More than 20 years ago, a Deputy Attorney General gave a speech in which he stated that a similar practice, then used in the radio industry, could violate the HSR Act if used in a merger agreement.8 So far, neither DOJ nor the FTC have ever brought legal action in these circumstances. Indeed, doJ seemed to recognize the novelty of its position by accepting a penalty well below the maximum limit provided by the statute. 1 15 U.S.C No. 18 bis.2 The complaint, the proposed final judgment and the declaration of impact on competition are available at: www.justice.gov/atr/case/us-v-duke-energy-coporation.3 If the parties to a transaction are also competitors, coordination prior to conclusion may also be a violation of Section 1 of the Sherman Act, 15 U.S.C No. 1.4 Until recently, outside the United States, it has generally been understood that a transaction subject to reporting is concluded or is not easy to report before the expiry of the current waiting period. Other jurisdictions, during waiting times, have rarely, if ever, questioned behaviour that is not nearby. However, in recent years, more jurisdictions have focused on post-registration behaviour.5See z.B. United States v. Flakeboard Am. Ltd., 3:14-cv-4949 (N.D. Cal.

7. Nov. 2014; United States v. Gemstar-TV Guide Internat`l, Inc., 2003-2 Trade Case. (CCH) $74,802 (D.C 2003); United States: Input/Output, Inc., 1999-1 Trade Case. (CCH) $72,528 (D.C 1999); United States v. Titan Wheel Internat`l, Inc., 1996-1 Trade Case. (CCH) 71.406 (D.C 1996).6 “Duke Energy Gets Slap on Wrist for Deceiving Federal Regulators,” Forbes, January 19, 2017.7 The government`s complaint accuses Duke of testifying in a government proceeding, that it would not have entered into the toll agreement without the agreement to purchase Osprey from Calpine.8Lawrence R. Fullerton, Deputy Assistant Attorney General, Antitrust Division, Dep`t of Justice, Current Issues in Radio Station Merger Analysis, Address at Business Development Associates Antitrust 1997 (21 Oct 1996). The government cited this speech in its statement on the impact of competition in the immediate case.9William Blumenthal, General Counsel, Federal Trade Commission, The Rhetoric of Gun-Jumping, Remarks Before the Association of Corporate Counsel (November 10, 2005). Why Duke Energy is relevant. Before the Duke Energy affair, enforcement measures were limited to armaments measures in cases where, after the signing of the merger or acquisition agreement, the stakeholder effectively took control of all or substantial part of the objective`s activity or intervened in its decision to independently compete prior to the expiry of the waiting period.5Duke Energy appears to expand the scope of activities that U.S.

antitrust authorities consider to be in violation of the HSR Trade Act.