In early June the Federal Trade Commission and the Department of Justice Antitrust Division issued a joint report detailing their recent enforcement activities in the merger area. The Report provides detailed data on the number of pre-merger filings submitted to the Agencies under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") for the Agencies’ most recent fiscal year, which ended September 30, 2011. The Report also highlights the enforcement actions taken by the Agencies during that time period. Rather surprisingly, the Report reflects that the weak economy has not chilled the Agencies’ enthusiasm for merger enforcement. In fact, the Agencies have significantly stepped up their enforcement efforts in the last year, and the increased activity has not been limited to a few highly publicized proposed mergers.

The HSR Pre-Merger Reporting Requirements

The HSR Act requires that proposed acquisitions over a certain size (currently $68 million) be reported to the FTC and the DOJ prior to consummation so that they can be reviewed by the Agencies for possible anticompetitive effects. If either Agency concludes that the competitive implications of the deal warrant consideration, it will seek "Clearance" from the other Agency to start an investigation, and can subsequently issue a "Second Request" to the parties for additional information to assist the Agency in making its assessment. Until approved by the Agencies, the parties are not permitted to close on their deal.