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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1708006 Informal Interpretation

Staff:
Karen Berg
Rule:
801.1, 801.10, 801.11

Response/Comments

You need to begin by applying rules 801.10 and 801.11 to analyze the separate , not combined, holdings of each of A and B (unless they are spouses). It may be that one meets the size of person and...

1708005 Informal Interpretation

Staff:
Kathryn Walsh
Rule:
803.7

Response/Comments

The PNO has been asked this question before, and the unequivocal response has been that two filings for the same transaction may not be simultaneously active. The one year limitation in 803.7 is, in...

1708001 Informal Interpretation

Staff:
Kathryn Walsh
Rule:
Item 7

Response/Comments

It refers to physical locations, though many filers include both physical locations as well as the location of customers, and we are fine with that, too.

1707004 Informal Interpretation

Staff:
Nora Whitehead
Rule:
801.10

Response/Comments

The PNO will accept any calculation made on a commercially reasonable basis so long as it is made in good faith. Once an FMV calculation is made, you may not deduct any debt amount from it.

1707003 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
802.2(g), 802.2(h)

Response/Comments

The vines are not exempt (see PNPM 115). Rule 802.2(g) only covers agricultural property and assets incidental to its ownership (such as cash, prepaid taxes or insurance, rental receivables and the...

1707002 Informal Interpretation

Staff:
Evan Storm, Ty Carson
Rule:
803.9, 801.14

Response/Comments

The two natural persons control both Company B (and its assets), and the land on which Company B operates. Therefore, we view this as a $125 million transaction. Both natural person UPEs, as acquired...

1707001 Informal Interpretation

Staff:
Nora Whitehead
Rule:
802.2(c)

Response/Comments

The exemption in 802.2(c) is not available for real property assets associated with billboards that have been in use in the past 12 months. Billboards are considered “non-manufacturing facilities”...

1706006 Informal Interpretation

Staff:
Diana Gillis
Rule:
801.30, 803.12

Response/Comments

As long as the terms have not changed, a new notice letter is not necessary. The new affidavit can reference the original notice letter.

1706007 Informal Interpretation

Staff:
Ty Carson
Rule:
Filing Fee, Form, 801.2, 803.9

Response/Comments

(1) Since A and B are both making acquisitions, there are two potentially reportable transactions and, if reportable, two fees. (2) Yes, you are required to provide separate responses for each...

1706005 Informal Interpretation

Staff:
Evan Storm
Rule:
802.21

Response/Comments

The former UPE and current UPE of A are different acquiring persons. Different acquiring persons cannot both take advantage of 802.21. Thus, A may not continue to utilize 802.21 to acquire additional...

1706003 Informal Interpretation

Staff:
Diana Gillis
Rule:
801.11(e), 802.63

Response/Comments

The vulture fund exception would preclude the use of 802.63 if the LLC is created and the debt is transferred after the announcement of an intention to file for bankruptcy. We do not see how the debt...

1706004 Informal Interpretation

Staff:
Ty Carson
Rule:
Item 4(b), Item 5

Response/Comments

If the hedge fund or partnership pays the individual interest or dividends, then that is reported in Item 5. If a natural person does not have an entity they control, they may provide a SOP...

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