FTC Announces 2025 HSR Thresholds and Filing Fees as Challenges to New HSR Rules Loom

On January 10, 2025, the Federal Trade Commission (FTC) announced revised notification thresholds and filing fees under the Hart-Scott-Rodino Act (HSR Act), as required by Section 7A of the Clayton Act. If a proposed merger, acquisition of stock, assets or unincorporated interests, or other business combination meets certain thresholds, the parties must notify the FTC and the Antitrust Division of the Department of Justice (DOJ), and observe a 30-day waiting period before consummating the transaction.

While these adjustments are largely administrative and will go into effect without opposition, the same cannot be said for the new rules promulgated by the FTC on October 10, 2024, dramatically expanding the information and documents required to be submitted with HSR filings. See our October 17, 2024, client alert “Final HSR Rules: Major Changes Ahead for Premerger Filings.”

Although these rules are scheduled to become effective on February 10, 2025, recent developments could impact the start date. First, a lawsuit was filed on January 10, 2025, by the U.S. Chamber of Commerce and other plaintiffs alleging that the rules violate the Administrative Procedure Act (APA). Second, following his inauguration, President Trump signed an executive order, that if implemented, could delay the effective date. Third, the new rules also could face a challenge under the Congressional Review Act now that Republicans are in control of both houses of Congress and the White House.

Revised Thresholds

The new minimum filing threshold will be $126.4 million, up from $119.5 million. The new thresholds were published in the Federal Register on January 22, 2025, and will become effective on February 21, 2025.

These new thresholds will affect the jurisdictional requirements and certain exemptions under the HSR Act, as well as the HSR Act’s filing fee schedule. For example, if the value of a transaction does not exceed the revised minimum notification threshold of $126.4 million, the transaction will not need to be reported, and if a transaction value is at least $505.8 million, the HSR size-of-person test (which exempts deals from the notification requirement if the parties’ annual revenues and total assets are below specified levels) will not apply to the transaction.

In addition, the FTC has announced the revised jurisdictional dollar thresholds applicable to Clayton Act Section 8, which prohibits competing companies from having interlocking officers or directors. The revised thresholds are $51.38 million for Section 8(a)(1) and $5.138 million for Section 8(a)(2)(A). These new thresholds took effect immediately upon publication in the Federal Register on January 22, 2025. Finally, the maximum civil penalty amount that can be imposed for violations of the HSR Act increased from $51,744 per day to $53,088 per day, effective January 17, 2025.

Revised Filing Fees

The FTC also announced updated merger filing fees for transactions subject to the HSR Act.

The updated filing fees will also become effective on February 21, 2025.

Challenges to New HSR Rules

HSR changes of far greater consequence are scheduled to take effect on February 10, 2025. As we wrote in our October 2024 alert, these new HSR rules would dramatically increase the information and documents that parties will need to submit with an HSR filing. However, a new lawsuit filed on January 10, 2025, by the U.S. Chamber of Commerce in the U.S. District Court for the Eastern District of Texas seeks to set aside the new rules on the basis that they violate the APA. The Chamber’s complaint argues that:

• The information required by the new rules is not “necessary and appropriate” to determine whether the transaction may violate the antitrust laws, as required by the HSR Act.
• The benefits of the new rules are greatly outweighed by the costs they will impose on filing parties.
• The FTC failed to offer sufficient evidence of deficiencies in the current HSR regime to justify a significant departure from longstanding policy.
• The FTC did not sufficiently explain why it could not fill any alleged information gaps through other, more targeted methods.

Plaintiffs have already been successful in challenging the FTC’s proposed ban on non-compete agreements, convincing a judge in the U.S. District Court for the Northern District of Texas to set aside that rule in August 2024 (a decision that is currently on appeal). If the Chamber’s suit is successful, the new HSR rules would similarly be set aside, and filing parties would continue to use the HSR Form currently in place.

Another avenue of challenge that bears watching is the potential use of the Congressional Review Act (CRA). Enacted in 1996, the CRA enables Congress to overturn certain administrative rules after they are promulgated by a federal agency. This procedure requires the passage of a joint resolution of Congress and signature by the President (or a congressional override of his or her veto), so in practice it requires broad bipartisan consensus or, as is now the case, one-party control of the legislative and executive branches.

Importantly, if a rule is overturned pursuant to the CRA, the relevant agency may not issue a substantially similar rule in the future without specific congressional authorization. However, there is a time limitation established by the CRA for disapprovals: Starting on the 15th legislative day of a new session, Congress must act within 60 legislative days or its authority to overturn the rule expires.

Finally, President Trump signed an executive order on January 20, 2025, ordering all executive departments and agencies to “consider postponing for 60 days ... any rules that have been published in the Federal Register, or any rules that have been issued in any manner but have not taken effect, for the purpose of reviewing any questions of fact, law, and policy that the rules may raise.” The new HSR rules meet that description, so depending on whether or not the FTC decides to implement this regulatory freeze, the effective date of the rules could potentially be pushed back to March 20, 2025, or some later date.

Professional support lawyer Simon Dodd contributed to this article.

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