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FTC Raises Hart­-Scott­-Rodino Thresholds - Federal Trade Commission

Transactions that close toward the end of February will be subject to increased HSR Act jurisdictional and filing fee thresholds.

On January 15, the Federal Trade Commission (FTC) announced that it will raise the Hart­-Scott­-Rodino Act (HSR Act) jurisdictional and filing fee thresholds.[1] Any transaction that closes on or after the notice’s effective date (30 days after the pending publication in the Federal Register) will be subject to the revised thresholds. The new rules include an increase in the “size of transaction” test from transactions valued at greater than $75.9 million to transactions valued at greater than $76.3 million—which means that, under the new threshold, acquisitions valued for HSR Act purposes at $76.3 million or less will not require pre-closing filing and approval.

New Jurisdictional Thresholds

As a general rule, the HSR Act requires both “Acquiring Persons” and “Acquired Persons” (as defined in the HSR Act) to file notifications if the following post-adjustment jurisdictional thresholds are met:

  1. One person has net sales or total assets of at least $15.3 million.

  2. The other person has net sales or total assets of at least $152.5 million.

  3. As a result of the transaction, the Acquiring Person will hold an aggregate amount of stock and assets of the Acquired Person valued at more than $76.3 million.
    or

  4. As a result of the transaction, the Acquiring Person will hold an aggregate amount of stock and assets of the Acquired Person valued at more than $305.1 million, regardless of the sales or assets of the Acquiring and Acquired Persons.

Conditions 1 and 2 are generally referred to as the “size of person” test, and conditions 3 and 4 are commonly described as the “size of transaction” test.

The HSR Act rules that relate to acquisitions of partnership interests and membership interests in a limited liability company (LLC) remain the same. Only acquisitions of economic control in an LLC or partnership may be reportable. “Control” is defined as having a right to 50% or more of the profits of a partnership or LLC or 50% or more of the assets upon the dissolution of such an entity.

New Filing Fee Thresholds

Filing fees are also determined by a threshold test that relates to the size of the transaction. Although the valuation thresholds have changed, the fees themselves have not been adjusted:

Valuation of Transaction

Filing Fee

In excess of $76.3 million or greater, but less than $152.5 million

$45,000

$152.5 million or greater, but less than $762.7 million

$125,000

$762.7 million or greater

$280,000

The table above represents the new “as adjusted” threshold figures. The table below illustrates the changes.

Current Threshold (in millions)

“As Adjusted” Threshold (in millions)

$15.2

$15.3

$75.9

$76.3

$151.7

$152.5

$303.4

$305.1

$758.6

$762.7

These changes are being implemented pursuant to the 2000 amendments to section 7A(a)(2) of the Clayton Antitrust Act, which requires the FTC to revise the jurisdictional thresholds annually, based on the change in gross national product, in accordance with section 8(a)(5). The revised thresholds will apply to all transactions that close on or after the effective date.


[1]. Read the FTC’s announcement here.

Copyright © 2023 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume V, Number 16
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About this Author

Harry Robins, Morgan Lewis, antitrust lawyer
Partner

Representing Fortune 250 companies, leading private equity sponsors, and other prominent privately held clients, Harry T. Robins advises on mergers and acquisitions (M&A), and joint venture transactions before the US Federal Trade Commission (FTC), the US Department of Justice (DOJ), state Attorneys General, and international regulatory agencies. Harry heads Morgan Lewis’ transactional antitrust practice. He also has defended numerous clients in litigated antitrust cases and in government investigations.

212-309-6728
David Breeneman, Joint Venture Attorney, Morgan Lewis
Partner

David R. Brenneman represents clients primarily in mergers, acquisitions, joint ventures, and civil antitrust litigation. In the merger process, David works on premerger notification under the Hart-Scott-Rodino Act, international merger control, merger investigations, second requests, and compliance with consent orders. David represents pharmaceutical, chemical, and financial services clients before the Federal Trade Commission and US Department of Justice, and he coordinates filings for multimillion- and multibillion-dollar transactions worldwide. David is a member of...

202.739.5056
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