HSR Notification Thresholds Decrease in 2021

By Bruce D. Sokler, Robert G. Kidwell, Farrah Short

Lower jurisdictional thresholds for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”), as amended, are scheduled to be published by the Federal Trade Commission (“FTC”) tomorrow. The FTC revises the thresholds annually based on changes in the gross national product. The new thresholds will be effective 30 days after publication, and will apply to all transactions closing on or after that date.

Revised HSR Thresholds

A transaction is reportable if:

Size of Transaction Threshold

The acquiring person will hold, as a result of the transaction, an aggregate total amount of voting securities and assets of the acquired person valued in excess of $368 million;

or

The acquiring person will hold, as a result of the transaction, an aggregate total amount of voting securities and assets of the acquired person valued in excess of $92 million, AND the Size of Person thresholds below are met.

Size of Person Threshold

Either the acquiring or the acquired person has at least $18.4 million in total assets (or annual net sales if that party is engaged in manufacturing), and the other person has at least $184 million in total assets or annual net sales.

The HSR Act requires parties engaged in certain transactions (including mergers, joint ventures, exclusive licensing deals, and acquisitions of voting securities, assets or non-corporate interests) to file an HSR notification and report form with the FTC and the Antitrust Division of the Department of Justice, and to observe the statutorily prescribed waiting period (usually 30 days, or 15 days in the case of cash tender offers and bankruptcy) prior to closing, if the parties meet the “Size of Transaction” and “Size of Person” thresholds (absent any applicable exemptions).

No Change to Filing Fees; Fee Thresholds Revised

Filing fees for the premerger notification remain unchanged, but the FTC has revised the thresholds used to determine the applicable fees. Under the revised thresholds, the filing fees are as follows:

Filing Fee

New Filing Fee Thresholds

$45,000

For acquisitions valued at $92 million or more up to $184 million.

$125,000

For acquisitions valued at $184 million or more up to $919.9 million.

$280,000

For acquisitions valued at $919.9 million or more.

Civil Penalties for HSR Act Violations Increased

The HSR Act provides that any person who fails to comply with any provision of the HSR Act may be subject to a civil penalty for each day during which such person is in violation. The maximum civil penalty for violations of the HSR Act increased this year to $43,792 per day.

Feel free to contact any of the attorneys listed above for further information on this or any HSR-related question. We would be pleased to assist you with any concerns you may have.

 

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    Increased HSR Notification Thresholds for 2022

    January 24, 2022| Alert|

    Authors

    Bruce D. Sokler

    Member / Co-chair, Antitrust Practice

    Bruce D. Sokler is a Mintz antitrust attorney. His antitrust experience includes litigation, class actions, government merger reviews and investigations, and cartel-related issues. Bruce focuses on the health care, communications, and retail industries, from start-ups to Fortune 100 companies.

    Robert G. Kidwell

    Member

    Robert G. Kidwell is a Mintz attorney who counsels clients on business strategies, regulatory matters, policymaking and lobbying, compliance issues, privacy, and litigation. He defends clients in class action and competitor litigation, and guides transactions through merger reviews.

    Farrah Short