Overview
While state antitrust authorities have always been able to challenge mergers, and many states have limited pre-merger notification requirements, some states are now expanding their pre-merger notification requirements. As a result, state merger review requirements should now be a consideration in planning for mergers and acquisitions.
State of State Merger Notifications
States regularly investigate anticompetitive conduct and can challenge mergers under both federal and state antitrust laws, with the Colorado and Washington successful challenge to the proposed Albertson-Kroger merger serving as a prominent recent example.1 Additionally, most states have developed some sector-specific pre-merger notification requirements tailored to industries of particular concern, with the biggest sector being health care. At least 15 states — California, Colorado, Connecticut, Hawaii, Illinois, Indiana, Massachusetts, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington — have implemented health care specific pre-notification requirements for various entities including hospitals, provider organizations, and physician group practices.2 Another 20 states limit their notice or review to only transactions that involve nonprofit health care entities.3 Fifteen states and the District of Columbia have no notice requirements for health care-related mergers.4
California also imposes merger notification requirements for retail grocery and retail drug firms. These firms must notify the state attorney general no less than 180 days before finalizing an acquisition that triggers Hart-Scott-Rodino (HSR) filing requirements or involves the acquisition of more than 20 retail grocery or drug firms.5
New Developments
Some states are now expanding their pre-merger notification requirements. One factor was the release of the Uniform Antitrust Pre-Merger Notification Act (the "Act") by the Uniform Law Commission6 on July 24, 2024. The Act serves as model legislation for states to implement their own notification programs. Ever since the federal HSR reporting requirements went into effect in 1978, if a state attorney general sought information about a transaction, he or she would only be able to access the HSR documents by issuing a subpoena to the merging parties or by asking for the documents on a voluntary basis (perhaps with some assurances of confidentiality). The Act aims to give state attorneys general access on the same timeline to information already being reported to the federal government and represents a broader effort to harmonize state merger review across all industries, leveraging existing federal notification processes so that there is only limited additional burden on merging parties. On April 4, 2025, Washington became the first state to enact it. Colorado’s pre-merger notification law, passed on May 13, 2025, should take effect in August 2025.7 Five other states — California8, Nevada9, Utah10, Hawaii11, West Virginia12 — as well as DC13 have also introduced similar bills.14 In addition, New York has premerger notification legislation pending that is not primarily based on the Act.
Generally, these statutes require merging parties to file their federal HSR notification, along with "additional documentary material,"15 with the state attorney general if certain conditions are met. Specifically, in Washington, starting on July 27, 2025, an entity must file these documents if it has its principal place of business in Washington, has annual net sales in the state of at least 20 percent of the federal HSR filing threshold, or if the party is a health care provider operating in the state.16 Businesses that fail to comply with the filing requirements can face civil penalties of up to $10,000 per day of noncompliance.17
New York’s bill would establish the most "comprehensive premerger notification program of any US state."18 It would require “any person conducting business in the state which is required to file” notification under the HSR Act to provide the same notification simultaneously for review to the state attorney general, with certain exemptions.19 Additionally, the attorney general would be required to consider the transaction's effect on the market and workers by allowing affected workers to comment on merger transactions within 10 days following the merging parties filing a notice with the state. Although health care transactions in New York that increase gross in-state revenues by $25 million or more already require notification, S00335 would reach a broader set of transactions across different industries.
Takeaways
This trend is likely to continue with additional states introducing legislation whether based on the Act or unique legislation like New York, potentially creating a patchwork of state-level merger notification requirements that companies must navigate alongside federal requirements. Given the new, more onerous federal HSR filing requirements, merger submissions will be more complex than before and will likely lead to more questions from the reviewers at both the federal and state level. Going forward, companies should factor in the possibility of state review from the outset of their merger planning, as understanding which states will require notification can help guide the strategy for the merger.
1 Kroger Co. and Albertsons are now seeking state appellate review of the King County Superior Court judgment that permanently prohibited Kroger from acquiring Albertsons. See Notice of Appeal, State of Washington v. The Kroger Co., et al, No. 24-2-00977-9 SEA (Sup. Ct. of Wash. Mar. 27, 2025). Another recent example is the New York Attorney General's successful challenge to a consummated merger of ski resorts where a dominant ski resort operator purchased a competitor's ski mountain and then immediately shut it down. See M&A Noncompete Under Fire: NY AG’s "Capture-and-Kill" Ski Resort Case Offers Critical Lessons | Steptoe. The order in the ski resort lawsuit has also been appealed. See Notice of Appeal, Attorney General of The State of New York v. Intermountain Management, Inc., No. 008588/2022 (N.Y. Sup. Ct. Onondaga County (Mar. 28, 2025).
2 See National Conference of State Legislatures, The Evolving Landscape of State Health Care Transaction Laws (Aug. 19, 2024).
3 See id. The 20 states that only review transactions that involve nonprofit healthcare entities are Montana, Idaho, Arizona, North Dakota, Wyoming, South Dakota, Nebraska, Louisiana, Missouri, Wisconsin, Tennessee, Ohio, Virginia, Maryland, Pennsylvania, Delaware, North Carolina, South Carolina, Georgia, and New Hampshire.
4 These include Alaska, Texas, Utah, Oklahoma, Iowa, Kansas, Arkansas, Mississippi, Kentucky, Alabama, West Virginia, Michigan, New Jersey, Maine, and Florida.
5 Cal. Corp. Code Section 14700 (2023).
6 See Antitrust Pre-Merger Notification Act - Uniform Law Commission.
7 Uniform Antitrust Pre-Merger Notification Act | Colorado General Assembly.
8 S.B.25, 2025-26 Leg. Reg. Sess. (Cal. 2025).
12 West Virginia Leg. HB 2110.
14 See Uniform Law Commission, Antitrust Pre-Merger Notification Act (2024), https://www.uniformlaws.org/committees/community-home?communitykey=6bf5d101-d698-4c72-b7c1-0191302a6a95.
15 Parties filing under the first prong (principal place of business in Washington) must also provide to the state attorney general a copy of the attachments included with their HSR (including the Transactional-Related Documents and Plans and Reports, where applicable), but parties who filings are triggered by the other prongs (annual net sales 20 percent or healthcare provider) do not need to provide attachments with the initial filing to the attorney general, unless requested by the attorney general). See S.B.5122 Section 3.
16 SB 5122 Washington State Legislature
17 Id.
18 See Amending New York's Donnelly Act: If at First You Don’t Succeed, Try, Try and Try Again, National Law Review.
