On January 16, the Federal Trade Commission (FTC) published in the Federal Register its annual adjustment for notification thresholds regarding reportable transactions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act); the adjustments will become effective 30 days after the publication date, on February 17. These threshold adjustments are based on the annual change in the U.S. gross national product.
Summary of Adjustments
An HSR Filing May Be Necessary in the Following Cases
- As a result of the transaction, the acquirer will hold voting securities, assets, or noncorporate interests of the acquired entity valued in the aggregate at more than $133.9 million but not more than $535.5 million, and the “size-of-person” thresholds are also met. To meet the size-of-person test, one party must have annual net sales or total assets of at least $267.8 million and the other party must have annual net sales or total assets of at least $26.8 million.
- As a result of the transaction, the acquirer will hold voting securities, assets, or noncorporate interests of the acquired entity valued in the aggregate at more than $535.5 million (and the size-of-person test is not applied) unless another exemption applies
The FTC is expected to announce soon the annual inflation-based change in the daily maximum civil penalty for violations of the HSR Act, which is currently $53,088 per day. The change will take effect immediately when published.
HSR Act Merger Filing Fees
HSR Act filing fees are increased annually according to the Consumer Price Index, and the related size of transaction tiers are adjusted according to the change in gross national product. The new tiering and filing fee amounts were published in the Federal Register on January 16, and take effect 30 days after the publication date, on February 17.
Interlocking Directorates
On January 16, the FTC published adjustments (effective immediately) to the dollar thresholds under Section 8 of the Clayton Act that trigger the prohibition on “interlocking directorates” — where one person serves as a director or officer of two competing corporations (subject to certain exceptions). Now the prohibition may apply when: (1) each corporation has capital, surplus, and undivided profits aggregating more than $54,402,000 and (2) each corporation’s competitive sales are at least $5,440,200.
