FTC Announces 2024 Revised Thresholds and Filing Fees for HSR Filings

On January 22, 2024, the Federal Trade Commission (FTC) announced the adjusted thresholds to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), which were officially published in the Federal Register on Monday, February 5, 2024, and became effective on March 6, 2024.

The HSR Act governs the requirements for federal reporting both to the FTC and the United States Department of Justice (DOJ) for transactions that are based on certain dollar thresholds. Adjustments to such thresholds are made annually based on changes to the U.S. gross national product.

There are three tests to determine reporting, and the changes outlined below are effective for transactions closing on or after March 6, 2024:

The minimum “size-of-transaction” threshold will increase from $111.4 million to $119.5 million.
The “size-of-person” thresholds will increase from $22.3 million to $23.9 million and from $222.7 million to $239 million. The “size-of-person” is measured by the total assets or annual net sales of the ultimate parent entities of the acquiring and acquired parties. To be reportable, the parent entity of one party must reach the higher threshold while the other party must reach the lower.
The larger “size-of-transaction” threshold will increase from $445.5 million to $478 million. Under this test, if the “size-of-person” threshold is not satisfied, but the acquisition is more than $478 million, the transaction is reportable.

If a transaction satisfies the threshold and doesn’t fall within an exemption, the HSR Act requires federal reporting and a 30-day waiting period before closing to allow for review of potential antitrust concerns in relation with such transaction. Failure to file as required can result in daily civil penalties (as of January 10, 2024, a maximum penalty of $51,744 per day).

In the event a transaction is reportable, there is a filing fee based upon transaction value. The fee is adjusted annually based on changes to the consumer price index. The new filing fees, which are also effective as of March 6, 2024, are provided in the table below:

Transaction Value	Filing Fee
$119.5 million to < $173.3 million	$30,000 (no change)
$173.3 million to < $536.5 million	$105,000
$536.5 million to < $1.073 billion	$260,000
$1.073 billion to < $2.146 billion	$415,000
$2.146 billion to < $5.365 billion	$830,000
$5.365 billion or more	$2,335,000

The acquiring party is obligated to pay the filing fee, although the parties may agree to share the fee or shift the responsibility. In light of this obligation, the acquiring party’s counsel should carefully consider applicable exemptions to reduce or eliminate the filing fee.

Additionally, although separate from the threshold and fee adjustments addressed above, it is important to keep in mind the sweeping new HSR rules and new HSR form that were initially proposed by the FTC in June of last year. While the closing of the extended comment period occurred on September 27, 2023, the final form of the rules and their effective date is currently unknown. It is anticipated that the updated rules will go into effect in the coming months, and that those rules and the new form will substantially increase the information required to be provided to the FTC and DOJ and the amount of time needed to sufficiently complete the form.