a Texas federal district court vacated the New Rules, holding that the FTC lacked authority to promulgate the requirements and that the requirements were arbitrary and capricious. As Wiggin and Dana reported at the time, the Fifth Circuit granted an initial emergency stay of the district court’s order, allowing time for the FTC to appeal the order.
Despite initially granting a short-term stay, on March 19, 2026, the Fifth Circuit issued an order declining to stay the District Court’s order while the FTC’s appeal of that order is pending. Accordingly, the district court’s order vacating the New Rules is now in effect. The FTC announced that it will now accept HSR filings under either the pre-February 2025 form (the “Old Rules”) or the New Rules.
The Fifth Circuit must still decide the merits of the FTC’s appeal, and could theoretically reinstate the New Rules, though that is unlikely. Wiggin and Dana will continue to monitor and provide updates regarding this developing matter.
Wiggin and Dana routinely advises clients in connection with the full range of antitrust matters, including in connection with HSR premerger reporting requirements.