Big Law Litigators Warn of Increased Costs and Scrutiny from New State Premerger Notification Laws
Washington, D.C. – August 6, 2025 – Big Law litigators are sounding the alarm over a growing wave of state-level premerger notification laws, warning that these regulations, led by Washington and Colorado, will impose significant costs and regulatory burdens on companies pursuing mergers and acquisitions (M&A). The laws, based on the Uniform Antitrust Pre-Merger Notification Act (UAPNA), require firms filing under the federal Hart-Scott-Rodino (HSR) Act to simultaneously submit filings to state attorneys general, raising concerns about heightened antitrust scrutiny and potential litigation risks.
The New Regulatory Landscape
Washington became the first state to enact a broad, industry-agnostic premerger notification law on April 4, 2025, effective July 27, 2025, followed by Colorado on June 4, 2025, effective August 6, 2025. These laws mandate that companies submitting HSR filings to the Federal Trade Commission (FTC) and Department of Justice (DOJ) also provide copies to state attorneys general if they meet specific thresholds, such as having a principal place of business in the state or generating annual net sales of at least $25.28 million (20% of the 2025 HSR threshold of $126.4 million). Healthcare providers face additional requirements in Washington.
“It really increases the burden and imposes additional costs on companies that are trying to engage in transactions,” said Ryan Quillian, a partner at Covington & Burling. The UAPNA, approved by the Uniform Law Commission in July 2024, aims to give state AGs early access to HSR filings to assess potential anticompetitive effects, particularly in local markets. While the laws don’t impose filing fees or mandatory waiting periods, non-compliance can trigger penalties of up to $10,000 per day in both states.
Concerns from Big Law
Litigators argue that these laws, while intended to harmonize state and federal antitrust enforcement, create a complex patchwork of regulations. States like California and New York are considering broader legislation, with California proposing a $1,000 filing fee for companies based in the state and a lower “appreciable risk” standard for challenging mergers, compared to the federal Clayton Act’s “substantially lessen competition” threshold. New York’s proposed bill, which could apply to any firm “conducting business” in the state, is criticized for its vague scope, potentially capturing transactions with minimal local impact.
The increased state-level scrutiny risks duplicative reviews, as state AGs gain access to sensitive HSR data without needing subpoenas. This could lead to more investigations, particularly in sectors like healthcare and retail, where states have historically focused enforcement. For example, Washington and Colorado’s successful 2024 challenge to the Kroger-Albertsons merger highlights state AGs’ growing assertiveness.
Critics, including Forbes, warn that these laws could harm the U.S. economy by burdening procompetitive mergers, which drive innovation and efficiency. The International Center for Law & Economics has also cautioned that excessive filing requirements tax lawful transactions, particularly those near HSR thresholds, without clear evidence of improved merger screening.
Industry and Economic Implications
The new laws align with a broader trend of state-level antitrust activism, with Hawaii, Nevada, Utah, West Virginia, and the District of Columbia considering similar legislation. Unlike federal HSR rules, which impose a 30-day waiting period, state laws allow deals to close during review, but the added compliance costs and risk of state-led challenges could delay or deter transactions.
Posts on X reflect industry concerns, with users like @DJCodyB warning that reduced competition from mergers could raise consumer prices, citing railroad consolidations as an example. Others, like @JahangirAsgha10, question the efficiency claims of vertical integrations in healthcare, suggesting regulators may scrutinize such deals more closely under these laws.
Looking Ahead
Big Law firms, including Hogan Lovells and WilmerHale, advise companies to consult antitrust counsel early to navigate state-specific thresholds and monitor pending legislation. The evolving landscape, coupled with new HSR rules effective February 2025, which require more detailed filings, signals a more complex M&A environment. As states like California and New York push for broader authority, merging parties face a future of increased costs, prolonged reviews, and potential litigation risks.
For more information, companies should track updates from state AG offices or consult legal resources like Law.com or the FTC’s Premerger Notification Office.