February 8, 2023

Volume XIII, Number 39

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February 06, 2023

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Merger Notification Thresholds and Filing Fees to Increase

The Federal Trade Commission (FTC) announced on January 23, 2023, the implementation of increased thresholds for merger notifications under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) as well as increased filing fees for reportable transactions.

Notification Threshold Increases

Pursuant to the HSR Act, all transactions which meet or exceed the jurisdictional thresholds, and which do not satisfy an exemption, must be notified to the FTC and Department of Justice (DOJ) through an HSR filing. The newly announced thresholds will apply to all transactions that close on or after the effective date. The effective date is 30 days after the notice is published in the Federal Register. We anticipate this will be in the last week of February.

The threshold changes are tied to changes in the gross national product (GNP).

  • The base statutory size-of-transaction threshold, the lowest threshold requiring notification, will increase to $111.4 million.

  • The upper statutory size-of-transaction test, encompassing all transactions valued above a certain size (regardless of the size-of-person test being met), will increase to $445.5 million.

  • The statutory size-of-person lower and upper thresholds (which apply to deals valued above $111.4 million but not above $445.5) will increase to $22.3 million and $222.7 million, respectively.

Merger Filing Fee Increases

The passage of the Merger Filing Fee Modernization Act on December 29, 2022, altered the filing fee thresholds as well as significantly increased the fees imposed on transacting parties when making an HSR filing in excess of $1 billion. Like the notification threshold increase, these filing fee adjustments will also take effect 30 days after publication in the Federal Register. We anticipate this will be in the last week of February and will provide an update when we have a date certain.

The new transaction thresholds and accompanying fees are provided in the table below:

As with the notification thresholds, the filing fee thresholds and fee amounts will now be subject to annual adjustment at the start of each year based on GNP for thresholds and consumer price index (CPI) for fee amounts.

© 2023 McDermott Will & EmeryNational Law Review, Volume XIII, Number 25
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About this Author

Graham J. Hyman Corporate Merger and Acquisition Attorney McDermott Will & Emery  Law Firm
Associate

Graham J. Hyman focuses his practice on antitrust and competition matters.

Graham’s prior experience includes drafting Series A issuance documents, bridge loans, employee stock option agreements, operating agreements for subsidiaries, antitrust control questions for M&A deals and letters of intent for joint ventures and mergers. He also advised on antitrust implications of potential business combinations based on market share. Additionally, Graham previously was a summer associate on the legal team leading the Flint, Michigan lead poisoning...

202 756 8487
Gregory E. Heltzer, Mergers and Acquisitions Lawyer, Antitrust Attorney, McDermott Will Emery, Law Firm
Partner

Gregory E. Heltzer is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm's Washington, D.C., office.  He focuses his practice on defending mergers and acquisitions before the Federal Trade Commission, Department of Justice, state antitrust authorities and foreign competition authorities.  In addition, his practice also includes complex antitrust litigation, government investigations and antitrust counseling (e.g., advising agricultural cooperatives on the requirements of the Capper Volstead Act).

Greg has experience in all three branches of...

202-756-8178
Counsel

Timothy (Ty) Carson advises clients on all facets of the merger review and clearance process, with a focus on compliance with the Hart-Scott-Rodino Act and related rules. His deep antitrust and competition experience includes six years at the Federal Trade Commission (FTC), where he advised on pre-merger notifications, investigations and several full-phase enforcement actions.

Drawing on this real-world agency insight, Ty helps clients propel their most significant transactions by securing merger clearances quickly and efficiently. He has represented clients in both litigation and...

202 756 8455
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