2023 HSR Thresholds Announced: $111.4 million

As required by the HSR Act, on January 23, 2023, the U.S. Federal Trade Commission (FTC) released its annual adjustments to the reporting thresholds. The key number to remember is now $111.4 million. Note, this is an increase from the $101 million threshold in 2022. Generally, transactions valued in excess of $111.4 million must be reported and cleared by federal antitrust authorities before the transaction may close. The new thresholds are effective on February 27, 2023. The revised thresholds will apply to all transactions that close on or after the effective date.

Each year, the FTC adjusts the reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) based on changes in gross national product. On January 23, 2023, the FTC announced the revised thresholds. Below are the current and new thresholds:

The practical effect of this change is that transactions valued in excess of $111.4 million will be subject to the reporting and waiting requirements of the HSR 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 $22.3 million or more and the other party has annual net sales or total assets of $222.7 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 (unlike the HSR Act thresholds, these adjusted thresholds take effect immediately). Section 8 may preclude a person from serving as an officer or director of two competing corporations when (1) each of the competing corporations has capital, surplus, and undivided profits aggregating more than $45,257,000, and (2) each corporation’s competitive sales are at least $4,525,700.

The FTC also has announced changes to the filing fee structure under the HSR Act in accordance with the Merger Filing Fee Modernization Act (MFFMA), which was signed into law on December 29, 2022. The MFFMA requires yearly adjustment of filing fees according to the consumer price index, rather than gross national product. Goodwin’s alert on the MFFMA discusses these changes in detail. The revised HSR filing fee schedule, effective on February 27, 2023, is as follows:

Earlier this year, the FTC also announced that the maximum civil penalty amount has increased from $46,517 to $50,120 per day for certain violations of the FTC Act, HSR Act, and Energy Policy and Conservation Act.

Please contact a member of Goodwin’s Antitrust & Competition practice if you have any questions.