December 26, 2022

Congress Overhauls Merger Filing Fees and Thresholds

Timothy (Ty) Carson, Jon Dubrow, Gregory Heltzer, Graham Hyman

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McDermott Will & Emery

Congress has passed—and President Biden is expected to sign into law today—the Merger Filing Fee Modernization Act, which will significantly change antitrust merger notification regulations under the Hart-Scott-Rodino Act (HSR Act), 15 U.S.C. § 18a.

Included in the changes is language substantially altering the framework for the filing fee amounts and the deal value thresholds triggering those HSR filing fees.

Per a press release from Senator Amy Klobuchar (D-MN), the changes will go into effect in 2023. We will update when we have more clarity on timing.

In addition to the filing fee changes, the legislation imposes a new obligation to report with an HSR filing information on foreign subsidies from certain foreign governments, noted as “adversaries.” We will have to see how the Federal Trade Commission (FTC) and the US Department of Justice implement this requirement in a revision to the HSR form and instructions.

Notably and perhaps more significantly, while not part of this legislation, FTC Chair Lina Khan has indicated that the agencies also are working on revisions to the HSR rules that will require more substantive disclosures of information to assist in the agency review process. Overall, the legislation and expected proposed changes to the HSR form, as well as the anticipated new Merger Guidelines, likely will significantly change HSR practice moving forward.

DETAILS REGARDING FILING FEES AND THRESHOLDS

The new deal value thresholds and filing fee amounts are as follows:

New Deal Value Thresholds	New HSR Filing Fees
$101 million to <$161.5 million	$30,000
≥$161.5 million to <$500 million	$100,000
≥500 million to <$1 billion	$250,000
≥$1 billion to <$2 billion	$400,000
≥$2 billion to <$5 billion	$800,000
≥$5 billion	$2,250,000

The new thresholds and fees will be adjusted annually at the beginning of each year.

For an understanding of how this legislation changes the prior threshold and fee framework, the following table shows the impact of the legislation on prior HSR filing fees:

Deal Value	Impact of Legislation on Prior HSR Filing Fees
$101 million to <$161.5 million	Decreased from $45,000 to $30,000
≥$161.5 million to <$202 million	Increased from $45,000 to $100,000
≥$202 million to <$500 million	Decreased from $125,000 to $100,000
≥$500 million to <$1 billion	Increased from $125,000 to $250,000
≥$1 billion to <$1.0098 billion	Increased from $125,000 to $400,000
≥$1.0098 billion to <$2 billion	Increased from $280,000 to $400,000
≥$2 billion to <$5 billion	Increased from $280,000 to $800,000
≥$5 billion	Increased from $280,000 to $2,250,000

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.