Alert January 27, 2012

FTC Adjusts HSR and Clayton Act Reporting Thresholds

Each year, the Federal Trade Commission (“FTC”) adjusts the reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “H-S-R Act”) based on the change in gross national product from the prior year. On January 24, the FTC announced the revised thresholds that will become effective 30 days after publication in the Federal Register. The anticipated effective date is on or about February 24, 2012. The current 2011 and revised 2012 thresholds are:

Test 2011 Threshold Adjusted 2012 Threshold
Size-of-Transaction $66 million $68.2 million
Size-of-Person $13.2 million and
$131.9 million
$13.6 million and
$136.4 million

Size-of-Transaction Threshold
at Which Size-of-Person Test
No Longer Applies

$263.8 million $272.8 million


The practical effect of this change is that transactions valued at $68.2 million or less will not be subject to the reporting and waiting requirements of the H-S-R Act. In general, the size-of-parties test will be satisfied only if one party to the transaction has annual net sales or total assets of $136.4 million or more and the other party has annual net sales or total assets of $13.6 million or more.

The interlocking directorate thresholds under Section 8 of the Clayton Act have also been adjusted to account for changes in the gross national product. Section 8 may preclude a person from serving as an officer or director of two competing corporations when (i) each of the competing corporations has capital, surplus and undivided profits aggregating more than $27,784,000, and (ii) each corporation’s competitive sales are at least $2,778,400.

The current premerger filing fee schedule is:

  • $45,000 for transactions valued in excess of $68.2 million but less than $136.4 million
  • $125,000 for transactions valued at $136.4 million or greater but less than $682.1 million
  • $280,000 for transactions valued at $682.1 million or more

The fee schedule has not changed from 2011.

For more information about this Alert, contact your regular Goodwin Procter attorney or any of the attorneys listed here.