1104009 Informal Interpretation

Date:
Rule:
802.1(d), 802.30
Staff:
Michael Verne
Response/Comments:

– 1) 802.30 would apply to the UPE that currently holds the assets, but not the other UPE 2) You would look at the used durable good exemption  -§ 802.1(d)

Question

From:

Verne, B. Michael

Sent:

Wednesday, April 20, 2011 12:30 PM

To:

(Redacted)

Subject: RE: Sorry to bother you

1) 802.30 would apply to the UPE thatcurrently holds the assets, but not the other UPE

2) You would look at the used durablegood exemption - 802.1(d)

From:(Redacted)
Sent: Wednesday, April 20, 201111:13AM
To: Verne,B. Michael
Subject: RE: Sorry to bother you

Mike two follow-ups if you don't mind.

1.Looking at the scenario below, if theCorporation has two UPEs (one by having 50% stock and the other either by 50%irrevocable proxy or right to 50% of board), then if Corporation is a buyer ofassets controlled by just one of the UPEs ("A"), then does 802.30 notapply?

2.If the asset was a cruise ship and thebuyer was a cruise line, is there a general ordinary course of businessexemption, or do you look at the specific used durable goods exemption?

From: Verne, B. Michael [mailto:MVERNE@ftc.gov]
Sent: Tuesday, April 19, 20111:09 PM
To: (Redacted)
Subject: RE: Sorry to bother you

However, if the proxy is irrevocable,both A and B would be UPEs

From: (Redacted)]
Sent: Tuesday, April 19, 2011 12:48PM
To: Verne,B. Michael
Subject: Sorry to bother you

I think an old question, but to be sure:A person ("A") holds 50% of the voting securities of a Corporation."A" has granted a proxy to another person ("B") to votethese shares (does it matter if revocable or irrevocable?). I think the view isthat "A" still controls the Corporation, ie, still an UPE. Correct?thanks.

About Informal Interpretations

Informal interpretations provide guidance from previous staff interpretations on the applicability of the HSR rules to specific fact situations. You should not rely on them as a substitute for reading the Act and the Rules themselves. These materials do not, and are not intended to, constitute legal advice.

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