On January 24, 2022, the US Federal Trade Commission (FTC) published its annual update to the Hart-Scott-Rodino (HSR) Act thresholds in the Federal Register. 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 $403.9 million (previously $368 million); OR
- (a) The transaction value is greater than $101 million (previously $92 million); AND (b) one party has net sales or total assets of $20.2 million or more (previously $18.4 million); AND (c) a second party has net sales or total assets of $202 million or more (previously $184 million).
The revised thresholds will apply to transactions consummated on or after February 23, 2022.
HSR Act thresholds are tied to gross national product (GNP). The 2022 HSR reporting thresholds represent an increase of approximately 9.78% over the 2021 thresholds.
Mergers and acquisitions hit an all-time high in 2021. The number of filings increased 110% from 2020 to 2021.2 In November 2021, there were 607 reported transactions—a more than 40% increase over the 424 reported merger transactions in November 2020.3
HSR Act filing fees are keyed to the value of the transaction and HSR Act thresholds. Accordingly, the HSR Act filing fee tiers also will be revised as follows:
- Filing fee of $45,000 will apply to transactions valued at more than $101 million but less than $202 million (previously more than $92 million but less than $184 million).
- Filing fee of $125,000 will apply to transactions valued at $202 million or more but less than $1.0098 billion (previously $184 million or more but less than $919.9 million).
- Filing fee of $280,000 will apply to transactions valued at $1.0098 billion or more (previously $919.9 million or more).
Updates also were published for certain HSR exemptions and thresholds for Interlocking Directorates under Section 8 of the Clayton Act (published on January 24, 2022, in the Federal Register) and for penalties for violations of the HSR Act (published on January 5, 2022, in the Federal Register).
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 2022 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.
(If accessing the presentation in Internet Explorer, please save the file first before viewing.)
3 See “HSR Transactions by Month,” https://www.ftc.gov/enforcement/premerger-notification-program (showing number of reported HSR transactions for November 2021 and November 2020)