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Antitrust Alert: New HSR Thresholds for 2011

The annual adjustment of the dollar thresholds for preacquisition filings under the Hart-Scott-Rodino Act will take effect February 24. All transactions closing on or after the effective date will be governed by the new thresholds.

Under the new thresholds, the parties to an acquisition or merger will in most cases need to file pre-acquisition notifications with the FTC and the Department of Justice and observe the Act's waiting periods before closing if the transaction will result in either of the following:

  • (a) The acquiring person will hold more than $66.0 million worth of voting securities and assets of the acquired person and the parties meet the "size-of-person" requirements below; or
  • (b) Regardless of the parties' sizes, the acquiring person will hold more than $263.8 million worth of voting securities and assets of the acquired person.

Meeting any one of the following three subtests satisfies the "size-of-person" test:

  1. A person with $131.9 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 $13.2 million or more of annual net sales or total assets;
  2. A person with $131.9 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 $13.2 million or more of total assets (net sales test does not apply); or
  3. A person with $13.2 million or more of total assets or annual net sales proposes to acquire voting securities or assets of a person with $131.9 million or more of annual net sales or total assets.

For the purposes of applying the thresholds, "person" means the ultimate parent entity of the party engaged in the transaction.

Note that certain exemptions may apply depending on the nature of the transaction and the nature and location of the assets and entities involved. Consequently, additional analysis is often required before making a final determination regarding the need for a filing.

Filing fee thresholds also have been adjusted: (i) $45,000 for transactions below $131.9 million, (ii) $125,000 for transactions of $131.9 million or more but below $659.5 million, and (iii) $280,000 for transactions of $659.5 million or more.

For further information, please contact:

Mark S. Ostrau
Partner, Technology Transactions Group
Co-Chair, Antitrust and Unfair Competition Group
mostrau@fenwick.com, 650.335.7269

This update is intended by Fenwick & West LLP to summarize recent developments in the law. It is not intended, and should not be regarded, as advertising, solicitation, legal advice or opinion. Readers who have particular questions about these issues should seek advice of counsel.

©2011 Fenwick & West LLP. All Rights Reserved.


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