Federal Trade Commission Announces 2022 Changes to Hart-Scott-Rodino Filing Thresholds

McGuireWoods LLP

On Jan. 21, 2022, the Federal Trade Commission (FTC) announced it is publishing revised reporting thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act).

The HSR Act imposes two important obligations on parties to certain mergers. If a merger exceeds thresholds under the HSR Act, parties to the merger generally must first file a premerger notification with the FTC and the Antitrust Division of the U.S. Department of Justice, and then let a waiting period expire before consummating the merger.

The law also requires the FTC to revise those thresholds each year in accordance with changes in the gross national product. The new thresholds for 2022, which take effect 30 days after publication in the Federal Register, are as follows:

  • $101 million for the “size of transaction” test. A transaction is reportable only if it meets the size of transaction test — if the value of all the voting securities, non-corporate interests and assets being acquired exceed this threshold.
  • $20.2 million and $202 million for the “size of person” test. This test looks to the value of both parties to a merger. A transaction satisfies this test when the value of one party exceeds the larger threshold and the value of the other party exceeds the smaller threshold. Unless an exemption applies, a transaction meeting the size-of-transaction test is reportable if it also satisfies the size-of-person test.
  • $403.9 million for transactions not meeting the size-of-person test. This threshold ensures that the FTC receives notice of large mergers even when the parties themselves are not large enough to satisfy the size-of-person test. Thus, any transaction exceeding this threshold is reportable unless an exemption applies.

In its announcement, the FTC also revised thresholds for filing fees. Although the fee amounts remain the same, the FTC did raise the thresholds for those fees. For 2022, the filing-fee thresholds are as follows:

  • $45,000 for transactions valued at less than $202 million.
  • $125,000 for transactions valued from $202 million to $1.0098 billion.
  • $280,000 for transactions valued at $1.0098 billion or more.

McGuireWoods’ Antitrust, Trade & Commercial Litigation Department has substantial experience in mergers and acquisitions, and it can help you determine how these new rules will affect the reportability of any potential transaction under the HSR Act.

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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