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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1801001 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
801.10, 802.51

Response/Comments

Question 1: We agree that tax credits do not count against the use of 802.51. Question 2: 801.10(c)(3) requires a fair market value determination by each board. Either or both boards may delegate...
application/pdf icon Original (108.49 KB)

1720004 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
801.1

Response/Comments

We view this as an acquisition followed by a backside transaction. As such, the entities are viewed as they exist going into the transaction. Thus, SPAC’s acquisition of A Corp is reportable. If SPAC...
application/pdf icon Original (111.39 KB)

17011006 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
3(b)

Response/Comments

[Redacted], The Item 3(b) documents must be executed, but there are no special requirements for how they are signed. Best regards, Kristin
application/pdf icon Original (104.38 KB)

17011005 Informal Interpretation

Staff:
Diana Gillis
Rule:
T+3

Response/Comments

The SEC’s move to a T+2 (trade date + 2 business days) settlement cycle does impact prior PNO guidance related to T+3. In general, under T+2, when an investor buys a security, the brokerage firm must...
application/pdf icon Original (112.51 KB)

17011003 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
Multiple acquiring persons, 803.5(b)

Response/Comments

[Redacted], In a non‐801.30 filing, the PNO will accept HSR forms from multiple potential acquiring persons for the same assets or entities (i.e., bidders in a private auction) as long as the parties...
application/pdf icon Original (113.64 KB)

17011002 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
REITs, 7A(c)(1)

Response/Comments

The “REIT Exemption” does not apply to the acquisition of mortgage servicing rights standing alone. Therefore, none of the three scenarios would be exempt. Best regards, Kristin
application/pdf icon Original (107 KB)

17010005 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
Voting securities, 801.1(f)(1)(i)

Response/Comments

[Redacted], We agree that these are not voting securities. FYI – we are rolling out a new email address for HSR questions for the shop. When you email [Redacted], every PNO attorney will receive your...
application/pdf icon Original (99.68 KB)

17010003 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
Question on 7A(c)(10)

Response/Comments

[Redacted], We would not consider this to be the same acquisition, so 7A(c)(10) does not apply. Also, we are rolling out a new email address for HSR questions for the shop. When you email HSRHelp@ftc...
application/pdf icon original (108.51 KB)

17010002 Informal Interpretation

Staff:
Ty Carson
Rule:
803.2.

Response/Comments

[Redacted], Pursuant to Rule 803.2, the acquired entity (using one form) may file on behalf of both UPEs if both UPEs have authorized the acquired entity to file on their behalf. A person with actual...
application/pdf icon Original (106.75 KB)

17010001 Informal Interpretation

Staff:
Karen Berg
Rule:
7(a)(c)(11)

Response/Comments

Apologies for the delay in responding. Informal Interpretation 0211015 no longer reflects the position of the PNO. 7Ac1 is not available under these facts because Bank B is exiting the business of...
application/pdf icon Original (86.4 KB)

1709009 Informal Interpretation

Staff:
Karen Berg
Rule:
801.11(e), 802.63

Response/Comments

You are correct that the 802.63 exemption is not available for New LLC in the scenario you describe. In addition, the debt being cancelled in exchange for Company A’s assets is not “cash” for the...
application/pdf icon Original (83.87 KB)

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