Key Elements to Determine Whether a Post Consummation Filing is Required

When determining if a post-consummation, or “corrective,” filing is required:

  • The appropriate notification thresholds are the thresholds in place at the time that the acquisition was made.  For example, if a transaction valued at $20 million was consummated in 1990, a filing would be required because the size of transaction threshold at that time was $15 million.  Similarly, if a transaction valued at $115 million was consummated in July of 2006, the filing should be made at the $100 million (as adjusted) [1] notification threshold because the $100 million (as adjusted) threshold at that time covered any transaction valued in excess of $113.4 million but less than $567 million. Prior thresholds are available online
  • Once a party has made a corrective filing, it has five years from the end of the corrective filing waiting period to make additional acquisitions up to the next threshold (as opposed to five years from the time of the actual acquisition) under 16 CFR 802.21.  By analogy to 16 CFR 802.21, corrective filings are not necessary for acquisitions that do not cross a higher threshold made within five years of the acquisition covered by the corrective filing.  Thus, a party who should have filed in 1998 for hitting the 1998 $15 million threshold would not have to make additional corrective filings for acquisitions up to the next 1998 threshold, 15%, for a period of five years.  Likewise, a party who should have filed in 2003 for hitting the $100 million threshold would not have to make additional corrective filings for acquisitions up to the next 2003 threshold, $500 million, for a period of five years.

Endnotes

1. The 2000 Amendments to Section 7A require the Commission to publish adjustments to the HSR Act’s jurisdictional and filing fee thresholds annually, based on the change in the gross national product.  In 2005, the Commission amended the rules to provide a method for future adjustments as required by the 2000 amendments.  The revised thresholds are published annually in January and are effective 30 days after publication.  Go to www.ftc.gov/bc/hsr for more information.