August 4, 2021

Volume XI, Number 216


August 03, 2021

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August 02, 2021

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Lowering the Bar: The FTC Lowers HSR Premerger Reporting Thresholds for the First Time in a Decade

On February 2, 2021, the FTC published its annual changes to the thresholds for determining whether certain transactions must be reported to FTC and DOJ under the Hart-Scott-Rodino Act before closing can occur.  

For the first time since 2010, the HSR thresholds for 2021 will be lower than the previous year’s. Filing thresholds under the HSR Act will decrease by approximately 2% for 2021, based on the change in the U.S. gross national product during 2020. 

The new thresholds are expected to apply to transactions that close on or after March 4, 2021.

Summary of the New Thresholds

  • The smaller size-of-transaction threshold will decrease from $94 million to $92 million. This threshold is measured by looking at the aggregate total value of the voting securities and assets of the acquired person that the acquiring person will hold as a result of the transaction.

  • The size-of-person thresholds will decrease from $188 million to $184 million and from $18.8 million to $18.4 million. The size-of-person test is measured by looking at a party’s total assets or annual net sales.  (For an acquired party not engaged in manufacturing, only total assets are considered.)  To satisfy this test, only one party must meet the $184 million threshold, so long as the other party meets the $18.4 million threshold. 

  • The larger size-of-transaction threshold, which can trigger a filing even if the size-of-person test is not met, will decrease from $376 million to $368 million.

 The filing fee levels will be adjusted as follows:

  • A $45,000 filing fee will be required for transactions valued in excess of $92 million but below $184 million;

  • A $125,000 filing fee will be required for transactions valued from $184 million but below $919.9 million; and

  • A $280,000 filing fee will be required for transactions valued at or above $919.9 million.

Once parties have submitted notification together with the required filing fees, they must also observe a waiting period before closing can occur (typically 30 days).


The new lower thresholds for 2021 are likely to expand the number of transactions that must be reported to the antitrust enforcement agencies under the HSR Act.  

Complex valuation and aggregation rules apply when assessing whether a particular threshold is met.  Parties should consult with antitrust counsel to determine whether a transaction is subject to the reporting requirements of the HSR Act.

The penalties for failure to observe the reporting requirements and waiting period under the HSR Act can be stiff. The maximum civil penalty for violations of the HSR Act increased this year to $43,792 per day.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XI, Number 34

About this Author

Mitchell D. Raup, Polsinelli, Merger Transactions Lawyer, Complex Antitrust Attorney

Mitchell Raup, vice-chair of Polsinelli’s Antitrust practice, has 30 years’ experience solving the most difficult antitrust problems. He has been lead antitrust counsel on dozens of health care M&A transactions involving hospitals, physician groups, provider networks, health insurers, pharmaceuticals, dialysis clinics, and group purchasing organizations. He regularly represents businesses and witnesses in antitrust investigations by the Federal Trade Commission, the Antitrust Division of the Department of Justice, and state attorneys general.

Herbert F. Allen, Polsinelli, Antitrust Litigation Lawyer, Complex Healthcare Compliance Attorney

Herb Allen finds inspiration helping clients tackle complex antitrust and litigation problems, both in the courtroom and before government enforcement agencies. He brings the perspective of a journalist to his practice, having worked for several years on the editorial staff of The New Yorker magazine. His experience includes:

  • Litigating complex antitrust and commercial ligation matters in a variety of industries, including pharmaceuticals and college athletics.

  • Defending proposed and...

Matthew Hans, Polsinelli Law Firm, St. Louis, Antitrust and Commercial Litigation Attorney

Matthew Hans enjoys solving tough problems. He serves clients by eliminating the obstacles preventing them from achieving their business goals. He uses his broad experience in antitrust law to help clients avoid problems in numerous competition issues including mergers, joint ventures, restraints of trade, exclusive dealer relationships, and other collaborations among competitors. Matthew also guides clients through the Hart-Scott-Rodino notification process and represents clients during Federal Trade Commission and Department of Justice investigations.

Alexa DiCunzolo Antitrust Lawyer Polsinelli

Alexa is an associate in the Antitrust practice and works with seasoned Polsinelli attorneys to address clients’ antitrust problems. She is dedicated to helping them solve issues related to antitrust lawsuits or investigations.  

Alexa previously served as a Polsinelli summer associate in the Washington D.C. office.