Banking and Business Monthly – February 2024

The Federal Trade Commission (“FTC”) announced on January 22, 2024, revised thresholds used for pre-acquisition filings under the Hart-Scott-Rodino Antitrust Improvements Act (“HSR”). These are expected to become effective 30 days after notice is published in the Federal Register. Under the new thresholds, the parties to a merger, consolidation, or acquisition of voting securities or substantial assets will in most cases need to file pre-acquisition notifications with the FTC and the Department of Justice and observe the HSR waiting periods before closing, if the transaction meets one or more tests which look at both the size of the transaction and the sizes of the persons in the transaction.

Size of Transaction: This test is both a floor below which no filing is required, and a threshold for automatic filing regardless of the size of the persons discussed below. No filings are required for transactions under $119.5 million this year notwithstanding the size of the persons. If the value of the securities or assets exceeds $478 million, then the persons must report the transaction notwithstanding the size of the persons.

Size of Person: If the value of the securities and assets held as a result of the transaction is between $119.5 million and $478 million, the transaction must be reported in most cases if either the acquired or acquiring party has annual net sales or total assets of at least $23.9 million and the other party to the transaction has at least $239 million in annual net sales or total assets. For the purposes of applying the above thresholds, “person” means the ultimate parent entity of the party engaged in the transaction.

Filing Fees and Thresholds: The amounts of the filing fees and thresholds have been revised as follows:

• Transactions valued at more than $119.5 million but less than $173.3 million pay $30,000.
• Transactions valued at $173.3 million or more but less than $536.5 million pay $105,000.
• Transactions valued at $536.5 million or more but less than $1.073 billion pay $260,000.
• Transactions valued at $1.073 billion or more but less than $2.146 billion pay $415,000.
• Transactions valued at $2.146 billion or more but less than $5.365 billion pay $830,000.
• Transactions valued at $5.365 billion or more pay $2,335,000.

Increased Civil Penalty: Separately, the FTC announced on January 11, 2024, that the maximum daily civil penalty amount for violations of the HSR would increase from $50,120 to $51,744.

Note that certain filing exemptions may apply depending on the nature of the transaction and the nature and location of the assets and entities involved. Consequently, additional analysis is often required before making a final determination regarding the need for an HSR filing. Counsel is recommended, as noncompliance with HSR leads to significant penalties, as noted above. We can assist with this analysis. For further inquiries or questions, please contact me at smigala@lavellelaw.com or (847) 705-7555.