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FTC Proposes Dramatic Overhaul of U.S. Merger Reporting

On June 29, 2023 the Federal Trade Commission, in collaboration with the Antitrust Division of the U.S. Department of Justice, published in the Federal Register a 133-page notice of proposed rulemaking (“NPRM”) that would overhaul merger reporting obligations in the U.S., representing the first large-scale change since the implementation of the Hart-Scott-Rodino Act of 1976 (“HSR Act”). Although the changes would not increase the range of reportable deals, they would dramatically increase the amount and type of information required for all filers, demanding substantially more documents, information and narrative responses than are required currently. Following a public comment period, the rules may become effective as early as late December 2023.

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FTC Announces Revised Thresholds for Interlocking Directorates


Time to Read: 1 minutes Practices: Antitrust

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The Federal Trade Commission has announced revised thresholds for interlocking directorates required under Section 8 of the Clayton Act (15 U.S.C. § 19(a)(5)). The revised thresholds are effective as of January 21, 2020.

As revised, with certain exceptions, Section 8 prohibits a person from serving as a director or officer of two competing corporations (other than banks, banking associations, and trust companies) if each corporation has capital, surplus and undivided profits in excess of $38,204,000 (increased from $36,564,000) and the competitive sales of both corporations equal or exceed $3,820,400 (increased from $3,656,400). Note that a person shall not be prohibited from simultaneous service if the competitive sales of either corporation are less than 2 percent of its total sales or the competitive sales of each corporation are less than 4 percent of its total sales.

“Competitive sales” are defined as the gross revenues for all products and services sold by one corporation in competition with the other during its most recent fiscal year. “Total sales” are defined as gross revenues for all products and services sold by one corporation in the corporation's most recent fiscal year.

The question of whether any of safe harbors apply in a given situation may be complex. If you have any questions regarding these changes, please feel free to contact a member of the antitrust practice group.

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