On January 22, 2024, the Federal Trade Commission (FTC) announced revised filing fees and jurisdictional thresholds for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR). The revisions increase the lowest "size-of-transaction" threshold at which HSR filings may be required from the current US$111.4 million to US$119.5 million.
Under the HSR Act, the FTC and Department of Justice (DOJ) must be notified before mergers, acquisitions and other transactions that meet certain monetary thresholds are consummated. Once notification is filed, the parties must observe a 30-day waiting period to allow the agencies to review the transaction for possible violation of antitrust laws.
Revised Jurisdictional Thresholds
Section 7A(a)(2) of the Clayton Act requires the FTC to annually revise the jurisdictional thresholds and other thresholds and limitations in the HSR rules according to changes in gross national product. The new thresholds will take etfect 30 days after the date of publication in the Federal Register, which is expected in the coming days. The thresholds will apply to transactions that will close on or after that date.
The updated jurisdictional thresholds are as follows:
|
Original Threshold |
Current Adjusted Threshold |
New Adjusted Threshold |
|
US$10 million |
US$22.3 million |
US$23.9 million |
|
US$50 million |
US$111.4 million |
US$119.5 million |
|
US$100 million |
US$222.7 million |
US$239 million |
|
US$110 million |
US$245 million |
US$262.9 million |
|
US$200 million |
US$445.5 million |
US$478 million |
|
US$500 million |
US$1.1137 billion |
US$1.195 billion |
|
US$1 billion |
US$2.2274 billion |
US$2.39 billion |
Revised Filing Fees and Filing Fee Thresholds
In addition, Section 605 of Public Law 101-162, as amended through the 2023 Consolidated Appropriations Act enacted on December 29, 2022, requires the FTC to assess and collect filings fees from persons acquiring voting securities or assets who are required to notify the government pursuant to the HSR Act. The Merger Filing Fee Modernization Act of 2022, or Division GG of the 2023 Consolidated Appropriations Act, requires the FTC to annually adjust the filing fee thresholds to reflect the percentage change in the gross national product. The Merger Filing Fee Modernization Act also requires the FTC to annually adjust the filing fee amounts to reflect any percentage increase in the Consumer Price Index as determined by the Department of Labor.
The updated filing fees and filing fee thresholds will take etfect 30 days after the date of publication in the Federal Register and are as follows:
|
Original Transaction Value |
Original Filing Fee |
Adjusted Transaction Value |
Adjusted Filing Fee |
|
At or more than US$111.4 million but less than US$161.5 million |
US$30,000 |
At or more than US$119.5 million but less than US$173.3 million |
US$30,000 |
|
At or more than US$161.5 million but less than US$500 million |
US$100,000 |
At or more than US$173.3 million but less than US$536.5 million |
US$105,000 |
|
At or more than US$500 million but less than US$1 billion |
US$250,000 |
At or more than US$536.5 million but less than US$1.073 billion |
US$260,000 |
|
At or more than US$1 billion but less than US$2 billion |
US$400,000 |
At or more than US$1.073 billion but less than US$2.146 billion |
US$415,000 |
|
At or more than US$2 billion but less than US$5 billion |
US$800,000 |
At or more than US$2.146 billion but less than US$5.365 billion |
US$830,000 |
|
Greater than US$5 billion |
US$2.25 million |
Greater than US$5.365 billion |
US$2.335 million |
Adjustments to Interlocking Directorate Thresholds
On January 12, 2024, the FTC also announced annual adjustments to thresholds under Section 8 of the Clayton Act, which generally prohibits persons from serving as a director or officer of two competing corporations (so-called "interlocking directorates") if each corporation is of a certain minimum size. Under the thresholds required by a 1990 amendment to the Act, interlocking directorates will be prohibited where (i) each competing corporation has capital, surplus and undivided profits of more than US$48,559,000 (increased from US$45,257,000), and (ii) neither corporation has competitive sales less than US$4,855,900 (increased from US$4,525,700). These new monetary thresholds were published in the Federal Register on January 22, 2024, and take etfect immediately.
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