FTC announces increased HSR thresholds for 2018

Authors: Daniel L. Wellington, Layne E. Kruse, David M. Foster, Luke McFarland Publication | January 26, 2018
FTC announces increased HSR thresholds for 2018

The Federal Trade Commission ("FTC") today 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 likely will be in late February or early March (30 days after publication of the changes in the Federal Register). 

Most importantly, the minimum "size-of-transaction" threshold will be raised from US$80.8 million to US$84.4 million. Acquisitions below this threshold will not be reportable. 

Threshold 

2018 adjusted threshold 

Minimum Size-of-Transaction 

$84.4 million 

Size-of-Persons Test 

$16.9 million and $168.8 million 

Size-of-Transaction above which Size-of-Persons Test Does Not Apply 

$337.6 million

The adjustments also apply to certain other HSR Act thresholds and exemptions, such as the exemptions for acquisitions of foreign assets and voting securities.

While the HSR filing fee amounts have not changed in more than a decade, the size-of-transaction thresholds, upon which the filing fee is based, will be increased.  The filing fee for each of the new thresholds will be:

2018 size-of-transaction threshold 

Filing fee 

Value of transaction greater than $84.4 million, but less than $168.8 million 

$45,000 

Value of transaction $168.8 million or greater, but less than $843.9 million 

$125,000 

Value of transaction $843.9 million or greater 

$280,000 

25% of an issuer's voting securities if valued in excess of $1,687.8 million 

$280,000 

50% of an issuer's voting securities if valued at greater than $84.4 million 

$45,000 

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 2019.

In a related development, the FTC also announced adjustments to the thresholds for interlocking directorates under Section 8 of the Clayton Act, which prohibits a person from serving as a director or officer in two competing corporations. The jurisdictional thresholds under Section 8(a)(1) and 8(a)(2)(A) are revised from US$32,914,000 and US$3,291,400 to US$34,395 and US$3,439,500, respectively. As a result of these adjustments, Section 8 will apply to corporations with capital, surplus, and undivided profits aggregating more than US$34,395,000, unless the competitive sales of either corporation are less than US$3,439,500; the competitive sales of either corporation are less than two percent of that corporation's total sales; or the competitive sales of each corporation are less than four percent of that corporation's total sales. The notice announcing these revisions will be published shortly in the Federal Register and will be effective upon publication.

Increased civil penalties

Finally, The FTC also published this week the annual inflation-adjustments for civil penalty dollar amounts for the 16 provisions of law enforced by the FTC, including violations of the HSR Act. For 2018, the maximum civil penalty amount for violations of the HSR Act has been increased from US$40,654 to US$41,484 per day. Under the newly announced penalty amounts, failing to submit an HSR filing for one year could subject a company to civil penalties of up to US$15.1 million.

How we can help

Norton Rose Fulbright lawyers are well versed in the HSR Act and its reporting requirements and are available to advise parties regarding the reportability of transactions, as well as guide clients through the reporting process and any government investigation that may follow an HSR filing.

 


Contacts

Daniel L. Wellington

Daniel L. Wellington

Washington, DC
Layne E. Kruse

Layne E. Kruse

Houston Washington, DC
David M. Foster

David M. Foster

Washington, DC
Luke McFarland

Luke McFarland

Washington, DC