FTC Announces Increases to Thresholds for Pre-Merger Notification and Limitations on Interlocking Directorates
On Jan. 10, 2013, the Federal Trade Commission made its annual announcement of revisions to thresholds that determine whether companies must abide by the pre-merger filing and waiting period requirements set forth in the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. The FTC revises the thresholds annually based on changes in gross domestic product. The new thresholds take effect 30 days after the announcement.
This year, the “size-of-transaction” threshold increased by nearly 4 percent, from $68.2 million to $70.9 million. As a result, the HSR notification and waiting requirements will apply to transactions that result in the acquiring party holding assets or voting securities of the acquired person valued at more than $70.9 million.
The “size of person” test is now applicable to transactions valued at $283.6 million or less (up from $272.8 million). Where the “size-of-person” test applies, compliance with HSR rules is required when one of the parties has total assets or net sales of at least $14.2 million and the other has total assets or net sales of at least $141.8 million.
Despite some discussion last year regarding raising HSR Act filing fees, the filing fees remain the same, as they have for more than a decade. The fees are now based on the following revised thresholds:
Value of Transaction | Filing Fee |
More than $70.9 million but less than $141.8 million | $45,000 |
$141.8 million but less than $709.1 million | $125,000 |
More than $709.1 million | $280,000 |
The FTC also announced revisions to thresholds triggering the Clayton Act’s interlocking directorate provision that prevents the same person from serving as an officer or board member of two or more competing companies. The prohibition now covers circumstances where each corporation has “capital, surplus, and undivided profits” aggregating more than $28,883,000 unless either corporation has less than $2,888,300 in “competitive sales.”
The revised thresholds will become effective thirty days after publication in the Federal Register and apply to all transactions that close on or after the effective date, which will be Feb. 10.