Februar 01. 2023

FTC Announces New Hart-Scott-Rodino Act Thresholds

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On January 26, 2023, the US Federal Trade Commission (FTC) published its annual update to the Hart-Scott-Rodino (HSR) Act thresholds in the Federal Register. Significantly, the FTC also announced a new filing fee structure with fees for transactions valued in excess of approximately $1 billion being increased from $280,000 to a maximum of $2.25 million for transactions valued at $5 billion or more.

The HSR Act governs those deals that must be reported to the FTC and the US Department of Justice prior to being consummated.1

Pursuant to the new thresholds, a transaction will be reportable if:

  • The transaction value is greater than $445.5 million (previously $403.9 million); OR
  • (a) The transaction value is greater than $111.4 million (previously $101 million); AND (b) one party has net sales or total assets of $22.3 million or more (previously $20.2 million); AND (c) a second party has net sales or total assets of $222.7 million or more (previously $202 million).

The revised thresholds will apply to transactions consummated on or after February 27, 2023.

HSR Act thresholds are tied to gross national product (GNP). The 2023 HSR reporting thresholds represent an increase of approximately 10.30% over the 2022 thresholds.

The number of filings declined by approximately 40% in 2022, to 2,496 from 4,130 in 2021.2

The new HSR filing fee structure and new fee thresholds, which also take effect February 27, were required under Division GG of the 2023 Consolidated Appropriations Act.3 As in the past, the new fees are keyed to the value of the transaction and HSR Act thresholds, but with reduced fees for lower value transactions and much higher fees for higher value transactions, as follows:

Transaction Value (2023) Filing Fee (2023)
More than $111.4 million but less than $161.5 million $30,000 (previously transactions valued at more than $101 million but less than $202 million were subject to a $45,000 filing fee)
$161.5 million or more but less than $500 million $100,000 (previously transactions valued at more than $101 million but less than $202 million were subject to a $45,000 filing fee, and transactions valued at $202 million or more but less than $1.0098 billion were subject to a $125,000 filing fee)
$500 million or more but less than $1 billion $250,000 (previously transactions value at $202 million or more but less than $1.0098 billion were subject to a $125,000 filing fee)
$1 billion or more but less than $2 billion $400,000 (previously transactions valued $202 million or more but less than $1.0098 billion were subject to a $125,000 filing fee, and transactions valued at $1.0098 billion or more were subject to a $280,000 filing fee)
$2 billion or more but less than $5 billion $800,000 (previously transactions valued at $1.0098 billion or more were subject to a $280,000 filing fee)
$5 billion or more $2.25 million (previously transactions valued at $1.0098 billion or more were subject to a $280,000 filing fee)

 

Updates also were published in the January 26 Federal Register notice for certain HSR exemptions. In addition, updates were published for thresholds for Interlocking Directorates under Section 8 of the Clayton Act (published in the Federal Register and effective on January 20, 2023) and for penalties for violations of the HSR Act (maximum penalty increased to $50,120 per day) (published in the Federal Register and effective on January 11, 2023).

To help navigate the complex HSR Act rules, Mayer Brown has created an interactive presentation that provides quick and practical HSR guidance. Based on current 2023 FTC thresholds, this presentation allows you to choose the criteria that best apply to your organization or transaction and then takes you through a basic analysis of whether an HSR Act filing is necessary.

The FTC’s Federal Register notice and a complete list of all HSR threshold adjustments can be found on the FTC’s website.

Access the Mayer Brown Presentation

(If accessing the presentation in Internet Explorer, please save the file first before viewing.)

 


 

1 Hart-Scott-Rodino Antitrust Improvements Act of 1976.

2 See “HSR Transactions by Month,” https://www.ftc.gov/enforcement/premerger-notification-program (showing number of reported HSR transactions for each month in 2022 and 2021).

3 Public Law 117-328, 136 Stat. 4459.

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