The U.S. Federal Trade Commission (FTC) has announced its annual revisions to the notification and filing fee thresholds of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act).

The HSR Act is an antitrust statute that authorizes the FTC and the Antitrust Division of the Department of Justice (DOJ) to evaluate the potential anticompetitive effects of certain merger and acquisition transactions. The HSR Act requires the parties contemplating mergers or acquisitions that meet or exceed jurisdictional thresholds to: a) provide information to the FTC and DOJ regarding the acquisition and the parties' business operations; and b) await the expiration of a statutory waiting period before completing the proposed transaction.

The availability of early termination of the HSR waiting period has been suspended since March 2020.

New HSR thresholds

The following table lists the original, current and revised HSR thresholds1. The new thresholds are effective February 25, 2023.

2022

2023

Original threshold

Current threshold

New threshold

$10 million

$20.2 million

$22.3 million

$50 million

$101 million

$111.4 million

$100 million

$202 million

$222.7 million

$110 million

$222.2 million

$245 million

$200 million

$403.9 million

$445.5 million

Under the revised thresholds, an acquisition may be subject to the notification and waiting period requirements of the HSR Act if, as a result of the transaction, the acquiring person will hold assets, voting securities, or non-corporate interests with a value in excess of $111.4 million (the size-of-transaction test) and the parties to the transaction have total assets or annual net sales in excess of $222.7 million and $22.3 million, respectively (the size-of-person test).

The size-of-person test does not apply to transactions involving the acquisition of assets, voting securities or non-corporate interests valued in excess of $445.5 million.

HSR filing fees

Earlier this year, we discussed the FTC's new structure for HSR filing fees, introducing lower fees for smaller transactions while substantially increasing fees for higher-value transactions. The new filing fees, effective February 25, 2023, are shown below:

Transaction size

Filing fee

Greater than $101 million but less than $161.5 million

$30,000

$161.5 million or greater but less than $500 million

$100,000

$500 million or greater but less than $1 billion

$250,000

$1 billion or greater but less than $2 billion

$400,000

$2 billion or greater but less than $5 billion

$800,000

$5 billion or greater

$2,250,000

The FTC also announced its adjustments to civil penalty amounts earlier this year, which includes an increase in the maximum penalty for failure to file a Notification and Report Form when required by the HSR Act of up to $50,120 per day of non-compliance, effective as of January 11, 2023.

Footnote

1. All monetary values are in U.S. dollars. The FTC's guidelines for converting foreign currency can be found here.

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