The Commission and Department of Justice’s recent case against Canon Inc. and Toshiba Corporation for violating the Hart-Scott-Rodino Antitrust Improvements Act makes an important point: restructuring a deal to avoid or delay an HSR filing may subject the merging companies to substantial penalties if the restructured transaction still results in an acquisition by the A side.
Parties regularly present their arguments and defenses of conduct and mergers to the Front Office of the Bureau if staff has recommended a challenge. A surprising number of these presentations begin with a recap of “how we got here” that includes various complaints about the investigating staff. Common complaints have included: the investigation is taking too long; staff didn’t present their concerns early enough in the investigation; and market definitions or areas of concern have evolved during the investigation. To be blunt, complaining about the staff is not a good defense.