Publications

Agency Merger Enforcement in Non-Reportable Transactions

February 1, 2010
The Antitrust Source

The number of agency challenges to transactions not subject to the reporting requirements of the HSR Act, either because they were exempt or valued below the threshold, has notably increased in recent years. Significantly more non-reportable transactions were challenged over the past two fiscal years alone than over the preceding seven fiscal years—approximately sixteen challenges in 2008–2009 as compared with approximately twelve publicly announced challenges between 2001–2007. Whether this trend is attributable to agency resources freeing up during the economic downturn or other factors, the increased enforcement activity is continuing, with three nonreportable transactions being subject to agency challenges during just the first four months of fiscal year 2010. Moreover, the agencies have not hesitated to challenge long-completed transactions, bringing four recent merger challenges more than two years after the relevant deal was consummated.