Parties to mergers and acquisitions often seek ways to expedite deals and minimize regulatory hurdles. Because the mandatory filings and waiting period under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) can significantly delay the closing of a transaction and expose the internal documents of the parties to government scrutiny, merging parties and their antitrust lawyers typically devote significant resources to identifying legitimate reasons not to file HSR forms and to minimize the amount of information and documents that they must submit with the filings they do make. However, attempts to structure transactions specifically to avoid HSR filings—or to withhold documents that should be submitted—are fraught with significant legal and reputational risks. Recent enforcement actions by the Department of Justice (DOJ) and Federal Trade Commission (FTC), including the review by the DOJ of communications between KKR & Co. Inc. (KKR) and its legal counsel as reported by Bloomberg on April 29, 2026, highlight the growing scrutiny and consequences for such conduct.
The HSR Act requires parties to notify the FTC and DOJ of certain transactions before they are consummated, allowing regulators to assess potential anti-competitive effects. 16 C.F.R. § 801.90 explicitly prohibits structuring transactions or providing false or misleading information in order to evade HSR requirements. This can include (but is not limited to) splitting transactions, omitting information, or otherwise acting in a manner designed to avoid a filing obligation. The regulation serves as a clear warning: attempts to circumvent HSR filings by manipulating deal terms, hiding documents, or failing to disclose communications that should be submitted with the HSR filing can trigger enforcement actions, fines, and even criminal penalties and the unwinding of deals.
Navigating the requirements of § 801.90 is not always easy or straightforward, and parties—particularly acquirers—often focus sharp attention with their legal counsel on ensuring that decisions not to file HSR forms, or not to submit particular documents with the forms, are correct. These communications between attorneys and their clients are normally protected from disclosure in litigation, but the privilege is not absolute. As reported by Bloomberg on April 29, 2026, the DOJ successfully invoked the “crime-fraud” exception to the privilege—which allows the disclosure of legal advice that may have been used to further a crime or fraud—and in a sealed order won the right to review communications between KKR and its legal counsel. According to Bloomberg’s sources, the DOJ’s investigation focused on whether the parties had intentionally withheld documents that should have been submitted with their HSR filings. If the reporting is accurate, this case heightens the risk of exploring with counsel deal structures that may not require a filing (ok) versus structures chosen for the purpose of avoiding a filing (not ok), and of discussions with counsel about whether a particular document should be submitted with a filing (and why).
Compounding the risk, both the DOJ and FTC often employ a tactic of using document disclosures in lengthy merger reviews under the Clayton Act to initiate HSR Act compliance investigations. It goes like this. Before the end of the HSR waiting period, the reviewing agency can issue a lengthy and burdensome request for additional information and documents (a “Second Request”), which tolls the waiting period until the parties substantially comply (at which point the agency typically has 30 days to challenge the transaction in court). Somewhere in the vast trove of data and documents submitted in response to the Second Request there may lurk a document or two that the reviewing agency alleges should have been submitted with the party’s HSR filing. If the agency is correct or even possibly correct, then instead of facing a looming deadline to challenge a transaction in court, the reviewing agency can threaten to restart the waiting period from Day 0 or initiate a civil (or even criminal) action for violating the HSR Act. And a path to a more agency-favorable settlement begins to open. This is one reason among several why a thorough search for required documents is so important in preparing an HSR filing.
These developments serve as a cautionary tale for dealmakers: attempts to skirt HSR requirements can expose parties to regulatory investigation, reputational damage, and severe penalties, including:
- Legal Penalties: Violations of HSR filing requirements can result in substantial fines and, in extreme cases, orders to unwind completed transactions.
- Regulatory Scrutiny: the DOJ and FTC have increasingly used investigative powers to demand communications and documents, including those involving legal counsel, when there are signs of evasion.
- Reputational Damage: Public reporting of enforcement actions, such as the KKR case, can damage a company’s reputation, affecting investor confidence and future deal opportunities.
- Loss of Privilege: Attempts to hide documents may undermine attorney-client privilege, exposing sensitive communications to regulatory review.
- Additional Leverage in Merger Reviews: By tying HSR compliance investigations to Clayton Act merger reviews, regulators can exert more pressure on merging parties to settle on terms favorable to the reviewing agency, or even to abandon the transaction.
To avoid these risks, parties should ensure full compliance with HSR requirements:
- Conduct a thorough legal analysis of transaction structures to determine filing obligations, mindful at all times of the requirements of 16 C.F.R. § 801.90. Always communicate with counsel with the shared goal of complying with legal requirements.
- Conduct an extremely thorough search for, and disclose, all documents and communications required by the parties’ initial HSR forms.
- In transactions that may undergo heightened scrutiny, consider voluntarily disclosing in the HSR forms documents that may be “close calls” as to their responsiveness, to avoid providing the agency fodder for threatening an HSR compliance investigation at a later stage in the investigation.
- Maintain clear and accurate records of deal negotiations and communications.
- Consult with experienced antitrust counsel to navigate complex regulatory landscapes.
Regulatory agencies are increasingly vigilant about attempts to circumvent HSR filings. The DOJ and FTC’s actions, including the DOJ’s effort to pierce attorney-client privilege in the KKR case, as well as the agencies’ strategic use of HSR compliance investigations to increase their leverage in Clayton Act merger investigations, highlight the real risks of structuring deals or withholding documents to avoid regulatory scrutiny. Compliance, transparency, and proactive legal counsel are essential to protect parties from costly enforcement, reputational harm, and the loss of privilege.
