For many years after its implementation, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 seemed to sound the death knell of post-consummation merger trials.  By establishing a file-and-wait system rather than the old catch-me-if-you-can non-system, the Act enabled the antitrust enforcement agencies to prevent the consummation of potentially anticompetitive mergers until they completed their investigation, and then to block the deal by seeking a preliminary injunction.  Often, the threat of an injunction was enough to cause the parties to abandon the transaction.  If the enforcement agency obtained an injunction, most deals simply disintegrated.  Neither the companies nor their sources of financing were willing to tolerate litigating a case through a trial.

Today, the filing thresholds for the HSR Act have been increased by legislation, which also indexed those thresholds to inflation.  (On January 17, 2014, the FTC announced that the value of transaction threshold has been raised to $75.9 million.)  As the filing thresholds increased, so has the interest of the FTC and the DOJ in transactions that fall below those thresholds and do not require the parties to file and to comply with the HSR Act’s waiting period.  Those transactions often close before the enforcement agencies take an interest in them and launch an investigation.  At that point, abandonment is no longer an option—money has changed hands, the companies have been integrated, and the colors have been nailed to the mast.  The companies’ only options—more precisely, the company’s only options—are to agree to a difficult unscramble-the-egg divestiture or to litigate the case through trial.