Eminence, along with eighteen other organizations, has submitted a comment letter to the Federal Trade Commission (FTC) and the Department of Justice’s Antitrust Division (DOJ) expressing their concerns with the Agencies’ proposed rule to fundamentally reshape the pre-merger notification process under the Hart-Scott-Rodino (HSR) Act. The letter expresses that while Eminence and its cosigners do not believe wholesale revisions to the HSR fling process are needed, they encourage the FTC and DOJ to repropose a modified rule and provide robust opportunity for feedback on the modified proposal via a new notice and comment period, as required by the Administrative Procedure Act.
Recent statements from the Department of Justice indicate that the final rule is expected to differ materially from the proposed one. While Eminence and the cosigned organizations welcome these changes due to the substantial burdens the original proposal posed on companies contemplating business combinations, the letter emphasizes the legal requirement for a reproposal if the final rule diverges significantly from the proposed one. Without a reproposal, stakeholders would be deprived of the opportunity to provide feedback on relevant policy choices.
As such, Eminence and its peers request a withdrawal of the original proposed rule in favor of a new notice and comment rulemaking process. They argue that such a process would better serve the interests of both the public and the agencies, allowing stakeholders to assess a proposal that could reshape U.S. merger policy and capital markets. Given the significant implications of the proposed rule changes, including increased regulatory costs and impacts on various sectors, Eminence urges the agencies to reconsider and repropose a revised rule for notice and comment.
