On April 4, 2025, Washington State Governor Bob Ferguson enacted the Uniform Antitrust Premerger Notification Act (Senate Bill 5122, the Premerger Notification Act). As of July 27, 2025, any transactions reportable under the federal Hart-Scott-Rodino Antitrust Improvements (HSR) Act that also meet the thresholds under Washington’s Premerger Notification Act will require concurrent notification in Washington State. Washington already was part of a growing minority of states requiring prenotification for healthcare-related transactions, but, with the adoption of Senate Bill 5122, Washington now will receive advance notice of relevant transactions regardless of industry so long as the monetary or location requirements are met. Notably, the new legislation does not require a separate filing fee and only requires submission of information and documents already provided with the HSR filing. Nonetheless, as previously predicted when the Uniform Law Commission (ULC) approved the model legislation underpinning the Premerger Notification Act in July 2024, we expect this new filing requirement likely will increase the cost of regulatory compliance and degree of scrutiny for reportable transactions.
Key Takeaways
- Regardless of industry, companies operating with a sufficient connection to Washington State may be required to notify their HSR reportable transactions to the Washington State AG in addition to the federal antitrust authorities. No additional information outside the scope of the HSR filing is required for the initial notification.
- While this is another administrative burden on certain companies undertaking HSR reportable transactions that may indirectly increase costs, the Washington State statue imposes no additional filing fee.
- HSR confidentiality remains intact. The Premerger Notification Act prohibits the AG from making any submitted information public; the AG is precluded for example, from disclosing the existence of a nonpublic merger. Information provided also remains free from public inspection (similar to the FOIA exemption under federal law).
- Unlike the HSR Act, Washington’s Premerger Notification Act does not prevent companies from closing transactions for a period of time pending the AG’s review.
- We expect other states will follow with similar laws and state-level assessments will be necessary for managing deal timelines and risk.
Washington’s Premerger Notification Act Only Requires the Submission of HSR Materials for Companies with a Sufficient Connection to Washington State
Starting July 27, 2025, any person making an HSR filing will be required to simultaneously submit an electronic copy of their HSR Notification and Report Form (the HSR Form) to the Washington AG when:
- (1) the person has its principal place of business in Washington State;
- (2) the person (or a person that it controls directly or indirectly) had annual net sales of the goods or services involved in the proposed transaction of at least 20 percent of the HSR filing thresholds in Washington (given the current HSR filing threshold is $126.4 million, an entity only needs to have approximately $25 million in annual net sales in Washinton to trip this threshold); or
- (3) the person is a healthcare provider (or provider organization) conducting business in Washington.
For filers falling within category (1), they’ll also be required to submit all the HSR attachments submitted with the HSR Form. For other filers (falling within category (2) or (3)), they need to submit their HSR Form initially but only provide HSR attachments within seven days of receiving a request from the Washington AG.
Failure to comply with these filing requirements may result in a civil penalty of up to $10,000 per day of noncompliance.
Washington State Law Encourages Information Exchanges Between States
The confidentiality provisions provided by the federal HSR Act carry over to Washington’s Premerger Notification Act, with one notable exception:
The Washington AG can disclose a filing party’s HSR Form, and any additional HSR attachments submitted, with the AG of another state that enacts the Uniform Antitrust Premerger Notification Act (or a substantial equivalent). Those states also must have equally protective confidentiality provisions. Currently no such states exist, but equivalent bills have been introduced in California, Colorado, Hawaii, Nevada, Utah, West Virginia, and the District of Columbia. The Washington AG also may share information with the federal antitrust authorities.
Currently, any such exchange of information would require the parties to affirmatively grant a “waiver” allowing the US Department of Justice (DOJ) or US Federal Trade Commission (FTC) to share the parties’ confidential HSR information with any other authority, even if the other authority were conducting parallel investigations into the same deal. As a result, under the state rules, parties will not necessarily have the same level of visibility into which state-level authorities are investigating their deals and what course those investigations are taking.
Conclusion
The enactment of this law is a meaningful development for any companies entering into HSR reportable transactions with a connection to Washington State. Washington’s Premerger Notification Act enhances state antitrust oversight of transactions, which may lead to longer deal timelines and added cost and resource burden on filing companies. Companies should work with antitrust counsel early to incorporate a Washington-level review into their deal timelines and risk assessments. While no other states have enacted a similar law, there are several states considering such legislation, and Washington as a first-mover might renew interest and focus for other states. Continuing to monitor and adapt to state-level developments will be key to navigating new filing requirements and meeting transaction timetables. For now, mark your calendars for July 27, 2025.
