Increased HSR Notification Thresholds for 2022

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The Federal Trade Commission (“FTC”) published today in the Federal Register increased jurisdictional thresholds for premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”), as amended. The FTC revises the thresholds annually based on changes in the gross national product. Last year, the thresholds were decreased. The new thresholds will be effective February 23, 2022 and will apply to all transactions closing on or after that date.

Revised HSR Thresholds

A transaction is reportable if:

Size of Transaction Threshold

The acquiring person will hold, as a result of the transaction, an aggregate total amount of voting securities and assets of the acquired person valued in excess of $403.9 million;

or

The acquiring person will hold, as a result of the transaction, an aggregate total amount of voting securities and assets of the acquired person valued in excess of $101 million, AND the Size of Person thresholds below are met.

Size of Person Threshold

Either the acquiring or the acquired person has at least $20.2 million in total assets (or annual net sales if that party is engaged in manufacturing), and the other person has at least $202 million in total assets or annual net sales.

The HSR Act requires parties engaged in certain transactions (including mergers, joint ventures, exclusive licenses, and acquisitions of voting securities, assets, or non-corporate interests) to file an HSR notification and report form with the FTC and the Antitrust Division of the Department of Justice, and to observe the statutorily prescribed waiting period (usually 30 days, or 15 days in the case of cash tender offers and bankruptcy) prior to closing, if the parties meet the “Size of Transaction” and “Size of Person” thresholds (absent any applicable exemptions).

No Change to Filing Fees; Fee Thresholds Revised

Filing fees for the premerger notification remain unchanged, but the FTC has revised the thresholds used to determine the applicable fees. Under the revised thresholds, the filing fees are as follows:

Filing Fee

New Filing Fee Thresholds

$45,000

For acquisitions valued above $101 million or more but less than $202 million.

$125,000

For acquisitions valued at $202 million or more up to $1.0098 billion.

$280,000

For acquisitions valued at $1.0098 billion or more.

Civil Penalties for HSR Act Violations Increased

The HSR Act provides that any person who fails to comply with any provision of the HSR Act may be subject to a civil penalty for each day during which such person is in violation. The maximum civil penalty for violations of the HSR Act increased this year to $46,517 per day, effective January 10, 2022.

[View source.]

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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