Client Alert: Fifth Circuit Ruling Results in Return of Old HSR Act Reporting Form
Date: March 30, 2026
Background of Legal Challenge to Revised Form
In the final months of the Biden Administration, the HSR Act notification form and instructions were significantly and substantively revised. Those changes (as we previously summarized) overhauled the entire HSR Act notification reporting process for the first time and were widely opposed by the business community as dramatically increasing the time, cost and other burdens required for many HSR Act filings. Among other new and expanded requirements, the Revised Form required filing parties to explain the strategic rationale for the transaction, provide descriptions of all product and service offerings and submit “top 10” customer information, in addition to imposing much broader exhibit and supporting document filing requirements.
Shortly before the Revised Form was to take effect, the U.S. Chamber of Commerce filed suit in the Eastern District of Texas challenging the rulemaking which adopted the Revised Form. In Chamber of Commerce v. FTC (Docket No. 26-40094), the Court invalidated the Biden-era reforms, holding that the FTC failed to demonstrate that the benefits of the Revised Form outweighed their significant costs to merging parties and deeming them “arbitrary and capricious” under the Administrative Procedure Act. Specifically, citing language in the HSR Act that authorizes the FTC to impose “necessary and appropriate” filing requirements, the court held that any benefits derived from requiring additional information must “reasonably outweigh” the associated cost. The district court imposed a seven-day administrative stay to allow the FTC to seek emergency relief and the FTC appealed the district court ruling to the Fifth Circuit. Initially, the Fifth Circuit entered its own temporary administrative stay while it considered the FTC’s motion for a stay, before ultimately denying it on March 19.
What does all of this mean?
The Fifth Circuit’s ruling has several immediate significant implications for HSR Act filers and their advisors:
- First, effective immediately, parties should submit HSR Act filings using the less burdensome Old Form, although the FTC has stated that it will continue to accept filings submitted on the Revised Form on a voluntary basis.
- Notably, the reportability criteria, dollar-denominated thresholds and post-filing review process under the HSR Act all remain unchanged.
- Since the FTC and U.S. Department of Justice (“DOJ”) retain authority to request certain of the same categories of information and breadth of documents that the Revised Form required to be included at the time of initial filing, parties to transactions that are likely to be scrutinized by the agencies should plan accordingly from the outset.
- The Fifth Circuit ruling (issued in a brief per curiam order) does not resolve the underlying merits of the case and the appeal likely will take months to play out. The FTC could also seek further relief either from the U.S. Supreme Court or an en banc review by the Fifth Circuit. The FTC could also engage in new rulemaking seeking more modest and narrow reforms than in the Revised Form.
We are continuing to monitor developments as the appeal proceeds and the agencies issue further guidance.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.