Enforcement actions for violations of the Hart-Scott-Rodino Act (HSR) often are announced with substantial money penalties or other restrictions agreed in advance between the agency and the parties. Not so with the Department of Justice’s complaint filed April 4 against ValueAct Capital and its affiliated investment funds. ValueAct has said that it will vigorously defend its position.

The HSR Act, among other things, requires certain investors to file notice with the Department of Justice and Federal Trade Commission, and to put off acquiring stock valued above the reporting thresholds (presently $78.2 million) until the agencies have completed their review of the investment’s potential for anticompetitive impact. The HSR rules provide several exemptions, including an exemption for purely passive investors that hold less than 10% of a company’s voting stock. The rub is that the agency views the exemption very narrowly, and any intent to do more than simply holding the stock for investment likely will draw the agency’s ire. In the complaint filed against certain ValueAct Capital entities for violating the HSR Act with respect to the purchase of over $2.5 billion of Halliburton and Baker Hughes stock following the companies’ November 17, 2014 merger announcement, the agency is seeking civil penalties of $19 million plus an injunction against further violations. To read more, please see our recent client alert here.