The US Federal Trade Commission (FTC) recently announced increased thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) and 2017 thresholds for determining whether parties trigger the prohibition against interlocking directors under Section 8 of the Clayton Act.

Notification Threshold Adjustments

Pursuant to the amendments passed by the US Congress in 2000, the FTC announced revised thresholds for HSR pre-merger notifications on January 19, 2017. These increased thresholds will become effective 30 days following publication in the Federal Register, expected January 26, 2017. These new thresholds apply to any transaction completed and any HSR pre-merger notifications filed on or after the effective date, expected in late February.

As required, the FTC adjusted the notification thresholds based on the change in the gross national product (GNP) for the fiscal year ending September 30, 2015. Most notably, the base filing threshold of $50 million, which frequently determines whether a transaction requires filing of an HSR notification, will increase from $78.2 million to $80.8 million. The changes also will affect other dollar-amount thresholds:

  • The alternative statutory size-of-transaction test, which captures all transactions valued above $200 million regardless of the “size-of-persons,” will be adjusted to $323 million.
  • The statutory size-of-person thresholds (applicable to transactions valued at more than $80.8 million, but less than $323 million) will increase slightly from $15.6 million to $16.2 million and from $156.3 million to $161.5 million.

The adjustments will affect parties contemplating HSR notifications in various ways. Parties may be relieved from the obligation to file a notification for transactions closed on or after the effective date that result in holdings below the adjusted base threshold. For example, a transaction resulting in the acquiring person holding voting securities, a controlling interest in a non-corporate entity, or assets valued at less than $80.8 million would not be reportable on or after the effective date. The adjustments will also affect various exemptions under the HSR rules. For example, acquisitions by US persons of foreign assets and voting securities of foreign issuers will be exempt unless they generated US sales in excess of $80.8 million or, in the case of foreign voting securities, the issuer has assets in the United States valued in excess of $80.8 million.

Parties may also realize a benefit of lower notification filing fees for transactions that just cross current thresholds. Under the rules, the acquiring person must pay a filing fee, although the parties may allocate that fee amongst themselves. Filing fees for HSR-reportable transactions will remain unchanged; however, the applicable filing fee tiers will shift upward as a result of the GNP-indexing adjustments:

  • Transactions valued at or in excess of $80.8 million, but less than $161.5 million, require a $45,000 filing fee.
  • Transactions valued at or in excess of $161.5 million, but less than $807.5 million, require a $125,000 filing fee.
  • Transactions valued at or above $807.5 million require a $280,000 filing fee.

Interlocking Directorate Thresholds Adjustment

On January 19, 2017, the FTC also announced revised thresholds for interlocking directorates that are effective immediately. The FTC revises these thresholds annually based on the change in the level of GNP. Section 8 of the Clayton Act prohibits a person from serving as a director or officer of two competing corporations if certain thresholds are met. The prohibition against interlocking directors applies if each corporation has more than $10 million (as adjusted) in capital, surplus and undivided profits; however, the prohibition does not apply if either corporation has less than $1 million (as adjusted) in competitive sales. Pursuant to the recently revised thresholds, Section 8 of the Clayton Act applies to corporations with more than $32,914,000 in capital, surplus and undivided profits, while it does not apply where either corporation has less than $3,291,400 in competitive sales. These new thresholds are effective immediately upon publication in the Federal Register, expected January 26, 2017.