A Practical Guide to the Regulation of Hedge Fund Trading Activities - Chapter 4: Key Requirements and Timing Considerations of Hart-Scott-Rodino

Proskauer Rose LLP

The Hart-Scott-Rodino Act and Section 8 of the Clayton Act may not receive the same level of focus and attention in the context of Hedge Fund investing as other reporting regimes, but they should. They impose a mandatory filing regime on hedge funds and their managers that carries significant civil penalties for non-compliance.

HSR Act Basics: Your Investments May Trigger a Filing Obligation -

The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”) can become a trap for the unwary as hedge fund managers focus their attention on requirements under the Sections 13(d) and 16 of the Securities Exchange Act of 1934 (“Exchange Act”), not realizing that filing requirements under the HSR Act may also apply. The HSR Act requires investors, and their targets, to make a premerger notification (the “HSR Act Notification”) filing and observe a 30-day waiting period (15 days in the case of a cash tender offer) prior to making certain voting share acquisitions, including acquisitions of minority holdings. The investor may not acquire the shares prior to observing the full waiting period, or prior to the early termination of the waiting period (“Early Termination”) by the Federal Trade Commission (“FTC”). Effective April 3, 2019, the minimum threshold for reporting under the HSR Act is $90.0 million (the thresholds adjust annually). The threshold applies to the current market value of the investor’s aggregate holding after giving effect to the planned upcoming investment, including shares previously acquired. There are exceptions to the notification requirement discussed below under “Common HSR Act Exemptions.”

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Proskauer Rose LLP

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