Changes to Reporting Requirements for US Defense Transactions
Publications
October 2024
The National Defense Authorization Act was revised in December to state that parties to an HSR-reportable transaction that “will require a review by the Department of Defense who are required to file the notification and provide supplementary information to the Department of Justice or the Federal Trade Commission . . . shall concurrently provide such information to the Department of Defense during the waiting period . . .” This revision is intended to assist the Department of Defense (DOD) identify transactions that threaten to harm competition in the defense industrial base. But it is unclear which transactions “will require a review” by DOD and thus invoke the notice requirement, because there is currently no mandatory trigger for DOD review of transactions.
Instead, the DOD’s Industrial Base Policy M&A Office has discretionary authority to assess transactions involving “major defense suppliers,” defined under DOD Directive 5000.62 as, “any prime contractor or subcontractor that the Secretary of Defense, the Deputy Secretary of Defense, the USD(AT&L), or the DASD(MIBP) designates as a main source of supply.” In addition, there are certain classes of contractors considered major defense suppliers without the need for specific designation. There is additional ambiguity around whether notice is required for all HSR-reportable transactions or only those where “supplementary information” has been required to be submitted to the antitrust agencies. In other words, based on the language of the statute, it is arguable that the triggering event for DOD notice is not the HSR filing but instead the opening of an investigation and the provision of information during the waiting period to supplement the HSR filing.
Neither the Premerger Notification Office nor DOD have issued official guidance on how to interpret this language or the mechanics of how such notice would be made. Parties engaged in transactions connected to the defense industry should consult experienced antitrust counsel to assess reporting requirements.
This article is available in the Jenner & Block Japan Newsletter. / この記事はJenner & Blockニュースレターに掲載されています。
Related Articles
Related Capabilities
© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.
Publications
October 2024
The National Defense Authorization Act was revised in December to state that parties to an HSR-reportable transaction that “will require a review by the Department of Defense who are required to file the notification and provide supplementary information to the Department of Justice or the Federal Trade Commission . . . shall concurrently provide such information to the Department of Defense during the waiting period . . .” This revision is intended to assist the Department of Defense (DOD) identify transactions that threaten to harm competition in the defense industrial base. But it is unclear which transactions “will require a review” by DOD and thus invoke the notice requirement, because there is currently no mandatory trigger for DOD review of transactions.
Instead, the DOD’s Industrial Base Policy M&A Office has discretionary authority to assess transactions involving “major defense suppliers,” defined under DOD Directive 5000.62 as, “any prime contractor or subcontractor that the Secretary of Defense, the Deputy Secretary of Defense, the USD(AT&L), or the DASD(MIBP) designates as a main source of supply.” In addition, there are certain classes of contractors considered major defense suppliers without the need for specific designation. There is additional ambiguity around whether notice is required for all HSR-reportable transactions or only those where “supplementary information” has been required to be submitted to the antitrust agencies. In other words, based on the language of the statute, it is arguable that the triggering event for DOD notice is not the HSR filing but instead the opening of an investigation and the provision of information during the waiting period to supplement the HSR filing.
Neither the Premerger Notification Office nor DOD have issued official guidance on how to interpret this language or the mechanics of how such notice would be made. Parties engaged in transactions connected to the defense industry should consult experienced antitrust counsel to assess reporting requirements.
This article is available in the Jenner & Block Japan Newsletter. / この記事はJenner & Blockニュースレターに掲載されています。
Related Articles
Related Capabilities
© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.
News and Insights
Publications
Emily Loeb Discusses Congressional Oversight Preparedness in Bloomberg Law
Partner Emily Loeb, co-chair of Jenner & Block's Congressional Investigations Practice, spoke with Bloomberg Law article about how companies can prepare for potential oversight exposure ahead of this fall's midterm elections.
July 7, 2026
Publications
In New York Law Journal, The True Lender Doctrine and the OppFi Decision
Partners Jeremy Creelan, Michael Ross, Megan Poetzel, and Laurel Loomis Rimon, and Associate Molly Oberstein-Allen authored an article for the New York Law Journal examining the "True Lender" doctrine in light of a May 2026 California decision that provides the most detailed judicial framework to date for evaluating bank-nonbank lending partnerships.
July 1, 2026
Event
Partner Michael Vernick to Speak at NACUA's 2026 Annual Conference
On July 1, Partner Michael Vernick will speak on a panel at the National Association of College and University Attorneys (NACUA) 2026 Annual Conference in Nashville.
July 1, 2026
Publications
In Employee Relations Law Journal: What Happens When ERISA Disability Deadlines Slip
Partner Joseph Torres along with Associates Emma O'Connor and Christopher LeWarne, authored an article for the Employee Relations Law Journal analyzing a significant Fourth Circuit decision with substantial consequences for ERISA disability plan administrators.
June 23, 2026