Colorado becomes second state to require pre-merger notifications
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Colorado on Wednesday will become the second state to require pre-merger notifications, regardless of industry.
- Washington became the first earlier this year, and at least five other states — including California — and the District of Columbia are considering similar rules.
Why it matters: States often lack visibility into pending mergers. These new laws aim to change that dynamic, which could increase antitrust enforcement actions.
Zoom in: The Colorado and Washington rules are aimed at companies or individuals who are required by federal law to make Hart-Scott-Rodino (HSR) filings, if those parties do a certain level of business in the respective states.
- In short, those HSR filings now must be sent contemporaneously to the state AGs. No extra paperwork, just extra envelopes.
The big picture: States always have had the right to enforce their own antitrust laws.
- Sometimes that's been efforted because federal authorities declined to act, such as with T-Mobile/Sprint (which eventually went through). Sometimes it's because states believe a merger presents unique harms to their people, beyond FTC or DOJ suits, such as with Kroger-Albertsons (which collapsed).
- Often, however, state AGs have found themselves playing catch-up, and it's particularly tough to win antitrust cases once the merger has closed.
Behind the scenes: A longtime antitrust attorney tells me that state antitrust officials hold remote meetings at least twice per month, via the National Association of Attorneys General, and sometimes break out into sector-specific groups.
- These new notification rules appear to allow Colorado and Washington staffers to share the HSR filings with peers, so other states could get added visibility without passing laws of their own.
The bottom line: It's still too early to know what Trump 2.0 antitrust policy will look like, but we do know that the broader regulatory regime is about to get more bites at the apple.
