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February 20, 2019 - On February 15, the Federal Trade Commission (FTC) published increased reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). The new thresholds represent an approximate 6.6 percent increase over last year’s thresholds. They are expected to be published in the Federal Register during the week of February 18, 2019, and they will become effective 30 days after the date of their publication. This year’s revised thresholds were delayed due to the government shutdown in January. The revised thresholds will remain in effect until the FTC’s next annual adjustment expected in the first quarter of 2020.

HSR Act Basics

The HSR Act requires parties to mergers, acquisitions, joint ventures, and certain other transactions of a certain size or scale to file premerger notification with the FTC and the Department of Justice Antitrust Division (Antitrust Division). The transaction review process requires the parties to observe a 30-day statutory waiting period before closing their transaction, absent a successful request for early termination of the waiting period. The FTC Premerger Office or the Antitrust Division will usually assume primary responsibility for reviewing the transaction, often based on the agency’s business sector experience. If necessary, parties also must cooperate with the enforcement agency’s investigation of their proposed transaction’s competitive effects.

Merger Review Enforcement Climate

The FTC and Antitrust Division’s funding and staffing have remained flat, while the workload on merger review has increased. While a relatively small number of transactions result in challenge, the importance of clearance cannot be overstated. Remember also that many state attorneys general conduct active premerger review and state clearance can be a challenge. In FY 2017 over 2,000 federal notifications were made; a 12% increase over FY 2016. A small percentage of transactions for which HSR filings are submitted involve so-called “second requests” for additional information or a formal merger challenge. In FY 2017 the FTC brought 21 merger challenges: 14 of which were resolved by consent orders, 6 transactions were abandoned under threat of challenge, and one resolved by actual administrative or federal court challenge. During the same period, the Antitrust Division challenged 18 merger transactions, 11 of which involved federal litigation and consent decrees, 6 abandoned transactions and 1 restructured deal.

Adjusted Threshold for Size of Transaction Test

The minimum size of transaction requiring an HSR filing has been increased from $84.4 million to $90 million. For most purposes, the size of the transaction is calculated as the greater of the purchase price or the fair market value of the assets being acquired. If the purchase price or value of the acquired assets is below $90 million, there is no requirement to make an HSR filing even if the parties meet the size of parties test described below.

Adjusted Threshold for Size of Parties Test

Where the size of transaction test is met, generally one party to a transaction also must have assets or annual revenues of at least $180 million (up from $168.8 million) and the other must have assets or annual revenues of at least $18 million (up from $16.9 million) to trigger an HSR filing. The only exceptions are:

• If the sIze of the transaction is $359.9 million or more (up from $337.6 million), there is no size of parties test and the parties will need to file regardless of the assets or annual revenues of the parties involved.
• If the buyer meets the $180 million size of parties test and the target is a non-manufacturer, the target’s annual sales are disregarded so that the target will meet the test only if its assets exceed $18 million.

Adjusted Filing Fees

The HSR filing fees remain the same, but the thresholds used to determine the fees have been adjusted upward.

• For transactions valued between $90 million and $180 million (up from between $84.4 million and $168.8 million), the filing fee is $45,000.
• For transactions valued between $180 million and $899.8 million (up from between $168.8 million and $843.9 million), the filing fee is $125,000.
• For transactions valued at greater than $899.8 million (up from $843.9 million), the filing fee is $280,000.

Adjusted Civil Penalties

The HSR Act provides penalties for businesses and persons who fail to comply with the Act. For example, consummating a reportable merger without filing the required HSR submissions and observing the statutory waiting period may subject a party to a civil penalty for each day during which the party is in violation of the Act. Gun jumping, in which parties share competitively sensitive information or otherwise act as though they were a merged entity before consummation takes place, also is a violation of the HSR Act (as well as a violation of Section 1 of the Sherman Act).

This year, the maximum penalty for an HSR Act violation will increase from $41,484 to $42,530 per day. The higher penalty amount will apply to any civil penalties adjudicated after the effective date of the adjusted thresholds, and it will apply to violations that predate the effective date.

Failure to comply with the HSR Act may have serious consequences for businesses and individuals. Businesses should consult with HSR counsel before proceeding with potentially reportable transactions.

Revised Thresholds for Section 8 of the Clayton Act Targeting Interlocking Directorates

Section 8 of the Clayton Act prohibits any person from holding positions as an officer or director of competing corporations engaged in commerce. This provision is particularly relevant to individuals at private equity firms who, in the course of his/her duties, is an officer or director of several entities. Section 8 applies where:

• Each competing corporation has capital, surplus, and undivided profits aggregating more than $36,564,000, and
• Competitive sales of either corporation are more than $3,656,400.

Safe harbors exist that are based on calculating the competitive sales as a percentage of the corporation’s total sales.

For guidance on premerger analysis and reporting, please contact Glenn E. Davis in our St. Louis office.