White & Case Global Antitrust Merger StatPak H1 2023 Key Developments in U.S. Merger Control

White & Case Global Antitrust Merger StatPak (WAMS)

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White & Case Global Antitrust Merger StatPak (WAMS)—the first real-time clearinghouse for global merger notification data—has analyzed year-to-date 2022 merger notifications in reporting jurisdictions and has included spotlights on select jurisdictions below.

H1 2023 Key Developments in U.S. Merger Control

Proposed Changes to U.S. HSR Premerger Notification Filing and Merger Guidelines

In late June and July 2023, U.S. antitrust authorities proposed sweeping changes to the U.S. premerger notification filing, known as the Hart-Scott-Rodino ("HSR") Form, and to the U.S. Merger Guidelines, replacing the 2010 Horizonal Merger Guidelines and the 2020 Vertical Merger Guidelines (collectively, the "Merger Guidelines"). The changes are expected to go into effect in late Q3 or Q4 2023. These key developments – before and after implementation – will almost certainly affect U.S. premerger notification filing trends in the coming months. WAMS will closely analyze U.S. notification data to assess how U.S. filings have changed since the announcements of the proposed changes, and again once the changes are implemented. 

What you need to know:

  • What are the proposed HSR Form Changes? For the first time in 45 years, on June 27, 2023, the US Federal Trade Commission ("FTC") and the Antitrust Division of the US Department of Justice ("DOJ"), announced changes that would significantly increase the burden of and time to prepare HSR premerger notification filings. 
    • The proposed changes would require narratives detailing competitive analyses, expand the scope of documents produced to the government, and add labor market information, among other onerous requirements, to the HSR premerger notification filing. 
    • To read more about what the changes could entail and what this might mean for your next transaction, read White & Case's brief summary of the proposed changes and practical implications here.
  • What are the proposed changes to the Merger Guidelines? On July 19, 2023, the FTC and DOJ released a draft of the 2023 Merger Guidelines that would overhaul the Merger Guidelines. As one of the most important reflections of policy U.S. antitrust agencies use to analyze transactions, the Proposed Merger Guidelines would signify a clear shift in merger enforcement. 
    • The Proposed Merger Guidelines differ from prior releases in several substantive ways. Instead of separate guidelines for horizontal and vertical mergers, they combine enforcement priorities into one comprehensive set of 13 guidelines. Notably, the Proposed Merger Guidelines would deem any merger with a market share over 30% as presumptively unlawful.
    • To read about the 5 Key Things You Need to Know about the Proposed Merger Guidelines and practical implications for your next deal, read White & Case's overview of the proposed changes and practical implications here.

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WAMS Data Shows Drop in H1 2023 Premerger Notification HSR Filings in the United States Continues

HSR premerger notification filings in H1 2023 dropped 35% compared to H1 2022 and dropped 50% compared to H1 2021. WAMS data show that HSR filings continued to decrease in Q2 2023, after sharp drops in March and April 2023. In March and April 2023, there were only 122 and 120 HSR filings in the United States, respectively. Together, March and April 2023 filings represent the lowest monthly HSR filing figures since April and May 2020, which were the months following the onset of the pandemic. Outside of the pandemic months, these figures are the lowest since January 2016, which reported only 117 HSR filings.

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