Just five weeks after the Antitrust Division of the U.S. Department of Justice announced that Flakeboard America had abandoned its plan to acquire a medium-density fiberboard (MDF) mill and two particleboard mills from SierraPine in the face of the Division’s competitive concerns, the Division has settled separate gun-jumping and Section 1 claims against the same parties relating to their conduct during the course of the Division’s review of the transaction.

This enforcement action is a reminder that parties to mergers and acquisitions – whether or not reportable under the Hart-Scott-Rodino Act (“HSR Act”) regime – need to exercise care both in structuring the terms of the transaction agreement that affect conduct prior to deal closing, and in their interactions with one another before the deal is closed or abandoned. The Division’s settlement, however, provides some useful guidance on when deal terms and party interactions will (and will not) raise red flags, while simultaneously raising the specter of more frequent demands for disgorgement when lines are crossed.