President Biden Signs Omnibus Bill into Law, Substantially Increasing HSR Filing Fees for Large Transactions
Antitrust and Competition Law Alert® | January 3, 2023
Authors: Bernard (Barry) A. Nigro Jr., Nathaniel L. Asker, Aleksandr B. Livshits, and Megan C. Ingram
As part of the Consolidated Appropriations Act, 2023 (H.R. 2617), President Biden signed into law last week the Merger Fee Filing Modernization Act of 2022, which substantially increases the HSR filing fee thresholds for large transactions, to as much as $2,250,000 for transactions of $5 billion or greater in size. The passage of the Act results in a maximum HSR filing fee that is nearly eight times greater than the previous highest threshold. The Act also reduces the filing fees for small transactions.[1] The FTC Premerger Notification Office is expected to provide notice of when the new filing fee thresholds will take effect, which is expected to be in early 2023. In addition, the budgets of both federal antitrust enforcement agencies will increase significantly, which is expected to result in more active and aggressive enforcement.[2]
| New HSR Filing Fee Thresholds[3] | |
| Transaction Size | HSR Filing Fee |
| Greater than $101 million, but less than $161.5 million | $30,000 |
| $161.5 million or greater, but less than $500 million | $100,000 |
| $500 million or greater, but less than $1 billion | $250,000 |
| $1 billion or greater, but less than $2 billion | $400,000 |
| $2 billion or greater, but less than $5 billion | $800,000 |
| $5 billion or greater | $2,250,000 |
| Current HSR Filing Fee Thresholds | |
| Transaction Size | HSR Filing Fee |
| Greater than $101 million but less than $202 million | $45,000 |
| $202 million or greater, but less than $1.0098 billion | $125,000 |
| $1.0098 billion or greater | $280,000 |
In addition to changing HSR filing fees, the Act introduces changes to the HSR form to require filing parties to disclose whether they have received subsidies from a “foreign entity of concern,”[4] which includes entities controlled by China, Iran, North Korea, and Russia, among other organizations.
The Act also gives state Attorneys General increased autonomy over choice of venue for antitrust litigation, by exempting antitrust cases brought by multiple states from having to be consolidated to a single venue.[5]
[1] Consolidated Appropriations Act, 2023, H.R. 2617, at pg. 3900–02 (2022).
[2] FTC’s annual budget will be increased by approximately 14% to $430,000,000 and the DOJ Antitrust Division's by approximately 17% to $225,000,000. Id. at pg. 159, 556.
[3] The transaction size thresholds are indexed for inflation and will be adjusted annually.
This communication is for general information only. It is not intended, nor should it be relied upon, as legal advice. In some jurisdictions, this may be considered attorney advertising. Please refer to the firm’s data policy page for further information.