On January 24, 2022, the Federal Trade Commission (the “FTC”) announced revised statutory thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “Hart-Scott-Rodino Act” or “HSR”). These thresholds, which are revised annually based on the change in gross national product, were published in the Federal Register on January 24 (available here) and will apply to transactions closing on or after February 23, 2022.

Mergers and Acquisitions

Unless otherwise exempted, parties to a merger or acquisition are required to make HSR filings if the size-of-transaction test is satisfied. Beginning February 23, this test is satisfied if a transaction (i) is valued over $403.9 million (previously $368.0 million) or (ii) is valued over $101.0 million (previously $92.0 million) and the size-of-person test is also satisfied. The size-of-person test is satisfied if one of the parties has net sales or total assets of at least $202.0 million (previously $184.0 million) and the other party has net sales or total assets of at least $20.2 million (previously $18.4 million). Certain monetary thresholds relating to HSR notification exemptions have also increased.

Acquisitions of Voting Securities

Similarly, the five notification thresholds relating to acquisitions of voting securities (which specify whether a filing or successive filing is necessary) have increased. Beginning February 23, HSR filings are required in connection with acquisitions (and subsequent acquisitions) of voting securities that result in an acquirer holding voting securities of a company: (i) valued over $101.0 million (previously $92.0 million), (ii) valued at or over $202.0 million (previously $184.0 million), (iii) valued at or over $1.0098 billion (previously $919.9 million), (iv) comprising 25% or more of such company’s voting securities, if valued over $2.0196 billion (previously $1.8398 billion) or (v) comprising 50% of such company’s voting securities, if valued over $101.0 million (previously $92.0 million). Once an acquirer holds 50% or more of a company’s voting securities, no further notification to the FTC and the Department of Justice (“DOJ”) is required in connection with subsequent acquisitions of such company’s securities.

HSR Filing Fees

Filing fee thresholds have also been adjusted for 2022, though HSR filing fees remain unchanged. Effective February 23, the revised filing fee thresholds and related filing fees are as follows:

* At the time of filing.

Interlocking Directorates Thresholds

The FTC also announced higher thresholds relating to interlocking directorate restrictions under Section 8 of the Clayton Antitrust Act of 1914 (the “Clayton Act”). The new thresholds are $41,034,000 and $4,103,400 for Sections 8(a)(1) and 8(a)(2)(A) of the Clayton Act, respectively (up from $37,382,000 and $3,738,200 in 2021). Such thresholds became effective upon their publication in the Federal Register on January 24, 2022 (available here).

Civil Penalty Amounts

On January 6, 2022, the FTC announced adjusted civil penalty amounts for certain violations of the Hart-Scott-Rodino Act, which became effective upon their publication in the Federal Register on January 10, 2022 (available here). Civil penalty amounts are revised annually to account for inflation, and the maximum civil penalty amount in 2022 for such violations is $46,517 per day (up from $43,792 in 2021).

Other Developments

Concurrently with the FTC’s January 24 announcement regarding the revised HSR thresholds, Commissioner Rebecca Kelly Slaughter issued a statement (available here), joined by FTC Chair Lina Khan, calling for a statutory increase in filing fees, more Congressional funding and revisions to the HSR review process. This statement follows recently announced efforts by the FTC and the DOJ to strengthen and modernize antitrust enforcement by revising the merger guidelines, discussed in our prior blog post (available here). It also aligns with ongoing federal legislative activity to bolster antitrust enforcement and provide additional support to these agencies.

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