Author: Sarah O'Laughlin Kulik

The FTC’s expanded Hart-Scott-Rodino (HSR) premerger notification form is now no longer required for reportable transactions after the Fifth Circuit denied the FTC’s motion for a stay pending appeal last week, meaning merging parties may immediately revert to the prior, less burdensome HSR filing form.

Key Takeaways

• Immediate filing relief. Merging parties may now file HSR notifications using the prior, less burdensome form. The FTC has stated it is updating its systems and will continue to accept filings under either form.
• Signal on the merits. The Fifth Circuit’s refusal to stay the lower court’s order during the appeal may indicate skepticism toward the FTC’s arguments, although the merits appeal remains pending.
• Continued uncertainty. The FTC’s appeal is still active. If the Fifth Circuit ultimately reverses the district court, the expanded form could be reinstated, potentially with a compliance grace period. Parties should monitor developments closely.
• Practical planning. Deal teams preparing HSR filings should coordinate with antitrust counsel to determine which form to use. Filing under the prior form will generally be less time-intensive and costly, but parties should consider whether voluntarily using the new form may offer any strategic benefit for transactions likely to receive scrutiny.

Continue reading “Old HSR Form Returns as Fifth Circuit Rejects FTC’s Bid to Preserve Overhauled HSR Merger Filing Form During Appeal”

The Federal Trade Commission (FTC) has formed a Healthcare Task Force to focus on competition and consumer protection issues in healthcare markets and to develop policy recommendations aimed at improving healthcare market practices. The memorandum establishing the Task Force describes its mandate, structure and intended workstreams.

Implications for Healthcare Market Participants

The Task Force is intended to provide a more coordinated and systematic framework for the FTC’s work in this sector, aligning enforcement, research and policy to address emerging and persistent issues in healthcare competition and consumer protection.

The memorandum signals that the FTC will continue to prioritize healthcare as a core enforcement and policy area. Market participants – including providers, payers, intermediaries, and other healthcare entities – can expect:

• Continued scrutiny of transactions, joint ventures and contracting practices that may affect competition.
• Ongoing attention to representations and business practices that may mislead or harm healthcare consumers.
• Increased emphasis on policy development and advocacy that may shape future regulatory and enforcement approaches in healthcare markets.

Continue reading “The Federal Trade Commission Forms Healthcare Task Force to Address Competition in Healthcare Markets”

The Fifth Circuit’s order keeps the Federal Trade Commission’s expanded Hart‑Scott‑Rodino (“HSR”) premerger notification rule in effect for now and accelerates briefing on whether a stay should remain in place pending appeal.  Companies planning or undertaking HSR‑reportable transactions must continue to comply with the 2025 expanded filing form unless and until the Fifth Circuit orders otherwise. 

Key Takeaways

• The Fifth Circuit has granted an administrative stay of the Eastern District of Texas judgment that vacated the FTC’s 2024 HSR overhaul rule. 
• The stay remains in place “until further order” of the Fifth Circuit, preserving the status quo while the court considers the FTC’s motion for a stay pending appeal. 
• Appellees’ (the business groups’) response to the stay motion is due February 23, 2026; the FTC’s reply is due February 26, 2026. 
• For the moment, the expanded HSR form that took effect in February 2025 remains operative, and merging parties should prepare to comply with its significantly more burdensome disclosure requirements. 
• The appeal will address core questions about the FTC’s statutory authority under the HSR Act, the adequacy of its cost‑benefit analysis, and the standard for nationwide vacatur and stays of agency rules. 

Continue reading “Fifth Circuit Administratively Stays Ruling Vacating FTC’s Overhauled HSR Filing Requirements “

As part of a flurry of activity in anticipation of the imminent change in administration, the Federal Trade Commission announced a unanimous approval of a consent order settling its enforcement action against Welsh Carson, the private equity backer of U.S. Anesthesia Partners (“USAP”). Outgoing FTC leadership heralded the settlement as novel enforcement of the new Merger Guidelines and a win against private equity, whereas potential future FTC Chair, Commissioner Andrew Ferguson, characterized the result as a straightforward application of well-established antitrust law.

Welsh Carson had been accused of engaging in anticompetitive acquisitions of anesthesia practices through its portfolio company.  Initially, the FTC sued both Welsh Carson and USAP in federal court, but after Welsh Carson was dismissed on procedural grounds, the FTC threatened the private equity firm with an administrative complaint under Section 5 of the FTC Act on grounds that by serially acquiring previously independent anesthesia practices, Welsh Carson harmed competition for anesthesia services.  According to the FTC, by “rolling up” independent practices, Welsh Carson was able to increase the prices charged by each practice to match the highest rate that any of the practices garnered, thus harming consumers.

Continue reading “FTC Settles “Roll-Up” Case With Private Equity Firm”

Earlier today, the FTC published its final rule changing the premerger notification requirements under the Hart-Scott-Rodino Act (HSR Act), making the effective date for using the new HSR Form February 10, 2025. The publication comes roughly a month after the FTC voted unanimously to issue a final rule making significant changes to the premerger notification process. Parties to certain mergers and acquisitions that are required to submit premerger notification forms may use the current HSR Form until February 10, 2025.

According to today’s press release, the premerger notification office (PNO) will publish a detailed overview of the HSR Form changes and will invite practitioners to submit questions of broad applicability and PNO staff will post answer to the website. As we previewed in our alert, front-loading the preparation of premerger notification materials will be critical to ensuring timely submission of the required materials under the new rule.

Speaking at the American Bar Association Antitrust Section’s annual Spring Meeting on Friday, April 12, Henry Liu, Director of the Bureau of Competition at the Federal Trade Commission, said that parties that are under an antitrust investigation by the FTC should assume that the agency is looking not only at whether the conduct being investigated violates the Sherman Act, but also whether the conduct may fall into a “gray zone” and thus be subject to the FTC’s authority to police “unfair methods of competition” under Section 5 of the FTC Act.

Liu described this “gray zone” as encompassing conduct where, for technical reasons, the existing case law shows that the Sherman Act is a less attractive theory for the agency.  Nonetheless, if the FTC determines that the conduct “harms the competitive process” through nefarious means such as deception or coercive tactics, bringing a Section 5 claim is a viable option.  Enforcement of “gray zone” conduct under Section 5 is consistent with the FTC’s 2022 Policy Statement expanding the scope of what the FTC considers unfair methods of competition.

A potential example he cited is an invitation to collude, where there is not yet a reduction in competition.  For cases involving such conduct that is “adjacent” to violations of Sections 1 and 2 of the Sherman Act, Liu said that the FTC will not hesitate to bring “standalone” cases under Section 5; however, such standalone enforcement actions remain rare.

A proposed class of McDonald’s employees will proceed with their case alleging that franchise agreements used by McDonald’s contained provisions that violated federal antitrust law after the Supreme Court declined McDonald’s petition to review a decision by the Seventh Circuit in Deslandes v. McDonald’s USA, LLC.  The circuit court held that plaintiffs sufficiently alleged that a no-hire provision in McDonald’s franchise agreements was presumptively illegal under federal antitrust law without consideration of the provision’s procompetitive impact on other markets, including the sale of McDonald’s food and beverages.

Whether certain employment restraints, such as no-poach and no-hire provisions, violate the federal antitrust laws has been an issue of much debate over the last several years. DOJ dropped its last criminal no-poach case in November of last year after several high-profile failures to convince judges and juries to treat such provisions as per se violations of the Sherman Act. Deslandes v. McDonald’s is required reading for any corporate counsel handing antirust class action litigation involving no-poach or non-solicitation issues.