Question
September 14, 1995
Mr. Richard Smith
Premerger Notification Office
Bureau of Competition
Federal Trade Commission
600 Pennsylvania Avenue, NW, Room 303
Washington, D.C. 20580
Re: Application of Hart-Scott-Rodino Antitrust Improvements Act of 1976
Dear Dick:
I am writing to confirm our telephone conversation of today regarding my letter to you of September 13, which outlined the terms of a proposed joint venture using three corporations. On behalf of the Premerger Notification Office, you confirmed your agreement with my conclusion that the formation of the joint venture as described in the letter will not require a filing under the Act. We discussed your view that the formation of the IRC 501(c) not-for-profit corporation will not fall within the exemption provided by 16 C.F.R. 802.40. However, you agreed with my conclusion that, because the not-for-profit corporate membership interests in the IRC 501(e) corporation are not voting securities, 16 C.F.R.801.40 could not apply and therefore no filing will be required.
In our conversation, you stated that you did not agree with my conclusion that the later combination of the IRC 501(c)(3) not-for-profit corporation and the IRC 501(c) not-for-profit corporation would be exempt under the principles of 16 C.F.R. 802.30. On behalf of my client, I reserve the right to revisit that issue at a later date, if and when the parties are in a position to combine the two corporations, assuming that the size of transaction test is met by the combination. However, for now, I understand your position regarding that possible transaction.
Based upon your advice, the parties intend to proceed with the formation of the joint venture without filling under the Act. Please telephone me (redacted) as soon as possible if you believe that I have misstated in any way the oral advice you gave me in our conversation of today. Thank you, again, for your prompt attention to my request.
Very truly yours,
(redacted)
cc: (redacted)