U P D A T E
Back, Jack, Do It Again…
On May 18, with a brief due shortly from the Federal Trade Commission, it filed this motion, unopposed by the Chamber of Commerce plaintiffs. The motion asks that the appeal “be placed in abeyance in light of an ongoing process in which the Federal Trade Commission and Department of Justice are considering revisions to the rule challenged here.”
Procedurally, the government agencies have solicited comments, with a deadline of May 26, concerning how, whether and why the Hart-Scott-Rodino rules should be amended, and the agencies want until December 31, 2026, to complete that process, promising to provide status reports every 60 days.
Somewhat substantively, because it is “seriously considering revisions to the reporting requirements” holding off on further court attention for the rest of the year is the most efficient thing to do, partly because then-Commissioner, now FTC Chair Andrew Ferguson has said that “experience almost certainly will reveal that the Final Rule can be improved” and that it “may be appropriate to refine the Updated Form Further (sic) and strike the proper balance between the Updated Form’s benefits and burdens” and also expressing a “preference for making “deeper cut[s]” to the new reporting requirements.”
In the interim, the agencies will use the pre-Final Rule Notification and Report Form, and if the court does not grant this unopposed motion, the agencies want briefing deadlines adjusted such that their brief is not due until 30 days after such a denial order.
Back to the drawing board, and we will keep you posted as the comments are revealed and agency reactions announce.
Background
We previously advised that on February 12, 2026, the U.S. District Court for the Eastern District of Texas in U.S. Chamber of Commerce, et al v. FTC, et al had vacated the new (February 17, 2025) HSR Premerger Notification and Report Form and related rules. The FTC appealed, and the Fifth Circuit issued an administrative stay of the vacatur "until further order of court," the effect of which was to temporarily preserve the new form's use while the appeal was adjudicated.
New Development
While some had hoped the administrative stay would remain in place while the merits were briefed, argued and decided, on March 19, 2026, the Fifth Circuit, prior to reaching the merits, lifted the administrative stay and denied the FTC's motion for a full stay pending appeal.
As a result, the district court's vacatur of the new HSR form is effective immediately, which the FTC acknowledged virtually immediately on its website, with this post:
On March 19, 2026, the U.S. Court of Appeals denied the Commission's motion for a stay pending appeal. Therefore, the district court's judgment vacating the new form is effective immediately. The Commission is now accepting HSR filings using the Form and Instructions that were in place before the February 10, 2025, effective date of the new rule. The agency is in the process of updating its website to effectuate the court's order and will be making relevant HSR filing materials available for filers soon. The agency will continue to accept HSR filings made pursuant to the February 10, 2025, Form and Instructions should filers voluntarily decide to submit them. (03/19/26)
(Premerger Notification Program | Federal Trade Commission)
Practical Impacts
All new HSR filings should now use the pre-February 10, 2025 Form and Instructions. HSR thresholds and filing obligations remain unchanged; only the Form and Instructions have reverted to the prior regime. This ensures that filings will continue to be reviewed without interruption and provides certainty for parties involved in transactions meeting HSR thresholds. Whether any filers volunteer to use the 2025 revised process is likely a function of where they are literally right now as to the timing and work related to a pending filing.
Next Steps
Parties with time to do so should use the reinstated pre-2025 Form and Instructions for all filings going forward. The ultimate resolution of the litigation, including the validity and adoption of the new HSR rules, remains in the Fifth Circuit's hands as it considers the merits. A briefing schedule is in place, to be completed over the next several weeks.
We will continue to monitor the case and provide timely updates as further information becomes available.
