FTC Announces Largest-Ever HSR Threshold Increase for 2022 Transactions

Pillsbury Winthrop Shaw Pittman LLP

Size-of-transaction threshold under Hart-Scott-Rodino Act will increase to $101 million in Federal Trade Commission’s largest threshold increase ever.

As a result of the increase in the U.S. Gross National Product (GNP) for 2021, after the first decrease in U.S. GNP in over a decade in 2020, the Federal Trade Commission (FTC) has announced higher revised thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR), which will become effective on February 23, 2022. Since the FTC began adjusting the thresholds in 2005, the 2022 threshold increase is the largest year-over-year increase, both in terms of dollar value and percentage increase. The thresholds determine whether parties involved in proposed mergers, consolidations, or other acquisitions of voting securities, assets, or unincorporated interests must notify the FTC and the Antitrust Division of the Department of Justice (DOJ) of a proposed transaction and comply with a mandatory waiting period before the transaction may be consummated. Note that the current $92 million threshold is still in effect for transactions that will close on or before February 22, 2022.

HSR Thresholds Increase. Generally, a transaction will not be reportable under the new thresholds unless it is valued for HSR purposes at more than $101 million. If the value of the proposed transaction is greater than $101 million but not greater than $403.9 million, the transaction will not be reportable unless the “ultimate parents” of the acquiring and the acquired entities also meet a certain minimum “size-of-person” test—in most instances, where one ultimate parent (including all entities it controls) has net sales or total assets of at least $20.2 million and the other has net sales or total assets of at least $202 million. Where the jurisdictional tests are met, the transactions are reportable unless an exemption applies. The table below includes the original and the newly adjusted figures for each relevant HSR threshold (the original figure continues to appear in HSR regulations with the words “as adjusted” to remind the reader that the thresholds are adjusted each year). Parties should be mindful that there are many other factors that impact whether a given transaction is subject to the jurisdictional thresholds in addition to these dollar thresholds.

HSR Filing Fees. The filing fees for reportable transactions will be as follows:

  • $45,000 - Transactions valued in excess of $101.0 million but less than $202.0 million.
  • $125,000 - Transactions valued at or greater than $202.0 million but less than $1.0098 billion.
  • $280,000 - Transactions valued at $1.0098 billion or more.

HSR Violations. Effective January 10, 2022, the maximum civil penalty for HSR Act violations increased from $43,792 to $46,517 per day. The new daily maximum civil penalty applies only to penalties assessed after the effective date, including those penalties whose associated violation predated January 10, 2022. The maximum civil penalty is not affected by the adjustments to the HSR filing thresholds.

Revised Thresholds for Interlocking Directorates. Section 8 of the Clayton Act generally prohibits companies that compete with each other from having interlocking memberships on their corporate boards of directors. The FTC annually revises the jurisdictional thresholds that trigger the interlocking directorate prohibition. The changes to the thresholds are based on the change in the gross national product and are effective as of January 24, 2022.

  • Section 8(a)(1) of the Clayton Act prohibits a person from serving as a director or board-elected or board-appointed officer of two or more corporations if the combined capital, surplus, and undivided profits of each of the corporations exceeds $41,034,000.
  • Section 8(a)(2)(A) of the Clayton Act exempts interlocks for which the competitive sales of either corporation are less than $4,103,400.

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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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