Client Alert: Congress approves the FY2023 Omnibus Appropriations Bill, including changes to fees for pre-merger notifications to the Federal Trade Commission and U.S. Department of Justice.
Congress approved the FY2023 Omnibus Appropriations Bill, and President Biden is expected to sign it into law. The bill includes changes to fees required to be paid with pre-merger notifications to the Federal Trade Commission and U.S. Department of Justice.
The Merger Filing Fee Modernization Act has two notable provisions: (1) it establishes a new escalating filing fee system based on the size of a reported transaction (see table below); and (2) requires notifying parties to disclose information about any subsidies they receive from foreign governments.
The new legislation substantially increases fees for “mega-mergers” exceeding $5 billion in value—from $280,000 to $2.25 million — while reducing the fees for smaller transactions. The fee increase for the largest transactions comes during a time of heightened M&A scrutiny by the regulators.
Filing Fee Requirements for HSR-Reportable Mergers in Omnibus Spending Bill
|Size of Transaction||Filing Fee|
|Less than $161.5M||$30,000|
|Between $161.5M – $500M||$100,000|
|Between $500M – $1B||$250,000|
|Between $1B – $2B||$400,000|
|Between $2B – $5B||$800,000|
|$5B and greater||$2.25 million|
The spending bill also includes a provision that grants states more control over venue in antitrust cases. Generally, related federal civil cases may be consolidated into a single federal district; however, antitrust cases brought by the federal government are exempt from this rule. The provisions in this spending bill grant states the same exemption for antitrust cases. But the spending bill did not include more controversial proposals that would have limited self-preferencing by digital platforms and set new rules for the operation of digital app stores.
 American Innovation and Choice Online Act (S.2992 – 117th Congress (2021-2022): American Innovation and Choice Online Act | Congress.gov | Library of Congress)
 Open App Markets Act (S.2710 – 117th Congress (2021-2022): Open App Markets Act | Congress.gov | Library of Congress)