US Merger Control Notification Threshold Increases to $101 Million

The Federal Trade Commission announced its 2022 adjustments to the Hart-Scott-Rodino (HSR) thresholds. These thresholds determine which mergers and acquisitions must be reported to United States federal antitrust agencies for review before consummation. The FTC is required by statute to update these thresholds annually, adjusted for inflation. The new thresholds will take effect on February 23, 2022 and remain in effect through early 2023. All transactions closing on or after the effective date will be governed by the new thresholds.

The threshold for a notifiable transaction under the HSR Act has increased from $92 million to $101 million. This substantial increase will likely result in fewer notifiable transactions, lessening the current burden on the FTC and Department of Justice who conduct their review of most transactions within a 30-day window.

Size-of-Transaction Threshold. Under the new thresholds, the parties to a merger, consolidation or acquisition of voting securities or substantial assets will, in most cases, need to file pre-acquisition notifications with the FTC and the DOJ and observe the HSR Act’s waiting periods before closing if the transaction will result in either of the following:

• The acquiring person will hold more than $101 million worth of voting securities and assets of the acquired person and the parties meet the “size-of-person” requirements below; or
• Regardless of the parties’ sizes, the acquiring person will hold more than $403.9 million worth of voting securities and assets of the acquired person.

Size-of-Person Threshold. Meeting any one of the following three subtests satisfies the “size-of-person” test:

1. A person with $202 million or more of total assets (on its most recent regularly prepared balance sheet) or annual net sales (from its most recently completed fiscal year) proposes to acquire voting securities or assets of a person engaged in manufacturing (note that software is not considered manufacturing) with $20.2 million or more of annual net sales or total assets; or
2. A person with $202 million or more of total assets or annual net sales proposes to acquire voting securities or assets of a person not engaged in manufacturing with $20.2 million or more of total assets (net sales test does not apply); or
3. A person with $20.2 million or more of total assets or annual net sales proposes to acquire voting securities or assets of a person with $202 million or more of annual net sales or total assets.

Filing Fees. While the thresholds dictating which filing fees are required with an HSR notification are annually adjusted, the fees themselves have not been adjusted for more than a decade.

The new thresholds, which will take effect in late February, are detailed in the charts below.