On December 29, 2022, the President signed into law H.R. 2617, the Consolidated Appropriations Act, 2023, which includes the Merger Filing Fee Modernization Act of 2022. The Merger Filing Fee Modernization Act revises the Hart-Scott-Rodino Act premerger notification filing fees which have not been adjusted for inflation since 2001. Under the new law, HSR filing fees for the largest transactions will increase significantly to $2.25 million, nearly 10 times the current fee of $280,000.
The HSR filing fees will increase dramatically for deals valued at $500 million or more, ranging from $250,000 to $2.25 million.
The filing fees for larger deals of $500 million or more will increase significantly. For transactions valued at $500 million to less than $1 billion, the fee will double from $125,000 to $250,000; for transactions valued at $1 billion to less than $2 billion, the fee will increase from $280,000 to $400,000; for transactions valued at $2 billion to less than $5 billion, the fee will increase from $280,000 to $800,000; and for transactions valued at $5 billion or more, the fee will increase nearly ten-fold, from $280,000 to $2.25 million.
The HSR filing fees will decrease modestly for deals valued below $500 million, ranging from $30,000 to $100,000.
The filing fees for smaller deals of less than $500 million will generally decrease. For transactions valued between $101 million and $161.5 million, the fee will be $30,000; for transactions valued at $161.5 million to less than $500 million, the fee will be $100,000.
A complete list of the revised filing fees is set out below.
|
TRANSACTION VALUES |
FILING FEE |
|
Greater than $101 million but less than $161.5 million |
$30,000 |
|
At least $161.5 million but less than $500 million |
$100,000 |
|
At least $500 million but less than $1 billion |
$250,000 |
|
At least $1 billion but less than $2 billion |
$400,000 |
|
At least $2 billion but less than $5 billion |
$800,000 |
|
$5 billion or more |
$2,250,000 |
The new HSR filing fees will be adjusted annually, each fiscal year commencing after September 30, 2023, based on changes in the consumer price index. The new law requires the Federal Trade Commission to publish the adjusted amounts not later than January 31 of each year.
The Federal Trade Commission has not yet disclosed when the new filing fees will take effect. Parties should proceed under the current fee schedule until the FTC publishes the revised filing fees on its website.1
Footnote
1. Current HSR filing fees are as follows: $45,000 for transactions valued in excess of $101.0 million but less than $202.0 million; $125,000 for transactions valued at $202.0 million but less than $1,009.8 million; and $280,000 for transactions valued at $1,009.8 million or more.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.