Brandon L. Bigelow and Sam Rowley

Seyfarth Synopsis:  On January 22, 2024, the Federal Trade Commission (FTC) announced that the 2024 threshold for applying the size-of-parties test of the Hart-Scott-Rodino (HSR) Act will increase from $111.4 million to $119.5 million. Deals that exceed this $119.5 million threshold may need to be reported to the FTC and U.S. Department of Justice (DOJ) depending on the size of the parties to the transaction as measured by the volume of their sales or the value of their assets.

Generally, transactions in 2024 with a value greater than $478 million will be reportable under the HSR Act, regardless of the volume of sales or value of assets of the parties. Parties reporting transactions under the HSR Act must observe a 30-day waiting period after reporting the transaction before closing the deal. The HSR Act imposes these notification and waiting period requirements so that the FTC and DOJ can assess the potential competitive effects of proposed transactions before the deal is consummated. Under the Clayton Act, the FTC is required to adjust HSR thresholds annually based on changes in U.S. gross national product (GNP). The new thresholds will go into effect 30 days after their publication in the Federal Register, which is expected this week.

Last year, the FTC announced its approval of publication of the Federal Register notice announcing the new six-tier structure of HSR filing fees pursuant to the Merger Filing Fee Modernization Act of 2022. The filing fee thresholds for 2024 will change as follows:

Size (Value) of TransactionFiling Fee
< $161.5 million$30,000 (no change from 2023)
$161.5 million to < $500 million$105,000 ($5,000 increase)
$500 million to < $1 billion$260,000 ($10,000 increase)
$1 billion to < $2 billion$415,000 ($15,000 increase)
$2 billion to < $5 billion$830,000 ($30,000 increase)
≥ $5 billion$2,335,000 ($85,000 increase)

Beginning this year, filing tiers will be adjusted annually to reflect changes in the GNP for the previous year. Filing fees will be increased annually if the percentage increase in the consumer price index, as determined by the Department of Labor, is greater than one percent. The FTC expects to publish the adjusted amounts as soon as practicable each year, but no later than January 31. Like the new size of transaction thresholds, the new six-tiered structure and associated fees will go into effect 30 days after publication in the Federal Register. Earlier this month, the FTC also announced an upward adjustment to the maximum daily civil penalty for HSR violations. Unlike HSR size of transaction thresholds, which are adjusted for change in GNP, the maximum daily civil penalty is adjusted for changes in inflation. The new maximum daily civil penalty, effective January 10, 2024, is $51,774.