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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1606008 Informal Interpretation

Staff:
Karen Berg
Rule:
801.30

Response/Comments

Acquisitions under UK Schemes of Arrangment are 801.30 transactions. For the acquisition price, use the exchange rate for the date of closing. Even though the closing date will typically be in the...

1606007 Informal Interpretation

Staff:
Diana Gillis
Rule:
802.2(c)

Response/Comments

We agree with your analysis. In this situation, where both the mill and timberlands are sold to the same buyer, the mill is a manufacturing facility, and therefore is not “unproductive real property...

1606004 Informal Interpretation

Staff:
Diana Gillis
Rule:
Item 5

Response/Comments

The identity of the customer is irrelevant. If shipping from the US, count in Item 5. If shipping from a foreign location to the US, don’t count in Item 5, unless the sale is booked by a US entity...

1606006 Informal Interpretation

Staff:
Nora Whitehead
Rule:
7A(c)(1); 802.4

Response/Comments

In analyzing the acquisition of an insurance company or business unit, as opposed to an acquisition of a portfolio of insurance policies [i.e., an asset acquisition], you must use 802.4 in...

1606003 Informal Interpretation

Staff:
Evan Storm
Rule:
Item 4(c); Item 4(d); Item 5; Item 6; Item 7, Item 8; 803.6

Response/Comments

When submitting an HSR for a fund that does not yet exist: The GP can file and sign the form. If New Fund will not yet have any operations, Items 5 and 8 will be blank; Items 6 and 7 may have...

1606002 Informal Interpretation

Staff:
Kate Walsh
Rule:
801.40; 801.50; 801.2

Response/Comments

In determining whether a transaction is an acquisition or a formation, we look at what each party is contributing. When one party is only contributing cash, we treat that as an acquisition.

1605007 Informal Interpretation

Staff:
Kate Walsh
Rule:
801.13

Response/Comments

For publicly traded stock, the value of stock held prior to the acquisition is the market price. Do not use fair market value if closing is more than 45 days out.

1605005 Informal Interpretation

Staff:
Diana Gillis
Rule:
801.1(b)(1)(ii)

Response/Comments

UPDATE August 3, 2016: This no longer represents the position of the PNO. For purposes of determining control of a non-corporate entity, do not include indirect profits/assets via a non-controlled...

1605004 Informal Interpretation

Staff:
Diana Gillis
Rule:
802.2(c)

Response/Comments

Given the lack of additional capital investment required and the expected timeframe and requirements to becoming operational, we believe the power plant you describe is substantially complete, making...

1605001 Informal Interpretation

Staff:
Evan Storm
Rule:
801.13, 803.7, 803.9, 803.10

Response/Comments

Whether a new filing is required is determined by whether the acquisition of the additional assets is part of the same deal that was originally filed for or is part of a new acquisition. Here, the “...

1604008 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
801.11, 801.1

Response/Comments

In determining the size of a natural person, 801.11(d) allows for the exclusion of the type of assets described in PNPM 94 (personal residences, artwork, vehicles for personal use, jewelry, and other...

1604007 Informal Interpretation

Staff:
Diana Gillis
Rule:
801.1(o), 801.2(g), 801.13

Response/Comments

The parties may file separate HSRs for each entirely separate transaction, and may close once the relevant waiting period expires or early termination is granted (even if the other transaction is...

1604005 Informal Interpretation

Staff:
Evan Storm
Rule:
801.10, 801.13, 801.14

Response/Comments

For the 90% being acquired, if the acquisition/tender price is determined (as it sounds to be), then the value is the greater of the market price (the lowest closing quotation, or, in an interdealer...

1604003 Informal Interpretation

Staff:
Kate Walsh
Rule:
802.2(c)

Response/Comments

You use the LogCo net revenues (which are gross revenue minus returns, discounts and allowances, but not minus costs – see informal interp 1509005) because Logco (the entity with third party sales)...

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