This week, the U.S. Department of Justice (“DOJ”) sent a powerful reminder that companies making merger filings must strictly adhere to HSR requirements or face significant liability. The DOJ’s move follows a similar settlement between the U.S. Federal Trade Commission (“FTC”) and Edward Lifesciences Corp. and Genesis MedTech Group Limited imposing a combined $12 million penalty.
What is DOJ’s Settlement?
On Wednesday, August 26, 2026, the DOJ filed a proposed settlement requiring KKR & Co. Inc. to pay a civil penalty of $250 million, more than 20 times any prior HSR penalty obtained by the DOJ. Associate Attorney General Stanley Woodward indicated that this proposed settlement “sends a powerful message” and shows that the DOJ “is committed to vigorous enforcement of the Act.”
This settlement comes after the DOJ alleged in January 2025 that the private equity sponsor “repeatedly violated the HSR Act” through “systemic” violations. Key allegations in the DOJ’s complaint included:
- Failure to submit responsive business documents required under Item 4 of the HSR Form
- Altering or removing content and pages in final Item 4 documents before submission to the FTC/DOJ as part of required HSR filings
- Failure to make HSR filings before consummating reportable transactions
KKR moved to dismiss the DOJ’s complaint and denied all allegations. A spokesperson noted that they “determined that ongoing litigation would be a significant distraction for [the] organization” and that they are “pleased to put this behind [them].” The spokesperson also noted that the penalty “will have no financial impact on the firm, [their] funds, or any of [their] investors” and that they “will be fully reimbursed by outside law firms.1”
DOJ and FTC Continue to Enforce HSR Compliance
This settlement comes just over a month after the FTC announced a settlement requiring Edwards Lifesciences Corp. (“Edwards”) and Genesis MedTech Group (“Genesis”). The FTC ordered Edwards to pay a civil penalty of $10 million and Genesis to pay a $2 million penalty after the FTC alleged that the parties structured their transaction in a way that would reduce the acquisition price below the applicable HSR threshold to avoid an HSR filing.2
The settlement with the FTC also imposed prior notice requirements for acquisitions by Edwards in entities that sell, are involved in, or received exemptions from clinical trials for transcatheter aortic valve replacement devices that treat a heart condition called aortic regurgitation.
Practical Implications for Your Next Deal
As you prepare for your next deal:
- Evaluate HSR Reportability. Work with HSR counsel to evaluate transactions for HSR reportability, particularly in deals involving milestone payments, earnouts, or in the context of private equity deals where certain transactions across funds may trigger HSR filings.
- Identify Item 4(c)/(d) Custodians. Identify all relevant document custodians prior to collection and ensure that (1) those custodians’ files are searched, and (2) the custodians understand their obligation to produce responsive documents.
- Conduct a Robust Document Collection Process. With this heightened scrutiny from both antitrust agencies, it is more important than ever to make sure that if you have an upcoming HSR filing, you have a robust document collection process.
- Exercise Caution with Drafts. Certain drafts need to be submitted with HSR filings.
- Be Overinclusive. It is important to be over-inclusive in your Item 4(c)/(d) document collection for external counsel.
- Avoid Any Document Alterations. Once a document (including a draft shared with the Board) becomes responsive, it must be attached to the HSR filing. Do not alter the document, including revising text or removing content/pages from the document.
- Organize Trainings. Offer semi-regular HSR compliance trainings.
These developments highlight the value of building HSR readiness into transaction planning early, enabling companies to move efficiently, protect deal certainty, and demonstrate a disciplined approach to regulatory compliance.
1 KKR to Pay $250 Million to Resolve DOJ Merger Filing Lawsuit, Bloomberg News (Aug. 26, 2026), available at https://www.bloomberg.com/news/articles/2026-08-26/kkr-to-pay-250-million-to-resolve-doj-merger-filing-lawsuit.
2 U.S. v. Edwards Life Sciences Corp., Complaint, EDF No. 1 (D.D.C. July 13, 2026), available at https://www.ftc.gov/system/files/ftc_gov/pdf/EdwardsGenesis-Complaint.pdf.
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