In our previous blog, we highlighted the impending changes to the Hart-Scott-Rodino (HSR) Act, and now, the Federal Trade Commission (FTC) has finalized these updates. With unanimous approval, the FTC and the U.S. Department of Justice (DOJ) Antitrust Division will implement new rules aimed at tightening the premerger notification process. For legal teams and service providers, these changes are more than just a procedural update—they change how we approach preservation, collection, and compliance for mergers and acquisitions. These rules are expected to go into effect January 2025.
Here’s what you need to know, and how you can get ahead.
Expanded Data Scope and Preservation Obligations
The finalized rule introduces changes that increase the scope of the information required in premerger notifications. As anticipated, the duty to preserve now kicks in before the initial HSR filing—drastically shifting the timing and burden on legal teams. In addition to the traditional focus on directors and officers, the updated rules will now mandate the preservation of data from deal team supervisors and business leads. Unlike the proposed rule, drafts will no longer be required. This expanded scope means more custodians, more documents, and an increased risk if preservation policies aren’t fully aligned with the new compliance expectations.
Key Action: Service providers with robust preservation consulting and validation expertise are more critical than ever. Ensuring your provider can help re-engineer information governance policies and identify the expanded data sets is essential. Early consultation between eDiscovery experts, outside counsel, and in-house teams will streamline collection and prevent costly compliance mistakes.
New Requirements for Transaction Documents
One of the biggest changes in the finalized rule is the expanded requirements around transaction-related documents. The FTC will now require high-level business plans, market analyses, and documents from each deal team supervisor, in addition to what’s already being collected. This added layer of scrutiny means that providers must be able to handle increasingly complex document collections. Parties will not be obligated to provide drafts of documents prepared by or for officers and directors that assess the transaction in terms of competition, markets, or synergies, or documents from third-party advisors. These ‘Item 4(c)/(d)’ documents will only need to be produced in their final form. The proposed rule would have required the production of draft versions of Item 4(c)/(d) documents.
Key Action: Make sure your provider is equipped with the right analytics tools and workflows to sift through complex document collections. multiple versions of documents, which often involve privileged early drafts. A finely tuned review protocol that accounts for the complexities of these transaction-related documents is non-negotiable as legal teams gear up to comply with the new standards.
More Data, More Complexity: Leveraging Technology and Resources
The increased scope of data that must be collected and analyzed under the new HSR rules requires more from service providers. Multi-custodian, multi-device collections are now the standard, and providers must be prepared to capture not only emails and traditional attachments, but also modern data sources like chat applications and cloud-based collaboration tools.
Key Action: Look for service providers who are equipped with advanced technologies that allow for concurrent device imaging and processing of multiple data types in real time. Speed and accuracy are essential to comply with the tighter deadlines under the HSR rules.
Transparency and the Role of Investors
Under the new rule, the FTC requires filers to disclose not only business lines but also investors with management rights in the buyer entity. This transparency provides the agencies with a better understanding of the competitive impact of a merger and where antitrust risks may lie. The expanded requirement for subsidy disclosures from foreign entities considered strategic or economic threats adds further complexity to the compliance landscape.
Key Action: Legal teams must have a clear plan for how to identify and produce these additional documents efficiently. Providers who have experience with complex corporate structures and the required transparency under antitrust regulations are best positioned to guide companies through this process.
Preparing for What’s Next: No More Early Termination
One of the most significant updates accompanying the final rule is the FTC’s lifting of its categorical suspension on early terminations under the HSR Act. This means that while companies could previously fast-track their merger approval process, they’ll now face a stricter, more comprehensive review by the antitrust agencies.
Key Action: Ensure that your service provider is well-versed in the new requirements for data submissions to the FTC portal and can support ongoing compliance with updated review timelines.
Time to Align with Trusted Providers
With the final HSR rule set to take effect within 90 days, legal teams and service providers must move quickly to adapt. The time for preparation is now. Start by assessing your current workflows, technology stack, and preservation policies in line with the new rule’s requirements. Make sure your eDiscovery provider has the expertise and infrastructure to meet these new standards, so your team is fully prepared when the rule becomes enforceable.
About Sandline
At Sandline Global, we’re not just ready for the changes—our agile, advisory-driven approach is designed to help you thrive under them. From preservation consulting to cutting-edge analytics, we’re your trusted partner for navigating complex compliance landscapes. Whether you’re facing routine HSR filings or an in-depth Second Request, Sandline’s global team is here to support your legal team with the right tools, technology, and expertise to ensure seamless execution.
For more information, visit Sandline Global or email us at solutions@sandlineglobal.com.
