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Urgent: Serious (and Apparently Inadvertent) HSR Exemptions in the Senate Financial Reform Package

The American Antitrust Institute (“AAI”) has just learned of what may be certain very serious antitrust problems in the Restoring American Financial Stability Act, problems that until now seem to have escaped notice completely.By what may have been inadvertence, three provisions of the bill appear to remove certain very large mergers and acquisitions from any pre-merger antitrust review - either under the familiar Hart-Scott-Rodino Act (“HSR”) or under the bank-merger review rules that govern most banking-sector transactions.The problems are basically two: (1) the “orderly liquidation” procedures under Title II, while they permit full HSR for mergers caused by the FDIC as receiver, appear to exempt all other transfers of assets from any antitrust review; and (2) provisions to add prior approval requirements for non-banking acquisitions appear - again, evidently by inadvertence - to trigger an explicit exemption contained in HSR itself.Because this bill in most of its substance aims to increase federal oversight of large transactions, we imagine these may have been drafting errors, and that the Senate does not intend to create several deliberate, new antitrust exemptions. Errors certainly would be understandable given the extraordinary complexity of our bank regulatory law and its relationship to HSR. But the antitrust loopholes created here could potentially be very serious, and they should be corrected.We will explain these complex issues as briefly as we can and will also give some practical examples to illustrate their consequences. Also, at the end, we will suggest corrective language that would satisfactorily resolve all these issues.