Acquisitions and mergers can impose significant stresses on both buyer and seller. Starting January 2025, the new HSR rules will impose significant additional burdens and risks on deals subject to premerger notification in the United States (see our client alert for more details on those changes). However, companies can prepare for many of those changes before they face the pressure and deadlines of their next transaction. To hit the ground running in 2025, you can – and should - do the following before your next deal:

1. Train your deal team on antitrust best practices for document creation.  The new rules expand on both the scope and nature of documents that must be submitted with Premerger Notification Form. Whereas the old rules merely required the submission of transaction-related documents that were prepared by or for a company’s officers and directors, the rule has been expanded to include documents prepared by or for the supervisory deal team lead(s), which is defined as any individual “who has primary responsibility for supervising the strategic assessment of the deal, and who would not otherwise qualify as a director or officer.” Similarly, the new rules move beyond transaction-specific documents and now demand ordinary-course documents plans and reports that are provided to a company’s CEO or board of directors.
   
   This boarder document universe may include inadvertent statements or data that create significant antitrust risk (e.g., “we’re the most dominant supplier,” “our customers are locked-in,” or “this acquisition will protect our price margins”). Before your next transaction, you should 1) identify the broader scope of document custodians under the new rules; 2) review your document retention policies; and 3) provide the authors of that document universe with antitrust training on how to avoid unintended language that may be viewed suspiciously by antitrust enforcers.
    
2. Prepare new narrative responses and datasets. Previously, filers were only required to provide limited, transaction-specific narrative responses. Going forward, the new HSR rules will require several additional narratives, including descriptions of the parties’ ownership structures, products/services, and supplier relationships. Several of these narratives can be drafted in advance and modified as necessary for a given transaction.  More importantly, this advance prep can ensure that these narratives are thoroughly vetted by antitrust counsel to ensure they are consistent with antitrust enforcers’ expectations and accurately describe the relevant competitive landscape for your business.
    
3. Rethink your timelines. Frequent filers are familiar with the usual timelines for compiling the information and data submitted with the Premerger Notification Form. Depending on the complexity of the deal, many agreements set filings to be submitted within 10 business days of execution (or sooner). For the foreseeable future, those deadlines may be impractical given the additional information demands and the need for increased review by counsel. This additional time should be baked into the transaction timeline from the start, and further incentivizes parties to start working on HSR earlier in the deal process than was customary under the old rules.
    
4. Vet your outside advisors and consultants.  Nearly all deals that meet the reporting thresholds involve one or more third parties, such as bankers and consultants. Many of these third parties author key documents that are subject to disclosure under the new rules, and antitrust enforcers have shown an increased interest in directly requesting third-party materials during merger investigations. Now is the right time to make sure that your go-to advisors are preparing for the new rules.
    
5. Reach out to your Reed Smith antitrust contact. We’re here to help! Whether it is providing training on document creation, reviewing draft language for narrative responses, or providing new information request checklists – we can ensure your deal teams avoid delays and confusion under the new HSR rules. Contact a member of the Antitrust & Competition team for next steps.