On January 21, 2011, the Federal Trade Commission announced the new thresholds for Hart-Scott- Rodino pre-merger notification. The thresholds are important for merger and acquisition counsel, because the HSR Act requires companies to notify certain federal agencies if the value of a transaction exceeds the filing thresholds. So transactions covered by the HSR filing requirement can be delayed pending clearance and the parties to the transaction bear the burden of hefty fees for filing the notification.
The thresholds are adjusted annually based on changes to the gross national product. Last year, we reported that, for the first time, the thresholds were reduced due to the decrease in GNP from the recession. At that time, the 2010 thresholds were reduced to $63.4 million from 2009's $65.2 million.
In view of the improving economy, the 2011 thresholds were increased, but not by much. The new threshold for 2011 is $66.0 million. While a 4.1% increase from 2010, it is a mere 1.2% above the 2009 threshold, providing another illustration of how, for the past two years or more, the economy has basically been "running in place."
While the $63.4 million revised threshold will apply to most transactions, there are several other tests that must be met before it can be determined that a filing is required. While the analysis for most transactions is straightforward, the application of HSR to some transactions can be quite complex. So those contemplating a transaction should consult with legal counsel before determining whether or not a filing is required. For more information on the revised thresholds, visit the FTC website at: http://www.ftc.gov/.