April 06, 2016
In filing a complaint and seeking $19 million of damages against ValueAct for failing to file a premerger notification and observe the statutory waiting period pursuant to the HSR Act in connection with its 2014 purchase of Baker Hughes and Halliburton shares, the antitrust enforcement agencies have once again affirmed that they will read the HSR investment-only exemption narrowly. Unlike most investors facing HSR Act suits who choose to settle with the antitrust regulators in exchange for reduced fines, ValueAct reportedly plans to contest the DOJ’s actions, arguing that its actions are in compliance with the law. If this occurs, it will be the first time the courts will have interpreted the scope of the investment-only exemption. Until then, activist investors must tread carefully when relying on the exemption as it applies only when the investor’s sole intent in acquiring the shares is passive.