Introduction

In remarks earlier this month, US Federal Trade Commission (FTC) Chairman Andrew Ferguson stated that the FTC intends to investigate a growing practice in the tech industry known as “acquihiring” (a portmanteau of acquiring and hiring). Acquihiring often involves a company acquiring key talent and intellectual property from a target (typically a startup) company without acquiring the business entity itself. According to Chairman Ferguson, tech companies have recently executed acquihire agreements that were not notified under the Hart-Scott-Rodino (HSR) Act, the statute requiring companies entering acquisitions exceeding certain monetary thresholds to file notifications with the federal antitrust agencies. Officials have raised separate concerns that some acquihire agreements may be a way to effectively make anticompetitive acquisitions of nascent competitors by undermining their ability to compete, even if a company does not purchase the competitor as a technical matter.

We discuss FTC leaders’ recent statements regarding acquihires and what clients should expect from enforcement initiatives in this area moving forward.         

Background

While former FTC Commissioner Rohit Chopra back in 2021 raised concerns that companies in the tech industry may be structuring deals to avoid triggering HSR notification requirements,¹ FTC officials have now signaled that they intend to scrutinize whether parties may be using acquihiring as a specific way to avoid notifications. In a recent interview, FTC Chairman Ferguson said that his agency is beginning to examine whether acquihire deals in the artificial intelligence (AI) space are reportable under the HSR Act if thresholds are met and whether some such deals, if unreported, violate the rule prohibiting merging parties from structuring transactions to escape HSR reportability.² Ferguson said the FTC cannot issue a “one-size-fits-all rule” defining when acquihiring should be notified under the HSR Act but nevertheless said that acquihiring “has become a big enough deal” that the agency is “beginning to look very closely at how these things work, including determining whether we need to promulgate additional guidance here in the coming months.”³

Chairman Ferguson is not the only US antitrust official with concerns. FTC Commissioner Mark Meador discussed acquihires in the AI research segment in a recent speech in Silicon Valley.⁴  Citing a December 2025 report, Meador claimed that “‘firms may acquire talent not to utilize it productively but to preempt rivals from accessing it.’ In other words: buy and kill, but for ultra-skilled labor.”⁵  And recent press reports indicate that the Department of Justice Antitrust Division (DOJ) has recently investigated acquihiring.

Remarks from top FTC officials signal that enforcers seemingly have both procedural and substantive concerns with acquihires: first, whether such agreements are used to evade reporting obligations under the HSR Act—for instance by structuring acquihires as hiring or nonexclusive licensing agreements (for intellectual property) rather than traditional acquisitions of assets, voting securities or noncorporate interests that confer control, as contemplated by HSR⁶ —and second, as to substance, whether acquihires are an anticompetitive means to buy nascent competitors that may otherwise compete against the incumbent purchaser. Ultimately, both whether an acquihire is reportable or whether it raises substantive competitive concerns will depend on deal-specific facts.

Antitrust enforcers can investigate and challenge deals even if they are not reportable under the HSR Act.⁷ Moreover, while it is not clear what form the FTC’s focus on acquihire deals will take, in addition to investigating particular transactions, the FTC could consider proposed changes to the HSR rules, conducting workshops with stakeholders or initiating a broad study under its 6(b) authority.

Non-US antitrust enforcers have also discussed acquihires. In August, the outgoing head of the European Commission’s (EC) antitrust arm reportedly stated that the EC is encouraging EU Member States to refer acquihire deals below EU reportability thresholds to the EC for review.⁸ In practice, this would allow the EC to investigate acquihires that it otherwise would lack authority to investigate.

Implications

Antitrust agencies are paying close attention to what they see as an increase in significant acquihire deals in the tech industry, with tech companies reportedly spending hundreds of millions (or even billions) of dollars on such arrangements. Moving forward, companies will need to consider potential antitrust risks from acquihires or transactions that might be considered such. Companies should work with counsel to:

• Structure any acquihire or similar transactions to account for antitrust risk, and consider documenting a decision not to report under HSR a deal that would meet the notification thresholds if it were deemed an asset acquisition.
• Prepare for potential engagement with antitrust authorities for any acquihire deals (consummated or unconsummated) that antitrust enforcers might scrutinize. This is particularly important for any newly signed or recently completed substantial transactions where an antitrust authority might investigate whether an acquihire should have been reported under HSR or a non-US notification scheme or had the effect of killing or marginalizing an incipient rival. In some circumstances, companies may be well advised to prepare for advocacy if necessary.
• Closely monitor enforcement and policy updates. Given FTC Chairman Ferguson’s recent statements that FTC guidance on acquihires may be forthcoming, companies should consider whether they are interested in making a submission during any notice and comment period that may precede formal agency guidance.
• Take compliance steps to ensure that HSR and non-US notifications are not missed for any transactions, regardless of their structure. Companies should consider whether an antitrust authority might deem a transaction structure a mechanism to avoid notification.                  

Closing

WilmerHale’s antitrust team includes former FTC and DOJ officials and seasoned antitrust lawyers with a wealth of experience navigating the merger review process and advocating on behalf of merging parties before both US and foreign antitrust agencies. We are standing by to advise clients on deal fundamentals and regulatory strategies, including regarding new developments.