Merger enforcement actions below the HSR threshold — top 10 tips in non-reportable transactions

By Steven Levitsky and Paolo Morante

‘Less is more’ may be true in architecture, but in merger clearance law ‘less’ is still enough to trigger antitrust investigations and litigation and rescission of the whole transaction. By ‘less’, we mean less than the Hart-Scott-Rodino $75.9m (£45m) threshold.

The big case currently in the news underscoring this point is FTC v St Luke’s Health System. In January 2014, the Federal Trade Commission obtained a decision from the US District Court for Idaho ordering full divestiture of a non-reportable deal more than two years after the merger had been consummated.

But that result is actually old news. Contrary to popular opinion, the antitrust agencies have a long history of challenging deals well below the Hart-Scott-Rodino thresholds, even when the deals have already closed. And with the St Luke’s case, they are warning again that no anti-competitive deal is immune from challenge, even if it is small…

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