2021 Hart-Scott-Rodino thresholds

The U.S. Federal Trade Commission (FTC) has announced its annual revisions to the notification and filing fee thresholds of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). Due to a reduction in U.S. gross domestic product, the HSR Act thresholds will decrease from 2020. This is only the second time, and the first since 2010, that the HSR Act thresholds are lower than the previous year.

The HSR Act is an antitrust statute that authorizes the FTC and the Antitrust Division of the Department of Justice (DOJ) to evaluate the potential anticompetitive effects of certain merger and acquisition transactions. The HSR Act requires the parties contemplating mergers or acquisitions that meet or exceed jurisdictional thresholds to: a) provide information to the FTC and DOJ regarding the acquisition and the parties’ business operations; and b) await the expiration or early termination of a statutory waiting period before completing the proposed transaction.

New HSR thresholds

The following table lists the original, current and revised HSR thresholds1. The new thresholds are effective March 4, 2021.

 

2020

2021

Original threshold

Current threshold

New threshold

$10 million

$18.8 million

$18.4 million

$50 million

$94 million

$92 million

$100 million

$188 million

$184 million

$110 million

$206.8 million

$202.4 million

$200 million

$376 million

$368 million

Under the revised thresholds, an acquisition may be subject to the notification and waiting period requirements of the HSR Act if, as a result of the transaction, the acquiring person will hold assets, voting securities, or non-corporate interests with a value in excess of $92 million (size-of-transaction test) and the parties to the transaction have total assets or annual net sales in excess of $18.4 million and $184 million, respectively (size-of-person test).

The size-of-person test does not apply to transactions involving the acquisition of assets, voting securities or non-corporate interests valued in excess of $368 million.

Below is an updated schedule of HSR filing fees for 2021. Only the transaction-size thresholds have changed, not the filing fee amounts.

Transaction size

Filing fee

Greater than $92 million but less than $184 million

$45,000

$184 million or greater but less than $919.9 million

$125,000

$919.9 million or greater

$280,000

The FTC announced in January a maximum penalty for failure to file a Notification and Report Form when required by the HSR Act of up to $43,792 per day of non-compliance.

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1 All monetary values are in U.S. dollars. The FTC’s guidelines for converting foreign currency can be found here.

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