FTC announces increase in HSR filing thresholds and changes to HSR premerger filing fees

The Federal Trade Commission (FTC) has announced increases to the notification thresholds under the Hart-Scott-Rodino (HSR) Antitrust Improvements Act, which requires premerger notification of certain transactions to the FTC and the Antitrust Division of the U.S. Department of Justice. The FTC revises the thresholds annually based on the change in gross national product. The 10.3% increase to the thresholds is the largest increase in well over a decade.

In addition, per the newly enacted Consolidated Appropriations Act of 2023, the FTC has announced a new HSR premerger filing fee structure. Broadly speaking this new structure increases fees for transactions valued at USD1bn or more. Going forward the FTC will also revise the premerger filing fees annually based on the change in consumer price index.

The revised thresholds and the new premerger filing fees will come into effect on February 27, 2023 (30 days after notice of the adjusted thresholds is published in the Federal Register) (the Effective Date). The revised thresholds apply to transactions that close on or after the Effective Date while the new HSR premerger filing fees apply to transactions that file an HSR premerger notification on or after the Effective Date.

Size-of-transaction threshold:

Size-of-person thresholds:

Size-of-transaction threshold at which size-of-person test is not applicable:

New HSR filing fee thresholds and new HSR premerger filing fees:

Filing fee thresholds and filing fees have changed as well as a result of legislation passed on December 29, 2022 (see our alert for a summary of the new law’s antitrust provisions). Broadly speaking, deals valued at USD1bn or more will pay higher fees, while deals valued at less than USD1bn will pay slightly lower fees.