An Important Order
Late in the evening on February 19, 2026, the Fifth Circuit issued an administrative stay in the case U.S. Chamber of Commerce (Chamber), et al v. Federal Trade Commission (FTC), et al and made it effective "until further order of court." That one-line order stays an E.D. Texas February 12, 2026, decision which vacated the new HSR regime (which had taken effect on February 17, 2025, and been in use since then.)
Background
After months of review and deliberation, the FTC was poised to implement a new HSR regime, with a new HSR Premerger Notification and Report Form (Form) and related rules, to take effect February 17, 2025. In sum, the changes were significant but the FTC felt necessary and appropriate given modern transactional realities. Many disagreed, positing that the new regime made the initial filing process the functional equivalent of an HSR "Second Request."
As a result, in January 2025, led by the Chamber, a lawsuit was filed in the E.D. Texas against the FTC and others challenging the pending changes to the HSR Form and related rules. No temporary or preliminary injunctive relief was sought. Ultimately, after briefing and argument and with no discovery, the case was decided on cross motions for summary judgment. On February 12, 2026, the E.D. Texas issued an order vacating the new HSR Form. The district court stayed its order for seven days, to give the FTC time to appeal. The FTC did just that, asking the Fifth Circuit to issue an administrative stay until March 2 (to which the Chamber agreed) to allow time for briefing and decision.
Importance of the Administrative Stay
The Fifth Circuit's administrative stay goes further, and that is critical given the chaos which arose after the district court's vacatur. Questions arose immediately — for example, "do HSR filings pending before the FTC/DOJ under the new Form need to be refiled under the old Form?"; "do new HSR filings get made under the old Form?"; "would it be wise to make new filings under both Forms, to cover potential court outcomes?"
For parties involved in merger and acquisition deals which meet HSR thresholds (which are not impacted by the litigation and orders and remain in place) and which either have made or will be making an HSR filing while this litigation is pending, the administrative stay "until further order of court" adds some order to current circumstances. Existing filings will continue to be reviewed, and new filings will continue to be made, under the new rules and new HSR Form.
As Portuguese author and Nobel Prize winner (Literature, 1998) Jose Saramago said, "Chaos is merely order waiting to be deciphered." At least currently, order has been restored, but the deciphering is yet to come. The legal arguments on both sides (as to whether the new HSR Form and Rules were properly adopted, etc.) are both interesting and compelling as substantive legal issues. But in M&A markets, the legal arguments take a back seat to what deal parties need to know — which Form do we use, which Rules do we follow? The Fifth Circuit's February 19 Order answers those questions for the time being, and where the matter lands ultimately will be revealed in due course. When that happens, we will update our commentary accordingly.
