Following Fifth Circuit ruling, filing parties may use prior version of HSR form pending adjudication of the Expanded Form

On March 19, 2026, the Fifth Circuit ended its preliminary stay of a Texas district court judgment vacating the “new” HSR premerger notification form that the FTC and DOJ implemented early last year. In its ruling, the Fifth Circuit also denied the FTC’s motion for a stay pending appeal, thus allowing filing parties to revert to using the prior version of the HSR form. 

The Fifth Circuit’s decision is the latest ruling in Chamber of Commerce v. FTC, a lawsuit originally filed in January 2025 by the US Chamber of Commerce challenging the Expanded Form before it went into effect. On February 12, 2026, the US District Court for the Eastern District of Texas granted the Chamber of Commerce’s motion for summary judgment, finding the FTC exceeded its rulemaking authority and the 2024 administrative rule implementing the Expanded Form was “arbitrary and capricious” under the Administrative Procedure Act. In its decision, the district court held that the FTC failed to demonstrate how the Expanded Form’s additional disclosure requirements were “necessary and appropriate” and could enable the FTC and the DOJ to better evaluate potential antitrust violations. The district court concluded that the FTC did not adequately justify the added compliance burdens the Expanded Form imposed on filing parties. Previously, the FTC estimated it would take filing parties roughly triple the amount of time to prepare filings using the Expanded Form. 

Despite the Fifth Circuit’s ruling on the motion to stay, there is no indication that the FTC intends to abandon its ultimate appeal of the district court’s judgment. In the meantime, filing parties are no longer required to use the Expanded Form when preparing and submitting HSR filings. However, parties with imminent filings can elect to use the Expanded Form, as the FTC has stated it will continue to accept any such filings to help parties avoid delays or prevent duplicative efforts. Although the Expanded Form is not currently in effect, the FTC and the DOJ may continue to request comparable information from filing parties on a voluntary basis during the initial waiting period, and on a compulsory basis for Second Requests. Ultimately, there is still a strong likelihood that the FTC and DOJ may request ordinary course documents and other information disclosures included on the Expanded Form for deals that may raise antitrust scrutiny.

Because the Fifth Circuit has not ruled on the merits of the FTC’s appeal, the Expanded Form could still be reinstated depending on the appellate court’s ultimate decision. However, the Fifth Circuit’s current timelines suggest a ruling is unlikely to occur before 2027. Additionally, even if the FTC is ultimately unsuccessful on appeal, future revisions to the HSR form remain possible through additional agency rulemaking. Certain elements of the Expanded Form were designed to implement recent statutory amendments requiring disclosure of foreign subsidies and countervailing duties, and the FTC and DOJ may seek alternative approaches to address these requirements.

Companies contemplating HSR-reportable transactions should continue to monitor developments regarding this case and stay abreast of any further guidance published by the FTC and DOJ on HSR filing requirements.

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