On February 2, 2021, the Federal Trade Commission (FTC) is scheduled to publish revised Hart-Scott-Rodino (HSR) Act jurisdictional thresholds for 2021. The FTC is required by law to revise the HSR Act monetary jurisdictional thresholds each year based on changes in the gross national product. For the first time since the height of the financial crisis in 2010, and for only the second time in the history of the HSR Act, the revised thresholds will be lower than for the preceding year. The new, lower thresholds will become effective on or about March 4, 2021 for transactions closing on or after that date.

Minimum Filing Thresholds. Under the HSR Act, 15 U.S.C. §18a, transactions that exceed the "size-of-transaction" threshold and (in most cases) "size-of-person" thresholds must be reported to the FTC and the Department of Justice before they can close (unless an exemption applies).

• Size-of-transaction—the 2021 size-of-transaction threshold will be $92 million (down from $94 million in 2020). The size of transaction is determined by the value of voting securities, noncorporate interests, or assets to be held by the acquiring person as a result of an acquisition.
• Size-of-person—the 2021 size-of-person thresholds will be $184 million in total assets or annual net sales for one party to a transaction (down from $188 million in 2020), and $18.4 million in total assets or annual net sales for another party to the transaction (down from $18.8 million in 2020). The size-of-person test is determined by the parties' respective total assets or annual net sales.
• Special Note:
  • If the size-of-transaction value is $368 million or less (down from $376 million in 2020), then both the size-of-transaction and size-of-person thresholds must be satisfied for the transaction to be subject to HSR.
  • However, if the size-of-transaction value exceeds $368 million, then the size-of-person thresholds no longer apply, and a transaction may be subject to HSR based solely on the value of voting securities or assets to be held as a result of the acquisition.

Incremental Filing Thresholds. HSR filings may be required not only for initial purchases of voting securities valued in excess of the minimum size-of-transaction that can trigger a filing ($92 million for 2021), but also for subsequent purchases of voting securities that exceed incremental size-of-transaction thresholds. New HSR filings may be required for purchases of voting securities that result in the acquiring person's holdings crossing these higher, incremental thresholds, even if an HSR filing was made for previous purchases at a lower threshold. The incremental size-of-transaction thresholds for 2021 will be:

• $184 million (down from $188 million)
• $919.9 million (down from $940.1 million)
• 25 percent of the outstanding voting securities of an issuer if valued at more than $1,839.8 million (down from $1,880.2 million)¹

Filing Fees. Finally, if an HSR Act notification is required then there are tiered filing fees based on the size-of-transaction being reported (note that there is only one filing fee per transaction). For 2021, the filing fees are:

• $45,000—transactions valued at more than $92 million but less than $184 million
• $125,000—transactions valued at $184 million or more but less than $919.9 million
• $280,000—transactions valued at $919.9 million or more.

If you have any questions about these rule changes or HSR in general, please feel free to contact Ben Labow (415-947-2077) or another member of the antitrust and competition practice at Wilson Sonsini.

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[1] Filings may also be required if the acquiring person will hold 50 percent or more of an issuer’s outstanding voting securities as a result of the acquisition.