As of July 27, Washington State is now the first state to enact a uniform antitrust premerger notification law, and as of August 6, 2025, Colorado will be the second. Both new notification laws are similar, as they are modeled after the Uniform Antitrust Pre-Merger Notification Act (Uniform Act), published in 2024 by the Uniform Law Commission (Commission). Multiple states have recently introduced bills to enact similar versions of the Uniform Act, including California, Hawaii, New York, West Virginia, and the District of Columbia.
In explaining the state AG information-sharing intention behind the model act, the Commission stated:
“The material filed with the AG is subject to essentially the same confidentiality protections as applicable to the federal agencies, except that an AG that receives HSR materials may share them with any other AG whose state has also adopted this act. The anticipated effect is to facilitate early information sharing and coordination among state AGs and the federal agencies.”
So begins a new era of increased state AG activity in premerger review.
For any business with a transaction that requires a premerger Hart-Scott-Rodino Act (HSR) filing, both Washington’s Uniform Antitrust Premerger Notification Act (the Washington Act) and Colorado’s Uniform Antitrust Pre-Merger Notification Act (the Colorado Act) require entities with a principal place of business in the state or those with a prescribed amount of net sales in the state to submit their HSR filing to the Washington or Colorado Attorney General (AG) at the same time they submit their HSR filing to the Federal Trade Commission and U.S. Department of Justice. The specifics of each state’s laws are described below.
Who Does the Premerger Notification Requirement Apply To?
The Washington Act applies to any entity that:
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Has a principal place of business in Washington State; or
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“Directly or indirectly has annual net sales in [the] state of goods or services involved in the transaction of at least 20% of the HSR filing threshold;”1 or
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Is a health care provider or a provider organization as defined in RCW 19.390.020, conducting business in the state.
The Colorado Act applies to any entity that:
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Has a principal place of business in Colorado State; or
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“Directly or indirectly has annual net sales in [the] state of the goods or services involved in the transaction of at least twenty percent of the filing threshold.”
Note that Colorado also has a separate pre-merger notification law requiring notification to the Colorado AG for transactions involving a transfer of 50% or more of a hospital’s assets.2
What is the Filing Requirement?
Both Acts require the contemporaneous filing of a complete electronic copy of the HSR form with the Washington or Colorado AG. Businesses or individuals whose principal place of business is in Washington or Colorado must also include with the filing a complete electronic copy of the additional documentary material filed with the HSR form. Both Acts also allow the AG to request businesses whose principal place of business is outside of the states to submit the additional documentary material filed with the HSR form. Neither Act triggers a waiting period.3 The AG may seek the imposition of a civil penalty of up to $10,000 per day for noncompliance with the requirements of the Washington and Colorado Acts.
Are the Premerger Notification Submissions Confidential?
Both the Washington Act and Colorado Act provide that the HSR form and additional accompanying documentary material are confidential and exempt from public inspection under state open records laws. However, the Acts further provide that the AG may share the information received with the Federal Trade Commission, U.S. Department of Justice, or, with at least two business days’ notice, an AG from another state that has entered the Uniform Antitrust Premerger Notification Act or equivalent act.
Increasing State AG Scrutiny of Mergers
As we have previously reported, state AGs have continued the trend of increased antitrust enforcement, particularly with respect to transactions in the healthcare sector. This trend of increased AG enforcement has recently grown in response to shifting federal enforcement priorities. In addition, the majority of states have enacted specific statutory notice requirements for certain healthcare transactions. Parties contemplating a business transaction should carefully evaluate whether any of these new state-specific requirements will come into play.
1 The filing threshold is defined in the Act as “the minimum size of a transaction that requires the transaction to be reported under the [HSR] Act in effect when the person files a premerger notification.”
2 Colo. Rev. Stat. §§ 6-19-101.
3 The federal HSR filing triggers a mandatory waiting period before a reported transaction can be consummated, during which the federal agencies review the transaction for potential antitrust concerns. The standard waiting period is 30 days. The waiting period clock can be stopped if either federal agency issues what is commonly referred to as a Second Request for additional information if an agency believes further investigation is needed.