Document management best practices for private equity sponsors in the evolving HSR landscape

December 2025  |  SPECIAL REPORT: PRIVATE EQUITY

Financier Worldwide Magazine

December 2025 Issue

Amendments to the filing requirements under the Hart-Scott-Rodino (HSR) Antitrust Improvements Act took effect in February 2025, representing the most significant changes to the premerger notification process in the US in more than 45 years. While these amendments did not change the thresholds used to determine if a filing is required or the substantive legal standards for how the US antitrust agencies review a transaction, they fundamentally transformed the HSR notification process.

Some of the most significant changes for private equity (PE) sponsors under the new HSR rules focus on the expanded scope of reportable documents and the individuals whose documents are potentially subject to disclosure. By expanding the universe of documents that must be turned over, the new HSR rules increase the burden of HSR preparation, and perhaps more importantly increase the potential for production of documents that might trigger costly and lengthy regulatory scrutiny of a transaction.

Adapting to the new HSR rules is not just a matter of compliance and risk management for PE sponsors, it is a critical component of successful deal execution. This means taking a proactive and disciplined approach to how documents are drafted, retained and shared before considerations for a potential transaction begin.

Expanded document production

When it comes to documents, there are three significant changes under the new HSR rules that PE sponsors must be aware of.

First, the parties must submit any draft document that discusses the transaction shared with a single member of a board (or its equivalent) or investment committee. Under the prior rules, the parties were required to produce only final versions of responsive documents and drafts presented to the entire board. The new HSR rules dramatically expand this obligation to require disclosure of each draft document received by a single board member in their capacity as a director, in addition to any final version. This change potentially captures informal drafts, internal communications and emails, dramatically increasing the volume of responsive materials and the risk of inadvertent disclosure of sensitive or speculative deal rationale.

Second, the parties must identify a new custodian of documents – the supervisory deal team lead (SDTL). The SDTL is the individual with primary responsibility for the strategic assessment of the deal who is not an officer or director. Documents created by or for the SDTL that analyse the transaction must now be submitted with HSR filings, in addition to those of officers and directors. While PE structures vary widely, this new requirement potentially sweeps in documents from a more junior member of the deal team, or perhaps a manager at the portfolio company level in the case of add-on acquisitions.

Third, the parties must submit a new category of documents for transactions where one party competes with (or could compete with) a current or known planned product or service of the other party. This new category encompasses ‘ordinary course of business’ plans prepared for the board or the chief executive officer of either party that analyse market conditions, competitive dynamics and strategic planning. For a PE sponsor, this means a portfolio company’s regular reports must be produced if they touch on competition – as is often the case. Not surprisingly, these reports often contain aggressive business rhetoric that, when viewed by the antitrust agencies, could be misconstrued as evidence of anticompetitive intent.

Why it matters for PE sponsors

Beyond the heightened substantive risk, the new HSR rules impose challenges that translate directly into increased costs, extended timelines and a significant diversion of resources.

First, the increased documentation requirement compounds other new disclosures required by the new HSR rules – such as overlap analyses and detailed ownership charts – that require coordination between deal teams, portfolio company management and outside counsel. Tellingly, while most purchase agreements prior to the HSR rule change provided one to two weeks for HSR filings to be submitted, it is now common to see 20 business days or more allotted to make these filings.

Second, the antitrust agencies review the documents submitted by the parties for problematic language that raises red flags about the competitive effects of the transaction. The antitrust agencies place weight on the parties’ ordinary course documents because these documents often predate any negotiations and are not drafted with the expectation of an antitrust investigation. Documents with problematic language (referred to as ‘hot’ documents) suggesting that the parties to the transaction are significant competitors or that the deal may disadvantage customers may trigger an investigation by the antitrust agencies.

Third, the broader document production regime gives the antitrust agencies insight into how PE sponsors evaluate targets, including competitive overlaps and potential roll-up strategies. Draft materials (prepared prior to thorough review by senior team members or counsel) often contain strategic commentary that could be used by regulators to infer anticompetitive intent or past consolidation patterns across a PE sponsor’s platforms. Because such materials may reveal long-term fund-level strategies or market-entry plans, they may trigger enhanced antitrust scrutiny even in smaller add-on transactions. Documents submitted with HSR filings will form a permanent, searchable record within the antitrust agencies’ databases. The statements and data submitted in one filing by a PE sponsor could potentially be used by the antirust agencies in the context of future transactions.

As a result, PE sponsors can no longer treat the HSR filing as a routine, post-signing administrative task. Instead, they must integrate antitrust risk assessment and compliance readiness into every stage of the investment lifecycle. The expanded scope of document production under the new HSR rules necessitates a disciplined and proactive approach in how PE sponsors and their portfolio companies create and manage documents.

Guidelines and training

PE sponsors must adopt antitrust guidelines for document creation, retention and sharing and provide training to all professionals involved in the transaction, from junior analysts to senior partners, board members and portfolio company executives, on the antitrust guidelines and the new realities of document discovery.

The guidelines and training must emphasise: (i) that informal communications, including emails, internal chat messages, texts and content on collaborative platforms, could be deemed discoverable documents under the new HSR rules; and (ii) the importance of using precise, objective, and fact-based language in documents, including investment memos, board presentations and ordinary course business plans.

Best practices for drafting documents

First, PE sponsors should avoid using antitrust buzz words, such as ‘barriers to entry’, ‘pricing power’, and so on, as well as speculative or exaggerated rhetoric not only in deal-related materials, but also in regular reporting.

Second, in the case of deal-specific documents, PE sponsors should focus on the benefits of the transaction for customers, such as achieving operational efficiencies, fostering innovation and delivering enhanced value. That messaging should be consistent across the team so that a consistent rationale for the deal is presented to the antitrust agencies.

Third, documents must be appropriately labelled. For example, a document subject to attorney-client privilege should be marked as ‘privileged and confidential’, and a document that is still a draft should be marked as ‘draft’. Where possible, draft transaction-related documents should be sent to antitrust counsel for review before being shared with any member of the board or investment committee. In the PE context, remember that a board member of a subsidiary or a holding company still counts as a relevant document custodian for HSR purposes.

Best practices for retaining and sharing documents

When a new deal kicks off, PE sponsors may find it useful to set up a deal-specific depository, such as a shared folder, and email address for the deal. Deal team members can save draft documents to the depository and limit access to those who need it, and deal-related emails can be copied to the deal-specific inbox. A disciplined approach can substantially reduce burdens when it comes to preparing the HSR filing, and giving antitrust counsel access to these materials early may help avoid problematic content down the road.

In addition, even before a deal is contemplated, PE sponsors can prepare. It is a best practice to have a system to track board-level reports that may be HSR-responsive and a depositary for them. Team members should upload relevant plans and reports to the designated depository in real time. It may also be useful to designate someone within the PE sponsor who maintains a list of officers, directors, investment committee members and SDTLs for each transaction.

Finally, PE professionals and employees at portfolio companies who prepare plans and reports should receive appropriate antitrust training. This may include training on version control procedures for documents, so it is easier to determine which versions are drafts and must be submitted. For example, use header and footer markings such as ‘working draft – not for board distribution’ to clearly identify document status. In addition, team members should be trained to limit distribution of HSR-related materials. Those that may serve as SDTLs may benefit from additional targeted instruction on the scrutiny their files will receive.

Proactive compliance is the path forward

The message is clear under the new HSR rules: every business document is potentially a regulatory disclosure, every strategic plan may require an explanation and every draft shared with a board member becomes part of HSR review. Adapting documentation practices to this reality is no longer optional; it is a fundamental requirement for executing transactions in today’s regulatory landscape.

The increased burden of disclosure and the heightened scrutiny of business documents demand a more disciplined and integrated approach to document management. By embedding antitrust mindfulness into their standard operating procedures, PE sponsors can navigate this new regulatory landscape more effectively, minimise the risk of lengthy and costly antitrust investigations, and better position their transactions for a timely closing.

 

Danielle Asaad and Michael Wise are partners at Squire Patton Boggs. Ms Asaad can be contacted on +1 (646) 260 2959 or by email: danielle.asaad@squirepb.com. Mr Wise can be contacted on +1 (202) 457 5239 or by email: michael.wise@squirepb.com.

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BY

Danielle Asaad and Michael Wise

Squire Patton Boggs

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