On June 6, 2021, the U.S. Senate passed the Merger Filing Fee Modernization Act of 2021. Co-sponsored by Senators Amy Klobuchar (D-MN) and Chuck Grassley (R-IA), the bill would increase filing fees for certain large transactions reported to the U.S. antitrust authorities under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”). The bill would also substantially increase budget appropriations for the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC). The bill – one of several recent legislative proposals intended to strengthen antitrust enforcement – remains subject to passage in the House of Representatives and must be signed into law by President Biden. Given broad support for the legislation across party lines, the bill seems likely to pass, illustrating the potential for additional bipartisan antitrust reforms on the horizon.
Currently, transactions reported under the HSR Act are subject to the following filing fees. While the thresholds are adjusted annually based on gross national product, the fees have remained constant since 2000, despite the volume of HSR Act filings increasing significantly over time.
Less than $184 million
$184 million or more, less than $919.9 million
$919.9 million or more
The new legislation would amend the HSR Act to (1) replace this framework with the six-tiered regime outlined below; (2) significantly increase fees for transactions valued at more than $1 billion up to 7 times current levels; and (3) decrease fees for transactions valued at less than $161.5 million. Beginning in 2022, fees would be adjusted annually according to percentage increases in the Consumer Price Index.
Less than $161.5 million
$161.5 or more, less than $500 million
$500 million or more, less than $1 billion
$1 billion or more, less than $2 billion
$2 billion or more, less than $5 billion
$5 billion or more
While the FTC and the DOJ mainly draw resources from HSR Act filing fees, they also rely on budget appropriations from Congress to fund enforcement. In addition to increased filing fees, the bill proposes major increases in budget appropriations for both agencies. Under the bill, the FTC’s budget would increase to $418 million, a 19% increase over current levels and almost $29 million more than requested in President Biden’s proposed budget. The DOJ’s budget would rise to $252 million, 36% more than current levels and $51 million more than the Biden budget.
Raymond Rif and Jose L. Urteaga also contributed to this article.