FTC Announces Revised Thresholds for Clayton Act Antitrust Reviews

The Federal Trade Commission revised the thresholds that determine whether companies are required to notify federal antitrust authorities about a transaction under the Hart-Scott-Rodino Antitrust Improvements Act.

These filing thresholds are required to be adjusted annually to keep pace with inflation, unlike the pre-merger filing fees, which have not changed in more than a decade. The HSR Act requires companies to notify authorities if – among other things – the value of a transaction exceeds the filing thresholds. The FTC is required to revise those thresholds annually, based on the change in gross national product. For 2012, the threshold for reporting proposed mergers and acquisitions subject to enforcement under Section 7 of the Clayton Act increased from $66.0 million to $68.2 million.

The FTC also announced revisions to the thresholds that trigger a prohibition preventing companies from having interlocking memberships on their corporate boards of directors under Section 8 of the Clayton Act. The Act requires that the Commission revise those thresholds annually, based on the change in the level of gross national product. The new thresholds for the Act's prohibition on interlocking directorates are $27,784,000 for Section 8(a)(1) and $2,778,400 for Section 8(a)(2)(A). In the case of each type of threshold, the vote to approve Federal Register notices announcing the revisions was 4-0. The revised thresholds under Section 7A will apply to all transactions that close on or after the effective date of the notice, which is 30 days after its publication in the Federal Register. The thresholds for Section 8 will become effective upon publication in the Federal Register.