The Federal Trade Commission recently announced a consent agreement with a specialty software developer, requiring it to divest a business that it had acquired more than a year earlier for $8.7 million. The challenge to an acquisition that was so small that it did not have to be reported under the Hart-Scott-Rodino Act is the most recent in a growing number of government challenges to consummated non-reportable deals. It is a reminder that mergers, no matter how small, are subject to antitrust attack and may not fly under the enforcement radar.
The DOJ and FTC have already challenged five non-HSR reportable deals in 2013, which is as many as the agencies have challenged collectively in any previous year. That the agencies focused attention on non-reportable deals during the recession, when fewer reportable deals were taking place, was not surprising. The continuing scrutiny of non-reportable transactions is, however, noteworthy
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