September 17, 1985
Patrick Sharpe, Esquire
Premerger Notification Office
Federal Trade Commission
6th and Pennsylvania Avenue, N.W.
Washington, D.C. 20580
Re: Request for Interpretation
Dear Mr. Sharpe:
Pursuant to our telephone conversation on September 16, 1985, and pursuant to 16 C.F.R. 803.30, I am hereby requesting that the Commission staff provide me with an interpretation whether a premerger notification filing is required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. 18a, and regulations promulgated pursuant thereto, in the circumstances described below.
Our client is contemplating an acquisition of assets consisting of separate parcels of real estate, by a single agreement, where:
the value of all of the assets taken as a whole, determined in accordance with 16 C.F.R. 801.10, exceeds $15 million; and
the majority of the asset value is attributable to assets that are exempt pursuant to 15 U.S.C. 18a(c)(1); and
the value of the assets that are not exempt is less than $15 million.
Sections 801.13 and 801.15(a)(1) of the Commissions regulations suggest that only the non-exempt assets shall be deemed to be held as a result of the acquisition. It would therefore appear that a transaction of the sort described above would be exempt from the filing requirement pursuant to 16 C.F.R. 802.20. Such a result is explicitly provided in 16 C.F.R. 802.6(b)(1) and (2) for transactions involving the sale by an air carrier of assets which are not engaged in the business of aeronautics and air transportation, but no express resolution of the issue has been provided for other situations.
Please advise me as soon as possible whether a filing is required.
STAFF COMMENTS: I called (redacted) 9-18-85 and told him he can separate assets (even under a single contract) and apply exemptions, except when all or substantially all of the assets of the acquired co. or division thereof is acquired in or to determine the size of transaction test.
DA, WK, AS, VC concur.