Canon Inc. and Toshiba Corp. have agreed to pay $5 million to settle charges alleging that the Japanese companies schemed to circumvent federal antitrust and merger control laws so they could hasten a $6.1 billion deal in 2016.

The companies were required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 to notify the Justice Department and Federal Trade Commission and wait 30 days before Canon bought Toshiba subsidiary Toshiba Medical Systems Corp., or TMSC, a medical equipment company that did significant business in the United States.

The HSR Act's premerger notification requirement, which has tripped up Microsoft Corp. co-founder Bill Gates and Comcast Corp. CEO Brian Roberts, is meant to give federal authorities time to investigate and stop transactions that might run afoul of antitrust laws.  

“Deliberately structuring a transaction to avoid or delay HSR filing undermines the efficacy of the premerger notification process, regardless of whether the parties' motives for doing so in a particular case were anti-competitive,” Bruce Hoffman, director of the FTC's Bureau of Competition, said in a written statement.

“We will be vigilant in seeking relief against attempts to circumvent the HSR Act's filing requirements,” he added.

The HSR Act's notification requirement and waiting period apparently stood in the way of Toshiba's desire to finalize the Canon deal before its 2015 fiscal year came to a close March 31, 2016.

Toshiba was in a “precarious financial position” at the time—an independent investigation had uncovered financial irregularities at the company—and wanted to use proceeds from the TMSC sale to bolster its financial statement, according to a complaint filed Monday in the U.S. District Court for the District of Columbia.

Instead of notifying federal authorities about the planned merger, Toshiba restructured the corporate ownership of TMSC and created a new class of voting shares with a single non-voting share custom-made for Canon, according to the complaint.

Toshiba allegedly sold the non-voting share and newly created options that were convertible to ordinary shares to Canon for $6.1 billion in March 2016. At the same time, Toshiba transferred the voting shares of TMSC to MS Holding Corp., a “special purpose company” that Toshiba and Canon created ahead of the merger, in exchange for a $900 payment. Months later, Canon exercised its options and obtained formal control of TMSC's voting shares.

A Toshiba spokesman wrote in an email that the company “reached a settlement with the DOJ, without any admission of violating US law, after recognizing that an early settlement was the best way forward, and that any dispute with the DOJ and FTC would consume the same resources and incur the same costs as civil proceedings.”

An attempt to speak with a Canon representative was unsuccessful. Jeff White of Weil, Gotshal & Manges represents Canon and Perry Lange of Wilmer Cutler Pickering Hale and Dorr represents Toshiba. They did not respond to requests for comment. 

Each company agreed to pay $2.5 million under the proposed settlement, which the court will consider following a 60-day comment period. Toshiba and Canon also agreed to implement a compliance program, designate a compliance officer to ensure compliance with merger notification laws and comply with various inspection and reporting requirements.

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