DOJ and SEC Guidance on HSR and “Passive” Investors

The results of these “passive vs. active” line drawing efforts by the DOJ and the SEC—in pursuit of different policy objectives and without coordination, but with similar and inter-related impacts—will become increasingly tricky and significant as a handful of traditional money managers and institutional investors continue to show up among the top shareholders of almost all publicly traded companies while, in parallel, these money managers and institutional investors become more directly involved in influencing these companies and arguably position themselves to become the heirs to the campaigns run nowadays by hedge fund activists.