• U.S. Merger Notification and Interlocking Directorates Thresholds Announced for 2013
  • January 17, 2013 | Authors: Bevin M.B. Newman; Tom D. Smith; Pamela L. Taylor
  • Law Firms: Jones Day - Washington Office ; Jones Day - Chicago Office
  • Yesterday the Federal Trade Commission announced the Hart-Scott-Rodino ("HSR") Act thresholds that will apply to transactions closing on or after February 11, 2013. The Commission also announced revised jurisdictional thresholds that trigger the prohibition on interlocking directorates under Section 8 of the Clayton Act, which will take effect immediately upon publication in the Federal Register. These thresholds are revised annually to reflect changes in the gross national product.

    New HSR thresholds

    Size-of-Transaction Threshold. An HSR filing may be required if the acquirer will hold, as a result of the transaction, voting securities, non-corporate interests and assets of the acquired person valued in excess of $70.9 million. If the Size-of-Transaction is between $70.9 million and $283.6 million, the transaction also must satisfy the Size-of-Persons threshold. Transactions valued in excess of $283.6 million may require a filing without regard to the Size-of-Person threshold.

    Size-of-Person Threshold. If the value of the securities, non-corporate interest and assets held as a result of a transaction is between $70.9 million and $283.6 million, the transaction must be reported in most cases if either the acquired or acquiring person has annual net sales or total assets of at least $141.8 million and the other party to the transaction has at least $14.2 million in annual net sales or total assets.

    New Interlocking Directorates Thresholds

    Section 8 of the Clayton Act prohibits the same person from serving as an officer or director of competing corporations if the statutory thresholds are met. Based on the revised thresholds, competitor corporations are covered by Section 8 if each one has capital, surplus, and undivided profits aggregating more than $28,883,000 (Section 8(a)(1)), except that no corporation is covered if the competitive sales of either are less than $2,888,300 (Section 8(a)(2)(A)).