On January 22, the FTC announced updated dollar thresholds triggering the bar on interlocking officers and directors under Section 8 of the Clayton Act, 15 U.S.C. § 19. Section 8 of the Clayton Act prohibits one person from serving as a director or officer of two competing corporations if the corporations meet certain size and competitive sales thresholds. For 2024, Section 8 applies if each corporation has capital, surplus, and undivided profits aggregating more than $45,257,000; however, no corporation is covered if the competitive sales of either corporation are less than $4,525,700. These new thresholds took effect on January 22, 2024.
The next day, the FTC announced updated dollar thresholds triggering the jurisdiction of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”), 15 U.S.C. § 18a, to certain acquisitions. The new HSR Act thresholds will take effect 30 days after publication in the Federal Register.
Under the revised thresholds, transactions valued at over $119.5 million may require pre-notification under the HSR Act, a significant increase of the current threshold of $111.4 million. Moreover, in most acquisitions that are valued under $1.195 billion, in addition to meeting the size-of-transaction test, one side must have total assets or net sales of at least $23.9 million and the other side must have assets or net sales of at least $239 million to trigger the Act’s jurisdiction.
The filing fees were also adjusted upward. For transactions valued between $119.5 million and $173.3 million, the filing fee will be $30,000. The fee climbs to $105,000 for transactions valued at or over $173.3 million but less than $536.5 million, to $260,000 for transactions valued under $1.073 billion, to $415,000 for transactions valued under $2.146 billion, to $830,000 for transactions valued under $5.365 billion, and to $2.335 million for transactions valued at $5.365 billion or more.