FTC Announces Increases to Hart-Scott-Rodino Act Notification Thresholds, Filing Fees, and Civil Penalty Amounts

HSR Thresholds Increased

The Federal Trade Commission (“FTC”) announced that for all transactions closing on or after February 22, 2024, the thresholds that determine whether the parties must submit a pre-closing notification to the FTC and the Antitrust Division of the Department of Justice (“DOJ”) will increase by approximately 10%. The new thresholds mean that unless otherwise exempted, pre-closing notifications required by the Hart-Scott-Rodino Act (“HSR Act”) must be filed where either (a) the acquiring person will hold more than $119.5 million of the acquired person’s voting securities, non-corporate interests or assets as a result of the acquisition and the size-of-person thresholds (discussed below) are met, or (b) the acquiring person will hold more than $478 million of the acquired person’s voting securities, non-corporate interests or assets as a result of the acquisition, regardless of whether the size-of-person thresholds are met.

The size-of-person thresholds were increased to $239 million and $23.9 million. This means that for transactions above the $119.5 million size-of-transaction threshold, HSR pre-closing notifications are required (unless otherwise exempted) for transactions where one ultimate parent entity to the transaction has annual net sales or total assets of $239 million or more and the other ultimate parent entity to the transaction has annual net sales or total assets of $23.9 million or more. As noted above, the size-of-person thresholds do not apply where the size of the transaction is over $478 million.

When pre-closing notification is required under the HSR Act, the parties must wait 30 days after submitting completed notifications before consummating the transaction. The waiting period can be extended by 30 days if, in response to a request by the FTC or DOJ, the parties voluntarily “pull and refile” their notifications or longer if the FTC or DOJ issues a request for additional information about the transaction (commonly referred to as a “Second Request”).

New HSR Filing Fee Structure

The FTC also announced HSR filing fees for 2024. The new HSR filing fees, which are based on the size of transaction, are also effective February 22, 2024. Under the HSR Act, the acquiring person is responsible for paying these fees, however, parties may agree to share responsibility for payment.

Civil Penalties Increased

The FTC also announced an increase in the maximum civil penalty amounts for violations under the HSR Act from $50,120 per day to $51,744 per day, effective January 10, 2024.

---

You can download a quick reference for these new thresholds and filing fee structure here. Determining whether a filing is required and, if so, what the filing fee may be requires an understanding of the detailed HSR rules and agency interpretations. Consult with counsel for advice on whether your transaction may be subject to the HSR Act and to discuss whether your deal may present other antitrust risks. For more information on HSR or other antitrust issues please contact Howard Iwrey (248-203-0526, hiwrey@dykema.com), Cody Rockey (734-214-7655, crockey@dykema.com), A. Joseph Duffy, IV (248-203-0713, jduffy@dykema.com), or your Dykema relationship attorney.