When Chinese investors are considering US targets, it is important to keep in mind the requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”). For deals meeting certain thresholds, the HSR Act requires the parties to submit HSR filings to FTC and DOJ, pay a filing fee, and wait 30 days before closing. The purpose of this is to permit FTC and DOJ to investigate the potential antitrust and competition issues before the transaction closes. Failure to make a filing and/or observe the 30-day waiting period can have severe consequences. Currently, the maximum civil penalty for noncompliance is $43,792 per day.

当中国投资者考虑美国投资目标时,需注意1976年《哈特-斯科特-罗迪诺反垄断改进法案》(“HSR法案”)的各项要求。对于那些符合特定标准的交易,HSR法案要求各方向联邦贸易委员会和司法部提交HSR申报材料、支付申报费,并在交割前等待30天。如此安排的目的是使得联邦贸易委员会和司法部能在交易交割前调查潜在的反垄断和竞争问题。不进行申报或不遵守30天的等待期将会产生严重后果。目前对不遵守规定者最高可处 每天43792美元的民事罚款。

In general, an HSR filing is required when a transaction meets the “size of transaction” and “size of persons” tests. The thresholds for these tests change annually. Currently, only deals valued at $92 million or more meet the size of transaction test; deals valued at less than $92 million are not reportable. For deals valued at $92 million or more, but less than $368 million, the size of persons test must also be satisfied. In general, this means that the ultimate parent entity of one party to the deal has at least $184 million in assets or annual sales, and the ultimate parent of the other party has at least $18.4 million in assets or annual sales. For deals valued at $368 million or more, the size of persons test does not apply.


The HSR landscape is changing rapidly. There have been more HSR filings this year than ever before, and the government is struggling to keep up. This year, there have been several important HSR developments, including:


  1. Suspension of early termination program. In February 2021, the FTC and DOJ suspended the “early termination” program, which has not been resumed. Previously, parties could request that the antitrust agencies terminate the HSR waiting period in less than 30 days, and the antitrust agencies had the discretion to grant “early termination” to deals posing no competitive concerns.


  1. FTC begins issuing close-at-your-own-risk letters. In August 2021, the FTC announced that when it runs out of time to fully investigate a deal before the end of the HSR waiting period, it may issue a letter informing the parties that the FTC may continue to investigate the deal after closing, and if the parties choose to close, they do so “at their own risk.”


  1. Payoff of debt benefitting a selling shareholder must now be included in size of transaction. In August 2021, the FTC announced that the payoff of debt should be included in the HSR size of transaction where a selling shareholder benefits from the payoff of debt.


  1. FTC study of 10 years of unreported big tech deals indicates additional HSR changes may be coming.  In September 2021, the FTC announced the results of a study of over 600 unreported big tech deals from 2010 to 2019, and FTC commissioners commented on the need to close “loopholes” in the HSR rules.

联邦贸易委员会对过去 10年未申报的大型科技交易有关的调查表明, HSR审查可能将会出现更多的变化。2021年9月,联邦贸易委员会公布了对2010年至2019年间600多宗未申报的大型科技交易的调查结果,联邦贸易委员会主席评论说有必要填补HSR审查规则的“漏洞”。

  1. FTC continues to enforce HSR rules against individual shareholders.  In September 2021, the FTC assessed a civil penalty of $637,950 against CEO for failing to file an HSR form before acquiring stock in his company through the vesting of performance stock units, serving as an important reminder to executives and individual shareholders that HSR requirements apply to them as well.

联邦贸易委员会将继续对个人股东 HSR审查规则的执法。2021年9月,联邦贸易委员会就公司的首席执行官通过绩效期权成熟从而购买其所在公司的股票前却未提交HSR申报的事实,判处637,950美元的民事罚款。这给广大高管和个人股东们敲响了警钟:HSR审查要求对于他们也一样适用。

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