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FTC announces increased 2023 HSR filing thresholds and filing fees and revised interlocking directorate thresholds

February 6, 2023
4 minute read

The U.S. antitrust agencies – the Federal Trade Commission (FTC) and Department of Justice Antitrust Division (DOJ) – have made three important announcements for dealmakers. These include:

  1. Newly set 2023 filing thresholds under the Hart-Scott-Rodino Act (HSR Act)
  2. Substantial increases in certain HSR filing fees based on the size of a transaction
  3. Revised interlocking directorate thresholds

2023 HSR filing thresholds

The HSR Act requires that parties to certain mergers, acquisitions and other transactions notify the FTC and DOJ of the deal and then wait a specified period before closing (usually 30 days) so that the agencies can evaluate whether the transaction may substantially lessen competition. On January 23, 2023, the FTC, which is tasked with administering pre-merger notification requirements under the HSR Act, announced increased notification thresholds for 2023. The FTC is required by law to revise the jurisdictional thresholds annually, based on the change in gross national product. High inflation has led to more than a 10% increase of the thresholds from 2022 to 2023. The new thresholds will take effect on Monday, February 27, 2023.

Transactions resulting in aggregate holdings of voting securities, non-corporate interests or assets exceeding the size-of-transaction and size-of-person thresholds set forth below may be reportable to the U.S. antitrust authorities, unless otherwise exempt.


2022 Threshold

New 2023 Threshold

Size-of-Transaction Threshold Where Size-of-Person Thresholds Met

$101 million

$111.4 million

Size-of-Transaction Where Size-of-Person Thresholds Not Required

$403.9 million

$445.5 million

Size-of-Person Thresholds

$20.2 million

$202 million

$22.3 million

$222.7 million


Transactions valued at more than $111.4 million but $445.5 million or less must also meet the “size of person” test. Transactions valued at more than $445.5 million will be reportable regardless of the size of person unless an exemption applies. The size of person test will be satisfied where the ultimate parent entity (UPE) of one party to the transaction has total assets or annual net sales of $222.7 million or more and the UPE of the other party has total assets or annual net sales of $22.3 million or more.

Revised HSR filing fees

The 2023 Consolidated Appropriations Act requires the FTC to revise the HSR filing fee thresholds. The FTC has formally announced the updated HSR filing fees for 2023, which substantially increase the filing fees for large transactions (particularly those in excess of $1 billion), but decrease the fees for smaller transactions valued at less than $161.5 million from $45,000 to $30,000. The new filing fees also will take effect on Monday, February 27, 2023.

Transaction Value

Filing Fee

$111.4 million and higher but less than $161.5 million


$161.5 million and higher but less than $500 million


$500 million and higher but less than $1 billion


$1 billion and higher but less than $2 billion


$2 billion and higher but less than $5 billion


$5 billion and greater



Noncompliance with the HSR Act can result in significant penalties. Any person, including any officer, director or principal thereof who fails to comply with any provision of the HSR Act may be subject to a civil penalty of up to $50,120 for each day in violation.

Interlocking directorate thresholds

Section 8 of the Clayton Act prohibits a person from serving as an officer or a director of two competing (directly or indirectly) corporations because of the potential for resulting anticompetitive effects, including collusion (e.g., price fixing, market division) and the exchange of competitively sensitive information. However, interlocks are exempt from Section 8 where either: (1) each corporation has capital, surplus and undivided profits aggregating less than $10 million, as adjusted (Amount of Capital); (2) the competitive sales of either corporation are less than $1 million, as adjusted (Competitive Sales); (3) the competitive sales of either corporation are less than two percent of that corporation’s total sales; or (4) the competitive sales of each corporation are less than four percent of each corporation’s total sales.

The first two exemptions are adjusted annually based on changes in gross national product, which for 2023 reflects an increase of slightly more than 10 percent. Below is a table comparing the old and new adjusted thresholds.


2022 Threshold

New 2023 Threshold

Amount of Capital



Competitive Sales




Notably, the DOJ recently has signaled a renewed focus on enforcement of Section 8 of the Clayton Act. For example, in late September, the DOJ notified several public companies of concerns, based on statements in public filings, that existing officers or directors of the respective companies were serving as officers or directors of another company that may be considered a competitor. This led to the resignation of 7 directors representing 10 companies (five pairs of competitors). This enforcement activity highlights the importance of monitoring whether officers and directors hold board seats or management positions at competing corporations.

For more information on the HSR Act, Section 8 of the Clayton Act or to learn how Godfrey & Kahn can help, contact a member of our Antitrust Practice Group.

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