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FTC and DOJ Continue HSR Enforcement, Announce Penalties for Violation of “Institutional Investor” Exemption

Leucadia National Corporation has agreed to pay $240,000 to settle charges that it violated the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “Act”) for acquiring shares of KCG Holdings, Inc. (“KCG”) in 2013 without obtaining HSR Act clearance, relying erroneously on the “institutional investor” exemption. According to the Federal Trade Commission and the Department of Justice (collectively, the “Agencies”), Leucadia failed to satisfy all of the exemption’s conditions, noting that a broker-dealer acquired voting securities in another broker-dealer, which is prohibited by the exemption.

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FTC Announces Increased HSR Thresholds

Practices: Antitrust

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The Federal Trade Commission has announced revised jurisdictional and filing fee thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“the Act”), as amended. The new thresholds under the Act represent an approximately 6.5% increase from last year, when the thresholds were increased over 2012 thresholds based on changes in the gross national product.

Transactions closing on or after February 24, 2014 will be subject to the following revised thresholds:

  • Size-of-Transaction Test: The $50 million (as adjusted) threshold used in the size-of-transaction test will increase from $70.9 million to $75.9 million.
  • Size-of-Persons Test: The $10 million (as adjusted) and $100 million (as adjusted) sales and assets thresholds used in the size-of-persons test will increase from $14.2 million to $15.2 million and from $141.8 million to $151.7 million, respectively. The $200 million (as adjusted) threshold, below which the size-of-persons test applies, will increase from $283.6 million to $303.4 million.
  • Filing Fees: The filing fees under the Act are not revised under these changes, but the filing thresholds based upon the value of assets or voting securities which trigger each fee will be revised as follows:

    Value of Transaction Filing Fee
    In excess of $75.9 million but less than $151.7 million
    (previously $70.9 million to $141.8 million)
    $151.7 million or greater but less than $758.6 million
    (previously $141.8 million to $709.1 million)
    $758.6 million or more
    (previously $709.1 million or more)

Other value limitations contained in the HSR coverage and exemption rules have also been adjusted.

The revised jurisdictional thresholds will remain in effect until the next adjustment issued by the FTC, which is expected in the first quarter of 2015.

For additional information regarding HSR jurisdictional thresholds and reporting requirements, please feel free to contact any member of Ropes & Gray’s antitrust practice group.

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