The Federal Trade Commission published the annual adjustment to the Hart-Scott-Rodino Act merger notification thresholds in the Federal Register on January 24, 2022. These adjustments will become effective on February 23, 2022. The adjustments are based on the change in gross national product and have increased by approximately 9.78% over 2021.
| |
HSR Act |
2021 Adjusted Threshold |
2022 Adjusted Threshold |
| Size-of-transaction
If met, consider if size-of-persons threshold is met and if exemption applies
|
$50 M |
$92 M |
$101 M |
| Size-of-persons |
$100 M
$10 M
|
$184 M
$18.4 M
|
$202 M
$20.2 M
|
| Size-of-transaction If met, reportable without regard for size-of-persons unless exemption applies |
$200 M |
$368 M |
$403.9 M |
The filing fees remain the same:
- $45,000 for transactions valued in excess of $101 million but less than $202 million
- $125,000 for transactions valued at $202 million or greater but less than $1.0098 billion
- $280,000 for transactions valued at $1.0098 billion or greater
The US Senate passed the Merger Filing Fee Modernization Act of 2021 on June 6, 2021 and it was introduced to the House of Representatives on June 11. The bill would increase the filing fees for transactions valued over $5 billion to $2.25 million. Transactions valued between $1-2 billion would be required to pay $400,000 and transactions valued between $2 billion and $5 billion would have to pay a $800,000 filing fee.
Noncompliance with the HSR Act, including the premature transfer of beneficial ownership or coordination (referred to as “gun jumping”), carries significant penalties. The maximum civil penalty is $46,517 per day. Parties should carefully assess whether HSR notifications are required, especially for investors who are making additional investments into a company. Even if the additional round of investment does not reach the “size-of-transaction” threshold alone, a HSR notification may be required as all of the acquirer’s holdings of voting securities and non-corporate interests of the acquired person must be aggregated and valued at present value to determine what will be held as a result of the acquisition for purposes of the “size-of-transaction” test.
The Premerger Notification Office (PNO) has faced a dramatic increase in merger notification filings in 2021. The PNO received 4,130 filings in the 2021 calendar year compared to 1,637 filings in 2020 fiscal year. This volume nearly doubles the highest annual volume received in any of the past ten fiscal years (2,111 filings in 2018). The early termination program remains suspended.
