FTC Announces Increases to HSR Act, Clayton Act Section 8 Thresholds, and Significant Increases in HSR Filing Fees for Largest Transactions

26 January 2023
View Debevoise Update
Key takeaways:
  • The FTC has increased the HSR premerger notifications thresholds, which are expected to come into effect on February 27, 2023. The base size-of-transaction threshold will increase from US$101.0 million to US$111.4 million, so acquisitions resulting in total holdings below US$111.4 million will not be reportable. This update provides a complete listing and explanation of all the new, increased HSR thresholds.
  • The FTC has also given notice of new HSR size-of-transaction- based filings fees, which are expected to come into effect on February 27, 2023. The new fee structure significantly increases filings fees for the largest transactions, with a top fee of US$2,250,000 (formerly US$280,000).
  • 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 20, 2023, Section 8’s prohibitions may apply if each corporation has capital, surplus, and undivided profits of more than US$45,257,000 (formerly US$41,034,000), and no statutory exemption is applicable.
  • Lastly, the FTC increased the maximum civil penalty for HSR Act violations from US$46,517 to US$50,120 per day. This increased penalty is effective for all penalties assessed after January 11, 2023, even if the underlying violation preceded that date.