Skip to main content
Date
Rule
802.63
Staff
Kristin Shaffer
Response/Comments

Agree, so long as Newco would not have been prohibited from using 802.63 if it had entered into the credit arrangement directly (e.g., it is not a competitor or otherwise would not be able to claim that the acquisition of the debt was in the ordinary course of its business).

Question

From: Shaffer, Kristin <kshaffer@ftc.gov>
Sent: Tuesday, July 11, 2023 11:33:32 AM (UTC-05:00) Eastern Time (US & Canada)
To: [Redacted]
Cc: HSRHelp <HSRHelp@ftc.gov>
Subject: RE: Request for Interp. - 16 CFR 802.63 Newco

[Redacted]

Agree, so long as Newco would not have been prohibited from using 802.63 if it had entered into the credit arrangement directly (e.g., it is not a competitor or otherwise would not be able to claim that the acquisition of the debt was in the ordinary course of its business).

Best regards,

Kristin

Kristin Shaffer

Attorney

Premerger Notification Office

Federal Trade Commission

202-326-2388 | kshaffer@ftc.gov


From: [Redacted]
Sent: Thursday, July 6, 2023 12:46:38 PM (UTC-05:00) Eastern Time (US & Canada)
To: HSRHelp <HSRHelp@ftc.gov>
Cc: [Redacted]
Subject: Request for Interp. - 16 CFR 802.63 Newco

Dear PNO,

We write to clarify guidance regarding newco formations in connection with debt restructuring under 16 CFR 802.63. We understand that if a Newco is formed and ordinary course debt is transferred to the Newco post-bankruptcy petition or post-announcement of the intention to file bankruptcy, then the exemption under 16 CFR 802.63 is no longer available. However, we understand based on the below guidance that pre-petition (or announcement) reorganization of debt by Lenders, including into a Newco, would not negate the exemption under 16 CFR 802.63. Could you please confirm that pre-petition (or announcement) reorganization of ordinary course debt into a Newco does not negate the exemption under 16 CFR 802.63? Note Newco would not hold any other assets.

Thank you very much!

About 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.

Learn more about Informal Interpretations.