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US FTC announces 2023 HSR thresholds
Author:
United States | Publication | January 2023
On January 23, 2023, the Federal Trade Commission (FTC) announced increased reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act).
These reporting thresholds are revised annually based on changes in the US gross national product. The increases will apply to all transactions that close after the effective date, which will be 30 days after publication of the changes in the Federal Register, estimated to be February 23, 2023.
Most importantly, the minimum "size-of-transaction" threshold will be increased from US$101m to US$111.4m. Acquisitions below this threshold will not be reportable.
| Threshold | 2022 Adjusted Threshold |
|---|---|
| Minimum Size-of-Transaction | US$111.4m |
| Size-of-Persons Test | US$22.3m and US$222.7m |
| Size-of-Transaction above which Size-of-Persons Test Does Not Apply | US$445.5m |
The adjustments also apply to certain other HSR Act thresholds and exemptions, such as the exemptions for acquisitions of foreign assets and voting securities.
These updated reporting thresholds were announced shortly after a new filing fee structure was passed in the Merger Filing Fee Modernization Act of 2022 as part of a broader spending bill:
| 2023 Size of Transaction | Filing Fee |
|---|---|
| At least US$111.4m but less than US$161.5m | US$30,000 |
| At least US$161.5m but less than US$500m | US$100,000 |
| At least US$500m but less than US$1bn | US$250,000 |
| At least US$1bn but less than US$2bn | US$400,000 |
| At least US$2bn but less than US$5bn | US$800,000 |
| US$5bn or more | US$2,250,000 |
Filing fee thresholds will be adjusted annually starting in 2024.
Even if a transaction is reportable based on the above thresholds, it may qualify for an HSR Act exemption. Complex rules apply to the valuation and exemptions under the HSR Act, and you should consult a lawyer experienced in HSR matters to determine whether a transaction is reportable.
The new thresholds will remain in effect until the next annual adjustment, expected in January or February 2024.
Global Head of Antitrust and Competition Co-Head of Commercial Litigation, US
Email
robin.adelstein@nortonrosefulbright.com
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