On Jan. 28, 2020, the Federal Trade Commission announced revised thresholds for pre-merger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). These thresholds determine whether companies are required to notify federal antitrust authorities about a transaction.
The new thresholds — which were published in the Federal Register Jan. 28, 2020, to take effect 30 days after their publication — are as follows:
- The “size of transaction” test increased to $94 million. Therefore, for a transaction to qualify as potentially reportable under the HSR Act, the buyer must, as a result of the transaction, hold voting securities or assets valued in excess of $94 million.
- The “size of person” tests increased to $18.8 million and $188 million, respectively. Unless the acquired or acquiring person has annual net sales or total assets of at least $18.8 million, and the other person has annual net sales or total assets of $188 million, the transaction often will not be reportable.
- Transactions exceeding $376 million are now reportable even if they do not meet the “size of person” test.
HSR Act filing fees remain unchanged, but the thresholds used to calculate the fees increased as follows:
- An acquisition with a value between $94 million and $188 million requires a filing fee of $45,000.
- An acquisition with a value between $188 million and $940.1 million requires a filing fee of $125,000.
- An acquisition with a value of $940.1 million or more requires a filing fee of $280,000.
Additionally, on Jan. 13, 2020, the FTC announced an increase in the maximum civil penalty amount for violations of the HSR Act, from $42,530 to $43,280 per day.
McGuireWoods’ Antitrust & Trade Regulation Department has substantial experience in mergers and acquisitions, and its lawyers can assist clients in determining how these new rules will affect the reportability of any potential transaction under the HSR Act.