‘Material Differences’ & ‘Less Burden’: FTC, DOJ Signal Forthcoming Changes to Proposed HSR Rules

Apr 24, 2024 | Blog Post

Speaking to antitrust experts at the ABA’s 2024 Spring Antitrust Meeting, Andrew Forman, deputy assistant attorney general at the Department of Justice’s (DOJ) Antitrust division, suggested that the Federal Trade Commission (FTC) and DOJ’s forthcoming changes to the Hart-Scott Rodino (HSR) premerger notification rules will reflect substantive changes from their initial proposal.

“‘I would expect the final rule would have material differences as compared to the proposed rule and require less burden than what the proposed rule had,” Forman added. He noted, however, the FTC leads the rewrite and there could be ‘process’ involved that might affect this prediction. Forman also said he expects many changes as the two antitrust agencies try to strike a balance between fulfilling the forms’ mission of helping the DOJ and FTC assess deals during the initial waiting period and deciding which should get in-depth scrutiny while also avoiding ‘undue burden.‘”

– Ben Brody, MLex

Forman’s remarks come as a diverse array of stakeholders, including those from across the life sciences ecosystem, have made it clear that the proposed reporting requirements would create a significant burden and potential deterrent for competitive, pro-innovation mergers. This has been particularly top of mind for federal policymakers. Following the DOJ’s comments on forthcoming changes to the HSR rules, Rep. Lou Correa (D-CA), Ranking Member for the House Judiciary Committee’s Subcommittee on the Administrative State, Regulatory Reform, and Antitrust, commended the agency’s signaled revisions and recognition of the unique role that mergers and acquisitions play in advancing new innovations, including in the life sciences.

“I welcome the reported decision by the Federal Trade Commission and the Department of Justice’s Antitrust Division to release more reasonable and balanced Hart-Scott-Rodino Act pre-merger notification form requirements that will not create undue burdens on American companies, especially small businesses…I applaud the agency’s willingness to recognize the potentially grave impacts on serial entrepreneurship, jobs, and innovation, including the stifling of life-saving drugs and technologies, the proposed rule would have rendered. This is a step in the right direction, and I look forward to seeing final rules that I can enthusiastically support.

– U.S. Representative Lou Correa

With the FTC expected to release a final rule “within weeks, opposed to months,” it is vital that the agency continue on its trajectory toward a more balanced, bipartisan approach to antitrust enforcement, and avoid placing an undue burden on life sciences companies working to bring new treatments and cures to market.