HSR Filing Threshold Increases to $75.9 Million

more+
less-
more+
less-

HSR Act or Rule Provision
2014 Indexed Value

$50 million size-of-transaction test

$75.9 million

$200 million size-of-transaction test

$303.4 million

$100 million size-of-person test

$151.7 million

$10 million size-of-person test

$15.2 million

$50 million notification threshold

$75.9 million

$100 million notification threshold

$151.7 million

$500 million notification threshold

$758.6 million

25% of voting securities valued at
$1 billion notification threshold

$1,517.1 million

$110 million foreign exemption threshold

$166.9 million

Filing fees

$45,000 for transactions valued at greater than $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 or in excess of $758.6 million

The Federal Trade Commission (“FTC”) announced on January 17, 2014 that the dollar-based thresholds applicable to the Hart-Scott-Rodino (“HSR”) premerger notification program will be raised 7 percent from the 2012 levels. As a result, the HSR minimum size of transaction threshold will be raised to $75.9 million from $70.9 million. Transactions valued above $70.9 million but below $75.9 million will no longer require an HSR filing. The dollar thresholds that determine the applicable filing fee will be revised accordingly.

Simultaneously, the FTC also increased the dollar thresholds under Section 8 of the Clayton Act, which prohibits any person from holding positions as an officer or director of competing corporations engaged in commerce, if the corporations meet certain size thresholds.

The HSR changes will become effective 30 days after publication of the new thresholds in the Federal Register. The new HSR thresholds will apply to transactions that close on or after that date.

HSR Thresholds Raised

The HSR premerger notification program applies to large transactions involving large parties engaged in commerce. Dollar thresholds defining “large” were set in 2000 but were indexed to changes in the gross national product. As a result of this most recent indexing, the HSR Act now provides that transactions resulting in holdings valued in excess of $303.4 million among parties engaged in commerce are subject to premerger notification regardless of the size of the parties. Transactions that result in holdings valued in excess of $75.9 million are reportable only if the acquiring and acquired persons meet the “size-of-person” test — either the acquiring or acquired person must have annual net sales or total assets of $151.7 million or more and the other party must have annual net sales or total assets of $15.2 million or more. Acquired persons not engaged in manufacturing must meet the $15.2 million test on the basis of the value of their assets alone. Certain transactions meeting these size thresholds may nevertheless be exempt under the HSR Act; these exemptions are not affected by indexing.

Revised Rules for Interlocking Directorates

Section 8 of the Clayton Act generally prohibits a person from serving simultaneously as a director or officer of two sizable competing corporations engaged in commerce, unless their “competitive sales” — the gross revenues for all products and services sold by one corporation in competition with the other — are minimal. As with the HSR Act, the dollar thresholds defining “sizable” and “minimal” are indexed to changes in the gross national product. As a result of the most recent indexing, the Section 8 prohibition on interlocking directorates now applies only if each competing corporation has capital, surplus, and undivided profits aggregating more than $29.95 million. The interlocking directorate prohibition does not apply, however, if either corporation’s “competitive sales” are less than $3 million. Other “safe harbors” exist that are based on calculating the competitive sales as a percentage of the corporation's total sales. 

Provision under Section 8 of the Clayton Act
2014 Indexed Value

Capital, surplus and undivided profits aggregating more than $10,000,000, under Section 8(a)(1)

$29,945,000

Competitive sales of either corporation are less than $1,000,000 under Section 8(a)(2)(A)

$2,994,500

 

The FTC’s press release announcing the indexing changes to the HSR thresholds and the interlocking directorates thresholds may be accessed by clicking on the link below. The link to the press release allows access to the FTC’s official announcement.

FTC Announces Revised Thresholds for Clayton Act Antitrust Reviews for 2014

Topics:  FTC, Hart-Scott-Rodino Act

Published In: Alternative Dispute Resolution (ADR) 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.

© Dechert LLP | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »