DOJ Files Unprecedented Suit Challenging Allegedly Deficient HSR Filings

On January 14, the Antitrust Division of the Department of Justice (DOJ) filed a lawsuit against private equity firm KKR & Co. (KKR), alleging KKR repeatedly violated the Hart-Scott-Rodino (HSR) Act and seeking unprecedented civil penalties of hundreds of millions of dollars. In response, on the same day, KKR filed a countersuit against the DOJ and Federal Trade Commission (FTC), attacking the motivation and basis behind the DOJ's suit and arguing that the requested penalties are unconstitutional because the FTC's interpretations of the HSR Act are unconstitutionally vague and the requested fines unconstitutionally excessive.

Background

Under the HSR Act, merging parties reporting covered transactions (currently typically transactions valued at $119.5 million) must submit an HSR form, which obligates the merging parties to disclose information and documents about themselves and the transaction prior to the merger. The antitrust agencies—the FTC and DOJ's