The Federal Trade Commission (FTC) has announced revised Hart-Scott-Rodino Act (HSR) reporting thresholds and filing fee amounts, up to a $2.25 million fee for the largest deals. Under the new thresholds, a transaction is reportable if, due to the transaction, the acquiring person will hold voting securities, assets, or non-corporate interests valued over $111.4 million. These changes will apply to all transactions that close on or after the effective date, which is expected to be February 23.
The exact effective date for these updated reporting thresholds and filing fee amounts will depend on when the changes are published in the Federal Register, which is expected to be January 24.
In summary, the relevant HSR reporting thresholds are:
| Threshold | Original amount | 2023 adjusted threshold |
| Size of Transaction | $50 million | $111.4 million |
| Size of Person (if applicable) | $10 million and $100 million |
$22.3 million and $222.7 million |
| Size of Transaction above which Size of Person Test does not apply | $200 million | $445.5 million |
Corresponding increases will also apply to certain other thresholds and exemptions under the HSR Act. The complete list of revised HSR thresholds will be available in the Federal Register and on the FTC’s website.1
For reportable transactions, the acquiring person’s holdings must cross the threshold with respect to which the HSR notification is made within one year of the expiration or early termination of the HSR waiting period. Once the acquiring person has crossed the applicable threshold during the first year, any additional acquisitions by the same acquiring person of the same issuer’s voting securities will be exempt from notification during the five years following the expiration or early termination of the waiting period, up to the highest value of the threshold range for which the HSR notification was made. For purposes of this exemption, any subsequent acquisition by the acquiring person would be subject to the adjusted thresholds in effect when the subsequent acquisition is consummated.
The amount of the HSR filing fee has remained the same for several years. However, the 2023 Consolidated Appropriations Act required that the FTC revise the filing fee thresholds. Accordingly, the FTC has approved publication of a Federal Register notice announcing new filing fees based on the size of the proposed transaction. These revisions lower the filing fee amount for smaller transactions, while increasing the fee for larger transactions.
The proposed fees, which would take effect 30 days after publication, are below. Previously, there were only three tiers of filing fee amounts.
| 2023 transaction value thresholds | Filing fee |
| Less than $161.5 million | $30,000 |
| Not less than $161.5 million but less than $500 million | $100,000 |
| Not less than $500 million but less than $1 billion | $250,000 |
| Not less than $1 billion but less than $2 billion | $400,000 |
| Not less than $2 billion but less than $5 billion | $800,000 |
| $5 billion or more | $2,250,000 |
ENDNOTE
1 For instance, the jurisdictional thresholds for interlocking directorates under Section 8 of the Clayton Act are $45,257,000 (originally $10 million) and $4,525,700 (originally $1 million).
Overall, any reference to HSR transaction thresholds has been adjusted as follows:
Original threshold 2023 adjusted threshold
$10 million $22.3 million
$50 million $111.4 million
$100 million $222.7 million
$110 million $245 million
$200 million $445.5 million
$500 million $1.1137 billion
$1 billion $2.2274 billion
This post comes to us from Davis. Polk & Wardwell LLP. It is based on the firm’s memorandum, “Revised 2023 jurisdictional thresholds and filing fees under the HSR Act,” dated January 24, 2023, and available here.