United States: FTC Revises HSR Filing Thresholds

Last Updated: January 15 2013
Article by Peter Guryan and Alyson L. Redman

Size of Transaction Threshold increased to $70.9 million

The FTC has announced new reporting notification thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended ("HSR Act" or the "Act"), which will be effective 30 days after the revised thresholds are published in the Federal Register.1 The FTC has not indicated when the new thresholds will be published in the Federal Register, but we can anticipate that the updated thresholds will become effective at some point in mid-February 2013. Until the effective date, the current thresholds will apply. Of particular note, the size-of-transaction threshold will increase from $68.2 million to $70.9 million.2

The principal changes to the notification thresholds, which will apply to all transactions that are consummated on or after the effective date, are as follows:

  • The initial size-of-transaction threshold will increase from $68.2 million to $70.9 million.3
  • The size-of-person thresholds, currently $136.4 million and $13.6 million, will increase to $141.8 million and $14.2 million, respectively.
    • The size-of-person test is only applicable to transactions now valued at $283.6 million or less (currently $272.8 million).
  • The notification thresholds – for stock transactions, the highest threshold that will be crossed as a result of the transaction – will also be increased as follows:
    • The $68.2 million notification threshold will increase to $70.9 million.
    • The $136.4 million notification threshold will increase to $141.8 million.
    • The $682.1 million notification threshold will increase to $709.1 million.
    • The 25 percent notification threshold, currently applicable to acquisitions of stock valued in excess of $1,364.1 million, will now apply to acquisitions of stock valued in excess of $1,418.1 million.
    • The 50 percent notification threshold remains unchanged.
  • The foreign commerce exemption thresholds, currently $68.2 million and $150.1 million, will increase to $70.9 million and $156.0 million, respectively. Under the revised thresholds,
    • Acquisitions of voting securities of a foreign issuer by a U.S. person are exempt unless the foreign issuer either: (i) holds assets in the United States valued in excess of $70.9 million (currently $68.2 million), or (ii) made sales in or into the United States in excess of $70.9 million (currently $68.2 million) in the last fiscal year.
    • Acquisitions of voting securities by a foreign person are exempt unless the transaction confers control over the issuer and the foregoing thresholds are met.
    • Acquisitions of foreign assets are exempt if the assets did not generate sales in or into the United States in excess of $70.9 million (currently $68.2 million) in the last fiscal year.
    • Acquisitions by a foreign person of either (a) voting securities of a foreign issuer where control is conferred, or (b) foreign assets, are also exempt if: (i) the aggregate total sales of both the acquiring person and the acquired person in or into the United States are less than $156.0 million (currently $150.1 million) in the last fiscal year; (ii) the aggregate total assets of the acquiring person and acquired person in the United States are less than $156.0 million (currently $150.1 million); and (iii) the value of the transaction does not exceed $283.6 million (currently $272.8 million).
  • The filing fee thresholds, currently $68.2 million, $136.4 million and $682.1 million, will increase to $70.9 million, $141.8 million, and $709.1 million, respectively. The filing fees themselves – of $45,000, $125,000, and $280,000 – will not change.


1 Pursuant to the 2000 Amendments to the HSR Act, annual adjustments to the notification thresholds are made based on an index that is tied to changes in the U.S. gross national product for each fiscal year.

2 Transactions that are not subject to the HSR Act reporting requirements are still subject to the substantive antitrust laws (principally, Section 7 of the Clayton Act) and may still be investigated by the Federal Trade Commission, the Antitrust Division of the Department of Justice, or state attorneys general. The federal agencies, in particular, have been quite active in investigating and seeking antitrust enforcement actions relating to non-reportable transactions raising competitive concerns, including those involving consummated transactions.

3 The HSR Act's reference to "size-of-transaction" is a misnomer. Because the HSR Act considers the aggregate holdings resulting from a transaction, the threshold may be crossed even if the transaction itself is less than the "size-of-transaction" threshold.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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