On June 29, The Federal Trade Commission ("FTC") announced that civil penalties for violations of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act") would more than double, from $16,000 to $40,000 per day.
The HSR Act generally requires parties to transactions that meet certain size thresholds and are not otherwise exempt, to file with the Department of Justice ("DOJ") and the FTC and observe a waiting period before closing. Violations of the reporting requirements of the HSR Act include the failure to submit an HSR filing for a reportable transaction and the exercise of control of a target prior to the expiration of the HSR waiting period, commonly known as gun-jumping.
Even before the increase, past violations of the HSR Act led to substantial penalties. In August 2014, the FTC announced that Berkshire Hathaway Inc. had agreed to pay $896,000 in civil penalties for failing to submit an HSR filing for a reportable transaction. Several months later, the DOJ announced that Flakeboard America Limited and SierraPine had agreed to pay a combined $3.9 million in penalties in connection with alleged gun-jumping violations.
The increased penalties, which go into effect on August 1, result from Congress' 2015 amendment of the Federal Civil Penalties Inflation Adjustment Act (the "FCPIAA"), requiring agencies to increase civil penalties under a number of statutes, including the HSR Act. In accordance with the FCPIAA, the FTC approved Commission Rule 1.98, which adjusts the civil penalties for 16 separate provisions of law enforced by the FTC, including the HSR Act. Under the FCPIAA, the FTC now will be required each January to adjust civil penalties for violations of the HSR Act.
Under the newly announced rule, failing to submit an HSR filing for one year could subject a company to civil penalties of up to $14.6 million. This dramatically increased potential for liability underscores the importance of consulting experienced counsel regarding whether a proposed transaction is HSR reportable. The HSR Act is a highly technical statute and there are complex rules regarding valuation and exemptions under the Act. Experienced Norton Rose Fulbright attorneys are available to assist clients in analyzing the HSR reportability of transactions, submitting HSR filings, and defending transactions in agency investigations.