Overview
On January 23, 2023, the Federal Trade Commission (“FTC”) announced updated size-of-transaction thresholds for premerger notification (Hart-Scott-Rodino or “HSR”) filings, as well as new HSR filing fees and new de minimis thresholds for interlocking officer and director prohibitions under Section 8 of the Clayton Act.
The HSR filing thresholds, which are revised annually based on the change in gross national product, trigger a premerger notification filing requirement with both the FTC and the Department of Justice’s (“DOJ”) Antitrust Division. For proposed mergers and acquisitions, the 2023 threshold will increase from $101 million to $111.4 million.
Separately, pursuant to the 2023 Consolidated Appropriations Act, the FTC announced the new filing fees for premerger notification filings. Before this announcement, parties to a transaction paid the following filing fees based on the size of the transaction:
Old 2022 Thresholds and Filing Fees
| Transaction Value | Filing Fee |
| Greater than $101 million but less than $202 million | $45,000 |
| Greater than or equal to $202 million but less than $1,009.8 million | $125,000 |
| $1,009.8 million or greater | $280,000 |
Under the new act, however, the new filing fee structure has six categories and increases the fees substantially for the largest transactions:
New 2023 Thresholds and Filing Fees
| Transaction Value | Filing Fee |
| Greater than $111.4 million but less than $161.5 million | $30,000 |
| Not less than $161.5 million but less than $500 million | $100,000 |
| Not less than $500 million but less than $1 billion | $250,000 |
| Not less than $1 billion but less than $2 billion | $400,000 |
| Not less than $2 billion but less than $5 billion | $800,000 |
| $5 billion or more | $2.25 million |
Congress increased the fees to help the DOJ and the FTC staff more closely review transactions after the unprecedented number of prenotification filings in the past two years. Of note, Congress decreased fees for smaller transactions subject to the HSR Act.
The new de minimis thresholds for triggering Section 8’s bar on interlocking officers and directors are $45,257,000 for the minimum size of capital, surplus, and undivided profits for purposes of Section 8(a)(1) and $4,525,700 for the minimum amount of competitive sales for purposes of Section 8(a)(2)(A). The triggers for application of Section 8 of the Clayton Act are particularly important in light of the Department of Justice’s recent focus and enforcement actions on this issue, as discussed previously.
The size-of-transaction threshold for transactions under Section 7A and the new filing fees will take effect 30 days after publication in the Federal Register. The thresholds for Section 8 became effective on January 20, 2023.
January 25, 2023 Update: The 7A thresholds and new filing fees will become effective on February 27, 2023.
