As required by the HSR Act, on January 21, 2022, the U.S. Federal Trade Commission (“FTC”) released its annual adjustments to the reporting thresholds. The key number to remember is now $101 million. Note, this is an increase from the $92 million threshold in 2021. Generally, transactions valued in excess of $101 million must be reported and cleared by federal antitrust authorities before the transaction may close. The adjustments are scheduled to be published in the Federal Register on January 24, 2022, and the new thresholds will become effective 30 days after publication, on February 23, 2022. The revised thresholds will apply to all transactions that close on or after the effective date.
Each year, the FTC adjusts the reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) based on changes in gross national product. On January 21, 2022 the FTC announced the revised thresholds. Below are the current and new thresholds:
Adjusted 2022 Threshold
|Size-of-Person as Measured by Annual Net Sales or Total Assets
||$18.4 million for one party
||$20.2 million for one party
||$184 million for the other party
||$202 million for the other party
at Which Size-of-Person Test
No Longer Applies
The practical effect of this change is that transactions valued in excess of $101 million will be subject to the reporting and waiting requirements of the HSR 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 $202 million or more and the other party has annual net sales or total assets of $20.2 million or more.
The current premerger filing fee schedule is:
- $45,000 for transactions valued in excess of $101 million, but less than $202 million;
- $125,000 for transactions valued at $202 million or more, but less than $1.0098 billion; and
- $280,000 for transactions valued at $1.0098 billion 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 (unlike the HSR Act thresholds, these adjusted thresholds take effect immediately). Section 8 may preclude a person from serving as an officer or director of two competing corporations when (1) each of the competing corporations has capital, surplus, and undivided profits aggregating more than $41,034,000, and (2) each corporation’s competitive sales are at least $4,103,400.
Earlier this year, the FTC also announced that the maximum civil penalty amount has increased from $43,792 to $46,517 per day for certain violations of the FTC Act, HSR Act, and Energy Policy and Conservation Act.