The Federal Trade Commission has just announced its annual adjustment to the notification thresholds that determine whether proposed transactions may trigger a filing obligation under the Hart-Scott-Rodino (HSR) Antitrust Improvements Act of 1976, as amended, which will apply to transactions that close on or after February 27th, 2023.
Comments
Compliance with the HSR Act is imperative. The FTC already announced the annual increase of the maximum civil penalty available for HSR Act violations from $46,517 to $50,120 per day, effective on the date of the publication of the Federal Register (January 11th, 2023).
In depth
Under the 2023 thresholds, the lowest “size of transaction” notification threshold for any acquisitions of voting securities, assets, or non-corporate interests will increase from $101 million to $111.4 million. For transactions valued above $111.4 million but below USD 445.5 million, an HSR filing may be triggered only if the below-described “size of person” test is satisfied. Transactions valued above $445.5 million may trigger an HSR filing obligation irrespective of the size of the parties involved.
The HSR Act “size of person” threshold, when applicable, generally will be satisfied if one party to the transaction has annual net sales or total assets of $222.7 million or more and the other party has $22.3 million or more in annual net sales or total assets. In each case, the operative “party” is the ultimate parent entity of the party to the potentially notifiable transaction.
Notification Threshold
New (USD)
Current (USD)
“Size of Transaction” Test
$111.4 million
$101 million
“Size of Person” Test*
One party $222.7 million; Other party $22.3 million
One party $202 million; Other party $20.2 million
“Size of Person” Test is Inapplicable
$445.5 million
$403.9 million
* Applies to each party’s annual net sales or total assets; if target is not engaged in manufacturing, only assets are considered in determining its size.
In addition, the HSR Act filing fee structure has changed following passage of the Merger Filing Fee Modernization Act, which was included in the omnibus spending package. The new fee structure will reduce filing fees for smaller transactions, while significantly increasing fees for the largest ones.
Transaction Value (USD)
New HSR Filing Fee (USD)
Under $161.5 million
$30,000
Over $161.5 million but under $500 million
$100,000
Over $500 million but under $1 billion
$250,000
Over $1 billion but under $2 billion
$400,000
Over $2 billion but under $5 billion
$800,000
$5 billion or more
$2,250,000
The Federal Register notice announcing the revised HSR Act notification thresholds, including the new HSR filing fees, can be found here.
The new HSR notification thresholds and filing fees will take effect on Monday, February 27th and will apply to all transactions that close on or are notified after that date.
Creighton Macy is the Chair of Baker McKenzie's North America Antitrust & Competition Practice Group. Creighton is recognized as a leading global antitrust practitioner.
Creighton has extensive experience representing clients in a wide variety of antitrust matters, including mergers and acquisitions, investigations by the United States Department of Justice and the Federal Trade Commission, private litigation, and counselling on issues such as antitrust compliance. Before joining the Firm, Creighton served as Chief of Staff and Senior Counsel in the DOJ Antitrust Division, working as a senior advisor to the Assistant Attorney General on civil and criminal antitrust enforcement and policy matters, as well as budget and personnel issues. During Creighton's time at the DOJ, the Antitrust Division undertook an unprecedented volume of high-profile civil and criminal matters.
Creighton began his career as a Trial Attorney in the Litigation III and Transportation, Energy, and Agriculture sections of the Antitrust Division, working on a number of notable merger and civil non-merger investigations and cases. Before rejoining the Antitrust Division as its Chief of Staff, he was a member of another global law firm's antitrust practice, where he advised clients on a wide range of US and international antitrust issues.
Creighton is consistently recognized globally for his market-leading antitrust practice with respect to high-stakes transactions, investigations, and compliance and counseling work. For example, clients have noted that Creighton “shines above the rest’ due to his first-rate cartel and merger control-related practice.’” He also regularly speaks and publishes articles relating to a variety of antitrust issues, and has been recognized many times for his contributions and thought-leadership on these issues.
Creighton is currently Co-Chair of the American Bar Association Antitrust Law Section’s Young Lawyers Task Force. In previous roles, he served as Reporter of the Presidential Transition Task Force, as well as Chair of the Trade, Sports, and Professional Associations Committee. He is highly involved in mentoring programs, including with the Antitrust Law Section, as well as Marquette University Law School, where he previously served as the DC Representative of the Alumni Board.
Creighton graduated from Marquette University, where he was an NCAA Division I Academic All-American tennis player. During his time at Marquette, he was awarded the Athletic Department’s Cura Personalis award by his peers, as well as several leadership awards. More recently, Creighton was named the Athletic Department’s Young Alumnus of the Year Award.
Brian Burke is a partner in Baker McKenzie's Washington, DC office. He draws on over 20 years of experience to counsel clients on all federal antitrust issues. He assists clients in successfully navigating the merger clearance process before the US as well as international antitrust authorities. Brian also has extensive experience advising clients on civil and criminal governmental antitrust investigations, commercial antitrust litigation, antitrust compliance programs, risk assessments, and pricing and distribution policies. Brian holds multiple leadership positions in the Firm. He is a member of the Steering Committee for the Firm's North American Antitrust Practice Group, as well of the Global Antitrust and Competition Taskforces for Healthcare, Energy Mining and Infrastructure, and Consumer Goods Industries. He also serves as the co-head of the Firm's Merger-Control Task Force.
John Fedele is a member of Baker McKenzie's antitrust practice and is located in its Washington, DC office. While he has a broad range of antitrust experience, he most frequently represents clients before the Antitrust Division of the US Department of Justice (DOJ) and the Federal Trade Commission (FTC) in investigations of proposed mergers and acquisitions, and routinely analyzes and manages filing obligations under the Hart-Scott-Rodino (HSR) Act and foreign competition regimes. John is a member of the Washington D.C. office’s Diversity Advisory Committee, serves as a contact in the firm’s PointONE program designed to allow employees to raise workplace concerns in a safe space, and maintains an active pro bono practice. He also is a member of Baker McKenzie’s Global Merger Control Task Force.
Teisha Johnson is a member of Baker McKenzie's antitrust practice in Washington, DC. She advises clients on a wide range of antitrust and e-discovery matters, and has considerable experience counseling clients in government investigations, proposed mergers and acquisitions, compliance, and litigation matters.
Nandu Machiraju is a counsel in Baker McKenzie's North America Antitrust & Competition Practice Group. He has significant industry experience in antitrust matters affecting the healthcare, pharmaceuticals, chemicals, mining, and technology sectors. Nandu advises clients on a wide range of antitrust matters and has considerable experience counseling clients in government investigations, proposed mergers and acquisitions, conduct matters, compliance, and litigation.
Before joining the Firm, Nandu worked as an attorney with the US Federal Trade Commission (FTC). Most recently, Nandu was an attorney in the Bureau of Competition’s Litigation Group where he served a critical role on merger litigation challenges in the hospital and medical-device industries. Before that, he served as an Attorney Advisor to FTC Chairman Joseph J. Simons where he advised on enforcement, appellate advocacy, policy, and congressional relations as well as matters relating to agency management. Nandu also was an attorney in the Mergers I Division where he worked on mergers involving pharmaceuticals, medical devices, retail pharmacies, and cement plants. Before joining the FTC, Nandu was an associate at an international law firm where he practiced antitrust and competition law in that firm’s Washington, D.C. and Brussels offices.
Dan is a senior associate in Baker McKenzie's North America Antitrust & Competition Practice Group.
Dan is an antitrust specialist whose practice focuses on merger control, civil conduct investigations, corporate counseling and compliance, and civil litigation. He advises client across a broad range of industries in matters before US and foreign competition authorities.
Dan maintains an active pro bono practice. He is also an active member of the ABA Section of Antitrust Law and is currently a Vice Chair for the Unfair Competition Committee.
