On January 21, 2022, the US Federal Trade Commission (FTC) announced increased thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR). The thresholds are indexed to changes in the gross national product (GNP).
NOTIFICATION THRESHOLD ADJUSTMENTS
These increased thresholds are scheduled to be published in the Federal Register on January 24, 2022, which would make them become effective on February 23, 2022. These new thresholds apply to any transaction that closes on or after the effective date:
- The base filing threshold, which frequently determines whether a transaction requires the filing of an HSR notification, will increase to $101 million.
- The alternative statutory size-of-transaction test, which captures all transactions valued above a certain size (even if the “size-of-person” threshold is not met), will be adjusted to $403.9 million.
- The statutory size-of-person thresholds will increase to $20.2 million and $202 million.
The adjustments will affect parties contemplating HSR notifications in various ways. Transactions that meet the current “size-of-transaction” threshold (but not the adjusted $101 million threshold) will only need to be filed if they will close before the new thresholds take effect on February 23, 2022.
Parties may also realize a benefit of lower notification filing fees for certain transactions. Under the rules, the acquiring person must pay a filing fee, although the parties may allocate that fee among themselves. Filing fees for HSR-reportable transactions will remain unchanged; however, the size of transactions subject to the filing fee tiers will shift upward because of the GNP-indexing adjustments:
||Size of Transaction
||$101 million, but less than $202 million
||$202 million, but less than $1.0098 billion
||$1.0098 billion or more