State of Washington Introduces First-of-its-Kind "Antitrust Pre-Merger Notification Act" Legislation
Washington State has become the first state in the nation to enact the Uniform Antitrust Pre-Merger Notification Act, a law that will require companies to file merger notifications contemporaneously with the federal Hart-Scott-Rodino (HSR) Act filings. The new law, known as S.B. 5122, will take effect on July 27, 2025.
The new law builds on the federal HSR framework by adding a state-level, contemporaneous filing requirement for transactions with a significant Washington nexus. This will allow state enforcement authorities to conduct earlier and more tailored merger scrutiny to protect local markets and consumers.
Scope and Applicability
The Washington law requires premerger filing notifications to be made simultaneously with an HSR filing but applies only to transactions that meet both the federal HSR filing thresholds and specific Washington state nexus criteria. The HSR Act is a federal statute that establishes nationwide thresholds for premerger reporting and review.
The Washington law extends merger review authority beyond healthcare transactions, historically the main focus of state scrutiny, to a broader range of industries if there is significant economic connection to Washington.
Thresholds and Nexus Requirements
Washington’s Act triggers notification if a party has a principal place of business in Washington, or if the party (or an entity it controls) has annual net sales related to the transaction in Washington of at least 20% of the federal HSR filing threshold ($126.4 million in 2025), or if the party is a healthcare provider or organization conducting business in the state. The federal HSR Act uses national transaction value thresholds for filing, without state-specific economic thresholds.
Timing of Filing
Under the federal HSR Act, filings must be made at least 30 days before closing (or 15 days for cash tender offers). Washington’s Act requires filing contemporaneously with the federal HSR filing, regardless of the federal waiting period or the transaction’s effective date, thereby allowing the state to begin early review.
Filing Content and Process
Parties with their principal place of business in Washington must submit a complete copy of the federal HSR filing, including all exhibits and attachments, to the Washington Attorney General. Parties without a Washington principal place of business need only provide exhibits and attachments if requested by the Attorney General. There is no filing fee required by Washington for this state filing, whereas the federal HSR Act imposes filing fees based on transaction size.
Enforcement and Policy Goals
Washington’s Act enhances state antitrust enforcement by giving the Attorney General’s office earlier access to merger information to assess anticompetitive risks specifically affecting Washington consumers and markets. The HSR Act serves as the primary federal merger notification and waiting period statute, enabling antitrust agencies like the FTC and DOJ to perform nationwide merger reviews before transactions close.
The new law will apply to companies or individuals with annual net sales in Washington state of at least 20 percent of the HSR filing threshold. Filing parties under the new law need not produce materials provided to the federal antitrust agencies under a "Second Request." The Washington Attorney General must keep information confidential from the public under the new law.
Parties who expect to make an HSR filing should work with antitrust counsel early to check for any qualifying Washington nexus under the new law. Parties who fail to file their qualifying HSR with the state of Washington can be held liable for civil penalties of up to $10,000 per day.
Colorado also recently became the second state to enact a uniform pre-merger law. The current HSR Act penalties are $53,088 per day, which cover conduct broader than failure to notify. Parties may still need to provide waivers for the Federal Trade Commission or the Antitrust Division of the Department of Justice to share information with the Washington Attorney General.
The new law does not alter any limits or obligations that the federal agencies have for HSR materials. The law will apply to companies or individuals with a principal place of business in Washington state. The law will broaden the number of industries that fall under Washington's existing merger review authority, and it will apply to companies or individuals that are providers or provider organizations conducting business in Washington state.
On April 4, 2025, Governor Bob Ferguson of Washington state signed S.B. 5122 into law. The new law will be enacted on July 27, 2025. There is no filing fee under the new Washington state law.
- The Washington law will require companies to file merger notifications concurrently with federal HSR Act filings, starting July 27, 2025.
- This new law applies only to transactions that meet both federal HSR filing thresholds and specific Washington state nexus criteria.
- The Washington law extends merger review authority to a broader range of industries with significant economic connections to Washington.
- Under the Washington law, parties with a principal place of business in Washington must submit a complete federal HSR filing to the Washington Attorney General.
- Parties without a Washington principal place of business need only provide exhibits and attachments if requested by the Attorney General.
- The Washington Attorney General's office can assess anticompetitive risks specifically affecting Washington consumers and markets with early access to merger information.
- Failure to file a qualifying HSR with the state of Washington can result in civil penalties of up to $10,000 per day.
- Colorado also enacted a uniform pre-merger law recently, and parties may need to provide waivers for federal antitrust agencies to share information with the Washington Attorney General.
- The new Washington law applies to companies or individuals with a principal place of business in Washington state, broadening the number of industries under Washington's existing merger review authority.
