Antitrust Law Source


Episode 57
Capper Volstead: Past, present and future – Part 3

In Part 3 of their Capper Volstead series, Jay Levine and Don Barnes discuss other statutes that exempt agricultural cooperatives from antitrust liability and delve into the historical and present relationship that USDA and DOJ have with the Capper Volstead Act.


Read a transcript of the episode here.

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Episode 56
Capper Volstead: Past, present and future – Part 2

In Part 2 of their Capper Volstead series, Jay Levine and Don Barnes continue to discuss the need for the Capper Volstead Act and its key elements. Specifically, the team dives in to discuss why the Act was required and preview some of the ongoing issues with its application.

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Episode 55
Capper Volstead: Past, present and future – Part 1

In a belated tribute to Capper Volstead’s 100th anniversary, Jay Levine talks with his legal partner Don Barnes, one of the deans of the agricultural bar and an authority on Capper Volstead. In Part 1 of their discussion, they review the origins of Capper Volstead and how the legal landscape for agricultural producers has changed over time. Continue Reading


FTC issues HSR revisions… with a surprise

A lot of 100 dollar bills spread out

On Jan. 23, 2023, the FTC announced annual changes to notification thresholds for filings under the Hart-Scott-Rodino Antitrust Improvements Act and certain other values under HSR rules. But this time, the annual changes include a radically different tier structure with much heftier filing fees.

The new thresholds become effective in late February. Companies should review the new changes to ensure they comply with the HSR Act for their 2023 transactions.

The HSR Act requires that acquisitions of voting securities or assets that exceed certain thresholds be disclosed to U.S. antitrust authorities for review before they can be completed. The “size-of-transaction threshold” requires that the transaction exceeds a certain value. Under certain circumstances, the parties involved also have to exceed “size-of-person thresholds.” This year’s thresholds, which are adjusted annually based on changes in the gross national product, will increase from 2022 thresholds, reflecting the economy’s growth from the previous year. The FTC also adjusted the safe harbor thresholds that govern interlocking directorates in competing companies.

HSR revisions

The most important change is that the minimum size-of-transaction threshold will increase from the current $101 million to $111.4 million. The size-of-person thresholds will increase as follows:

  • For transactions valued between $111.4 million and $445.5 million, one party to the transaction must have $22.3 million in sales or assets and the other party must have $222.7 million in sales or assets, as reported on the last regularly prepared balance sheet or income statement.
  • For transactions valued at greater than $445.5 million, no size-of-person threshold must be met to require an HSR filing.

The filing fee and their thresholds have changed, and increased, significantly. Instead of a three-tier fee structure, the FTC now moves to a six-tier structure, as follows:

Filing Fee Transaction Value
$30,000 Less than $161.5 million
$100,000 $161.5 million to less than $500 million
$250,000 $500 million to less than $1 billion
$400,000 $1 billion to less than $2 billion
$800,000 $2 billion to less than $5 billion
$2.25 million $5 billion+


Interlocking directorates

Section 8 of the Clayton Act generally prohibits one person from serving as a director or officer of two competing corporations if two thresholds are met. One relates to the companies’ profitability and one relates to the amount of competitive sales between the companies. The statute requires the FTC to revise these thresholds annually, also based on changes to the GNP. Effective immediately, only companies with capital, surplus and undivided profits aggregating more than $45,257,000 are covered by Section 8. A violation can be found only if the competitive sales of each company are $4,525,700 or greater. 

Civil penalties

Earlier, the FTC also announced that the maximum civil penalty for violations of many of the provisions of the FTC Act, and for violations of the HSR Act, increased from $46,517 to $50,120. Company leaders should consider a thorough review of the latest FTC changes to HSR and interlocking directorate thresholds, and discuss revisions with their legal counsel, to ensure they will not be in violation.

Has Axon dealt another blow to FTC authority?

Last year, the Supreme Court unanimously ruled that the Federal Trade Commission (FTC) is not authorized to impose civil penalties on parties who violate the FTC Act unless the party is violating a previous cease and order. The ruling took away a major enforcement tool. Now, Axon Enterprises is seeking to attack the entire structure of the FTC while it simultaneously defends its acquisition of VieVu, LLC in administrative court. Continue Reading

Another major Hart-Scott-Rodino warning from the FTC

Two recent Federal Trade Commission (FTC) actions confirm the Hart-Scott-Rodino Act (HSR) is not to be ignored. On Dec. 22, the FTC fined both Biglari Holdings and the founder of Werner Enterprises for failure to file with the FTC and the Department of Justice (DOJ) before consummating significant acquisitions of related entities. Continue Reading