2111003 Informal Interpretation

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Sheinberg, Samuel I.
From: 	HSRHelp
Sent: 	Tuesday, November 23, 2021 10:06 AM
To: 	Walsh, Kathryn E.; Berg, Karen E.; Musick, Vesselina; Sheinberg, Samuel I.; Six, Anne; Whitehead, Nora
Subject: 	FW: UPE Question [IWOV-LAWDOCS.FID2056334]
To:
Cc: HSRHelp <HSRHelp@ftc.gov>
From: Shaffer, Kristin <kshaffer@ftc.gov>
Sent: Tuesday, November 23, 2021 10:05:32 AM (UTC-05:00) Eastern Time (US & Canada)
Subject: RE: UPE Question [IWOV-LAWDOCS.FID2056334]
Pursuant to Rule 801.1(b), any person that has the right to designate (remove and replace) 50% or more of the trustees
controls the trust.
Pursuant to Rule 801.1(c)(3), settlors control revocable trusts as well as irrevocable trusts in which they retain a
reversionary interest.
You must look at the trust to see if any person, as defined in Rule 801.1(a), meets the criteria above. If none do, then the
Trust is the UPE of the LLC.
Best regards,
Kristin
Kristin Shaffer
Attorney
Premerger Notification Office
Federal Trade Commission
202-326-2388 | kshaffer@ftc.gov
From:
Sent: Monday, November 22, 2021 7:53 PM
To: Musick, Vesselina <vmusick@ftc.gov>
Cc: HSRHelp <HSRHelp@ftc.gov>
Subject: RE: UPE Question [IWOV-LAWDOCS.FID2056334]
Analysis:
1. 	Section 801.1(a)(1) defines person as “an ultimate parent entity and all entities which it controls directly or
indirectly.”
2. 	Section 801.1(a)(2) includes both a trust and a natural person as an entity.
3. 	Section 801.1(a)(3) defines an UPE as an entity not controlled by another entity.
4. 	Section 801.1(b) includes in the definition of control holding more than 50% of the voting securities of an issuer.
5. 	Section 801.1(c) provides an example #3 for hold and states that (except for certain exceptions that are not
applicable) a trust shall hold all voting securities constituting the corpus of the trust.
6. 	Our client (a group of LLCs) is owned by a Trust. An individual is both the beneficiary and the trustee of the
Trust. The beneficiary/trustee’s brother created the trust as grantor. The beneficiary/trustee has the sole
authority to manage the group of LLCs.
Question precluding arriving at a conclusion:
Is the Trust or the beneficiary/trustee the UPE of the group of LLCs (the acquired person)?
Please confirm.
From: Musick, Vesselina <vmusick@ftc.gov>
Sent: Monday, November 22, 2021 1:31 PM
To:
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Cc: HSRHelp <HSRHelp@ftc.gov>
Subject: RE: UPE Question [IWOV-LAWDOCS.FID2056334]
This message originated from outside this organization.
Please provide your analysis of the issue of control of the Trust for HSR purposes and your conclusion ( or the
specific question that is precluding you from arriving at a conclusion). We will review it and let you know if we
agree or disagree and why.
Kind regards.
Vesselina Musick
Attorney I Federal Trade Commission I Premerger Notification Office
Direct +1 202.326.2307 I Email: vmusick@ft c. gov Iwww.ft c. gov
From:
Sent: 	on ay, 	ovem 	r 	, 	C-05:00) Eastern Time (US & Canada)
To: HSRHe lp < HSRHe lp@ftc.gov>
Subject: UPE Question (IWOV-LAWDOCS.FID2056334]
Our cli ent (a group of LLCs ) is owned by a Beneficiary Defective Trust. An i nd ividua l (X) is both the beneficiary and the
trustee of the Trust. X' s brother (Y) created the trust as grantor. Is the Trust or X the UPE?
Please contact me if you need ad ditional information to respond.
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