Key Elements to Determine Whether a Post Consummation Filing is Required

Time Period:
The appropriate notification thresholds are the thresholds in place at the time that the acquisition was made. Examples:

  • 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.
  • If a transaction valued at $115 million was consummated in July of 2006, the filing should be made at the $100 million (as adjusted) 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. See below for historical thresholds.

Multiple Transactions:
Sometimes, when an acquiring person is made aware of the obligation to file, multiple failures to file are discovered. Each failure to file must be corrected with its own Form and fee, though the letter of explanation (a copy of which should accompany each Form) should cover all acquisitions by the acquiring person of the acquired entity.  The principles of the five-year rule in 16 CFR 802.21 can be used to determine how many corrective filings must be made. Example:

Date of Acquisition

Percentage of Company X Voting Securities Held

Total Value Held

Corrective Filing Required?

4/1/2004

12%

$49 million

No, Size of Transaction was below the $50 million threshold.

4/1/2006

15%

$60 million

Yes, SOT exceeded the $50 million threshold (as adjusted). This would be true even if the acquiring person only acquired a single share on 4/1/2006.

4/1/2010

18%

$125 million

No, this acquisition would be covered by the 4/1/2006 corrective filing, since it took place within five years and did not exceed the $100 million threshold (as adjusted).

6/1/2011

18%

$120 million

Yes, even though this acquisition did not cross the $100 million threshold (as adjusted), more than five years had passed since the filing that should have been made on 4/1/2006.

4/1/2015

20%

$160 million

Yes, even though this acquisition was made within five years of the filing that should have been made on 6/1/2011, this acquisition crossed the $100 million threshold (as adjusted).

4/1/2017

24%

$320 million

No, this acquisition would be covered by the 4/1/2015 corrective filing, since it took place within 5 years and did not exceed the $500 million threshold (as adjusted).

Historical Thresholds
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.