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By: Justin Michael Kadoura, David C. Kully, Bill Katz, Kenneth Racowski from law firm Holland & Knight

The U.S. Department of Justice (DOJ) on Jan. 14, 2025, brought an action in the U.S. District Court for the Southern District of New York against private equity firm KKR & Co. Inc alleging that KKR violated the initial disclosure requirements of the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) and seeking more than $650 million in civil penalties. The DOJ's action represents the largest civil penalty ever it has ever sought in an HSR Act case and raises important considerations for companies engaging in transactions subject to the HSR Act. KKR, in its own countersuit against the DOJ in the U.S. District Court for the District of Columbia, asserts that the DOJ's case has "no legitimate basis" and amounts to "weaponiz[ing]" confusing guidance concerning the HSR Act by seeking to impose "draconian and grossly disproportionate penalties" on KKR based on "paperwork errors that were immaterial" to the antitrust review of KKR's transactions.

The HSR Act

The HSR Act was passed in 1976 to enable the government to scrutinize mergers and acquisitions (M&A) above a certain monetary threshold before the deals closed. For deals subject to the HSR Act's reporting requirement, the Act and the Federal Trade Commission's (FTC) regulations purportedly issued pursuant to the Act require the companies to ......................

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