On June 29, 2016, the Federal Trade Commission (“FTC”) announced an increase in the maximum civil penalties it may impose for violations of the Hart-Scott-Rodino Act (“HSR Act”) and various other rules and orders governed by the FTC. The maximum civil penalty for HSR violations has increased from a daily fine of $16,000 per day, to a much larger fine of $40,000 per day. While these higher maximum civil fines will apply to any penalties assessed after August 1, 2016, they will also apply to violations that predate the effective date.

This recent announcement and significant penalty increase stems from the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (“IAAI Act”), which requires federal agencies to adjust civil penalties for violations of any acts that those agencies are tasked to enforce. The practical effect of the IAAI Act is that the agencies must adjust the statutory civil penalties they impose to account for inflation using a prescribed “catch-up adjustment” formula.

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[On April 4, 2016,] the U.S. Department of Justice brought a civil action against ValueAct for failing to comply with the waiting period requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) with respect to its purchases of shares of Halliburton Company and Baker Hughes Incorporated. The DOJ’s suit seeks a civil penalty of at least $19 million from ValueAct. (In November 2014, Halliburton entered into an agreement to purchase Baker Hughes; the transaction is pending.)

The DOJ claims that ValueAct’s purchases of Halliburton and Baker Hughes shares “did not qualify for the narrow exemption from the requirements of the HSR Act for acquisitions made solely for the purpose of investment” because ValueAct “planned from the outset to take steps to influence the business decisions of both companies, and met frequently with executives of both companies to execute those plans.”

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