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FTC Increases HSR Notification Threshold To $111.4 Million For 2023 And Implements Significant HSR Filing Fees Changes – Antitrust, EU Competition


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The Federal Trade Commission (FTC) announced yesterday the
increased Hart-Scott-Rodino (HSR) Act thresholds for 2023. These
thresholds update the cost to submit an HSR filing—increasing
by almost tenfold the filing fee for HSR notifications for
transactions valued at $5 billion or more—and increase the
minimum value of transactions that must be notified under the HSR
Act to $111.4 million.

The HSR Act requires all persons or entities contemplating
certain mergers or acquisitions that meet or exceed the
jurisdictional thresholds of the Act to file notifications of that
transaction with the FTC and the Department of Justice. Once both
parties have submitted their HSR filings, the enforcement agencies
have up to 30 days to decide whether to seek additional
information—a process commonly known as a “Second
Request.” The parties also have the option to request
“Early Termination,” which, if granted, will shorten
the 30-day waiting period. Note, however, that the enforcement
agencies have not yet lifted the nearly two-year 
 on grants of Early Termination. If the 30-day
waiting period expires without the issuance of a Second Request, or
if Early Termination is granted, the parties are free to close the
transaction. If the reviewing agency issues a Second Request, the
agency has 30 days from the date the parties substantially comply
with the request to decide whether to let the transaction proceed
or attempt to block it in court.


The FTC adjusts the HSR Act filing thresholds annually, based on
changes to the gross national product. Due to the 2022 growth in
the gross national product, the FTC will increase the “size
of transaction” threshold from $101 million to $111.4
million. Any transaction valued below $111.4 million (for HSR
purposes) need not be reported. For transactions valued between
$111.4 million and $445.5 million (up from $403.9 million), the
“size of person” test further determines whether the
parties need to make a filing. For an HSR filing to be required in
this range, one party must have annual net sales or total assets of
at least $222.7 million (up from $202 million) and the other party
must have annual net sales or total assets of at least $22.3
million (up from $20.2 million). If a transaction is valued above
$445.5 million, the “size of person” test does not

Below is a table displaying the original dollar amount
thresholds of the HSR Act, the current (2022) thresholds, and new
2023 thresholds, which will become effective 30 days after
publication in the Federal Register:

Original Threshold 2022 Threshold 2023 Threshold
$10 million $20.2 million $22.3 million
$50 million $101 million $111.4 million
$100 million $202 million $222.7 million
$500 million $1.0098 billion $1.1137 billion
$1 billion $2.0196 billion $2.2274 billion


The 2023 thresholds are the first thresholds incorporating
provisions from the Merger Filing Fee Modernization Act, which
became law on December 29, 2022, and altered the filing fee
thresholds. For transactions that close 30 days after publication
of the new thresholds in the Federal Register, the top HSR filing
fee will increase from $280,000 to $2,250,000 for all transactions
valued at $5 billion or more, increase in smaller increments for
all transactions valued at $500 million or more, and decrease for
transactions below $500 million. For further discussion on the
effect of the Merger Filing Fee Modernization Act, please see our
previous post 

The filing fee amounts the parties must pay as well as the
thresholds for those fees will change to the following:

Size of Transaction Filing Fee1
Greater than $111.4 million but less
than $161.5 million
$161.5 million or greater but less
than $500 million
$500 million or greater but less than
$1 billion
$1 billion or greater but less than
$2 billion
$2 billion or greater but less than
$5 billion
$5 billion or greater $2,250,000

Failure to file an HSR Notification and Report Form is subject to a
statutory penalty for noncompliance. The HSR thresholds are only
one part of the analysis to determine whether an HSR filing is
required. Please contact one of the authors with any questions
regarding the reportability of a transaction. Winston lawyers
regularly advise parties regarding the reportability of
transactions, as well as guide clients through the reporting
process and any government investigation that may follow.


Finally, the FTC announced revised thresholds under Section 8 of
the Clayton Act, which prohibits interlocking directorates. The
jurisdictional thresholds under Section 8 of the Clayton Act that
trigger prohibitions on a person serving as a director or officer
in two competing corporations will increase to $45,257,000 for
Section 8(a)(l) and $4,525,700 for Section 8(a)(2)(A). The new
thresholds for Section 8 became effective immediately upon their
publication in the Federal Register on January 20, 2023. Further
discussion of the DOJ’s recent increased use of Section 8 can
be found 


1. Following passage of the Merger Filing Fee
Modernization Act, the filing fee amounts will be updated based on
changes to the Consumer Price Index.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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