Earlier in the month, the FTC separately announced that the maximum civil penalty amount for violations of the HSR Act increased from $50,120 to $51,744 per day effective January 10, 2024.

On January 22, 2024, the Federal Trade Commission (FTC) announced increases to the jurisdictional thresholds for premerger notification under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act). The FTC adjusts the thresholds annually, consistent with changes to gross national product. The announced changes will become effective for filings made or transactions closing 30 days after publication of the revised thresholds in the Federal Register.

Pursuant to the revised thresholds, transactions valued in excess of $119.5 million (up from $111.4 million) are reportable under the HSR Act, absent exemption, if the “size of persons” test is met. In most transactions, the size-of-persons test is met if one “person” in a transaction has total assets or annual sales of $239 million or more (up from $222.7 million) and another “person” in the transaction has total assets or annual sales of $23.9 million or more (up from $22.3 million). A “person” includes an acquired or acquiring entity, its ultimate parent entity and all entities controlled by the ultimate parent entity. Transactions valued in excess of $478 million (up from $445.5 million) will be subject to filing requirements absent exemption regardless of whether the size-of-persons test is met.

The new thresholds described above are summarized in the below chart―the original threshold refers to the original threshold appearing in Section 7A of the Clayton Act, which is adjusted annually.

HSR Act Penalties Increase

Earlier in the month, the FTC separately announced that the maximum civil penalty amount for violations of the HSR Act increased from $50,120 to $51,744 per day effective January 10, 2024, the date of publication in the Federal Register. The new penalty levels apply to civil penalties assessed after the effective date of the adjustment, including civil penalties with an associated violation predating the effective date.

New Filing Fees

Filing fees for transactions, subject to ongoing annual adjustments based on the consumer price index, are set out below. Note that both the size ranges for the value of the transaction and the applicable fees changed in 2024 compared to 2023. New levels take effect 30 days after publication in the Federal Register.

Interlocking Directorates

Separately, taking effect upon their publication on January 22, 2024, are revised thresholds for interlocking directorates pursuant to Section 8 of the Clayton Act. In the revised thresholds, competitor corporations may be covered by Section 8 (subject to additional exemptions) if each one has capital, surplus and undivided profits aggregating more than $48,559,000, with the exception that no corporation is covered if the competitive sales of either corporation are less than $4,855,900. Though the statutory language of Section 8 refers to “corporations,” firms should keep in mind that the FTC has indicated that it views Section 8 as applicable to all forms of business entities, and has not limited its enforcement to corporations.

What This Means for Businesses

The question of whether a business transaction meets the jurisdictional thresholds for premerger notification under the HSR Act depends on the facts and circumstances in each case. The outcome of that question can have significant consequences for the parties to the transaction. Parties should note that significant changes to the HSR form are expected to take effect in the near future, which will significantly alter the process and increase the time, effort and expense required for HSR filings. In addition, with increased fees arriving in February 2024, parties may consider whether to submit premerger notification filings before the higher filing fees take effect. Because the fee level thresholds are increasing as the level of fees at each threshold increases, there may be some transactions that would fall into a lower fee threshold under the revised fee structure. Parties may also consider whether filings are still required under the revised thresholds, or potentially whether to file before jurisdiction is removed for smaller transactions if the parties prefer to run the deal by the agencies for pre-merger clearance. Moreover, some types of transactions have special size-of-person rules, and additional matters must be considered in analyzing any potential exemptions. All of the threshold and fee adjustments addressed above merely ratchet up from last year’s levels based on the respective applicable indices following the form of fee structure changes implemented last year. The forthcoming HSR rule changes, which will significantly alter HSR practice, the HSR form and instructions, are being revised by the agencies based on comments and, once issued and effective, will entail major changes in the way parties to transactions manage HSR filings.

For More Information

If you have any questions about this Alert, please contact Sean P. McConnell, Edward G. Biester III, Sarah O'Laughlin Kulik, any of the attorneys in our Antitrust and Competition Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.