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New HSR Rules for Transactions Involving Partnerships and LLCs
Forget what you know about the Hart-Scott-Rodino Antitrust Improvements Act (HSR) and partnerships. Forget what you know about HSR and LLCs. The rules have changed ' again. The good news is that the rules make more sense, and certain exemptions to the filing requirements have been codified or expanded. The bad news is that a small number of deals that used to slide under the HSR radar may now be caught. More strategically speaking, the rules now provide more opportunities to “choose” whether your next joint venture will be subjected to substantive agency review under the HSR scheme, heightening the value of HSR counselors' advice on structure issues at early planning stages.
Many business people and most business lawyers know that a large acquisition or merger may require the parties to comply with the pre-merger reporting requirements and waiting period of the HSR. Determining whether a deal triggered a filing has been fairly straightforward, as long as the parties were corporations (see the sidebar on page 4 for a brief review of the jurisdictional rules). However, the rules governing “non-corporate entities” (partnerships, limited liability companies, business trusts and so on) differed from the rules governing corporations, sometimes in startling ways: The acquisition of 99% of a partnership was not reportable, but the acquisition by a 99% owner of the remaining 1% might well have triggered a filing – even though the owner already controlled the partnership. LLC rules varied substantially from the rest of the HSR canon, and formation of joint venture corporations, LLCs and partnerships were all treated differently.
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