1806001 Informal Interpretation

From:
To: 	Walsh, Kathryn E.; Berg, Karen E.; Shaffer, Kristin; Sheinberg, Samuel I.; Whitehead, Nora; Cummings,
Stephanie
Subject: 	FW: 4(c) Question
Date: 	Monday, June 11, 2018 10:37:33 AM
From: Carson, Timothy
Sent: Monday, June 11, 2018 10:37:32 AM (UTC-05:00) Eastern Time (US & Canada)
To:
Cc:
Subject: RE: 4(c) Question
These facts do not demonstrate definitively that the document was not used to evaluate or analyze
the acquisition. The filer will need to determine if the document was used for such a purpose.
Regards,
Timothy (Ty) Carson
Bureau of Competition
Federal Trade Commission
400 7th Street, SW
Washington, DC 20024
202.326.2627
tcarson@ftc.gov
From:
Sent: Friday, June 8, 2018 7:15:36 PM (UTC-05:00) Eastern Time (US & Canada)
To:
Subject: 4(c) Question
Hi All,
I have a question that I don’t think has been directly answered by the interpretations that I’ve seen,
but I’m sorry if I missed it.
Company A recently sold itself to Acquirer after an auction process. During the auction process,
Company A’s officers/directors created documents indicating that certain sales would increase as a
result of a transaction with any buyer, but the documents do not relate to or refer to any specific
buyer. (Sales would increase because the owners of Company A are prohibited from transacting
with Company A, but once they no longer own Company A, the owners would be able to transact
with Company A, increasing Company A’s sales.) This sales growth would occur regardless of
whether Company A were to be acquired by (i) the Acquirer; (ii) another participant in the auction
process; or (iii) a company that did not participate in the auction process.

My question is whether this document would qualify as a 4(c) document for the transaction with
Acquirer? I don’t believe it does because it was not prepared for the specific transaction with
Acquirer, and it was not created by third-party advisors and thus does not qualify as a 4(d)(ii)
document. (Incidentally, there are similar documents created by bankers that are responsive to 4(d)
(ii)).
It would be great to get your feedback as soon as possible. I’m available to answer any follow up
questions you may have, and I appreciate your assistance, as always.
Best regards,