In an extraordinary moment at TransPerfect Legal's fifth annual Antitrust Clearance and Merger Enforcement Conference (ACME), the new Hart-Scott-Rodino (HSR) rules were released just as a scheduled eDiscovery panel was set to begin. In an unprecedented pivot, the distinguished panelists—Ausra Deluard (Partner, Dentons), Harsha Kurpad (Antitrust eDiscovery Counsel, Latham & Watkins LLP), John Goheen (Partner, Goodwin), and honorary contributor Dylan Carson (Partner, Manatt, Phelps & Phillips, LLP)—shifted gears to provide attendees with real-time analysis of these significant regulatory changes. The impromptu session offered a unique first look at the substantial changes to merger filing requirements that will reshape antitrust practice.

Major Rule Overhaul: Key Changes and Exclusions

The timing of these rules is particularly significant, driven by the Merger Filing Fee Modernization Act of 2022. The final rules have eliminated several controversial proposed requirements, including draft document submissions, labor market information collection, employee geolocation data, and document preservation certification. However, they introduce new obligations including detailed competition descriptions, supply relationship narratives, translation access for non-English documents, and a five-year acquisition history requirement for both buyers and sellers.

Immediate Impact on Filing Timelines

The traditional rapid-turn HSR filing process faces substantial changes under the new rules. The panel emphasized that the standard five-business-day filing timeline may no longer be realistic given the expanded requirements. Organizations must plan for extended timelines to gather and organize required information, develop comprehensive competition descriptions, and ensure proper coordination between business units. International transactions face additional complexity with new translation requirements, necessitating partnerships with language service providers to ensure compliance. Working with experienced translations and eDiscovery vendors will be key in satisfying these obligations.

Strategic Planning for Compliance

The panel outlined several critical strategies for effectively managing the new requirements. Early assessment protocols should involve initiating information gathering at the first sign of potential transactions and developing standardized templates for competition descriptions. Teams may need additional staff to execute document collection and review. Costs related to translation services and extended timeline requirements are expected to increase. Organizations should also implement robust documentation management systems to maintain current business line descriptions and track vertical relationships.

Transaction-Specific Considerations

Different transaction types face varying levels of complexity under the new rules. Select 801.30 transactions may qualify for reduced requirements but still necessitate a careful review of qualification criteria. Strategic deals face increased documentation requirements, including comprehensive competitive overlap analysis and detailed supply relationship documentation. Private equity transactions will see a new focus on acquisition history, additional reporting requirements for portfolio companies, and enhanced scrutiny of roll-up strategies.

Looking Forward

Organizations must act swiftly to prepare for these rules, which represent a significant shift in merger review practice. The reinstatement of the early termination program offers some efficiency potential for clearly non-problematic transactions. Organizations that begin preparing now will be best positioned to successfully navigate these new requirements. The key to compliance will be creating robust systems and procedures while maintaining the flexibility to adapt as practical experience with the new rules develops.