Washington, D.C. (February 10, 2020) - The Federal Trade Commission (FTC) recently announced the annual revisions to the jurisdictional thresholds applicable to the Hart Scott Rodino Antitrust Improvements Act of 1976 (HSR Act) pre-merger notification program and to Section 8 of the Clayton Act which prohibits certain interlocking directorates.
Revised HSR Filing Thresholds
The HSR Act requires that parties notify the FTC and DOJ about a transaction with a value at the time of closing which meets or exceeds certain thresholds. Beginning February 27, the thresholds apply to:
- Transactions valued in excess
of $94 million but less
than $376 million where one party holds
assets or has annual net sales
of $188 million and the
other party holds assets or has annual net sales
of $18.8 million.
- Transactions valued in excess of $376 million are reportable notwithstanding “size of the persons.”
Per Transaction Filing Fees Remain at 2019 Levels
- $45,000 for transactions valued in excess of $94 million but less than $188 million.
- $125,000 for transactions valued in excess of $188 million but less than $940.1 million.
- $280,000 for transactions valued at $940.1 million or greater.
Revised Civil Penalty for Failure to File HSR Notification
The civil penalty for failing to file an HSR notification when required to do so is now $43,280 per day.
Revised Thresholds for Interlocking Directorates Prohibited by Section 8 of the Clayton Act
Section 8 of the Clayton Act prohibits any person from holding positions as an officer or director of competing corporations engaged in commerce. This provision is particularly relevant to individuals at private equity firms who, in the course of his/her duties, is an officer or director of several entities. Section 8 applies where:
- Each competing corporation has capital, surplus and undivided profits aggregating more than $38,204,000, and
- Competitive sales of either corporation are more than $3,820,400.
There are safe harbors which are based on calculating the competitive sales as a percentage of the corporation’s total sales.
The new Section 8 thresholds went into effect on January 21, 2020.
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