New HSR form to remain in place until further notice—update as of February 20, 2026

Absent the Fifth Circuit’s ruling, the district court’s order would have prevented enforcement of the Final Rule as of February 20, 2026, and caused notifying parties to use the HSR form that was in place prior to the Final Rule. As a result of the Fifth Circuit’s order, notifying parties will continue to use the HSR form prescribed by the Final Rule “until further order” from the Fifth Circuit. This alert updates our February 16, 2026, client alert following these developments.

Recent developments

On February 12, 2026, Judge Jeremy D. Kernodle of the Eastern District of Texas vacated the Final Rule. However, Judge Kernodle stayed his ruling for seven days through February 19, 2026, to give the FTC time to decide whether to appeal. On February 17, 2026, the FTC filed an emergency motion with the District Court to stay its order pending appeal,¹ which was denied one day later.² On the same day as the District Court’s denial, the FTC filed a notice of appeal to the Fifth Circuit.³ It also filed an opposed motion for stay pending appeal, and an unopposed motion for a stay through March 2, 2026, to allow the Fifth Circuit time to consider whether to issue a stay pending appeal.⁴

Although the parties consented to a stay through March 2, 2026, the Fifth Circuit issued a more open-ended order staying the lower court decision “until further order” from the Fifth Circuit.⁵ The Fifth Circuit further ordered appellees to file their opposition to the FTC’s motion for a stay pending appeal by February 26, 2026.⁶

Subsequently, the Premerger Notification Office posted an update to its website alerting the public that the “new form thus remains in place, and filers should continue to submit the new form until further notice.”⁷

A decision on the merits from the Fifth Circuit could take several months to a year

Though we anticipate a decision with respect to a stay pending appeal will be issued soon—likely within the next month—historical data from the Fifth Circuit suggests a decision on the merits will take much longer. The median time from filing a notice of appeal to issuance of an opinion in the Fifth Circuit is approximately 7.8 months based on available data published by the court.⁸ A review of recent appeals in the Fifth Circuit involving challenges to agency rulemaking shows that such cases typically take longer than the median time.

FTC and Department of Justice (DOJ) staff may seek additional information on a voluntary basis

As noted in our prior alert, if the order vacating the Final Rule takes effect, FTC and DOJ staff still have broad discretion to request additional information on a voluntary basis during statutory waiting periods. As such, agency staff may simply make voluntary requests for disclosures that were required under the Final Rule until either the Fifth Circuit reaches a decision on the merits or the FTC has an opportunity to undergo new rule making.

The order vacating the Final Rule has no impact on HSR Act thresholds, reportability analyses, or waiting periods, and we continue to expect the FTC to propose new rulemaking to reintroduce the foreign subsidies and countervailing duties requirements.

We are tracking developments closely and will provide further updates. If you have any questions concerning this client alert, please contact a member of A&O Shearman’s antitrust practice.

Footnotes

1. OPPOSED MOTION to Stay Pending Appeal by All Defendants, Chamber of Commerce of the United States of America et al v. Federal Trade Commission et al, Docket No. 6:25-cv-00009 (E.D. Tex. Jan 10, 2025), Court Docket.

2. ORDER denying 76 Defendants' Opposed Emergency Motion for Stay Pending Appeal, Chamber of Commerce of the United States of America et al v. Federal Trade Commission et al, Docket No. 6:25-cv-00009 (E.D. Tex. Jan 10, 2025), Court Docket.

3. NOTICE OF APPEAL to the Fifth Circuit as to 74 Judgment, Chamber of Commerce of the United States of America et al v. Federal Trade Commission et al, Docket No. 6:25-cv-00009 (E.D. Tex. Jan 10, 2025), Court Docket.

4. Opposed motion filed by appellants Mr, Andrew N. Ferguson, FTC and Ms. Lina Khan for stay pending appeal; and for administrative stay of the judgement of the district court until 3/2/26, Chamber of Commerce v. FTC, 26-40094, Court Docket. 

5. COURT ORDER granting Motion for an administrative stay of the district court judgment until further order of our court, CHAMBER OF COMMERCE v. FTC, 26-40094, Court Docket.

6. Id.

7. Premerger Notification Office, Premerger Notification Program, (last visited February 20, 2026).

8. See U.S. Court of Appeals for the Fifth Circuit, Practitioners’ Guide to the United States Court of Appeals for the Fifth Circuit (May 2025) (the lookback period is 12 months ending on June 30, 2024).