The answer is No. The fact that your deal avoided a second request investigation does not mean that you are in the clear if your deal substantially lessens competition in a relevant antitrust market.
The Department of Justice’s Antitrust Division (“DOJ”) and Federal Trade Commission (“FTC”) have for years emphasized that they will investigate and challenge consummated transactions that were not initially reviewed or slipped through the cracks if those transactions substantially lessen competition. It does not matter that for one reason or another that merging parties were able to successfully avoid a long drawn out investigation. The DOJ’s lawsuit to block Parker’Hannifin’s acquisition of CLARCOR, Inc. illustrates that the DOJ may open an investigation and challenge a transaction even after it allowed the Hart-Scott Rodino (“HSR”) waiting period to expire. The enforcement action also serves as a reminder that if merging parties do not cooperate with a merger investigation, they risk being sued.
DOJ Sues Parker-Hannifin Seven Months After Allowing it to Close its Acquisition of CLARCOR