Effective February 22, 2010: New Lower Thresholds Under the Hart-Scott Rodino Antitrust Improvements Act of 1976

Certain threshold limits under the Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended (HSR Act) will be decreased, effective February 22, 2010.

The Federal Trade Commission (FTC) is required to revise the thresholds annually based on the change in gross national product. For the first time in the HSR Act's history, this will result in lower thresholds in 2010. Most importantly, the size of transaction threshold has been reduced to $63.4 million. In certain circumstances, this may require the parties to a pending transaction that will be completed on or after February 22, 2010 to reevaluate the filing requirements under the HSR Act.

Basic Filing Thresholds

The HSR Act requires parties that meet the HSR Act's size-of-person thresholds to submit premerger notification filings with the FTC and the Department of Justice before completing proposed stock or asset acquisitions exceeding the HSR Act's size-of-transaction threshold. The thresholds have been revised as follows:

• Size of Person. Either the acquiring or acquired person must have total assets or annual net sales of $126.9 million or more and the other party must have total assets or annual net sales of $12.7 million or more. If the acquired person is the $12.7 million entity and is not engaged in manufacturing, the test looks only to the total assets of the acquired person, not annual net sales. Annual net sales are determined by looking at the last regularly prepared annual statement of income and expense and assets are determined by looking at the last regularly prepared balance sheet.  If the value of the assets or voting securities being acquired exceeds $253.7 million, this test is deemed to be automatically met, regardless of the actual size of the parties.
• Size of Transaction. This test is met if more than $63.4 million of assets or voting securities of the acquired person will be held as a result of the transaction.

Various other thresholds under the HSR Act have been adjusted as well.

Certain exemptions may apply and certain other aspects of the rules should be considered if it appears filings are required, or the parties are close to meeting the above thresholds. 

Filing Fees

The act imposes a filing fee on each acquiring person who is required to file, based on the size of the transaction, as follows: