HSR Size-of-Transaction Threshold Increased to $80.8 million

The Federal Trade Commission announced new notification thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, effective as of February 27, 2017. The current thresholds continue to apply to all transactions closed prior to the effective date. Of particular note, the initial threshold for notification under the HSR Act will increase slightly from $78.2 million to $80.8 million.1

I.             The principal changes to the notification thresholds, which will apply to all transactions that are consummated on or after February 27, 2017, are as follows:

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II.            The filing fee thresholds will also increase, but the filing fees themselves remain unchanged.

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III.           The exemption thresholds for acquisitions of foreign issuers and assets will increase as well. Under the revised thresholds:

  • Acquisitions of voting securities of a foreign issuer by a U.S. person are exempt unless the foreign issuer either: (i) holds assets in the United States valued in excess of $80.8 million (currently $78.2 million), or (ii) made sales in or into the United States in excess of $80.8 million (currently $78.2 million) in the last fiscal year.
  • Acquisitions of voting securities of a foreign issuer by a foreign person are exempt unless the transaction confers control over the issuer and the thresholds above are met.
  • Acquisitions of foreign assets are exempt if the assets did not generate sales in or into the United States in excess of $80.8 million (currently $78.2 million) in the last fiscal year.
  • Acquisitions by a foreign person of either voting securities of a foreign issuer or foreign assets are also exempt if: (i) the aggregate total sales of the parties in or into the United States are less than $177.7 million (currently $171.9 million); (ii) the aggregate total assets of the parties in the United States are less than $177.7 million (currently $171.9 million); and (iii) the value of the transaction does not exceed $323.0 million (currently $312.6 million).

Revised Thresholds for Prohibition on Corporate Interlocks

Section 8 of the Clayton Act prohibits any person from serving as a director or officer of competing corporations unless sales of the competing products or services of the two corporations are below certain de minimis thresholds. Under the revised thresholds, which are effective immediately, simultaneous service as a director or officer of two corporations, each with capital, surplus, and undivided profits in excess of $32,914,000 and “competitive sales” of $3,291,400 or more, is prohibited, subject to several exceptions.3

The FTC’s announcement of the revised thresholds serves as a useful reminder that effective Section 8 compliance requires corporations annually to review the outside affiliations of their directors and officers to assess whether, for example, sales growth, entry into new markets, or a decline in sales or exit from a non-competing business may trigger potential issues under the statute.4