The size of person test is only relevant if the size of transaction is greater than $111.4 million but less than $445.5 million. See15 USC 18a(a)(2) and 88 Fed. Reg. 5004 (Jan. 26, 2023). If the size of transaction test is grater than $445.5 million, the size of the acquiring and acquired persons is not relevant.
If the size of person test is relevant, be certain that you are looking at all of the assets/revenues of acquiring and acquired person, not just the entities involved in the transaction. See 801.1(a). Also be certain that the assets are calculated pursuant to 801.11 and the size of transaction is calculated pursuant to 801.10.
If that analysis results in the size of transaction being less than $445.5 million and the size of person not being met, the transaction would not be reportable.
Question
From: Whitehead, Nora <nwhitehead@ftc.gov>
Sent: Friday, October 13, 2023 10:48:18 AM (UTC-05:00) Eastern Time (US & Canada)
To: [Redacted]
Cc: HSRHelp <HSRHelp@ftc.gov>
Subject: RE: HSR Reportability
The size of person test is only relevant if the size of transaction is greater than $111.4 million but less than $445.5 million. See15 USC 18a(a)(2) and 88 Fed. Reg. 5004 (Jan. 26, 2023). If the size of transaction test is grater than $445.5 million, the size of the acquiring and acquired persons is not relevant.
If the size of person test is relevant, be certain that you are looking at all of the assets/revenues of acquiring and acquired person, not just the entities involved in the transaction. See 801.1(a). Also be certain that the assets are calculated pursuant to 801.11 and the size of transaction is calculated pursuant to 801.10.
If that analysis results in the size of transaction being less than $445.5 million and the size of person not being met, the transaction would not be reportable.
From: [Redacted]
Sent: Thursday, October 12, 2023 2:31:16 PM (UTC-05:00) Eastern Time (US & Canada)
To: HSRHelp <HSRHelp@ftc.gov>
Subject: HSR Reportability
Hello,
I am currently working with two credit unions who desire to merge and I would like to obtain some clarification as to whether a transaction involving two credit unions with the below amount of assets is required to be reported under the HSR Act.
According to the financial reports available to me at this time, the proposed acquired entity has a net total of assets of $130,182,453. The proposed acquiring entity has a net total of assets of $89,0434,301. Although the assets being acquired are greater than $111,400,000, satisfying the Size of Transaction test, it does not appear that these parties also satisfy the Size of Person test. Can you please clarify whether a transaction involving two parties with these amounts of assets is required to be reported under the HSR Act?