March 28, 2023

Volume XIII, Number 87


March 27, 2023

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Congress Enacts Major Overhaul to HSR Filing Fees for M&A Deals

On December 29, 2022, President Biden signed into law The Consolidated Appropriations Act of 2023 (also known as The Omnibus Appropriations Bill), which includes the Merger Filing Fee Modernization Act.  The Merger Filing Fee Modernization Act, which marks the most significant change to HSR filing fees in over twenty years, increases the HSR filing fees for many larger transactions, with the highest filing fee reaching $2.25 million for any transaction valued at $5 billion or more.  The increase in fees is expected to significantly bolster the resources of the Federal Trade Commission and the U.S. Department of Justice to investigate and pursue alleged violations of the federal antitrust laws.

Though the changes under the Merger Filing Fee Modernization Act will result in a decrease in filing fees for smaller deals, the increase in fees is significant for deals valued at $500 million and above.  Currently, the HSR filing fees are as follows:

Value of Transaction

Current HSR Filing Fee

At or above $101 million but less than $202 million


At or above $202 million but less than $1,009.8 million


At or above $1,009.8 million


The new HSR filing fees under the Merger Filing Fee Modernization Act will be:

Value of Transaction

New HSR Filing Fee

At or above $101 million but less than $161.5 million


At or above $161.5 million but less than $500 million


At or above $500 million but less than $1 billion


At or above $1 billion but less than $2 billion


At or above $2 billion but less than $5 billion


$5 billion or more

$2.25 million

These changes are expected to take effect in 2023 (an exact date has not yet been announced). Both the fees and the transaction value thresholds will be adjusted annually based on changes in the Consumer Price Index.

Under the HSR Rules, the acquiring party is required to pay the entire filing fee unless the parties agree otherwise.  Given the imminent changes to the HSR filing fees, transaction parties, particularly in larger deals, should carefully consider HSR filing fee provisions in deal negotiations moving forward.  Additionally, parties and their antitrust counsel should thoroughly analyze whether any portion of a transaction is exempt from HSR reportability, as this determination could significantly affect the size of the filing fee.

Also of note, the spending package incorporates two other significant antitrust-related changes: (i) barring defendants from transferring lawsuits brought by state antitrust authorities to more favorable venues, and (ii) making foreign interests in transactions more transparent by requiring companies seeking merger clearance under the HSR Act to disclose all subsidies from any “foreign entity of concern," including entities controlled by China, Iran, North Korea and Russia.  

© 2023 Bracewell LLPNational Law Review, Volume XIII, Number 5

About this Author

Daniel Hemli Trade & Antitrust Litigation Attorney Bracewell law firm

Daniel Hemli advises clients on antitrust issues relating to mergers, acquisitions and joint ventures, and advocacy before federal, state and foreign antitrust authorities. He has represented parties in connection with investigations of numerous national and multinational acquisitions and joint venture transactions across a broad range of industries, including oil and gas, electric power, pharmaceuticals, medical devices, technology and software, chemicals, financial services, commercial and industrial equipment, consumer goods, media, and agriculture. He has advised on...

Jacqueline Java, Antitrust, Attorney, Bracewell law firm

Jacqueline (Jackie) Java focuses her practice on antitrust counseling. She advises clients involved in transactions and day-to-day operations that raise antitrust issues regarding interactions among competitors, the formation of joint ventures, distribution and pricing policies and programs, information exchanges, and allegations of price fixing, market allocation, and other anticompetitive practices. She is particularly experienced in managing complex relationships in industries where companies simultaneously act as competitors, customers and collaborators.