Denver, Colo. (February 24, 2022) - The Federal Trade Commission (FTC) recently announced the revised thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR), Section 7A of the Clayton Act. HSR requires the parties to transactions that exceed the revised thresholds to file a premerger notification report to the FTC and the Antitrust Division of the Department of Justice (Division). Parties reporting transactions under HSR must observe a 30-day waiting period after reporting the transaction before closing the transaction to give the FTC and the Division time to evaluate the potential competitive effects of the transaction.

Revised HSR Filing Thresholds

The following threshold changes go into effect on February 23, 2022:

  • The revised "size of the transaction" threshold is $101 million at the time of closing.
  • Transactions valued at or less than $101 million are not reportable.
  • Transactions valued between $101 million but not more than $403.9 million apply the "size of the parties" test: One of the parties to the transaction has assets or annual net sales of at least $20.2 million and the other party to the transaction has assets or annual net sales of at least $202 million.
  • Transactions valued in excess of $403.9 million are reportable, regardless of the "size of the person" test.

HSR Filing Fees

  • $45,000 for transactions valued at greater than $101 million but less than $202 million.
  • $125,000 for transactions valued at $202 million but less than $1.0098 billion.
  • $280,000 for transactions valued at or in excess of $1.0098 billion.

Civil Penalties for HSR Violations

The maximum civil penalty for a HSR violation is $46,517 per day, effective January 10, 2022.

Revised Thresholds for Section 8 of the Clayton Act Interlocking Directorates

Section 8 of the Clayton Act prohibits any person from holding positions as an officer or director of competing corporations engaged in commerce. This provision is particularly relevant to individuals at private equity firms who, in the course of their duties, are an officer or director of several entities. Section 8 applies where each competing corporation has capital, surplus, and undivided profits aggregating more than $41,034,000. An exception exists if the competitive sales of either company are less than $4,103,400. The new Section 8 thresholds take effect on January 24, 2022.

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