The FTC just announced its annual changes to both certain thresholds which govern the need to make an HSR filing, the fees associated with required filings and which dictate the legality of interlocking directorates. The changes will take effect 30 days after publication in the Federal Register, which as of this writing has yet to occur.
What You Need to Know:
- Are you involved in a merger, acquisition or other business combination or affiliation in excess of $126.4 million in value?
- Are you aware that transactions in excess of that value, as determined under Hart-Scott-Rodino regulations, may require a Premerger Notification filing with the FTC and the U.S. Department of Justice?
- Have you consulted with antitrust counsel concerning the possibility of having to make a mandatory HSR Premerger Notification filing?
On January 10, 2025, the FTC announced the annual updates to the HSR size thresholds, filing fees and interlocking directorate thresholds. The updated thresholds and filing fees will be published in the Federal Register shortly and will take effect 30 days after publication. See FTC Announces 2025 Update of Size of Transaction Thresholds for Premerger Notification Filings | Federal Trade Commission.
The FTC is required to revise the HSR thresholds annually based on the change in gross national product, and the new thresholds represent increases from 2024 thresholds. To determine whether an HSR filing is required, the increased thresholds are as follows:
In light of these increases, pending transactions may merit additional analysis – the deal size increase is almost $7 million, which might render a filing required under the 2024 thresholds unnecessary due to the increase. Similarly, the party size thresholds have increased, with the larger party threshold increasing by almost $14 million, so again another look might be warranted.
The FTC is also required to increase annually the HSR filing fees by an amount equal to the percentage increase, if any, in the consumer price index. The 2025 fee structure for HSR filings is as follows:
Additionally, the 2024 thresholds regarding when interlocking directorates are illegal pursuant to Section 8 of the Clayton Act have also increased, to $51,380,000 (in aggregate capital, surplus and undivided profits) (from $48,559,000) and $5,138,000 (in competitive sales) (from $4,855,900). See FTC Announces 2025 Jurisdictional Threshold Updates for Interlocking Directorates | Federal Trade Commission.
The FTC has yet to announce any inflation-adjusted increase for 2025 to the civil penalty amount applicable to HSR violations. The size thresholds, interlocking directorate thresholds, and new civil penalty amount (if any) will take effect 30 days after publication in the Federal Register.
Conclusion
We will update this alert when the increases are published in the Federal Register and an effective date is determined, and will also track a change in the HSR civil penalty amount for violations of the HSR Act and regulations. In the interim, however, parties on the verge of executing transactions which were analyzed under the 2024 thresholds should take a second cut at the analysis to determine, depending on their deal timeline, whether the need to file has been eliminated because an increased threshold is not met.
