Washington and Colorado Are the First Two States to Require Pre-Merger Notifications

If your company is filing a premerger notification form with the Department of Justice and Federal Trade Commission, do not forget to simultaneously file with relevant states that have enacted premerger notification laws. The first two states to enact these laws are Washington and Colorado.

Washington Premerger Notification Law

As of July 27, 2025, federal Hart-Scott-Rodino (HSR) Act filings will need to be submitted to the Washington Attorney General (WA OAG) under Washington State’s Antitrust Premerger Notification Act (APNA) if the parties have a certain minimum geographic nexus to the state of Washington. 

Under APNA, parties will need to submit a copy of their HSR filing to the WA OAG at the same time as their submission to the US Federal Trade Commission (FTC) and US Department of Justice (DOJ) if they: (1) have a principal place of business in Washington; (2) generated in-state net revenues in the prior year from the type of goods or services involved in the transaction of at least 20% of the minimum size of the HSR filing threshold (i.e., local annual net sales of at least $25.28 million in 2025); or (3) provide healthcare services within the state. While APNA imposes civil penalties for failure to file, the new law does not require a filing fee and does not impose a waiting period that prevents the transaction from closing.

Filing parties with their principal place of business in Washington must provide a complete copy of the federal HSR filing, including all exhibits and attachments submitted to federal agencies. Otherwise, the filing party need only include all exhibits and attachments at the request of the Attorney General.

Exhibits and attachments to the HSR filing include Transaction Information and Business Documents (formerly referred to as 4(c) and 4(d) documents), which often contain internal analyses of competition, market share, and strategic rationale. The law requires that submissions be made contemporaneously with the federal HSR filing, with no separate state waiting period imposed.

To preserve confidentiality, Washington’s statute expressly exempts submitted materials from public disclosure under the state’s public records laws. Disclosure is allowed only in the context of official proceedings and subject to protective orders. The statute also authorizes — but does not require — the Washington Attorney General to share filings with the Federal Trade Commission, the Department of Justice, or Attorneys General in other states with substantially similar premerger laws. This discretionary sharing mechanism is designed to support coordinated multi-jurisdictional enforcement efforts while maintaining strict confidentiality protections.

To promote compliance, the law includes an enforcement mechanism that allows for civil penalties of up to $10,000 per day for failure to file. This underscores the need for deal teams to incorporate Washington’s requirements into their closing checklists, particularly where either party has significant operations or revenue within the state.

Colorado’s Pre-Merger Notification law

Colorado’s Uniform Antitrust Pre-Merger Notification Act becomes effective on August 6, 2025.

Colorado’s Act applies across all industries, but only to transactions that are already subject to federal HSR reporting.

Under the statute, a qualifying party must provide a copy of its HSR filings to the Colorado Attorney General contemporaneously with its federal submissions, if the transaction in question meets one of the state’s nexus triggers.

Like in Washington, a party must provide a copy of its HSR filing to the Colorado Attorney General if: (1) a party to the transaction maintains its primary business headquarters within Colorado; or (2) a party to the transaction — or any entity it directly or indirectly controls — has annual net sales in Colorado related to the proposed transaction equal to or greater than 20 percent of the current HSR size-of-transaction threshold. As of 2025, with HSR thresholds at $126.4 million, the Colorado revenue trigger would equal $25.28 million in in-state sales.

Filing parties are generally required to submit an electronic copy of the complete HSR filing, including all exhibits and attachments. This ensures the Attorney General has access to the same substantive materials being reviewed by federal regulators.

Recognizing the commercially sensitive nature of merger filings, Colorado’s Pre-Merger Notification Act includes confidentiality protections. All materials submitted to the Colorado Attorney General under this law are confidential and exempt from public disclosure under the Colorado Open Records Act. Disclosure is permitted only in connection with administrative or judicial proceedings and then only under appropriate protective orders.

Colorado’s Pre-Merger Notification Act also authorizes — but does not require — the Attorney General to share information with the Federal Trade Commission, the U.S. Department of Justice Antitrust Division, and Attorneys General in other states that have adopted substantially similar legislation. It also authorizes the Colorado Attorney General to seek civil penalties of up to $10,000 for each day a party remains out of compliance.

Broader Trend of State Oversight

More states are following Washington and Colorado’s example. California, Hawaii, West Virginia, and the District of Columbia have introduced legislation that would apply to HSR-reportable transactions where a party has either its principal place of business in the state or derives at least 20 percent of its U.S. revenue from in-state operations. Notably, California’s proposed legislation includes a separate filing fee of $1,000 where a party has its principal place of business in California or $500 where the party meets the revenue threshold.

Utah and Nevada similarly introduced legislation largely mirroring Washington, Colorado, and the Uniform Antitrust Pre-Merger Notification Act. However, both bills failed to pass in the most recent legislative sessions.

New York recently proposed legislation requires any party conducting business in the state that is required to submit an HSR filing to contemporaneously provide the same notice and documentation, in its entirety, to the Attorney General.

The states are becoming more aggressive in terms of antitrust enforcement. Last year, the Colorado AG filed its own merger challenge to the Kroger/Albertsons merger separate and apart from the FTC’s challenge and litigated the case in CO state court. Notably, the Washington AG (which also has a state-level prenotification act) also challenged the merger and litigated the case in state court. 

Considerations for Businesses

For companies involved in M&A activity, these new laws introduce both strategic and operational considerations. First, dealmakers need to identify merger notification obligations early and consider incorporating potentially applicable state-law filing obligations into the due diligence process alongside HSR and other regulatory assessments, such as international merger control and foreign direct investment rules. State-level filing requirements could also be reflected in transaction timelines and closing conditions to help avoid last-minute compliance risks.

Second, filing parties also should account for the potential resource implications of the new law, including legal review, administrative processing, and possible engagement with State Attorneys General. Although the state laws do not impose waiting periods or clearance requirements, parties should anticipate increased scrutiny of transaction rationales, competitive effects, and state-specific market dynamics.

Third, companies may also want to revisit their internal document generation practices and carefully evaluate whether ordinary-course business materials contain language discussing competitive effects, market strategy, or industry dynamics — especially where such documents may be included in HSR filings and thus disclosed to state authorities.

Lessons Learned

There is a shift in how states are approaching merger oversight, signaling that state attorneys general intend to play a more active and earlier role in antitrust enforcement. While the laws impose relatively modest procedural obligations, they reflect a growing trend of decentralized regulatory scrutiny that may add complexity to deal execution. Fund managers, strategic acquirers, and other deal participants should plan ahead by evaluating both federal and state merger notification requirements early in the transaction lifecycle and consulting with counsel.

Andre Barlow

202-589-1838