Fifth Circuit Denies Stay Pending Appeal — Old HSR Form Returns Immediately

Highlights

On March 19, 2026, the U.S. Court of Appeals for the Fifth Circuit denied the Federal Trade Commission’s motion for a stay pending appeal of the district court’s judgment vacating the FTC’s overhauled Hart-Scott-Rodino (HSR) premerger notification form and rules that were effective February 10, 2025 (New Rules). Effective immediately, the FTC will accept HSR filings using the Form and Instructions that were in place before the New Rules (the Old Rules). Notably, the FTC indicated it will accept filings made under the vacated New Rules should filers voluntarily wish to submit them.

Implications of the Stay Denial

The Fifth Circuit’s denial of the stay has several immediate and significant implications for merging parties and their advisors:

• The Old Rules return and govern all filings, effective immediately. This means the dramatically expanded disclosure requirements of the New Rules no longer apply.
• Impact on deal timing. The return to the Old Rules is expected to accelerate HSR filing preparation timelines. Parties should expect a return to the shorter preparation windows that existed before February 2025.
• Potential for future rulemaking. Regardless of the outcome on appeal, the FTC may undertake new, more measured rulemaking seeking incremental disclosures in a manner more consistent with evidence-based rulemaking and cost-benefit analysis.
• The appeal on the merits continues. The denial of the stay does not resolve the underlying appeal. This could take months to resolve, and the FTC could also seek further relief from the U.S. Supreme Court or an en banc review by the Fifth Circuit.
• The agencies may increase informal (voluntary access) information requests. The FTC and DOJ retain broad discretion to request additional information on a voluntary basis during statutory waiting periods. Agency staff may respond to the reduced upfront information in HSR filings under the Old Rules by issuing more voluntary access letters or other post-filing inquiries.
• Voluntary submissions under the New Rules are permissible, for now. The FTC will still accept filings under the New Rules on a voluntary basis. Parties who have already prepared filings under the New Rules, or who wish to provide the agencies with more comprehensive information at the outset, may do so. In certain cases, filing under the New Rules may be more efficient.

What Is No Longer Required:

Here are some requirements that were introduced by the New Rules that are no longer mandatory under the Old Rules Form.

• Officer and director overlap disclosures
• Ordinary course of business documents prepared for a company’s board of directors or CEO, though parties will still be required to submit transaction-related competitive analyses that were shared with officers, directors, and investment committees
• Detailed descriptions of current or in-development products or services
• Narrative analyses of overlaps with the counterparty
• Customer lists for overlapping products or services
• Vertical links among the parties and their competitors
• Transaction rationales and structure/organizational charts
• Disclosures of U.S. Department of Defense or intelligence contracts
• Competition documents from the supervisory deal team lead
• Draft versions of certain transaction-related competitive assessment documents
• Verbatim English-language translations of foreign-language documents
• Disclosure of certain limited partners with management rights.

What Remains Unchanged

Certain aspects of the HSR filing process are unaffected by the decision, including the reportability criteria, dollar thresholds, and post-filing review process. HSR waiting periods are unchanged, and we expect that the antitrust agencies will continue to grant early terminations when appropriate.

We will continue to monitor developments and update as the appeal proceeds and agencies issue further guidance. Please contact us to discuss how these developments may affect your pending or anticipated transactions.