March 23, 2023

Volume XIII, Number 82


March 22, 2023

Subscribe to Latest Legal News and Analysis

March 21, 2023

Subscribe to Latest Legal News and Analysis

March 20, 2023

Subscribe to Latest Legal News and Analysis

FTC Announces 2023 Increase in HSR Notification Thresholds and Effective Date for Increased Filing Fees

The Federal Trade Commission (FTC) has announced the annual revisions to the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) thresholds, which will become effective on Monday, February 27, 2023.  The revised thresholds will apply to any merger or acquisition closing on or after the effective date.  The FTC is required to adjust the HSR thresholds annually based upon the change in gross national product.  This year, the change in the “size of transaction” threshold again has increased approximately 10 percent, from $101 million to $111.4 million. Additionally, and perhaps of even greater significance, the thresholds notice includes an effective date for the new HSR filing fees resulting from the recent passage of the Merger Filing Fee Modernization Act.  The new fees also will become effective on February 27, 2023. 

Under the HSR Act, when a deal satisfies the “size of person” and “size of transaction” thresholds, and no exemption from reporting is available, the deal must be reported to the FTC and the U.S. Department of Justice and the parties must wait for a designated period of time before closing the transaction.

Size of Person.  The revised size of person thresholds will generally be met if one party involved in the deal has assets or annual sales totaling $222.7 million or more and one other party involved in the deal has assets or annual sales of at least $22.3 million.  Satisfaction of the size of person thresholds is not required, however, if the transaction is valued at more than $445.5 million.

Size of Transaction.  The revised size of transaction threshold will be met if the buyer will hold an aggregate amount of stock, non-corporate interests and/or assets of the seller valued at more than $111.4 million as a result of the deal.  

The notification thresholds applicable to purchases of voting securities will increase as follows:

February 1, 2001 Thresholds (Original)

Current Thresholds as of February 23, 2022

New Thresholds Effective   February 27, 2023

$50 million

$101 million

$111.4 million

$100 million

$202 million

$222.7 million

$500 million

$1.0098 billion

$1.1137 billion

25% if worth more than $1 billion

25% if worth more than $2.0196 billion

25% if worth more than $2.2274 billion

50% if worth more than $50 million

50% if worth more than $101 million

50% if worth more than $111.4 million

The thresholds applicable to many exemptions, including those governing foreign acquisitions, also will increase.  However, the $500 million threshold applicable to acquisitions of producing oil and gas reserves and associated assets will not change.

The civil penalty for failing to comply with the notification and waiting period requirements of the HSR Act has also increased to up to $50,120 per day for each day a party is in violation. 

© 2023 Bracewell LLPNational Law Review, Volume XIII, Number 26

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.