The Federal Trade Commission (FTC) recently announced revised thresholds that determine whether companies are required to notify federal antitrust authorities about a transaction under Section 7A of the Clayton Act. The new thresholds will apply to all transactions closing on or after February 25, 2016.

Pursuant to the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act), companies proposing a merger or acquisition must notify regulators and satisfy a mandatory waiting period (usually 30 days) if the size of the parties involved and the value of a transaction exceeds certain filing thresholds, absent an applicable exemption. The FTC revises the thresholds annually, based on the change in gross national product (GNP).

Premerger Notification Thresholds

For 2016, the minimum size of transaction threshold will be $78.2 million, which represents a slight increase over the 2015 threshold of $76.3 million. Accordingly, if the merger or acquisition is valued at $78.2 million or more and the parties exceed certain size limits (one of the parties to the transaction has $156.3 million or more in annual net sales or total assets and the other has $15.6 million or more in annual net sales or total assets), both parties may be required to submit a Premerger Notification to the FTC and the Department of Justice. In addition, if the transaction is valued at $312.6 million or more, filing may be required, regardless of the size of the parties to the transaction.

Filing Fees

If premerger notification is required, the parties must complete a “Notification and Report Form for Certain Mergers and Acquisitions,” which requires information about each company’s business. The companies must also pay a filing fee, which is determined by the size of the transaction. As of February 26, 2016, the HSR filing fees will be:

  • Transaction valued in excess of $78.2 million but less than $156.3 million: $45,000
  • Transaction valued at $156.3 million or greater but less than $781.5 million: $125,000
  • Transaction valued at $781.5 million or greater: $280,000

Businesses should be aware that the penalties for failing to comply with the HSR Act are significant and may include fines of up to $16,000 per day for each day of violation. Due to the complexity of HSR filings, it is always wise to consult a business lawyer experienced in mergers and acquisitions.