ANTITRUST UPDATE - January 27, 2012

FTC Increases Thresholds for Hart-Scott-Rodino Act and Corporate Interlock Statute

On January 27, 2012, the FTC published in the Federal Register its annual adjustments of dollar jurisdictional threshold amounts in the Hart-Scott-Rodino (“HSR”) Act and Section 8 of the Clayton Act (“Corporate Interlock Statute”). These changes reflect last year’s percentage increase in the gross national product. The new HSR thresholds will become effective February 27, 2012.

 

REVISED HSR THRESHOLDS

 

Once again the thresholds have moved upward. Under the revised thresholds, transactions valued at more than $68.2 million will be subject to HSR report-and-wait-requirements (unless covered by an exemption). A complete list of the revised indexed thresholds is as follows:

 

ORIGINAL THRESHOLD	ADJUSTED THRESHOLD
$10 million (Size-of-Person)	$13.6 million
$50 million (Size-of-Transaction)	$68.2 million
$100 million (Size-of-Person and Size-of-Transaction re: fee)	$136.4 million
$200 million (Size-of-Person)	$272.8 million
$500 million (Size-of-Transaction re: fee)	$682.1 million
$1 billion (Size-of-Transaction)	$1,364.1 million

 

The HSR filing fees have not changed but the transaction value ranges to which they apply have been adjusted:

 

FEE	ORIGINAL TRANSACTION VALUES	ADJUSTED TRANSACTION VALUES
$45,000	$50 to $100 million	$68.2 to $136.4 million
$125,000	$100 to $500 million	$136.4 to $682.1 million
$280,000	$500 million and above	$682.1 million and above

 

CORPORATE INTERLOCK THRESHOLDS

 

Under the revised thresholds, one person may not serve simultaneously as an officer or director of competing corporations if each "interlocked" corporation has capital, surplus, and undivided profits aggregating more than $27,784,000 (originally, $10,000,000). The threshold amount applicable to the statutory “safe harbor” based on the dollar value of “competitive sales” has also been revised: a corporate interlock does not violate the statute if the “competitive sales” of either interlocked corporation are less than $2,778,400 (originally $1,000,000). The statutory safe harbors based on percentages of annual total sales remain unchanged.

 

The revised corporate interlock thresholds became effective immediately upon their publication in the Federal Register on January 27, 2012.

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