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.
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+|
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.
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.