FTC Announces Increases to HSR Act and Clayton Act Section 8 Thresholds

27 January 2022
View Debevoise Update
Key takeaways:
  • The FTC has increased the HSR premerger notifications thresholds, which will become effective on February 23, 2022. At 9.8%, this is the largest annual increase since the thresholds became subject to indexing in 2005. Most importantly, the base size-of-transaction threshold will increase from US$92.0 million to US$101.0 million, so acquisitions resulting in total holdings below US$101.0 million will not be reportable. This Update provides a complete listing and explanation of all the new, increased HSR thresholds.
  • The FTC also increased the Clayton Act Section 8 thresholds, which trigger prohibitions on persons serving as directors or officers of two competing corporations. Effective January 24, 2022, Section 8’s prohibitions may apply if each corporation has capital, surplus, and undivided profits of more than US$41,034,000 (formerly US$37,382,000), and no statutory exemption is applicable.
  • Lastly, the FTC increased the maximum civil penalty for HSR Act violations from US$43,792 to US$46,517 per day. This increased penalty is effective for all penalties assessed after January 10, 2022, even if the underlying violation preceded that date.