The Federal Trade Commission, with the concurrence of the Antitrust Division of the U.S. Department of Justice, will publish in the Federal Register a Notice of Proposed Rulemaking and an Advance Notice of Proposed Rulemaking regarding proposed changes to the rules and interpretations implementing the Hart-Scott-Rodino Act.
The Hart-Scott-Rodino or HSR Act and its implementing rules require the parties to certain mergers and acquisitions to file notifications with the antitrust agencies and to wait a specified period of time before consummating such transactions.
The Notice of Proposed Rulemaking proposes two changes to the existing rules. The first proposed change would require filers to disclose additional information about their associates and to aggregate acquisitions in the same issuer across those entities. The second change is a new proposed rule that would exempt the acquisition of 10 percent or less of an issuer’s voting securities unless the acquiring person already has a competitively significant relationship with the issuer.
The Advance Notice of Public Rulemaking seeks to gather information on seven topics that will help determine the path for future amendments to the HSR rules and interpretations of those rules. These topics include: the size of transaction; real estate investment trusts; non-corporate entities; acquisitions of small amounts of voting securities; influence outside the scope of voting securities; transactions or devices for avoiding the HSR Act requirements; and issues pertaining to the HSR filing process.
Notices published in the Federal Register on Dec. 1, 2020, on both the Notice of Proposed Rulemaking and the Advance Notice of Proposed Rulemaking, provide more information. Comments are due 60 days after publication.
The Commission vote to publish for public comment the Notice of Proposed Rulemaking containing proposed amendments to the HSR Rules was 3-2. Commissioners Rohit Chopra and Rebecca Kelly Slaughter voted no. The Commission vote to publish for public comment the Advance Notice of Proposed Rulemaking that seeks information on further potential changes to the HSR Rules was 5-0.