In a merger, when must the HSR filing be made?

In a merger, the Hart-Scott-Rodino (HSR) filing must be made after the execution of a definitive agreement. The HSR Act is designed to prevent anti-competitive mergers by requiring certain parties to notify the Federal Trade Commission (FTC) and the Department of Justice (DOJ) of their plans.

The process begins once an agreement has been reached, hence the necessity of filing the pre-merger notification once the definitive agreement is executed. This timing ensures that regulators have the opportunity to review the proposed merger before it can be completed, allowing concerns regarding market competition to be addressed.

Making the filing before the agreement is signed would not comply with the requirements since the agreement needs to be definitive to provide the specifics of the transaction. Additionally, filing only if SEC approval is required does not align with the HSR regulations, as HSR filings are based on transaction thresholds and not solely dependent on SEC approval. Lastly, waiting until after the transaction closes would bypass the regulatory review process that the HSR Act mandates, which seeks to analyze any possible anti-competitive effects before a merger is finalized.