The fact that an entity to be acquired is going through a bankruptcy process does not change the filing requirements under the Hart-Scott-Rodino Antitrust Improvements Act (“HSR”). However, if the entity is going through a bankruptcy under Section 363(b) of the Bankruptcy Code (11 U.S.C. §363(b)), the HSR process is governed by a 15-day waiting period, as opposed to the 30-day waiting period that applies to transactions that are not occurring under Section 363(b) of the Bankruptcy Code.
If the bankruptcy process depletes the assets such that the transaction no longer meets the size-of-transaction threshold, an HSR filing is no longer required. Because this may be highly dependent upon deals and agreements made with creditors, in some cases, the size of transaction is difficult to ascertain until the buyer is approved by the bankruptcy court.
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For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte: