The Federal Trade Commission ("FTC") published its annual revisions to the dollar jurisdictional thresholds in the Hart-Scott-Rodino Antitrust Improvements Act ("HSR Act"), and increased thresholds for interlocking directorates under Section 8 of the Clayton Act.
In a memorandum, Cadwalader attorneys explained that the HSR Act changes increase the dollar thresholds necessary to trigger premerger notification act reporting requirements. The HSR Act reporting requirements provide that certain parties involved in proposed mergers must report such proposed transactions to the FTC and the DOJ Antitrust Division. Parties that meet the thresholds required for premerger notifications must adhere to a waiting period before closing the transaction. The 2018 threshold mandates that transactions valued at $84.4 million or less are not reportable under the HSR Act. The Cadwalader attorneys outlined specific criteria for reportable transactions and the revised thresholds. The new HSR filing thresholds will become effective on February 28, 2018.
The attorneys also reviewed revisions to the Clayton Act Section 8 interlocking directors and officers threshold requirements. The attorneys explained that Section 8 prohibits one person simultaneously serving as an officer and a director of two corporations if: (i) the "interlocked" corporations each have combined capital, surplus, and undivided profits of more than $34,395,000 (up from $32,914,000), (ii) each corporation is engaged in whole or in part in commerce, and (iii) the corporations are "by virtue of their business and location of operation, competitors, so that the elimination of competition by agreement between them would constitute a violation of any of the antitrust laws." The revised jurisdictional threshold for Section 8's prohibition on interlocking directors and officers is effective as of January 29, 2018.
The Cadwalader memorandum was authored by Ngoc Hulbig, Amy Ray and Bilal Sayyed.
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