On February 2, 2021, the U.S. Federal Trade Commission (FTC) announced the annual changes to the thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). The new size of transaction threshold is $92 million. The new HSR Act thresholds will go into effect on March 4, 2021 and will apply to all transactions closing on or after that date.
The HSR Act requires parties to transactions exceeding certain thresholds to file premerger notification reports to the FTC and the Antitrust Division of the U.S. Department of Justice (unless an exemption applies) and then observe statutorily prescribed waiting periods (usually 30 days) prior to closing the transaction.
Generally, HSR notifications are required for an acquisition of voting securities, non-corporate interests or assets when the transaction reaches a certain threshold (the “size of transaction” test) and the parties are of sufficient size (the “size of parties” test). The size of transaction test is adjusted annually based on changes in the gross national product for the preceding year. The new size of transaction threshold will be $92 million, an approximate 2.1 percent decrease from the previous threshold of $94 million.
Under the new thresholds that will be in effect on March 4, 2021:
The revisions also decrease notification thresholds for acquisitions of additional voting securities from the same party. As a result, notifications may be required at each of the following thresholds: $92 million; $184 million; $919.9 million; 25 percent of the voting securities if their value exceeds $1,839.8 million; and 50 percent of the voting securities if their value exceeds $92 million.
The new thresholds are also used to determine the applicability of certain exemptions under the HSR Act and Rules.
The HSR filing fees will remain the same, but the thresholds that determine the fees have been revised. The filing fees, to be paid by the acquiring person in the transaction (unless the parties otherwise agree), will be as follows:
The FTC also revised the dollar thresholds for evaluating interlocking directorates under Section 8 of the Clayton Act. Under certain circumstances, Section 8 prohibits one person from serving as a director or officer of two competing corporations if each corporation has capital, surplus and undivided profits aggregating more than $37,382,000, with an exception that an interlock is not covered if the competitive sales of either corporation are less than a de minimis threshold of $3,738,200. The aggregate capital, surplus and undivided profits of each corporation at the end of its last full fiscal year controls for Section 8 purposes. These new thresholds are effective as of January 21, 2021.
The HSR Act provides that any person (including any officer, director or partner thereof) who fails to comply with any provision of the Act, such as by consummating a reportable transaction without observing the notification and waiting period requirements of the Act, may be subject to a civil penalty for each day during which such person is in violation of the Act. The maximum civil penalty for violations of the HSR Act was increased to $43,792 per day, effective as of January 13, 2021.