Conversion of Voting Securities in a Merger May Trigger Hart‑Scott‑Rodino Notification Filing Requirement

The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) requires an acquiring entity to notify the Federal Trade Commission and the DOJ when it proposes to make an acquisition that would result in the acquiring entity owning securities or assets of the target valued at more than a specified threshold. Daniel S. Loeb’s Third Point LLC (Third Point) and three funds that it manages learned the hard way that notification is also required when a fund that holds a position in a party to a merger – and that made the requisite HSR Act filings prior to taking that position – receives shares of the new entity that results from the merger. This article examines the DOJ’s complaint against Third Point and its funds, as well as the terms of the proposed final judgment settling the action. The case is an important reminder that an investor may be subject to HSR Act notification obligations in connection with a prospective merger, even if the investor made the requisite filings when taking a position in one of the constituent companies. See “Seward & Kissel Private Funds Forum Offers Practical Steps for Fund Managers to Address HSR Act Enforcement, Tax Reforms, Brexit Uncertainty, MiFID II, Cybersecurity and Side Letters” (Oct. 20, 2016).

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