USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn
potential for Agency scrutiny is indefinite. The Agen - cies may investigate a transaction post-closing even if they declined to challenge the transaction during the HSR review process or if the transaction was not HSR reportable. The Agencies have authority to investigate and chal - lenge transactions that do not meet HSR filing require - ments. Although such investigations have historically occurred somewhat infrequently, the Agencies at times have acted quickly to challenge non-reportable transactions. The FTC most notably exercised this authority in 2021 in bringing suit against Facebook, alleging, among other charges, that Facebook had consummated multiple anti-competitive acquisitions in an effort to maintain monopoly power, including its acquisitions of Instagram in 2012 and WhatsApp in 2014. The suit went to trial in April 2025; on 18 November 2025, US District Judge James Boasberg ruled in favour of Meta Platforms, concluding that the FTC failed to prove the company holds a monopoly in the social media market through its purchases of Instagram and WhatsApp. On 20 January 2026, the FTC officially appealed the decision to the US Court of Appeals for the District of Columbia. Similarly, in 2023, the FTC brought suit against US Anesthesia Partners (USAP) and private equity firm Welsh Carson, alleging, among other charges, that between 2014 and 2020, USAP and Welsh Carson engaged in a series of acqui - sitions that harmed competition in the commercially insured hospital-only anaesthesia market in Houston, Texas. The FTC announced a settlement with Welsh Carson in January 2025, which requires Welsh Carson to limit its involvement with USAP and notify the FTC of future acquisitions related to anaesthesia and other hospital-based physician practices. 2.12 Requirement for Clearance Before Implementation If an HSR filing is required, parties may not close the transaction until the expiration or termination of the waiting period. The waiting period begins after both parties submit their HSR filings and the filing fee has been paid. For open-market purchases, conversions, option exercises and certain other (generally, non- negotiated) transactions, the waiting period begins once the Acquiring Person submits an HSR filing.
Typically, the statutory waiting period is 30 days, although the agencies may grant early termination of the waiting period. Unless the Agencies issue a sec - ond request or sue to block the transaction, the wait - ing period expires automatically on the 30th day after filing at 11.59pm Eastern Time (ET), and the parties may close the transaction. There is no formal notifi - cation of clearance. In cash tender offers and certain bankruptcy transactions, the waiting period is short - ened to 15 days. The waiting period extends to the next business day when a waiting period expires over a weekend or on a federal public holiday. 2.13 Penalties for the Implementation of a Transaction Before Clearance Parties that close a transaction or transfer beneficial ownership prior to the expiration or termination of the waiting period (conduct commonly referred to as “gun-jumping”) are subject to civil penalties of up to USD54,540 per day. Although in the majority of cases the Agencies have imposed penalties substantially less than the maximum permitted by law, gun-jumping fines commonly range in the hundreds of thousands, if not millions, of dollars. See 2.2 Failure to Notify . 2.14 Exceptions to Suspensive Effect There are no exceptions to the waiting requirement of the HSR Act. Parties to all reportable transactions must observe the applicable waiting period prior to consummation. 2.15 Circumstances Where Implementation Before Clearance Is Permitted Under no circumstances will the Agencies permit closing before expiration or early termination of the applicable waiting period. Carve-outs, ring fencing or hold-separate agreements are not permitted. Prema - ture closing may subject the parties to civil penalties of up to USD54,540 per day of non-compliance and potential additional equitable relief. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification There are no deadlines for making HSR filings; under current rules, parties can submit HSR filings at any time after executing a transaction agreement or suf -
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