The recent Consolidated Appropriations Act of 2023 includes significant changes to the filing fees for Hart Scott Rodino Act filings.

The changes essentially impose a new tax on large M&A activity by charging much higher fees for large deals. For example, the fee on deals over $5 billion has increased by 800% from $280,000 to $2.25 million.

The bill itself does not explicitly say when the new fees will go into effect, and as of today, the Federal Trade Commission’s Premerger Notification Office has not yet issued instructions or guidance about the new filing fees. Instead, for now, the PNO has been instructing merging parties to follow the old filing fee approach. We expect that the FTC will issue new guidance and instructions soon, but it is unclear exactly when.

Note that these changes do not represent a substantive change to the antitrust laws. They also do not affect whether deals are reportable in the first place. Instead, the only changes are to filing fee amounts and thresholds.

Below is what the filing fees will be and the filing fee thresholds once they go into effect. Both the fees and thresholds will be adjusted annually. Essentially, this new law results in much higher fees for all deals over $1 billion. The current fees top out at $280,000 for deals valued at over $1.0098 billion, while the new fees go much higher. For deals less than $1 billion, the new fees are sometimes higher and sometimes lower.

  • $30,000 for deals valued at under $161.5 million
  • $100,000 for deals valued at $161.5 million or more but not more than $500 million
  • $250,000 for deals valued at $500 million or more but not more than $1 billion
  • $400,000 for deals valued at $1 billion or more but not more than $2 billion
  • $800,000 for deals valued at $2 billion or more but not more than $5 billion
  • $2.25 million for deals valued at $5 billion or more

The new law also includes a provision that will require merging parties to provide information about foreign subsidiaries received from “foreign entities of concern.” This provision instructs the FTC and Department of Justice to consult with the head of the Committee on Foreign Investment in the United States (CFIUS) and with others and to issue a new rule. This requirement will not go into effect until a new rule is issued.