FTC Adjusts HSR and Clayton Act Reporting Thresholds

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Each year, the Federal Trade Commission (“FTC”) adjusts the reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “H-S-R Act”) based on the change in gross national product from the prior year.  On January 17, the FTC announced the revised thresholds that will become effective 30 days after publication in the Federal Register.  The anticipated effective date is in mid-February.  The current 2013 and revised 2014 thresholds are:

Test

2013 Threshold

Adjusted 2014 Threshold

Size-of-Transaction

$70.9 million

$75.9 million

Size-of-Person

$14.2 million

and

$141.8 million

$15.2 million

and

$151.7 million

Size-of-Transaction Threshold at Which Size-of-Person Test No Longer Applies

$283.6 million

$303.4 million

The practical effect of this change is that transactions valued at $75.9 million or less will not be subject to the reporting and waiting requirements of the H-S-R Act.  In general, the size-of-parties test will be satisfied only if one party to the transaction has annual net sales or total assets of $151.7 million or more and the other party has annual net sales or total assets $15.2 million or more.

The interlocking directorate thresholds under Section 8 of the Clayton Act have also been adjusted to account for changes in the gross national product.  Section 8 may preclude a person from serving as an officer or director of two competing corporations when (i) each of the competing corporations has capital, surplus and undivided profits aggregating more than $29,945,000, and (ii) each corporation’s competitive sales are at least $2,994,500.

The current premerger filing fee schedule is:

$45,000 for transactions valued in excess of $75.9 million but less than $151.7 million

$125,000 for transactions valued at $151.7 million or greater but less than $758.6 million

$280,000 for transactions valued at $758.6 million or more

The fee schedule has not changed from 2013, although the FTC pointedly stated in its announcement of the new thresholds that “while the filing fee thresholds are revised annually, the actual filing fees are not similarly indexed and, as a result, have not been adjusted for inflation in over a decade.”  This comment could be the groundwork for an effort by the FTC to increase the filing fees in 2015.

IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this informational piece (including any attachments) is not intended or written to be used, and may not be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

 

Topics:  FTC, Hart-Scott-Rodino Act, Pre-Merger Filing Requirements, The Clayton Act

Published In: Antitrust & Trade Regulation Updates, Finance & Banking Updates, Mergers & Acquisitions Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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