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HSR Exemptions Toolkit
Practical Law Toolkit 6-560-7585 (Approx. 6 pages)
HSR Exemptions Toolkit
by Practical Law Antitrust
| Maintained • USA (National/Federal) |
A Toolkit that includes resources that help identify transactions that are exempt from premerger notification under the Hart-Scott-Rodino (HSR) Act either in whole or in part. This Toolkit provides links to resources discussing HSR exemptions that are specific to certain types of acquisitions, such as only to voting securities or asset acquisitions, as well as those generally applicable to all types of transactions.
The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) requires that parties to certain transactions make premerger notification filings to the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) before the transaction can close (see Practice Note, Determining Hart-Scott-Rodino Applicability: HSR Act Coverage). However, there are certain exemptions available to transacting parties under the HSR Act. Although some exemptions are specific to acquisitions of assets, voting securities, or non-corporate interests, some exemptions are generally applicable and should be considered in all transactions.
Exemptions can apply to an entire transaction or to a portion of a transaction either:
- Making it not reportable under the HSR Act.
- Lowering its value under the HSR Act and resulting in a lower HSR filing fee.
The HSR filing fee is graduated depending on the value of the transaction (see Practice Note, Hart-Scott-Rodino Act: Overview: Filing Requirements and see Annual Antitrust HSR Filing Fee Adjustments Chart).
Transacting parties improperly relying on HSR Act exemptions may be the subject of antitrust enforcement actions and face civil penalties of up to $51,744 per day (see 15 U.S.C. § 18a(g)(1) and 89 Fed. Reg. 1445 (Jan. 10, 2024)).
The antitrust agencies frequently bring enforcement actions for violations of the Rule 802.9 exemption, which covers acquisitions:
- Made solely for the purpose of investment.
- Where the acquiring party will hold 10% or less of the target's voting securities.
This Toolkit is a collection of continuously maintained resources designed to help counsel determine if any exemptions apply to a transaction that may be reportable under the HSR Act. This Toolkit also contains resources demonstrating the effects of improperly relying on an exemption, including on the Rule 802.9 exemption.