Relevant Documents:
Announcement
Commissioner Slaughter and Chair Khan Statement
Takeaways
- The FTC announced today an adjustment to the size of transaction threshold under the Clayton Act to $101 million from $92 million.
- Commissioner Rebecca Kelly Slaughter and Chair Lina Khan issued a statement supporting efforts to increase filing fees for the largest transactions reviewed by the agency.
- Slaughter and Khan also indicate support for “revisiting” other parts of the HSR Act, stating, “The short 30-day window the agencies are given to determine whether a deal warrants close investigation and the 30-day timeline imposed on the agencies after parties certify they have ‘substantially complied’ with the inquiry have not kept pace with the increased volume and complexity of transactions.”
The FTC announced today an adjustment to the size of transaction threshold under the Clayton Act to $101 million from $92 million. The threshold is revised annually based on the change in the gross national product, according to the agency.
The commission vote to approve the
Federal Register notice was 4-0.
Commissioner Rebecca Kelly Slaughter and Chair Lina Khan issued a statement supporting efforts to increase filing fees for the largest transactions reviewed by the agency. They assert that “despite the historic merger wave, the DOJ and FTC will continue to collect filing fees under the exact same fee scale that was enacted in 2001 because annual adjustment of fees is not included in the statute.” Slaughter and Khan describe the per-transaction filing fees as “stagnant” even though the “largest mergers and merger investigations have increased in size and complexity.”
The two express support for legislative efforts by Sens. Amy Klobuchar, D-Minn., and Chuck Grassley, R-Iowa, to update premerger filing fees. The commissioners say they support efforts to “increase merger filing fees for large transactions and to require annual adjustments to ensure that they keep pace with the ongoing merger wave and growth of the U.S. economy more broadly.”
In June 2021, the House Judiciary Committee
passed House Bill 3843, the Merger Filing Fee Modernization Act of 2021, which would decrease filing fees for smaller transactions and raise them on the largest - up to $2.25 million for deals over $5 billion. The Senate Judiciary Committee passed identical legislation
Senate Bill 288 in May 2021.
Slaughter and Khan also indicate support for “revisiting” other parts of the HSR Act, stating, “The short 30-day window the agencies are given to determine whether a deal warrants close investigation and the 30-day timeline imposed on the agencies after parties certify they have ‘substantially complied’ with the inquiry have not kept pace with the increased volume and complexity of transactions and their related data and documents since passage of the HSR Act in 1976.”
The commissioners also advocate for additional congressional funding given the “astounding” number of mergers filed with the agency. They say “it has been a challenge to fully resource the FTC’s competition mission” and that headcount “remains well below what is needed to meet this challenge.”