January 12, 2023
W. Todd Miller, Erin Glavich
The structure of the filing fees collected with required premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act 1976, as amended, are set to change for the first time in decades. The new fee structure, enacted under the Merger Filing Fee Modernization Act 2022 (MFFMA) and signed into law 29 December 2022, as part of the Consolidated Appropriations Act, 2023, replaces the current three-tier structure with a six-tier scheme, with fees to be adjusted annually based on the consumer price index (CPI). The new fee structure will see dramatic increases in fees for the largest transactions, but much smaller fees for the smaller transactions. The current fee structure tops out at $280,000 for transactions valued at or above $1.0098 billion; as implemented, the new fee structure will top out at $2.25 million for transactions valued at $5 billion or more.
The Federal Trade Commission (FTC) has not yet announced when the new fees will be effective, but both the announcement and effective date are widely expected soon. The 2022 fee structure remains in effect until the new effective date is announced.
The new fees may provide a funding boost for the Department of Justice (DOJ) and FTC. Fees are earmarked to fund the enforcement activities of the DOJ Antitrust Division and the FTC, split evenly between the two agencies. The Congressional Budget Office estimated the new fee structure could bring in $1.4 billion dollars over five years (assuming the new fees were effective 1 January 2023). For comparison’s sake, the FTC reported it took in $191 million in Hart-Scott-Rodino (HSR) fee revenue in financial year 2022.
Under the current structure, the filing fees remained the same while the relevant acquisition value threshold was adjusted annually based on changes to the gross national product.
What does the MFFMA change?
The MFFMA institutes several significant changes and results in a dramatic increase in fees collected for the largest sized HSR reportable transactions. The MFFMA replaces the three old tiers with six tiers. Three separate tiers for transactions over $1 billion replace the 2022-adjusted singular tier. The new six-tier structure sees decreases for the smallest transactions, some decreases and some increases for transactions valued at more than $161.5 million to less than $1 billion, but progressively higher fees thereafter. These fees will now be adjusted annually based on the CPI, while the thresholds will continue to be adjusted based on changes to gross national product. Because the FTC must publish the adjusted amounts by 31 January of each year, it can be expected that the Federal Register publication announcing the new structure’s implementation very soon.
New filing fee tiers
|Less than $161.5 million
|Not less than $161.5 million but is less than $500 million
|Not less than $500 million but is less than 1 billion
|Not less than $1 billion but less than $2 billion
|Not less than $2 billion but less than $5 billion
|Not less than $5 billion.
Additional antitrust changes
The MFFMA included three additional provisions related to antitrust, two of which are related to mergers and HSR reporting:
- The first requires disclosures of subsidies from foreign adversaries.
- The second are new reporting requirements for the DOJ and FTC.
- The third relates to antitrust litigation venues for state attorneys general actions.
Disclosure of subsidies by foreign adversaries
The provision is to require parties filing a merger prenotification form to include information regarding subsidies received from countries or entities that are strategic or economic threats to the United States. These are defined by citing to section 40207 of the Infrastructure Investment and Jobs Act(1) and currently include China, Russia, Iran and North Korea among others.
This requirement is not yet effective. The FTC is to develop a rule that establishes the reporting requirement and documentary evidence necessary to evaluate the competitive implications of any subsidies. This reporting requirement will go into effect when the rule promulgated by the FTC goes into effect.
FTC and DOJ reports to Congress
The MFFMA also requires the DOJ and FTC to submit each July annual reports through 2027 on:
- funds made available to the agencies under the new fee regime compared to 2022 levels;
- the total revenue derived from the new fees by tier; and
- the gross cost of operations.
The FTC separately must report a list of all actions for which the FTC recorded a vote on the public record by the five commissioners on a three-to-two basis. For all actions for which the FTC took a vote (public and non-public), the FTC must indicate the percentage that were decided on a three-to-two basis.
A number of votes in the last few years have been decided along party lines, resulting in numerous three-to-two votes. But the statute does not require reporting based on the current dynamics at the FTC because there is not yet a replacement for Republican Commissioner Phillips who stepped down in late 2022. Hence, some of the very recent major decisions have been decided on a three-to-one vote. These decisions include:
- the approval of the action to block the Microsoft/Activision merger;
- filing an amicus in the McDonald’s labor (no poach) case;
- the FTC’s new section 5 “unfair methods of competition” policy; and
- the FTC’s proposed rulemaking banning non-compete agreements.
Venue for state antitrust enforcement
This provision excludes state attorneys general antitrust actions from being consolidated into multidistrict litigations. As a result, state attorneys general may pursue actions in separate courts parallel to multidistrict antitrust litigations.
(1) 42 US Code – section 18741(a).
This content was originally published on January 12, 2023, via the International Law Office (ILO) newsletter. It can be found here: Changes to fee structure for Hart-Scott-Rodino Act filings
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