USA LAW AND PRACTICE Contributed by: George Casey, Heiko Schiwek, Elena Rubinov, Kristina Trauger, Pierre-Emmanuel Perais, Clara Pang, Gregory Gewirtz and Vinita Sithapathy, Linklaters
Threshold . Additionally, acquisitions in excess of the HSR Act threshold (USD133.9 million as of February 2026) will require an antitrust filing. Furthermore, a number of states, including Delaware, have “anti-takeover” statutes that have the effect of encouraging acquirers to negotiate with management and discourage certain hostile activities. For example, Delaware’s business combination statute prevents acquirers from entering into business combinations with a target if they have exceeded a specific owner - ship threshold (15%) unless they received prior board of directors’ approval or a super-majority vote of the stockholders. Some sectoral regulatory approvals and national security controls on foreign investment may also be triggered by ownership thresholds. 4.2 Material Shareholding Disclosure Threshold Under Sections 13 (d) and 13 (g) of the US Securities Exchange Act of 1934 (the “Exchange Act”), persons or groups who own or acquire beneficial ownership of more than 5% of certain classes of equity securi - ties registered under the Exchange Act are required to file beneficial ownership reports with the SEC. Gener - ally, if Section 13 (d) is triggered, a person must file a Schedule 13D unless they are eligible to use Sched - ule 13G. Schedule 13G, a shorter form requiring less disclosure, is available to passive investors meeting certain requirements. A beneficial owner of a security includes any person who, directly or indirectly, has or shares either: • power to vote or to direct the voting of the security; or • power to dispose or direct the disposition of the security. A Schedule 13D must be filed five business days after acquiring beneficial ownership of more than 5% or losing Schedule 13G eligibility, and Schedule 13D amendments must be filed within two business days after the triggering event.
The new HSR form materially increased the time and effort it takes parties to prepare their filings. This increased burden prompted a legal challenge led by the United States Chamber of Commerce in 2025. In early February 2026, a federal district court vacated the new HSR form on the basis that it is disproportion - ately burdensome, arbitrary and capricious, thereby violating the Administrative Procedures Act. On 19 March 2026, the US Court of Appeals for the Fifth Circuit denied the Federal Trade Commission’s motion for a stay pending appeal, rendering the district court’s judgment vacating the new HSR form effective imme - diately. Accordingly, the agencies are now accepting HSR filings using the form and instructions that were in place before 10 February 2025, the effective date of the new HSR form (although parties may still file under the 2025 version – ie, the “new HSR form” – voluntar - ily). While the agencies’ appeal to the Fifth Circuit is pending, the Commission and DOJ have published a request for public comment regarding the effective - ness of the HSR pre-merger reporting requirements, indicating that the agencies may be considering draft - ing revisions to the HSR form and instructions in line with the district court’s opinion. With respect to outbound investment, the COINS Act, enacted in December 2025, codified and changed the scope of the OISP but will only come into force as implementing regulations take effect – a process that should be completed by the first quarter of 2027. 4. Stakebuilding 4.1 Principal Stakebuilding Strategies Stakebuilding is permitted in the United States and, in contrast to many other jurisdictions’ takeover laws, US federal law does not mandate that an acquirer make a bid for the target upon reaching a specified threshold. Therefore, unless it has publicly announced or commences a tender offer for shares of the target, an acquirer may purchase a publicly traded target’s shares on the open market, so long as the acquirer does not violate insider trading rules. US securities laws do generally require an acquirer to file a notifi - cation on Schedule 13D (or a short-form equivalent) upon crossing a 5% beneficial ownership threshold, as described in 4.2 Material Shareholding Disclosure
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