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Date
Rule
802.30(a)
Staff
Nancy Ovuka
Response/Comments
Conclusion is correct.

Question

November 7, 2005

Via Facsimile (202) 326-2624
Ms. Nancy Ovuka
Federal Trade Commission
Premerger Notification Office
Bureau of Competition, Room 303
600 Pennsylvania Avenue, N,.W.
Washington, D.C. 20580

Re: Telephone Call of November 1, 2005

Dear Ms. Ovuka:

Iam writing to confirm the Hart Scott Rodino ("HSR") advice that you provided to me on November 1, 2005. In our telephone call, I posed the following scenario:

CompanyA is a 50% holder of the membership interests in a limited liability company,("LLC"). Company B is the holder of the remaining (50%) membershipinterests in the LLC. The LLC owns Plant E and Plant W. Company A proposes toacquire 100% of Plant E arid Company B proposes to acquire 100% of Plaint W. Theacquisition of Plant W is estimated to result in acquisition consideration ofat least $200,000,000. The acquisition of Plant E may not result in acquisitionconsideration in excess of $53.1 million.

Inour discussion, we focused on the intra-person exemption contained in 16 C.F.R.802.30. From our discussion, I understand that because both Company A andCompany B are both an acquiring and an acquired person that the infra-persontransaction exemption applies to the acquisition of both Plant E and Plant Wsince "the acquiring and at least one of the acquired persons are, thesame person by reason of 801.1(b)(1)...." 802.30(a).Consequently, it is my understanding that the acquisition of either plant asdescribed is exempt.

Subsequentto our call, I learned that the plants are actually held in separate limitedliability companies ("Plant E LLC" and "Plant W LLC")rather than in a single LLC as originally thought and that Company A andCompany B indirectly each hold 50% of the membership interests of each of PlantE LLC1 and Plant W LLC2. Company A would be acquiring100% of the interests in Plant E LLC and Company B would be acquiring 100% of theinterests in Plant W LLC, Based on our prior call, it does not appear to me to changethe result and that the transactions would still be exempt under theintra-person transaction exemption.

Asthe parties desire to execute the definitive agreements) for this transactionthis week, please advise the as soon as possible, and in any event on or beforeNovember 10, 2005, if my understanding is incorrect and the partieswould be required to file.

Footnote

1 Plant L LLC is currently two separate limitedliability companies each of which are 50% owned by Company A and CompanyB. Prior to the acquisition these two limited liability companies will bemerged together to form one entity, 50% owned by each of Company A, and CompanyB.

2 Plant W LLC is the 100% direct and indirect owner of additionalentities.

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