Antitrust Merger Clearance Strategies

Acquisitions and Financial Restructurings of Distressed Companies Under Hart-Scott-Rodino

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, July 21, 2009

Course Materials

This seminar will review the Hart-Scott-Rodino Act and its provisions specific to bankruptcy and non-bankruptcy acquisitions involving distressed companies, available defenses for merger clearance, and strategies for merger approval during the economic crisis.


Many companies find they cannot raise the funds to meet their current obligations and seek financial restructuring by transactions such as Section 363 asset sales or Chapter 11 plans. Other companies are in a position to acquire distressed companies at bargain prices.

Acquisitions in both bankruptcy and non-bankruptcy situations must go through an antitrust approval process before being finalized. The Hart-Scott-Rodino Act (HSR) addresses circumstances for financially distressed companies and provides exceptions for some transfers not in bankruptcy.

Antitrust agencies may be more receptive to approving mergers or acquisitions in the context of a company's weakened financial condition. However, financial restructurings will not automatically past muster. Companies and their counsel must carefully work through acquisitions.

Listen as our authoritative panel of antitrust attorneys examines the HSR Act in both bankruptcy and non-bankruptcy proceedings, reviews the defenses companies can assert to increase the likelihood of merger approval, and offers steps to minimize the HSR Act burden.



  1. HSR in non-bankruptcy
    1. HSR rule 802.63 exemption
    2. HSR 7A(c)(11) exemption
  2. HSR in bankruptcy
    1. Bankruptcy Code section 363(b) transactions
    2. Chapter 11 bankruptcy
    3. Chapter 7 bankruptcy
    4. Role of the bankruptcy court
  3. Failing and flailing defenses
    1. Failing firm defense
    2. General Dynamics defense
    3. Flailing firm defense
  4. Strategies in handling acquisitions involving distressed companies
    1. Minimizing the HSR Act burden
    2. Proving distress


The panel will review these and other key questions:

  • What exemptions are available for certain acquisitions by creditors from debtors under the HSR rules?
  • What legal defenses are available for otherwise presumptively anticompetitive acquisitions of distressed companies?
  • What strategies should companies and counsel employ in managing acquisitions involving distressed companies?


Sharis Pozen
Sharis Pozen
Chief of Staff and Counsel to the Assistant Attorney General
U.S. Department of Justice

Prior to joining the Department of Justice in February, she was in private practice, where she directed the...  |  Read More

Janet L. McDavid
Janet L. McDavid

Hogan & Hartson

She focuses on antitrust, competition, and trade regulation, with a particular emphasis on government investigations,...  |  Read More

Kathryn E. Walsh
Kathryn E. Walsh
Federal Trade Commission, Premerger Notification Office of the Bureau of Competition

She works with the Hart-Scott-Rodino (HSR) statute, as well as its implementing rules, and reviews premerger...  |  Read More

David T. Blonder
David T. Blonder

Akin Gump Strauss Hauer & Feld

He provides antitrust and Hart-Scott-Rodino representation in merger and acquisition matters in a variety of...  |  Read More

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