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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2005005 Informal Interpretation

Staff:
Timothy Carson
Rule:
801.11

Response/Comments

Size of person is met because the facts you have shared demonstrate the financials are not consolidated at the UPE level, and the ordinary course balance sheets of the controlled portfolio entities,...
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2005001 Informal Interpretation

Staff:
Sam Sheinberg
Rule:
803.11, 803.12

Response/Comments

The PNO created HSRHelp@ftc.gov to assist filing parties with their substantive questions regarding the HSR rules and to help them determine whether or not a filing is required. This is also the...

2005004 Informal Interpretation

Staff:
Timothy Carson
Rule:
801.1

Response/Comments

It appears that Trust has the final say since it has the right to approve and/or veto any director elected by a majority of Corporation A’s Board of Directors, so we cannot agree that Trust does not...
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2004002 Informal Interpretation

Staff:
Nora Whitehead
Rule:
801.13

Response/Comments

We agree with your analysis. UPDATE: November 5, 2020: If the buyer knows now that it intends to exercise the option prior to the expiration of the notification, then it could file now for the whole...
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2004001 Informal Interpretation

Staff:
Karen Berg
Rule:
803.12

Response/Comments

We do not change the original requests without instruction from the parties, but you can always reiterate your request in the cover letter that accompanies the refiling.
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2004003 Informal Interpretation

Staff:
Timothy Carson
Rule:
801.1(c), Item 4

Response/Comments

1: We do not consider a personal brokerage statement to constitute a regularly prepared balance sheet within the meaning Rule 801.11. 2: You are describing one acquisition under the rules, assuming...
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2003003 Informal Interpretation

Staff:
Karen Berg
Rule:
803.5, Item 2

Response/Comments

You should file with Holdco as the to-be-formed UPE, and indicate that Target will be an LLC at the time of acquisition. We prefer that an individual who is slated to be an officer or director of...
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2003001 Informal Interpretation

Staff:
Vesselina Musick
Rule:
801.14, 803.5

Response/Comments

The parties can notify both acquisitions in a single filing. They have to submit at least a Letter of Intent for the second acquisition along with the executed agreement for the first acquisition...
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2002003 Informal Interpretation

Staff:
Vesselina Musick
Rule:
Item 7(c)(iv)

Response/Comments

Item 7(c)(iv)(b) requires a list of the establishments of the person filing notification (not its customers), where the person filing notification transacted business generating revenues in an...
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2002006 Informal Interpretation

Staff:
Sam Sheinberg
Rule:
801.1, 801.13

Response/Comments

Question 1: Correct, the thresholds apply to the acquisition of voting securities and not NCI. Question 2: Yes, if buyer is acquiring additional NCI you would aggregate if the NCI already held plus...
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2002004 Informal Interpretation

Staff:
Vesselina Musick
Rule:
802.21

Response/Comments

You must submit a notification for the first acquisition to be consummated after the end of the 5-year window following the expiration of the waiting period for your previous filing. Unless you...
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1911005 Informal Interpretation

Staff:
Timothy Carson
Rule:
803.9

Response/Comments

We disagree. If Buyer is going to cross the $100 million (as adjusted) threshold, Buyer must file for the $100 million (as adjusted) threshold and pay the fee required for crossing the $100 million (...
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2002002 Informal Interpretation

Staff:
Kathryn Walsh
Rule:
802.21

Response/Comments

You have to cross a threshold to take advantage of 802.21. So, your first example works as long as the $50MM threshold (as adjusted) is crossed. Your second example does not work because the $50MM...
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