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Date

Tags:

Rule
803.10; 803.6
Staff
Nora Whitehead
Response/Comments

The 15-day waiting period would not apply to this foreign bankruptcy (and Interp. 230 in the premerger practice manual would be inapplicable). Because this is not a US bankruptcy under Section 363(b), anyone with the authority to sign on behalf of the acquired person may do so.

Question

From: Whitehead, Nora
Sent: Thursday, November 17, 2016 10:33 AM
To: [REDACTED]
Subject: RE: HSR Question re Foreign Bankruptcy

The 15-day waiting period would not apply to this foreign bankruptcy (and Interp. 230 in the premerger practice manual would be inapplicable). Because this is not a US bankruptcy under Section 363(b), anyone with the authority to sign on behalf of the acquired person may do so.

Nora Whitehead

(202) 326-3262

From: [REDACTED]
Sent: Tuesday, November 15, 2016 1:30 PM
To: Whitehead, Nora
Subject: HSR Question re Foreign Bankruptcy

Hi Nora,

I have a question regarding who should certify the HSR form for an acquired person in bankruptcy outside the U.S.  In this case, Company (based in the U.S.) was the UPE of a foreign Subsidiary prior to the bankruptcy.  Subsidiary is now undergoing a bankruptcy proceeding in a foreign country where, after an auction process, it will be sold by a trustee to Purchaser pending approval by a bankruptcy court.

Because this transaction appears to mirror a U.S. bankruptcy transaction under 363(b), would Subsidiary now be considered its own UPE?  And would the trustee execute the certification and affidavit on its behalf (or, alternatively, if a debtor-in-possession, an officer of Subsidiary would sign)?  Lastly, would this qualify for the shortened waiting period?

Thank you,

[REDACTED]

About Informal Interpretations

Informal interpretations provide guidance from PNO staff on the applicability of the HSR rules to specific fact situations. They do not necessarily reflect the position of the Commission. 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. 

Learn more about Informal Interpretations.