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Deposit thresholds adjusted under the HSR Act of 2023

 


On January 23, 2023, the Federal Trade Commission (FTC) released revised Hart-Scott-Rodino (HSR) Act Jurisdictional Thresholds for 2023. The FTC is required by law to revise the HSR Act Currency Jurisdictional Thresholds each year. year based on changes in gross national product. The revised thresholds will come into effect on or around February 22, 2023, for transactions closed on or after that date. The 2022 thresholds will remain applicable for transactions closed before the effective date.

Minimum deposit thresholds. Under HSR, 15 USC 18a, transactions that exceed the “transaction size” threshold and (in most cases) the “person size” thresholds must be reported to the FTC and the Department American Department of Justice before being able to close (except exemption). The revised thresholds for 2023 (compared to the 2022 thresholds) are:

Jurisdictional test

2022

2023

Transaction size (SOT)

$101 million

$111.4 million

Size of people (SOP)

$20.2 million
– and-
$202 million

$22.3 million
– and-
$222.7 million

Large transactionsSOP not applicable

$403.9 million

$445.5 million

Additional Deposit Thresholds. HSR deposits may be required not only for initial purchases of voting securities above the minimum SOT that could trigger a deposit ($111.4 million for 2023), but also for subsequent purchases of securities with voting rights that exceed the additional SOT thresholds. New HSR deposits may be required for purchases of voting securities that cause the acquirer’s holdings to cross these additional higher thresholds, even if an HSR deposit was made for prior purchases at a lower threshold. The incremental SOT thresholds for 2023 will be:

  • $222.7 million
  • $1.1137 billion
  • 25% of an issuer’s outstanding voting securities if valued at more than $2.2274 billion1

Remarks

  • FOOLTransaction size is based on the total value of voting securities, unincorporated interests, or assets the acquirer is expected to hold as a result of an acquisition.
    • The total value of voting securities to be held should be based on the present value of current holdings (marked to market) plus the value of additional voting securities to be acquired.
    • Special aggregation rules apply to acquisitions of interests and non-corporate assets, so please check with your antitrust team regarding these types of transactions.
  • COACHThe SOP is determined by the respective total assets or annual net sales of the parties. One party to the transaction must have total assets or annual net sales of $222.7 million and another party to the transaction must have total assets or annual net sales of $22.3 million. If the target is the smallest party and is not engaged in manufacturing, then it must have total assets of $22.3 million or more.
  • Significant transactionsIf the value of the transaction exceeds $445.5 million, the SOP thresholds no longer apply and a transaction may be submitted to HSR based solely on the value of voting securities, non-corporate interests or assets to be held following the acquisition.

Application fees. Finally, if an HSR notification is required, there is a tiered filing fee based on the reported SOT (note that there is only one filing fee per transaction). Pursuant to the Merger Filing Fee Modernization Act of 2022, Congress directed the FTC to implement a rule that increases filing fees for larger transactions while decreasing fees for smaller transactions. . For 2023, the adjusted filing fees under the HSR Act are:

  • 30,000 transactions worth less than $161.5 million
  • 100,000 transactions valued at $161.5 million but less than $500 million
  • 250,000 transactions valued at $500 million but less than $1 billion
  • 400,000 transactions valued at $1 billion but less than $2 billion
  • 800,000 transactions valued at $2 billion, but less than $5 billion
  • $2.25 million transactions valued at $5 billion or more

If you have any questions about these rule changes or about HSR in general, please don’t hesitate to contact Scott Sher (202-973-8822), Michelle Yost Hale (202-973-8836), Ben Labow (415-947-2077), Kim Biagioli (202.937.8831), Todd Hahn (212-497-7749), or another member of the antitrust and competition practice at Wilson Sonsini Goodrich & Rosati.


[1] Deposits may also be required if the acquirer will own 50% or more of the outstanding voting securities of an issuer following the acquisition.

Sources

1/ https://Google.com/

2/ https://www.wsgr.com/en/insights/2023-hsr-act-adjusted-filing-thresholds.html

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