​The FTC has announced the annual updates to the Hart-Scott-Rodino (“HSR”) size thresholds, fees and the daily penalty for HSR violations. The updated thresholds and fees were published in the Federal Register on January 26, 2023 and will take effect on February 27, 2023. See Federal Register: Revised Jurisdictional Thresholds. The revised penalty was adjusted on January 6, 2023, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 2015, which requires annual inflation adjustments based on a required formula. As a result, currently, the penalty is $50,120 per day from $46,517. See Federal Register: Adjustments to Civil Penalty Amounts.

What You Need to Know:

• Every year, the Federal Trade Commission must by law make changes to the civil penalty, size thresholds which determine whether a filing is required, and filing fees associated with premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
• The increases to apply in 2023 and until the 2024 changes are made are catalogued in the Client Alert below.

​The FTC is required to revise the HSR thresholds annually based on the change in gross national product, and the new thresholds represent an increase from 2022 thresholds. For the purposes of determining whether an HSR filing is required, the increased thresholds are as follows:

Under the 2023 Consolidated Appropriations Act, the FTC was required to revise the HSR filing fee thresholds, and, going forward, the FTC is required annually to increase the filing fees by an amount equal to the percentage increase, if any, in the consumer price index. While there is a decrease in the fees for smaller transactions, there is a steep increase in the fees for larger transactions. The new fee structure is as follows:

Additionally, the 2023 thresholds regarding when interlocking directorates are illegal pursuant to Section 8 of the Clayton Act have also increased, to $45,257,000 (in aggregate capital, surplus and undivided profits) and $4,525,700 (in competitive sales). See Federal Register: Revised Jurisdictional Thresholds for Section 8 of the Clayton Act. These thresholds were published in the Federal Register and took effect on January 20, 2023.^[1]

^[1]  Recently the U.S. Department of Justice has demonstrated a new-found vigor for enforcing the prohibition of interlocking directorates. See Antitrust and the Interlocking Directorate Rules: What They Are and What To Do About Them for further information on the recent enforcement and recommendations to avoid violations of Section 8.