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The Federal Trade Commission Issues 2019 Annual Updates to the United States Pre-Merger Notification (HSR) and Interlocking Directorates Thresholds

AOL - Antitrust Transactional

The Federal Trade Commission (FTC) has revised the thresholds that govern pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act), as well as the thresholds for interlocking directorates under Section 8 of the Clayton Act. The new HSR Act thresholds will become effective for all transactions closing on or after April 3. The FTC also increased the penalties for failing to file.

To see the new thresholds in table format, click here. Narrative detail is below.

HSR Act Thresholds

The HSR Act requires parties to transactions that meet the statutory thresholds to file notification with the FTC and Department of Justice, and abide by a waiting period before completing the transaction. The statutory thresholds are revised each year, based on a formula related to the size of the U.S. economy. On February 15, 2019, the FTC announced the revised thresholds for 2019. They will be effective for all transactions closing on or after April 3.

Under the revised thresholds, parties to a transaction with a value of $90 million or less (increased from the 2018 threshold of $84.4 million) need not submit a notification or observe a waiting period. Parties to a transaction valued in excess of $90 million, and up to $359.9 million, must file notification with the federal antitrust agencies and observe the HSR Act waiting period, if the parties also meet a “size of persons” test: one party to the transaction has annual net sales or assets of at least $180 million and the other party to the transaction has annual net sales or assets of at least $18 million (increased from 2017 thresholds of $168.8 million and $16.9 million, respectively).

The “size of persons” test does not apply for larger deals: parties, regardless of their size, must file notification if the value of the transaction is greater than $359.9 million (increased from the 2018 threshold of $337.6 million).

HSR exemptions and waiting periods remain unchanged. Many filing exemptions apply; for example, asset acquisitions of certain types of real property are not subject to filing, and acquisitions of oil, gas, shale, and tar sand reserves and associated E&P assets are exempt if their value to be held as a result of the acquisition does not exceed $500 million. The typical waiting period is 30 days (unless extended), which may be shortened in the case of bankruptcy, tender offers, or discretionary “early termination.”

Table

 Size of Transaction  Size of Party Requirement
 $90 million or less

 No reporting requirement

 In excess of $90 million, to $359.9 million Report if “size of persons” test is met:

One party at least $18 million and One party at least $180 million, based on annual net sales or assets

 Greater than $359.9 million  Report regardless of party size
Filing Fee
Size of Transaction
 $45,000

Valued in excess of $90 million but less than $180 million

$125,000    Valued at $180 million or greater, but less than $899.8 million
$280,000 Valued at $899.8 million or greater

Clayton Act Section 8 Thresholds

Section 8 of the Clayton Act prohibits corporations that compete with each other from having common directors if the companies have revenue that exceeds the statutory threshold, which is revised annually. Under the new thresholds for 2019, companies will have to abide by the prohibitions of Section 8 if each has capital, surplus, and undivided profits aggregating more than $36,564,000.

The statute provides an exemption if either of the corporations’ “competitive sales,” which is defined as revenue from products/services sold in competition with the other corporation, is below an annually adjusted threshold. Under the 2019 thresholds, corporations will be exempt from the requirements of Section 8 of the Clayton Act if either corporation has competitive sales of less than $3,656,400.

Section 8 also does not apply if either corporation has competitive sales of less than 2 percent of its total revenue or each corporation has competitive sales of less than 4 percent of its total revenue. These percentage thresholds are not adjusted annually.

Civil Penalty Increase

On February 14, 2019, the FTC adjusted the maximum civil penalty amount for violations of the HSR Act from $41,484 to $42,530 per day. The new penalty amount is effective as of February 14, 2019.

Visit our website to learn more about V&E’s Antitrust Transactional practice. For more information, please contact Vinson & Elkins lawyers Darren Tucker, Hill Wellford, David Smith, or Morgan Kelley.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.