The U.S. Federal Trade Commission (FTC) has announced its annual revisions to the notification and filing fee thresholds of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). The HSR Act is an antitrust statute that authorizes the FTC and the Antitrust Division of the Department of Justice (DOJ) to evaluate the potential anticompetitive effects of certain merger and acquisition transactions. The HSR Act requires the parties contemplating mergers or acquisitions that meet or exceed jurisdictional thresholds to: a) provide information to the FTC and DOJ regarding the acquisition and the parties' business operations; and b) await the expiration or early termination of a statutory waiting period before completing the proposed transaction. A "temporary suspension", since February 4, 2021, of the availability of early termination remains in effect.
The FTC is required to revise jurisdictional thresholds based on gross domestic product. In 2021, the HSR Act thresholds decreased from the previous year, for only the second time since 1976. In a reversal, the 2022 new thresholds represent more than 9% increase above 2021 thresholds.
New HSR thresholds
The following table lists the original, current and revised HSR thresholds1. The new thresholds are effective February 23, 2022.
|
|
2021 |
2022 |
|
Original threshold |
Current threshold |
New threshold |
|
$10 million |
$18.4 million |
$20.2 million |
|
$50 million |
$92 million |
$101 million |
|
$100 million |
$184 million |
$202 million |
|
$110 million |
$202.4 million |
$222.2 million |
|
$200 million |
$368 million |
$403.9 million |
Under the revised thresholds, an acquisition may be subject to the notification and waiting period requirements of the HSR Act if, as a result of the transaction, the acquiring person will hold assets, voting securities, or non-corporate interests with a value in excess of $101 million (size-of-transaction test) and the parties to the transaction have total assets or annual net sales in excess of $20.2 million and $202 million, respectively (size-of-person test).
The size-of-person test does not apply to transactions involving the acquisition of assets, voting securities or non-corporate interests valued in excess of $403.9 million.
Below is an updated schedule of HSR filing fees for 2022. Only the transaction-size thresholds have changed, not the filing fee amounts.
|
Transaction size |
Filing fee |
|
Greater than $101 million but less than $202 million |
$45,000 |
|
$202 million or greater but less than $1.0098 billion |
$125,000 |
|
$1.0098 billion or greater |
$280,000 |
The FTC previously announced an increase in the maximum penalty for failure to file a Notification and Report Form when required by the HSR Act of up to $46,517 per day of non-compliance.
Footnote
1 All monetary values are in U.S. dollars. The FTC's guidelines for converting foreign currency can be found here.
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