"Revised HSR Thresholds to Take Effect February 27, 2012"

Skadden

[authors: Matthew P. Hendrickson, Neal R. Stoll, Rita Sinkfield Belin, Brian C. Mohr, Joseph P. Nisa]

Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act), parties involved in proposed mergers, acquisitions of stock, assets or unincorporated interests, or other business combinations must report the contemplated transactions to the Federal Trade Commission (FTC) and the U.S. Department of Justice and thereafter observe a waiting period before the transactions can be consummated, if the transactions meet certain thresholds.

Section 7A(a)(2) of the Clayton Act requires the FTC to revise all of the HSR Act thresholds annually, based on changes in the gross national product. As noted in our mailing on January 24, 2012, the FTC announced the revised 2012 thresholds earlier that day. The new thresholds were published in the Federal Register on January 27, 2012,1 and by statute will take effect 30 days thereafter, on February 27, 2012.

In addition, the revised jurisdictional dollar thresholds that will apply to potential prohibitions that prevent companies from having interlocking officers or directors on their corporate boards of directors under Section 8 of the Clayton Act, that were previously announced by the FTC on January 24, also were published in the Federal Register on January 27, 2012. The revised thresholds for the prohibition of interlocking directorates are $27,784,000 for Section 8(a)(1) and $2,778,400 for Section 8(a)(2)(A), and they became effective upon publication in the Federal Register on January 27.

The revised HSR Act thresholds are higher than the current thresholds, as shown on the following chart:   
 

Original Threshold

Current Threshold

Revised Threshold
(Effective as of February 27, 2012)

$10 million 

$13.2 million

$13.6 million

$50 million 

$66.0 million

$68.2 million

$100 million 

$131.9 million

$136.4 million

$110 million 

$145.1 million

$150.1 million

$200 million 

$263.8 million

$272.8 million

$500 million 

$659.5 million

$682.1 million

$1 billion

$1,319.0 million
(or $1.319 billion)

$1,364.1 million
(or $1.364 billion)

These revised thresholds will affect the jurisdictional requirements and certain exemptions under the HSR Act, as well as the HSR Act’s filing fee schedule. The filing fees for reportable transactions will be as follows:

  • $45,000 for transactions valued in excess of $68.2 million but less than $136.4 million; 

  • $125,000 for transactions valued at $136.4 million or greater but less than $682.1 million; and 

  • $280,000 for transactions valued at $682.1 million or more.

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1 77 Fed. Reg. 4323 (Jan. 27, 2012). 

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