Alert January 14, 2013

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 10, the FTC announced the revised thresholds that will become effective 30 days after publication in the Federal Register. The anticipated effective date is February 11, 2013.  The current 2012 and revised 2013 thresholds are:

Test

2012 Threshold

Adjusted 2013 Threshold

Size-of-Transaction

$68.2 million

$70.9 million

Size-of-Person

$13.6 million

and

$136.4 million

$14.2 million

and

$141.8 million

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

$272.8 million

$283.6 million

 

 

 

 

 

 

 

 

The practical effect of this change is that transactions valued at $70.9 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 $141.8 million or more and the other party has annual net sales or total assets of $14.2 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 $28,883,000, and (ii) each corporation’s competitive sales are at least $2,888,300.

The current premerger filing fee schedule is:

  • $45,000 for transactions valued in excess of $70.9 million but less than $141.8 million
  • $125,000 for transactions valued at $141.8 million or greater but less than $709.1 million
  • $280,000 for transactions valued at $709.1 million or more

The fee schedule has not changed from 2012.