Clifford Chance
U.S. Federal Trade Commission Announces Updated HSR Act Thresholds And Maximum Civil Penalty Amounts
The revised thresholds affect which transactions are required to file pre-merger notifications with the U.S. antitrust authorities and determining the filing fees parties to a transaction must pay.
The Federal Trade Commission has released the updated jurisdictional thresholds of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"). The revised thresholds affect which transactions are required to file pre-merger notifications with the U.S. antitrust authorities ("HSR filings") and determine the filing fees parties to a transaction must pay with the filing.
Body copy to be added hereThe HSR Act mandates that parties to certain transactions must each make an HSR filing and adhere to a mandatory waiting period (usually 30 days) before closing the transaction if:
- the transaction is valued at or above a certain threshold (the "size-of-transaction test") and the parties are a particular size based on sales or assets (the "size-of-person test"); or,
- the transaction is valued at or above a certain threshold (the "size-of-transaction test") and the parties are a particular size based on sales or assets (the "size-of-person test"); or,
- the transaction is valued at an even higher threshold, regardless of whether the size-of-person test is satisfied.
The U.S. antitrust authorities are required every year to adjust these thresholds based on the gross national product. The newly updated thresholds, as compared to last year's, have been adjusted upwards, and are as follows:
| . | 2021 Thresholds | Revised Thresholds for 2022 |
|---|---|---|
| Size-of-transaction test | $92.0 million | $101.0 million |
| Size-of-person test | Party 1 - annual net sales or total assets at or above $18.4 million; and Party 2- annual net sales or total assets at or above $184.0 million | Party 1 - annual net sales or total assets at or above $20.2 million; and Party 2- annual net sales or total assets at or above $202.0 million |
| Size-of-transaction test threshold at which the size-of-person test is inapplicable | $368.0 million | $403.9 million |
In addition to the size-of-transaction test and size-of-person test thresholds, the thresholds for HSR filing fees are also updated annually, although the fees themselves have not changed. The new filing fee thresholds, as compared to last year's, are as follows:
The new thresholds will apply to any transactions that close on or after February 23, 2022, regardless of when the transaction was agreed to or signed.
The U.S. antitrust agencies have also increased the maximum civil penalty amount for premerger filing notification violations under the HSR Act from $43,792 to $46,517, effective January 10, 2022. Such violations include failure to submit an HSR filing or failure to submit certain responsive documents with an HSR filing.
