On January 26, 2018, the Federal Trade Commission (“FTC”) announced annual increases to the notification thresholds for premerger filings required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”). The HSR Act generally requires parties to transactions—e.g., mergers, joint ventures, acquisitions of assets or voting securities—that meet certain thresholds to file premerger notifications with both the FTC and the United States Department of Justice (“DOJ”), and observe a statutory waiting period prior to closing. The annual increases are expected to become effective in late February/early March of 2018, 30 days after their publication in the Federal Register, and will apply to all transactions that close on or after the effective date.
For 2018, the size-of-transaction notification thresholds will increase as follows:
The size-of-transaction test will be met if, as a result of the transaction, the acquiring party’s aggregate holdings in the acquired party (as calculated under the HSR Act) will exceed any one of the notification thresholds. A proposed transaction that satisfies the size-of-transaction test may require an HSR notification if the size-of-person test (discussed below) is also met and no exemptions apply.
For 2018, the size-of-person notification thresholds will increase as follows:
The size-of-person test will be met if one party to the proposed transaction has assets or annual sales totaling $168.8 million or more and the other party to the proposed transaction has assets or annual sales totaling $16.9 million or more. The size-of-person test need not be met, however, if the total value of the proposed transaction exceeds $337.6 million (this is an increase from the 2017 threshold of $323 million).
Filing Fees and Penalties
The filing fees required in connection with an HSR notification will not change in 2018, and will remain set at $45,000 for transactions valued above $84.4 million but less than $168.8 million; $125,000 for transactions valued at $168.8 million or more but less than $843.9 million; and $280,000 for transactions valued at or above $843.9 million. However, the FTC separately announced on January 23, 2018 that the maximum civil penalties for failure to comply with the notification and waiting period requirements of the HSR Act will increase from $40,654 to $41,484 per each day of non-compliance.
Determining whether an HSR notification is required in connection with a transaction can be complicated, and requires an in-depth understanding of the HSR Act, the implementing regulations, and the applicable exemptions.