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Managing Risks - Competition & Investment, November 8, 2001

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Canada’s competition and foreign investment laws are now enforced with more vigour than ever -- the Blakes Competition, Antitrust & Foreign Investment Group provides practical guidance on how to get …

Canada’s competition and foreign investment laws are now enforced with more vigour than ever -- the Blakes Competition, Antitrust & Foreign Investment Group provides practical guidance on how to get regulatory approval for mergers, strategic alliances and joint ventures in this increasingly challenging enforcement environment.

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  • 1. Seminar Agenda A Practical Guide to Managing Risks and Getting Deals Done under the Competition Act and the Investment Canada Act Tuesday, November 8th, 20117:30 to 8:00 a.m. Breakfast8:00 to 8:10 a.m. Welcome and Overview8:10 to 8:50 a.m. Panel Discussion8:50 to 9:00 a.m. Questions and Answers
  • 2. Seminar Index A Practical Guide to Managing Risks and Getting Deals Done under the Competition Act and the Investment Canada Act Tuesday, November 8th, 2011 TABPresentation...............................................................................................................1Substantive Materials.................................................................................................2 Top Five Things Every Corporate Counsel Needs to Know About Canadian Competition Law Merger Checklist for Corporate Counsel Blakes BulletinsBlakes Competition, Antitrust & Foreign Investment Group .......................................3 Competition Product Sheet Competition Litigation Product Sheet Accolades Bios
  • 3. Tab 1
  • 4. A Practical Guide to Getting Deals Done Under the Competition Act and the Investment Canada Act Competition, Antitrust & Foreign Investment Group November 8, 2011 2 Overview of Presentation• The Hypothetical Merger• Three Stages 1. Before Signing 2. After Signing and Before Closing 3. Post-Closing• Conclusions 3 The Hypothetical Merger 1
  • 5. 4 The Target Just Soy Inc.• Canadian public company• 70% “market share” of soy products• Activist shareholders want to sell the company quickly for the most $$• Concerned about timing and execution 5 The Buyer Fantasy Dairy• A non-Canadian buyer• Leading processor and distributor of dairy products• Small player in soymilk with 15% market share• Huge synergies in potential merger with Just Soy 6 Stage One: Before Signing 2
  • 6. 7 What’s Going On at Just Soy (Target/Vendor)?• Document control• Develop realistic strategic plan• Internal due diligence: know thyself 8 What’s Going On at Just Soy (Target/Vendor) (cont’d)• Draft agreement with vendor-friendly regulatory conditions• Marshall internal resources 9 What’s Going On at Just Soy (Target/Vendor)? (cont’d)• Approach depends on likely purchaser - Conduct risk analysis under new MEGs - Consider possible complications under ICA 3
  • 7. 10 So Now What?• Decide on buyer• Advising the Board• Can we get buyer to take all the regulatory risk? If not all, how much? 11 What’s Going On At Fantasy (Buyer)?• Additional buyer-side issues• Investment Canada issues• Defend the deal. How?• Remedy the deal. How? 12 What’s Going On At Fantasy (Buyer)? (cont’d)• Regulatory conditions in draft agreement• Government/public relations expertise• Economic experts• Marshall internal resources 4
  • 8. 13 What’s Going On At Fantasy (Buyer)? (cont’d)• Convince vendor deal can close• Buyer’s toolbox – Covenants/joint defence agreement • Reverse break fees • “Hell or high water” clause • Hold separate arrangements - Agree to/publish ICA undertakings in advance 14 Stage Two: After Signing and Before Closing 15 Stage Two: After Signing and Before Closing (cont’d)• Call to regulators• Media releases and key messages• Inform key stakeholders 5
  • 9. 16 Stage Two: After Signing and Before Closing (cont’d)• Meetings with regulators expected• Parties prepare filings• Parties prepare submissions 17 Stage Two: After Signing and Before Closing (cont’d)• Document requests: formal and informal• Computer searches, hard copy office searches, etc.• Dealing with Bureau/IRD• Pre-closing integration and gun jumping 18 Stage Three: Post-Closing• Approvals/consent agreement/litigation?• Are we done now?• IRD approval – Undertakings? – periodic review and assessment 6
  • 10. 19 Take-Aways• Competition Bureau’s has more vigorous approach to enforcement – New Merger Enforcement Guidelines• Investment Canada Act enforcement – High profile businesses – State-owned enterprises – National security 20 Questions ? 7
  • 11. Tab 2
  • 12. Top 5 Things Every Corporate Counsel Needs to Know About Canadian Competition Law• Today, competition law issues are both • Detect criminal violations at an early 4. Monitoring, Auditing, and Reporting fluid and multifaceted. Moreover, they or even nascent stage—which may Mechanisms: Monitoring, auditing, may often involve high-stakes issues, enable a company to prevent issues, and reporting mechanisms help prevent such as public stigma, criminal penalties, be a first-in immunity applicant, or and detect misconduct, educate staff, or unneeded complications arising in the receive greater leniency under the and assess the effectiveness of the middle of a well-intentioned strategic Bureau’s Immunity Program or Draft compliance program. merger—things your shareholders, and Leniency Program.3 5. Consistent Disciplinary Procedures therefore your CEO, care about. • Avoid litigation—the existence of a and Incentives: The compliance• While there are a myriad of rules to compliance program may persuade the program should explicitly state that keep track of, which vary by industry and Bureau to accept a settlement in lieu of disciplinary action may be taken if an by company, we attempt in this paper more formal and serious proceedings, employee contravenes the Competition to highlight the top five things every or, as noted, may allow you to stop Act. corporate counsel needs to know about proposed conduct before it crosses the • Compliance programs can also assist in Canadian competition law. line. controlling the creation of misleading or • The Bureau’s Corporate Compliance unruly documents. In an investigation,Point One: Competition Programs Bulletin identifies five elements only privileged documents will be “fundamental” to a proper compliance exempt from Bureau review, therefore,Compliance Programs are program 5. They are as follows: it is important as a component of anyEssential compliance policy that you: 1. Senior Management Involvement and• The Canadian Competition Bureau Support: Senior management must play • Establish protocols to carefully identify (the “Bureau”) has set out a detailed an active and visible role in promoting documents prepared by or for, sent to, code with protocols to be followed for compliance. or received from, in-house or external competition law compliance programs. counsel as privileged; and This policy affords credit to a company 2. Corporate Compliance Policies that has a pre-existing compliance and Procedures: The content of • Give employees appropriate guidance program in place when resolving the compliance program should be to avoid misleading language that raises competition issues.1 Even in the United described in a company publication, unwarranted “red flags” suggesting States, where no formal policy advising which should be updated regularly to market power or inappropriate on how to implement a compliance reflect changes in the law. communications between competitors: program exists, corporations still benefit e.g., “dominate, “market power, ” ” 3. Training and Education: The in sentencing if a valid compliance “fix prices, “divide markets, “reduce ” ” compliance program should include program is in place.2 competition, or “revenue synergies” ” ongoing training for staff at all levels. (not based on cost-savings or efficiencies), etc. • Require regular review of an advertising and marketing policy by all managers and employees directly involved in pricing or marketing activities.1 Competition Bureau, Corporate Compliance Programs Bulletin (2008) (“Compliance Bulletin”), at 19, available athttp://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02732.html.2 See U.S.S.G. s.8C2.5 (compliance program serving as mitigating factor in U.S. Sentencing Guidelines).3 Compliance Bulletin, at 18; Competition Bureau, Immunity Program under the Competition Act Bulletin (2010), at 3 (articulating eligibilityrequirements for immunity, including, inter alia, being the first to report an offense), available athttp://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03248.html; Competition Bureau, Revised Draft Information Bulletin on Sentencing andLeniency in Cartel Cases (2009) (“Leniency Bulletin”), at 19, available at http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03027 .html.4 Compliance Bulletin, at 7 20. ,5 Id. at 10-17. 1
  • 13. Point Two: The Rules Have Previously, price discrimination, resale price b. Private Applications to the Tribunal:Changed maintenance, and predatory pricing were Private parties may apply to the Tribunal subject to criminal penalties. challenging a refusal to deal, resale• In March 2009, far-reaching amendments price maintenance, tied selling, market to the Competition Act were enacted. The 3. Merger Reviews: The Bureau has restriction, and exclusive dealing. amendments strive to (better) harmonize more power to delay closing and seek Remedies, however, are limited to Canadian with U.S. law in some (but documents. The Bureau can now issue a injunctive relief (i.e., no damages). not all) respects. Their implications for second request-like discovery tool called a business range across the board—in “Supplementary Information Request” (or some instances, such as hard-core “SIR”) within 30 days of receiving a pre- Point Three: Enforcement cartel conduct, making it easier for the merger notification filing to delay closing Approach is More Aggressive government to obtain a conviction, of a transaction and request additional information from merging parties.7 SIRs • Under the leadership of Commissioner and in other areas, such as resale price can be expensive to respond to and time- Melanie Aitken9 there has been maintenance, predatory pricing, and consuming, and give the Bureau access more aggressive enforcement of the price discrimination, liberalizing the rules to all relevant non-privileged documents of Competition Act across the board. governing businesses’ day-to-day sales and marketing decision-making. the merging parties. • In particular, the Bureau is increasingly 4. Abuse of Dominance: The amendments focused on high profile Canadian• It is crucial that Canadian corporate give the Competition Tribunal (the companies and has taken action recently counsel update their compliance practices “Tribunal”) authority to impose new in telecom, real estate, financial services, to ensure that their operations are administrative monetary penalties for and airlines. The Bureau is also increasing consistent with new law. Below, we violations of up to C$10-million for a first enforcement of the abuse of dominance highlight major changes in five key areas of offense and laws. At the current time, the following competition law: C$15-million for subsequent offenses. matters are before the Competition 1. Criminal Conspiracy is Now Per Se Tribunal or courts. (Automatically) Illegal: Price-fixing, bid 5. Private Enforcement: • CCS Corporation/Complete rigging, market allocation and other a. Class Actions: Private damages Environmental - challenging a non- “hard-core” cartel agreements between actions can only be brought for criminal notifiable merger after closing on the competitors or potential competitors are violations of the Competition Act basis that it would be likely to prevent now per se illegal, regardless of their (e.g., price-fixing, bid rigging, market competition for hazardous waste effects.6 allocation), as well as violations of disposal.10 2. Other Pricing, Marketing, Sales, and Tribunal orders. A growing number Distribution Practices are no Longer of class actions being certified by Criminal: Business decisions about how Canadian courts suggests they will play to unilaterally set prices, who to sell a larger role going forward.8 to, how to deal with distributors, and other common practices not involving agreements with competitors are now all only reviewable as civil matters, requiring proof of an anticompetitive impact on competition.6 Bid rigging, under section 47 of the Competition Act, has always been, and remains, a per se criminal offense.7 A “second request” is a tool under the U.S. Hart-Scott-Rodino Act of 1976, now adopted in Canada and called a SIR.8 See, e.g., Pro-Sys Consultants Ltd. v Microsoft Corp., [2010] B.C.J. No. 380 (SC) (“Microsoft”); Pro-Sys Consultants Ltd. v. Infineon TechnologiesAG, 2009 BCCA 503 (“DRAM”); Irving Paper Ltd. v. Autofina Chemicals, [2009] O.J. No. 4021 (SCJ) (“Hydrogen Peroxide”).9 The Minister of Industry appointed Melanie Aitken to a five-year term on August 5, 2009.10 Competition Bureau, Competition Bureau Challenges BC Landfill Merger (January 26, 2011), available at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03343.html. See also proceeding at the Competition Tribunal (The Commissioner of Competition v. CCSCorporation et. al.), available at: http://www.ct-tc.gc.ca/CasesAffaires/CasesDetails-eng.asp?CaseID=336. 2
  • 14. • Air Canada/United Continental Holdings • General considerations to keep in mind • Agencies request documents without - challenging a proposed joint venture when grappling with global competition regard to their location. A request by and three pre-existing coordination law issues include: the Bureau for documents under the agreements.11 control of a European subsidiary may • Competition or antitrust law raise conflict of law issues with respect • Visa/MasterCard – challenging the rules governmental agencies talk to each to European privacy or other discovery of Visa and MasterCard.12 other. Waivers of confidentiality laws. Counsel should not assume that are frequently sought. Accordingly, • Rogers/Chatr - challenging certain ads of the liberal discovery laws of the U.S. companies must ensure that Rogers discount cell phone service.13 federal courts can be applied extra- representations are consistent across territorially or are consistent with the • In addition to the matters before the jurisdictions, and be mindful of privilege domestic discovery procedures of other Competition Tribunal, the Bureau has issues, such as those raised by the jurisdictions. reached settlements in a number of Akzo Nobel case, in which the European other high profile matters, including with Commission (affirmed by the European • Agencies enforce different standards. the Canadian Real Estate Association14 Union’s highest court on September 14, The standards for finding a violation of and others. 2010) refused to recognize attorney-client competition law vary across jurisdictions. privilege for communications between The potential for conflicting laws or• Other investigations (both criminal and in-house counsel and the company.16 decisions requires businesses to be civil) that are not in the public domain are cautious in extending a business practice also ongoing. • Agencies assist each other. Bilateral in one country to another without first antitrust co-operation treaties exist reviewing the practice for competition between each of the major jurisdictions law implications.Point Four: Competition Law is (e.g., Canada, the U.S., and the E.U.) and allow agencies to co-operate withIncreasingly Global each other, conduct simultaneous “dawn• Today, virtually every major jurisdiction has raids” share information, and co-ordinate , a competition law regime.15 As the number ongoing non-public investigations. Once of nations reviewing mergers and other unprecedented, extradition for criminal conduct for anticompetitive effects has cartel offences and related charges such increased, so has the cost and complexity as obstruction of justice are becoming of these investigations. increasingly common.1711 Competition Bureau, Competition Bureau Seeks to Block Joint Venture between Air Canada and United Continental (June 27 2011), available at: ,http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03386.html. See also proceeding at the Competition Tribunal (The Commissioner ofCompetition v. Air Canada et. al.), available at: http://www.ct-tc.gc.ca/CasesAffaires/CasesDetails-eng.asp?CaseID=348.12 Competition Bureau, Competition Bureau Challenges Visa and MasterCard’s Anti-competitive Rules (December 15, 2010), available at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03325.html. See also proceeding at the Competition Tribunal (The Commissioner ofCompetition v. Visa Canada Corporation and MasterCard International Incorporated et. al.), available at: http://www.ct-tc.gc.ca/CasesAffaires/CasesDetails-eng.asp?CaseID=333. 13 Competition Bureau, Competition Bureau Takes Action Against Rogers Over Misleading Advertising (November 19, 2010), available at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03316.html.14 Competition Bureau, Competition Bureau Seeks to Prohibit Anti-competitive Real Estate Rules (February 8, 2010), available at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03196.html. The parties reached a settlement in October 2010, Competition Bureau, FinalAgreement Paves Way for More Competition in Canada’s Real Estate Market (October 24, 2010), available at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03305.html. See also proceeding at the Competition Tribunal (The Commissioner of Competition v. The Canadian Real EstateAssociation), available at: http://www.ct-tc.gc.ca/CasesAffaires/CasesDetails-eng.asp?CaseID=325.15 In 2001, the ABA estimated that 107 jurisdictions had competition law regimes. ABA Antitrust Law Section, Competition Laws Outside theUnited States (2001), at 12-13. The ABA has more recently observed that “[m]ore than eighty jurisdictions, collectively accounting for over 80percent of world output and over 85 percent of world trade, have merger notification laws, some voluntary and some mandatory. ABA Antitrust ”Law Section, Antitrust Law Developments (6th Ed. 2007), at Ch.13.H.1. 3
  • 15. Point Five: Protocols are Needed • How to avoid “gun jumping” i.e., , • With respect to private enforcement ofto Prevent and Respond to premature pre-closing activity involving the law by individuals: sharing of competitively sensitiveInvestigations • Private Enforcement and Class information or joint marketing, Actions: Competition class actions• Competition law investigations require production, or other operations that are increasingly multinational, and serious and immediate attention. Having could give rise to “conspiracy” liability, usually (but not always) follow criminal pre-existing protocols in place when or premature completion of a deal in settlements. Thus, businesses must be responding to an investigation is essential. violation of Part IX of the Competition able to: Investigations can be time-consuming, Act. expensive, onerous on management, and • Supervise counsel in multiple • Cartels: If antitrust authorities appear at result in serious civil and criminal liability jurisdictions; your offices with search warrants: and negative publicity. Therefore, corporate • Distinguish between jurisdictions counsel need to ensure that privilege is • Advise them that you intend to co- where both direct and indirect preserved, document creation protocols operate with the search but would like purchasers can be certified as a class are in place, and legal defences can be co- to contact outside legal counsel, who or have standing as plaintiffs (Canada) ordinated in multiple jurisdictions. will want to attend to review the search and jurisdictions where indirect warrant, etc.• Below, we highlight some key questions purchasers have no standing (some to keep in mind when responding to • If regulators are not willing to wait, do parts of the U.S.); and Bureau investigations, private enforcement not obstruct their search in any way; • Be aware that disclosure or actions, and in general when thinking call counsel immediately. settlements in one jurisdiction could about competition law issues as they • No documents that could possibly prejudice privilege/litigation positions in affect your business. be relevant to the regulator’s search another.• With respect to public enforcement of should be removed from the premises the law by the Bureau, corporate counsel or destroyed during and after the should consider: search. Conclusion • Mergers: Parties to mergers or other • Keep an accurate record of all • We have highlighted a sample of acquisitions should consider: documents seized. competition law issues in this paper. We have, however, merely shown the tip of • Whether the parties trigger pre-merger • Direct all questions to your outside the iceberg in an increasingly complex and filing notifications, which result in legal counsel. global area of law. waiting periods, suspending closing as • Claim privilege over any documents • For convenience, the Top 5 Things Every well as potential extensive information that are privileged and ask that these Corporate Counsel Needs to Know about requests; be subject to appropriate protocol. Canadian Competition Law are: • Whether the transaction involves any • Other: Ongoing review and compliance 1. Competition Compliance Programs are substantive antitrust risk and how such efforts in relation to marketing, pricing, Essential; risk should be allocated in share or distribution, advertising, and sales purchase agreements; and 2. The Rules Have Changed; practices require continuous vigilance • Even transactions that fall below to ensure that such practices are not 3. The Enforcement Approach is More the notification thresholds may inhibited by a lack of clear understanding Aggressive; be reviewed and challenged on of the limits of the law and to ensure, substantive grounds after closing; and conversely, that they do not cross the 4. Competition Law is Increasingly Global; line and go too far. and 5. Protocols are Needed to Prevent and Respond to Investigations.16 European Court of Justice, Case C-550/07 P: Akzo Nobel Chemicals and Akcros Chemicals v. Commission (Sept. 14, 2010).17 U.S. Dep’t of Justice, Former CEO of the Morgan Crucible Co. Found Guilty of Conspiracy to Obstruct Justice (July 27 2010), available at ,http://www.justice.gov/atr/public/press_releases/2010/260826.htm 4
  • 16. Merger Checklist for Competition Act and Investment Canada ActI. Is there a reporting obligation?Consider filing requirements under the Competition Act and Investment Canada Act (see Appendix). □ Consider whether it is appropriate to voluntarily notify the Competition Bureau. □II. Internal PreparationDocument Production: □ • Document creation guidelines. □ • Collection of “4(c)” documents (strategic plans, reports, etc. used in analysing/evaluating the proposed transaction). □ • “Gun-jumping” guidelines and protocols. □ • Consider a non-disclosure and confidentiality agreement. □ • Consider whether a joint defence agreement between the parties is appropriate. □ • Understand the timing issues regarding regulatory clearance. □III. Will confidential information be exchanged?Consider adopting protocols for the sharing of confidential information. □ Restrict access to confidential information. □Consider establishing clean teams to review confidential information. □IV. Strategic IssuesRetention of specialist advisors, such as economists, government relations and strategic communications. □ Develop communication strategy: consider proactive stakeholder, customer and supplier outreach. □Consider likelihood of complaints being made to the Competition Bureau. □Consider foreign filing requirements. □ Continued on reverseMONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com*Associated Office Blake, Cassels Graydon LLP
  • 17. Appendix “A”THRESHOLDS (as at November 2011)Competition Act (all applicable thresholds must be exceeded)• Size of Parties: The parties to the transaction, together with their affiliates, must have aggregate assets in Canada, or aggregate gross revenues from sales in, from or into Canada, in excess of C$400-million; AND• Size of Transaction: Target entity, together with its affiliates, must have aggregate assets in Canada, or aggregate gross revenues from sales in or from Canada generated from Canadian assets, in excess of C$73-million (adjusted annually): • In an asset transaction, focus is on value of assets acquired and revenues generated from those assets • In an amalgamation transaction, focus is on at least two parties to the transaction, along with the continuing corporation • Target assets/entity must have nexus to Canada• Size of Equity (where applicable): Threshold can be exceeded upon acquisition of more than 20 per cent or 35 per cent of the voting shares of a public corporation or private corporation/non-corporate entity, respectively (additional trigger at +50 per cent)Investment Canada Act• Direct acquisition of a Canadian business • Global book value of C$312-million or greater (for all other investments) (adjusted annually) • Global book value of assets of C$5-million or greater (where investor is not a WTO investor or Canadian business is a cultural business)• Indirect acquisition of a Canadian business • Book value of assets in Canada of C$50-million or, if more than 50 per cent of the assets are in Canada, C$5-million (where investor is not a WTO investor or Canadian business is a cultural business)• Control • Corporation • Deemed acquisition of control: +50 per cent of voting shares • Deemed no acquisition of control: one-third of voting shares • Rebuttable presumption of control: between one-third and a majority of voting shares • Non-Corporation • Deemed acquisition of control: +50 per cent economic interest • Deemed no acquisition of control: 50 per cent or less economic interestMONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com*Associated Office
  • 18. Blake, Cassels Graydon LLP January 27, 2011 Bulletin Competition, Antitrust Foreign InvestmentCompetition Bureau Challenges B.C. settlement whereby Saskatchewan Wheat Pool agreedLandfill Merger to divest itself of a port terminal grain handling facility and of certain in-country grain elevators, as well asFIrst MerGer ChALLenGe sInCe 2005 ProvIdes to terminate the joint venture with James RichardsonKey MerGer PLAnnInG Lessons International.Yesterday, the Commissioner of Competition challenged • The application is not only against the mergingthe completed acquisition by CCS Corporation companies. It is also against the shareholders of(CCS) of Complete Environmental Inc. (Complete). the acquired company. This is significant as theThe Competition Bureau received a strong mandate Commissioner is seeking to dissolve the merger, whichfrom Parliament to review mergers closely and is provided for under the Competition Act.comprehensively when the Competition Act mergerprovisions were amended in 2009 (see our March • The transaction was not subject to pre-merger2009 Blakes Bulletin: Significant Amendments to notification. This fact highlights that the CommissionerCanadas Competition Act and Investment Canada Act can challenge even those transactions which are notNow in Force). This case further reflects the Bureau’s subject to advance notice.commitment to carry out this new mandate. • The Commissioner’s application also notes that her staff uncovered internal CCS documents whichBACKGround corroborate the challenge. It notes:In February 2010, Complete had obtained regulatoryapproval to convert the Babkirk landfill, located 130 km “Internal CCS documents reveal that CCSnorth of Fort St. John, B.C., into a “secure landfill”, anticipated that it would lose significant revenue,i.e., a landfill designed, constructed and operated to through lower volumes and tipping fees, oncekeep hazardous waste confined for an indefinite period Babkirk opened as a Secure Landfill. CCS wasof time. CCS currently operates the only other two also concerned that the loss of revenue could beoperational secure landfills in B.C. compounded by a ‘price war’ with Babkirk.”Rather than entering the market, however, the Babkirk • The case is a “prevent” case, meaning that thefacility was sold to CCS pursuant to an agreement dated Commissioner is of the view that the merger willDecember 30, 2010. Thereafter, the Competition Bureau prevent future competition. While a number of pastinvestigated the acquisition. The acquisition closed merger challenges have included such allegations, moston January 7, 2011 and yesterday the Commissioner also included an allegation that the merger was likely tochallenged it. “lessen” competition between existing competitors.The Commissioner’s application alleges that the merger In support of the lawsuit, the application notes:would substantially prevent competition for the disposal • Complete was poised to enter the relevant market;of hazardous waste produced largely at oil and gas • CCS considered Complete’s entry as a significantfacilities in northeastern British Columbia. competitive threat, which could lead to lower prices or a price war; andsIGnIFICAnCe oF the CAseThe case is significant for a number of reasons: • the likely substantial prevention of competition would not be remedied by new competitors entering the• It is the first merger case since 2005, when the relevant market with greenfield entry because of theCommissioner challenged the proposed joint venture substantial burden involved in obtaining environmentalof Saskatchewan Wheat Pool and James Richardson approvals, as well as other barriers to entry.International Limited. That case later resulted in a CONT’D ON PAGE 2©2011 Blake, Cassels Graydon LLP MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated Office
  • 19. Bulletin January 27, 2011 Competition, Antitrust Foreign InvestmentCONT’D FROM PAGE 1IMPortAnCe For MerGer PLAnnInGThe Bureau’s decision to challenge the completedmerger underscores a number of considerations thatparties contemplating a transaction should keep in mind,including the following:• Regardless of whether a merger triggers a pre-merger notification requirement under Part IX of theCompetition Act, mergers may be challenged by theBureau for up to one year after their completion. Assuch, substantive due diligence is critical in mergersbetween competitors and between suppliers andcustomers, even in circumstances where formal advancenotice need not be given to the Bureau.• Parties to a merger should be aware of theimportance of documents in the Bureau’s review ofmergers, as a review of the parties’ internal documentscan affect both the length and outcome of the Bureau’sassessment of a transaction.• The Bureau is receptive to receiving the views ofmarket contacts on mergers, whether those parties arecustomers, suppliers, competitors or others. While theBureau is sensitive to strategic complaints, it will followup on complaints and follow the evidence as appropriatein any given case.For further information, please call your usual Blakespartner contact or any member of our Competition,Antitrust Foreign Investment Group. Go to blakes.com/english/subscribe.asp to subscribe to other Blakes Bulletins. MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated OfficeBlakes periodically provides materials on our services and developments in the law to interested persons. If you do not wish to receive further Blakes Bulletins, pleaseclick here. For additional information on our privacy practices, please contact us at privacyofficer@blakes.com. Blakes Bulletin is intended for informational purposesonly and does not constitute legal advice or an opinion on any issue. We would be pleased to provide additional details or advice about specific situations if desired. Forpermission to reprint articles, please contact Blakes Marketing Department at 416-863-2403 or lynn.spencer@blakes.com. ©2011 Blake, Cassels Graydon LLP
  • 20. Bulletin Blake, Cassels Graydon LLP January 29, 2011 February 2011 Competition, Antitrust Foreign Investment Bulletin Competition, Antitrust Foreign InvestmentMerger Notification Threshold Revised Therefore, parties to a proposed asset or shareUpward acquisition will be required to notify the Bureau if the target’s assets in Canada or gross revenues fromIn general, the Competition Bureau (the Bureau) must sales in or from Canada exceed C$73-million. Forbe notified in advance of proposed mergers and combinations of assets, the threshold is met when theacquisitions when the assets or revenues of the target assets in Canada transferred to the combination or thefirm in Canada exceed C$70-million and when the gross revenues from sales in or from Canada of thosecombined assets or revenues of the parties and their assets exceed C$73-million. For amalgamations, therespective affiliates in Canada exceed C$400-million. parties will be required to file a Notification with theIn a series of 2009 amendments to the merger review Bureau if each of at least two of the amalgamatingprocess under the Competition Act (the Act), Parliament corporations has assets in Canada or gross revenuesnot only increased the transaction-size threshold from from sales in or from Canada that exceed the threshold.C$50-million to C$70-million, but it also provided for an Should you have any questions about the changesindexing formula to adjust the threshold to reflect annual to the party-size threshold or whether a proposedchanges to Canada’s gross domestic product (GDP). The transaction might require a notification filing with theC$400-million party-size threshold will not change until Competition Bureau, please contact any member of ourthe Act is otherwise amended. Competition, Antitrust Foreign Investment Group.Parliament now authorizes the Minister of Industry (theMinister) to revise the transaction-size threshold everyJanuary and post the revised threshold amount in theCanada Gazette (available online), unless an amountis otherwise prescribed by regulation. The Ministerannounced the increase on February 1, 2011 and isexpected to post the revised amount in the Gazette onFebruary 12, 2011.In January 2010, however, the Minister exercised hisdiscretion not to revise the transaction-size thresholddue to the decline in Canada’s year-over-year GDP from2008 to 2009, which would have resulted in a reductionin the threshold. The revisions to the threshold are notretroactive and come into effect when the decision isposted in the Gazette.The February 1, 2011 announcement by the Ministerreflects an increase to the transaction-size threshold toC$73-million to correspond to the increase in GDP lastyear. Go to blakes.com/english/subscribe.asp to subscribe to other Blakes Bulletins. MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated OfficeBlakes periodically provides materials on our services and developments in the law to interested persons. If you do not wish to receive further Blakes Bulletins, pleaseclick here. For additional information on our privacy practices, please contact us at privacyofficer@blakes.com. Blakes Bulletin is intended for informational purposesonly and does not constitute legal advice or an opinion on any issue. We would be pleased to provide additional details or advice about specific situations if desired. Forpermission to reprint articles, please contact Blakes Marketing Department at 416-863-2403 or lynn.spencer@blakes.com. ©2011 Blake, Cassels Graydon LLP
  • 21. Blake, Cassels Graydon LLP May 2011 Bulletin Competition, Antitrust Foreign InvestmentFederal Court of Appeal Affirms including divestiture, an order requiring compliance withSanctions Under Investment Canada Act undertakings and a penalty not exceeding C$10,000 per day for each breach of an undertaking.On May 25, 2011, the Federal Court of Appeal releaseda decision in United States Steel Corporation and U.S. 2. the US SteeL CASe And deCISIOnSSteel Canada Inc. v. The Attorney General of Canada In August 2007, United States Steel Corporation(US Steel Case) affirming the Federal Court (Trial (U.S. Steel) announced that it had reached a definitiveDivision) decision and upholding the constitutionality of agreement with Stelco Inc. (Stelco), a Canadianremedies, including monetary penalties, available under steel manufacturer, under which U.S. Steel wouldsections 39 and 40 of the Investment Canada Act (the acquire all of Stelcos shares. As the transaction wasICA). The decision further confirms the enforceability subject to review under the ICA, U.S. Steel proposedof the undertakings that investors typically enter into 31 undertakings to the Minister, including two related towith the responsible Minister under the ICA when the employment and production. On October 28, 2007, theinvestment is subject to review. Minister approved the acquisition, in part on the basis of the undertakings provided. The Attorney General1. OvervIew OF reLevAnt PrOvISIOnS OF ICA filed an application under section 40 of the ICA with theAs indicated in our June 2010 Blakes Bulletin, under court, seeking an order directing U.S. Steel to complythe ICA, and subject to certain limited exceptions, the with the two undertakings in question, and a penaltydirect acquisition of control of a Canadian business by a of C$10,000 per day, per breach of the undertakings,non-Canadian that meets a prescribed financial threshold calculated from November 1, 2008. U.S. Steel sub-cannot be implemented until the non-Canadian has filed sequently filed a motion challenging the validity ofits application for review and the responsible Minister sections 39 and 40 of the ICA.under the ICA has, or is deemed to have, declared that In its motion, U.S. Steel argued that sections 39 and 40he is satisfied that the investment is likely to be of net infringed section 11(d) of the Canadian Charter of Rightsbenefit to Canada. In making this determination, the and Freedoms (Charter), which provides that any personICA provides that the Minister may take into account charged with an offence must be presumed innocentany undertakings offered by the investor. Any such until proven guilty in accordance with that paragraphundertaking represents a binding commitment. Because of the Charter, and section 2(e) of the Canadian Bill ofcircumstances can, and sometimes do, change, the Rights (Bill of Rights), which provides that every personMinisters Administrative Guidelines state that: shall be provided a right to a fair hearing in accordance ... plans and undertakings are based to some with the principles of fundamental justice. Among other extent on projected circumstances and the things, U.S. Steel argued that: monitoring of an investors performance will • sections 39 and 40 of the ICA create a “punitive recognize this factor. Where inability to fulfill regime” which engages the Charter because application a commitment is clearly the result of factors of these sections involves the imposition of true beyond the control of the investor, the investor penal consequences and is, by its nature, a criminal will not be held accountable. proceeding;Following amendments to the ICA in March 2009, the • the Ministers application under section 40 causesMinister and investor can agree to a new undertaking, U.S. Steel to be a person charged with an offencepresumably one that takes into account any changed as required in order for section 11(d) of the Chartercircumstances. Regardless, the Minister can bring an to apply, because: i) the purpose of the legislation isapplication to a superior court for a range of remedies, public and not private; ii) the magnitude of the monetary CONT’D ON PAGE 2©2011 Blake, Cassels Graydon LLP MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated Office
  • 22. Bulletin May 2011 Competition, Antitrust Foreign InvestmentCONT’D FROM PAGE 1penalty is significant; iii) the failure to pay the monetary As indicated in the June 2010 bulletin, the decisionpenalty leads to contempt proceedings and exposure suggests that parties engaged in merger discussionsto a term of imprisonment; iv) the penalty goes to the with a foreign buyer will need to seriously considerConsolidated Revenue Fund and not to an internal body and value possible undertakings into their dealto maintain or regulate an internal or private sphere of arrangements, including negotiated appropriateactivity; and v) the penalties are imposed by a court and conditions of closing and relevant covenants, muchnot a regulator; and in the way that antitrust covenants have come to be negotiated over the past decade in Canada.• the procedure under section 40 does not accordinvestors the right to a fair hearing in accordance with The decision opens the possibility that section 40principles of fundamental justice. proceedings under the ICA may attract Charter protec- tion when national security is used by the Minister toAs reported in the June 2010 bulletin, U.S. Steel’s assess a non-Canadian application. Although nationalmotion was (first) dismissed by Madame Justice Hansen security was not at issue in this case, Justice Nadon’sat the Federal Court. On May 25, 2011, U.S. Steel’s judgment suggests that a section 40 proceeding withappeal was dismissed by Justice Nadon in a unanimous a purpose that relates to national security (i.e., beyondjudgment at the Federal Court of Appeal affirming mere compliance with the ICA) could be characterizedJustice Hansen’s ruling. Justice Nadon ruled that as criminal or penal and subsequently attract Chartersections 39 and 40 neither breach the Charter nor the protection. To date, this has not been considered by anyBill of Rights therefore upholding the sections. Justice court in Canada and therefore, non-Canadian investorsNadon agreed with Justice Hansen’s judgment that should nonetheless carefully consider undertakings madethe purpose of the sanction is “to maintain compliance under the ICA.with the Act and with undertakings made under it”.Section 40 proceedings brought by the Minister were As indicated in the June 2010 bulletin, the decision – asfound to “lack the indicia of penal proceedings” with the an appellate decision – will be relied upon in support ofresult that they are “not criminal by their very nature” the constitutional validity of other statutes that provideand “do not lead to true penal consequences.” Thus, for administrative monetary penalties (AMPs), such assection 40 proceedings under the ICA were found to the Competition Act. Indeed, the Competition Act’sbe consistent with section 11(d) of the Charter. Justice AMP provisions seem – in their specificity of directionNadon further ruled in agreement with Justice Hansen to the Tribunal or Courts – to be equally if not morethat section 40 proceedings under the ICA do not likely to be upheld as constitutionally valid following theinfringe the right to a fair hearing in accordance with reasoning of the Federal Court of Appeal in this case.the principles of fundamental justice and are therefore For further information, please call any member of ourconsistent with the Bill of Rights. Competition, Antitrust Foreign Investment Group.3. ImPLICAtIOnSThe Federal Court of Appeal’s decision affirms theMinister of Industry’s power to seek fines against,or seek other remedies from, non-Canadian investorsunder section 40 of the ICA, including the constitutionalvalidity of these orders. This said, we do not expect thatthe decision will result in the Minister routinely bringingenforcement actions under the ICA. This case is thefirst such action, notwithstanding that the Minister hasaccepted hundreds of undertakings since the ICA cameinto force in 1985. Federal Court of Appeal Affirms Sanctions Under Investment Canada Act PAGE 2©2011 Blake, Cassels Graydon LLP
  • 23. Bulletin May 2011 Competition, Antitrust Foreign InvestmentCompetition Bureau Sues toronto real MLS information is commonplace. According to theestate Board for restricting Innovation application, brokers that use such innovations enjoy cost savings that enable them to compete more effectivelyin real estate Brokerage Services against traditional brokers, in addition to providingOn May 27, 2011, the Competition Bureau announced consumers greater convenience and choice of services.that it had filed an application with the Competition The Bureau’s application seeks an order from theTribunal in response to certain practices by the Toronto Tribunal that would, among other things:Real Estate Board (TREB) that the Bureau alleges areanticompetitive. In particular, the Bureau has alleged • prohibit TREB from directly or indirectly enacting,that TREB has restricted the ability of real estate agents interpreting or enforcing any rules that exclude, preventto introduce innovative real estate brokerage services or discriminate against TREB member brokers who wishthrough the Internet, thereby harming consumers. to use the information in the Toronto MLS system to offer services over the Internet, such as through VOWs;The application was brought under the Competition Act’sabuse of dominance provisions, which provide for non- • direct TREB to implement such resources and facilitiescriminal sanctions where a dominant firm has engaged as the Tribunal deems necessary to ensure the operationin a practice of anticompetitive acts that are likely to of VOWs or similar services by, or on behalf of, memberprevent or lessen competition substantially. The Bureau brokers; andalleges that TREB, which is the largest real estate board • grant such further and other relief as the Tribunal mayin Canada and owns and operates the Toronto Multiple consider appropriate.Listing Service system (the Toronto MLS system), Filing an application against TREB in this matter iscurrently restricts and prevents brokers from sharing consistent with the priority the Bureau has placed ondetailed MLS system data with customers in new ways, pursuing abuse of dominance cases. Although thissuch as through secure, password-protected “virtual application is separate and apart from the consentoffice websites” (VOWs). The Toronto MLS system has agreement that was entered into last fall by theinformation about specific properties that is not available Canadian Real Estate Association (CREA) and theon other websites, such as www.realtor.ca, including Commissioner of Competition, which resolved thedata about previous listing and sale prices, historical Commissioner’s concerns that the MLS rules imposed byprices for comparable properties, and the amount of time CREA constituted an abuse of CREA’s dominant positiona property has been on the market, all of which may in the provision of residential real estate services, itinform consumers home purchase and sale decisions. demonstrates the Bureau’s continued interest in abuseAccording to the Bureau, VOWs would permit of dominance cases, particularly in connection withcustomers to conduct their own searches for, and real estate brokerage services. For additional detailsreview information relevant to, the purchase and sale of regarding the Commissioner’s proceedings againsthomes in the GTA, without the personal assistance or CREA, please see our October 2010 Blakes Bulletins:direct intervention of a broker. Currently, brokers and Competition Bureau Update on MEGs Consultation,their staff are limited to obtaining such information from Leniency Bulletin and CREA Settlement and Competitionthe Toronto MLS system themselves and providing it to Bureau Releases Updated Service Standards fortheir customers by hand, email or fax. Mergers; Announces Definitive Agreement with CREA.The Bureau’s application notes that real estate boards Should you have any questions about the above, orand associations in other Canadian jurisdictions, such as regarding any other areas of competition law, pleaseNova Scotia, allow their members access to and use of contact a member of our Competition, Antitrust their MLS information to provide Internet-based services Foreign Investment Group.and, in the United States, such access to and use of Go to blakes.com/english/subscribe.asp to subscribe to other Blakes Bulletins. MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated OfficeBlakes periodically provides materials on our services and developments in the law to interested persons. If you do not wish to receive further Blakes Bulletins, pleaseclick here. For additional information on our privacy practices, please contact us at privacyofficer@blakes.com. Blakes Bulletin is intended for informational purposesonly and does not constitute legal advice or an opinion on any issue. We would be pleased to provide additional details or advice about specific situations if desired. Forpermission to reprint articles, please contact Blakes Marketing Department at 416-863-2403 or lynn.spencer@blakes.com. ©2011 Blake, Cassels Graydon LLP
  • 24. Blake, Cassels Graydon LLP August 2011 Bulletin Competition, Antitrust Foreign InvestmentRecently Issued Merger Guidelines Guideline 1 indicates that the Bureau has considered the “sensitivities” involved with sharing information withThe Competition Bureau has recently published three both parties to a hostile acquisition. Accordingly, wherenew guidelines related to merger review. the Bureau has shared information with one party, itThe first two guidelines, published July 21, 2011, will “strive” to share that information with the otherexplain the Bureau’s policy on the disclosure of party “equitably.” However, the Bureau recognizes thatconfidential information to parties to hostile acquisitions the policy may be difficult to apply in a straightforwardand the running of waiting periods in such cases. manner due to the complexities that can arise in hostileComplying with merger control obligations in hostile acquisitions. Accordingly, the Bureau indicates it will beacquisitions gives rise to procedural considerations mindful of these complexities on a case-by-case basis.that do not arise in friendly transactions that were not Guideline 1 thus emphasizes the Bureau’s discretion inaddressed in previous guidance published by the Bureau. regard to disclosure of information related to its review, particularly in hostile transactions.The third guideline, published June 20, 2011, describesin further detail the information the Bureau requires Running of Waiting Periodsbefore it will consider merger notifications to be Hostile Transactions Interpretation Guideline Number 2complete. (Guideline 2) concerns the Bureau’s approach to the commencement of waiting periods under theHostILe tRAnsACtIons Act. Guideline 2 is new and was published withoutDisclosure of Information solicitation of public comment.Hostile Transactions Interpretation Guideline Number 1 In friendly transactions, acquisitions notified to the(Guideline 1) concerns the Bureau’s policy on the Bureau under the Act may not close for 30 daysdisclosure of information. These guidelines are a more following submission of a complete notification formformal reissuance of a policy statement that the Bureau by each party (the initial period). The initial periodoriginally published on its website on June 2, 2010. starts when the last complete notification has beenIn a friendly transaction, the Bureau will normally submitted. If the Bureau issues an SIR, the merger maydiscuss with the parties the status of its review, not close until 30 days following the parties’ certifiedincluding the complexity and timing of its review, completeness of a response to such SIR (the secondthe fact and timing of the other party’s response to period). The second period does not start until the lastany supplementary information request (SIR), and party has certified the completeness of its response;the Bureau’s views about the proposed transaction’s this differs from the practice in the United States where,potential competitive effects. In a hostile transaction, in tender transactions, the acquirer’s submission of asuch information could be employed by the hostile complete response triggers the second period, whethertarget for purposes unrelated to compliance with the the transaction is friendly or hostile. (The initial periodCompetition Act (the Act). For instance, the target may and/or second period may be terminated by the Bureau’suse the information to advocate that its shareholders issuance of an Advance Ruling Certificate or “no-action”reject the acquirer’s offer, or attempt to persuade other letter.)market participants to approach the Bureau with views In hostile acquisitions the target cannot be expectedabout the transaction that might buttress the Bureau’s to voluntarily notify its own acquisition to thepreliminary concerns. Separately, the disclosure of Bureau. Accordingly, the Act requires that the Bureauinformation by the hostile target may give a competing “immediately” notify the hostile target of the fact of thebidder an advantage it would not otherwise enjoy. CONT’D ON PAGE 2©2011 Blake, Cassels Graydon LLP MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated Office
  • 25. Bulletin August 2011 Competition, Antitrust Foreign InvestmentCONT’D FROM PAGE 1acquirer’s notification, after which the hostile target is Parties to transactions must submit a completerequired to submit its own notification within 10 days. form when notifying mergers to the Bureau, whichThe Act indicates that the initial period commences as triggers the initial period. The Notification Guidelinesoon as the acquirer submits its notification, not when provides insight into when the Bureau will consider thethe hostile target submits its own notification. The Act notification to be complete. Although largely technical,also provides that the second period commences when two aspects of the Notification Guideline are of note.the acquirer certifies completeness with an SIR if issued, First, the Notification Guideline gives additional clarityregardless of the timing of the hostile target’s response into the question of who is a “director” or “officer” ofif it also received an SIR. This is consistent with the an unincorporated entity for the purposes of providingU.S. approach. However, the Act does not expressly documents about the transaction under question 6(1)address how transactions that turn friendly after the of the notification form (the equivalent of “4(c)”expiry of the initial period but before the commencement documents on the U.S. Hart-Scott-Rodino form).of the second period will be treated. The Bureau has indicated that, in such instances, documents must be provided from a “person whoseGuideline 2 explains that the Bureau’s policies are as position is designated in a similar manner.” Second, thefollows: Notification Guideline explains what information can be• In a hostile transaction, the initial period will withheld from the notification because it is confidentialcommence on the date the acquirer submits its “by law.” The Bureau takes the position that informationnotification. The commencement of the initial period will rendered confidential by private agreement is notnot be affected if the transaction turns friendly during considered confidential by law, and to the extent thethe running of the initial period. parties are not willing to submit such information, they• Where a notified transaction turns friendly after must submit an acceptable explanation as to why thethe Bureau has issued an SIR but before the acquirer Bureau’s normal confidentiality protections would notcertifies the completeness of its response – in other be sufficient to maintain the required confidentiality.words, after the expiry of the initial period but before Absent such an explanation, the notification will notthe commencement of the second period – the Bureau be considered complete and the initial period will notwill not consider the second period to have commenced commence.until both the acquirer and the (formerly hostile) target For further information, please call your usual Blakeshave certified completeness of their SIR responses. partner contact or any member of our Competition,• Where a notified transaction ceases to be hostile after Antitrust Foreign Investment Group.the acquirer has certified its response to the SIR andthe second period has commenced, the running of thesecond period will be unaffected.GuIDeLIne on notIFICAtIonsPre-Merger Notification Interpretation GuidelineNumber 13: Satisfying the Information Requirementsset out in Section 16 of the Notifiable TransactionsRegulations and Completeness of Notification(Notification Guideline) concerns the Bureau’s policyon the completeness of notifications. This guideline isnew and was published without solicitation of publiccomment. Go to blakes.com/english/subscribe.asp to subscribe to other Blakes Bulletins. MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated OfficeBlakes periodically provides materials on our services and developments in the law to interested persons. If you do not wish to receive further Blakes Bulletins, pleaseclick here. For additional information on our privacy practices, please contact us at privacyofficer@blakes.com. Blakes Bulletin is intended for informational purposesonly and does not constitute legal advice or an opinion on any issue. We would be pleased to provide additional details or advice about specific situations if desired. Forpermission to reprint articles, please contact Blakes Marketing Department at 416-863-2403 or lynn.spencer@blakes.com. ©2011 Blake, Cassels Graydon LLP
  • 26. Blake, Cassels Graydon LLP October 2011 Bulletin Competition, Antitrust Foreign InvestmentCompetition Bureau Issues Revised IntERLoCkInG DIRECtoRAtEs AnD MInoRItyMerger Enforcement Guidelines IntEREsts In line with the expanded discussion of what constitutesOn October 6, 2011, the Canadian Competition a “merger” under the Act, the MEGs now containBureau (the Bureau) released the final version of its an expanded discussion of the factors the Bureaurevised Merger Enforcement Guidelines (MEGs). The considers when assessing the competitive effects of aprevious guidelines were issued in 2004. The release merger involving interlocking directorates and minorityof the MEGs follows two rounds of consultations, first shareholdings. Factors considered in this analysison whether the Bureau’s previous MEGs should be include the extent to which the acquirer or interlockedamended in light of revisions to the U.S. Horizontal directorate may induce the firms to compete lessMerger Guidelines (U.S. Guidelines), and second on aggressively with one another, and whether access toproposed draft revisions issued June 27, 2011. Blakes confidential information may facilitate co-ordinationparticipated extensively in the consultation process, between the two firms.including submitting comments directly and contributingto comments submitted by the Canadian Bar Association MARkEt DEFInItIonand by the American Bar Association. Reflecting changes in the U.S. Guidelines, the MEGs have been updated to clarify the role of market definitionWhile the MEGs do not represent a fundamental within the Bureau’s analytical framework for mergerdeparture from the traditional Canadian approach to review. In particular, the MEGs now explain that marketmerger review, they do make a number of key changes, definition and the analysis of competitive effects areincluding with respect to: part of an iterative process, whereby evidence in respect• clarifying the Bureau’s view on what constitutes a of market definition and market shares is considered in“merger” assessing anticompetitive effects, while the results of• interlocking directorates and minority interests effects-based analyses are used to hone the Bureau’s definition of the relevant market. Moreover, the MEGs• market definition explain that the Bureau may not reach a firm conclusion• anticompetitive effects analysis on the precise metes and bounds of the relevant market where such a conclusion is not necessary for• non-horizontal mergers the Bureau to conclude its analysis. Nevertheless, the• efficiencies. MEGs make clear that market definition is still “generally undertaken” and “generally sets the context for theWhAt ConstItutEs A “MERGER” Bureaus assessment of the likely competitive effects ofThe MEGs include an expanded discussion of how the a merger.”Bureau interprets the definition of a “merger” under theCompetition Act (the Act). The Act defines a merger AntICoMPEtItIvE EFFECts AnALysIsto include the acquisition of a significant interest in The revised treatment of market definition in the MEGsthe whole or a part of a business. The MEGs take an is accompanied by changes to the discussion regardingexpansive view of what may constitute a significant the anticompetitive effects analysis. The MEGs haveinterest as including transactions and appointments that become more complex and sophisticated in thisresult in the ability to materially influence the economic regard, explicitly contemplating different assessmentsbehaviour of a business – even where no voting or depending on the nature of the products in theeconomic interest is being acquired. CONT’D ON PAGE 2©2011 Blake, Cassels Graydon LLP MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated Office
  • 27. Bulletin October 2011 Competition, Antitrust Foreign InvestmentCONT’D FROM PAGE 1relevant market. For example, the MEGs have adopted circumstances. In particular, the old MEGs explainedan approach to assessing differentiated product markets “there are different ways in which the wealth transferthat is very similar to the approach adopted in the could be taken into account when evaluating a merger.U.S. (though they do not specifically reference the One approach to the wealth transfer is the ‘sociallyupward pricing pressure test adopted in the revised adverse effects approach’, which attempts to quantifyU.S. Guidelines). Similarly, the MEGs provide additional the portion of the transfer that is considered sociallyguidance on the evaluation of mergers in bidding and adverse.” Now the MEGs simply state “providingbargaining markets, recognizing that where there are buyers with competitive prices and product choices ismany firms that are similarly situated to the merging an objective of the Act.” This indicates that the Bureauparties in terms of meeting a buyer’s requirements a may intend to resile from its previous interpretationmerger is unlikely to prevent or lessen competition (notwithstanding that the previous interpretation wassubstantially. based on several Court of Appeal decisions in Superior Propane) and wishes to leave its options open in takingnon-hoRIzontAL MERGERs a restrictive approach to the efficiencies defence inIn respect of non-horizontal mergers (which include future cases.“vertical” mergers into upstream or downstream markets Separately, the MEGs indicate that the Bureau only willas well as “conglomerate” mergers into different but consider efficiencies where the merging parties providepotentially related markets), the MEGs explain that the evidence of those efficiencies in a timely manner – inBureau’s focus will be on assessing whether the merger other words, where the Bureau believes a substantialis likely to lead to foreclosure of inputs or customers, or prevention or lessening of competition is likely, unlesscould allow the merging firms to foreclose competitors the parties provide efficiencies evidence on a timelineby tying the sale of two products that are not both the Bureau deems acceptable, the Bureau will apply forproduced by the merged entity’s competitors. an order from the Tribunal without assessing whether the Competition Tribunal is statutorily empowered toEFFICIEnCIEs issue that particular order.The Act contains an explicit “efficiencies defence”,which prohibits the Competition Tribunal from issuing ConCLusIonan order under the merger provisions of the Act where The MEGs are an important reference for thethe gains in efficiency likely to be brought about by competition bar and the business community whenthe merger are greater than, and would offset, the considering the application of the merger reviewlikely anticompetitive effects and those efficiencies provisions of the Act to a proposed merger and whenlikely would not be achieved if the order were made. determining what information should be provided toThis efficiencies defence has been the subject of the Bureau to assist in its review of a proposed merger.considerable debate in Canada and was litigated While the MEGs do not represent a fundamentalextensively in the Superior Propane case. departure from the traditional Canadian approach toThe MEGs represent a departure by the Bureau merger review, they do provide useful guidance on thefrom its previous interpretations of the statutory Bureau’s current enforcement approach, which hasefficiencies defence. The old MEGs and the 2009 evolved since the previous MEGs were issued in 2004.Efficiencies Bulletin acknowledged that a wealth For further information, please call any member of ourtransfer resulting from an anticompetitive price increase Competition, Antitrust Foreign Investment Group.may be considered an anti-competitive effect in some Go to blakes.com/english/subscribe.asp to subscribe to other Blakes Bulletins. MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated OfficeBlakes periodically provides materials on our services and developments in the law to interested persons. If you do not wish to receive further Blakes Bulletins, pleaseclick here. For additional information on our privacy practices, please contact us at privacyofficer@blakes.com. Blakes Bulletin is intended for informational purposesonly and does not constitute legal advice or an opinion on any issue. We would be pleased to provide additional details or advice about specific situations if desired. Forpermission to reprint articles, please contact Blakes Marketing Department at 416-863-2403 or lynn.spencer@blakes.com. ©2011 Blake, Cassels Graydon LLP
  • 28. Tab 3
  • 29. Competition, Antitrust Foreign Investment “Again topping the table is the capable, roundly respected competition team at Blake, Cassels Graydon LLP. The team at Blakes features a depth of experience and a deal roster that only a finite amount of competitors can match in Canada. And even those firms that can go toe-to-toe with Blakes, cite the firm as the pre-eminent practice in the country. ” Canada Country Survey, Global Competition Review, November 2010What We Do • uccessfully represented Chapters/Indigo/ S • Merck Co., Inc./Schering-Plough Trilogy in consent order proceedings in CorporationBlakes Competition, Antitrust Foreign connection with the Chapters/Indigo merger.Investment Group is repeatedly acknowledged • estlé S.A./Alcon/Novartis A.G. Nas the leading practice in Canada. We • btained consent orders in Westinghouse/ O • Yellow Media Inc./Canadian Phone work with clients to facilitate their strategic ABB, Imperial Oil/Texaco, Canadian Waste Directories Holdings Inc.objectives in compliance with the Competition (1997 and 1998), CANYPS, and BAT/Act and Canada’s rules on foreign investment. Rothmans. • Nestlé S.A./Kraft Foods Inc.We represent clients before the Competition • egotiated the first-ever voluntary rebate N • Bemis Company, Inc./Alcan Division of Rio Bureau, the Competition Tribunal and the payments as a settlement in a Competition Tinto Americascourts in all areas of Canadian competition Act matter.law, including mergers, criminal (cartel), civil • Agrium Inc./CF Industries Holdings, Inc.(abuse of dominance) investigations, and Other Significant Competition Matters: • aker Hughes International/BJ Services Badvertising, distribution and trade practices • aple Group Acquisition Corporation/TMX M Companymatters. Blakes is also a leading firm with Group Inc.respect to securing merger approvals for • Smith International Inc./Schlumberger Ltd.non-Canadian purchasers under Canada’s • ank of America/MBNA Canada/TD Bank B • InBev/Anheuser-Buschforeign investment laws. Group • Continental AG/Siemens VDO • HP Billiton Plc/Potash Corporation of BDemonstrated Experience Saskatchewan • abatt Brewing Company/Lakeport Brewing LNegotiated Resolutions: Income Fund • Intact Financial Corporation/AXA SA• egotiated a consent agreement in N • CTVglobemedia Inc./CHUM Ltd. • Forzani Group Ltd./Canadian Tire Corp. connection with the merger of Suncor Litigation: Energy Inc. and Petro-Canada, one of • aterpillar Inc./Bucyrus International, Inc. C the largest and most complex mergers • uccessfully litigated five of the six S • CTVglobemedia Inc./Bell Canada in Canada’s history – creating a leading contested merger cases in Canada: Labatt, Canadian oil and gas company. • Cliffs Natural Resources Inc./Consolidated Superior Propane, Southam, Hillsdown, and Thompson Iron Mines Ltd. CP Ships.• egotiated the divestment of certain assets N to address competition concerns arising • Hewitt Associates, Inc./Aon Corporation • ignificant work in the area of cartels and S from Johnson Johnson’s acquisition of related class actions, including in air cargo, • iovail Corporation/Valeant Pharmaceuticals B the consumer health-care business of Pfizer. rubber chemicals, polyether polyols, DRAM, International SRAM, LCD, and flash.• egotiated a consent agreement for Akzo N • Continental Airlines/United Airlines Nobel NV regarding the divestiture of certain • uccessfully defended abuse of dominance S paint brands and related assets in Canada to • Millipore Corporation/Merck KGaA allegations against The Law Society of resolve competition issues resulting from its Upper Canada based on regulated conduct • Sinopec International Petroleum Exploration acquisition of Imperial Chemical Industries defence. and Production Company/ConocoPhillips PLC. • ertz Global Holdings Inc./Dollar Thrifty H • epresented Bioproducts, Inc. and R Automotive Group Inc. Rhône-Poulenc S.A. in the vitamins litigation. Continued on reverse MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated Office Blake, Cassels Graydon LLP | November 2011
  • 30. Advertising: Praise for the group: “ ...arguably the best-equipped competition practice in the country, and has, in the past• Bell Aliant v. Rogers “Blakes is a real market leader in the year, taken on cases that made an indelible competition area. - Chambers Global: The ”• Church Dwight v. Sifto mark on the country’s antitrust landscape. - ” World’s Leading Lawyers for Business 2011 Law Business Research’s The GCR 100 (9th• UPS v. Purolator Edition) “’ top-notch national presence in the area; AOther Precedent-Setting Cases: it deserves really high praise. A huge team “’Blakes is a marketing powerhouse, but it’s with key practitioners. It always delivers. ” ’• cted as counsel to the Commissioner of A not all fluff. There is solid substance in terms - Chambers Global: The World’s Leading Competition in Nutrasweet, the first abuse of its knowledge of the act. ” -’ Lawyers for Business 2011 case heard by the Competition Tribunal. Chambers Global: The World’s Leading “…the firm’s competition department is both Lawyers for Business 2009• cted for the respondent inTele-Direct, A the largest and the busiest in Canada, by called the largest and most complex case in all accounts handling more mergers, cartel Client Commitment the Competition Tribunal’s history. investigations and class actions than any Blakes lawyers understand how Canada’s• btained an amended consent order for O other firm in the country. – Law Business ” competition and foreign investment laws Interac, the first case of its kind under the Research’s The GCR 100 (10th Edition) fit within the broader context of complex amended Competition Tribunal Rules. “Sources say ‘Dealing with Blakes means corporate transactions and business affairs. dealing with the best and brightest We draw on the Firm’s vast resources fromInternational Policy Work across the country and leading expertise competition lawyers in Canada. ” ’Blakes lawyers are actively involved in - Chambers Global: The World’s Leading in related practice areas, such as mergersthe international arena and have been Lawyers for Business 2010 and acquisitions, securities, tax, litigation,instrumental in the issuance of policy trade, and intellectual property. We use our “Blakes ‘has a deeper bench than most; proven expertise to provide our clients withstatements and proposals by the International the firm’s younger generation is really quite the timely, practical and strategic adviceChamber of Commerce (ICC) and the impressive. ” - Chambers Global: The World’s ’ necessary to ensure legal compliance whileBusiness and Industry Advisory Committee to Leading Lawyers for Business 2009 facilitating transactions and assisting clients inthe OECD (BIAC). Blakes has also promotedinitiatives to enhance business interests at realizing their business objectives.the World Trade Organization and have actedas private-sector advisers to the International Contact DetailsCompetition Network. For more information on Blakes Competition, Antitrust Foreign Investment Group, pleaseOur lawyers hold over 20 prestigious national contact one of our partners below:and international positions within the ICC,BIAC, American Bar Association, Canadian Calvin S. Goldman, Q.C. Brian A. FaceyBar Association, International Bar Association, Co-Chair Co-Chairand the Canadian Chamber of Commerce. Direct: 416-863-2280 Direct: 416-863-4262Blakes is also the co-editor of Competition cal.goldman@blakes.com brian.facey@blakes.comLaw of Canada (Juris Publishing) and the Catherine Beagan Flood Glenn F. Leslietreatise on Canadian competition law entitled Direct: 416-863-2269 Direct: 416-863-2672Competition and Antitrust Law: Canada and cbe@blakes.com glenn.leslie@blakes.comthe United States (LexisNexis). Richard Corley Elizabeth L. McNaughton Direct: 416-863-2183 Direct: 416-863-2556Recognition richard.corley@blakes.com elizabeth.mcnaughton@blakes.comOur Competition, Antitrust Foreign Réal Forest David T. NeaveInvestment Group is top ranked in Canada Direct: 514-982-5088 Direct: 604-631-3338by publications such as Chambers real.forest@blakes.com david.neave@blakes.comGlobal: The World’s Leading Lawyers Jeff W. Galway Deborah Salzbergerfor Business, PLC Which Lawyer?, Law Direct: 416-863-3859 Direct: 416-863-4014Business Research’s The GCR 100, The jeff.galway@blakes.com debbie.salzberger@blakes.comBest Lawyers in Canada, The Lexpert/ Ryder L. Gilliland Paul B. SchabasAmerican Lawyer Guide to the Leading Direct: 416-863-5849 Direct: 416-863-4274500 Lawyers in Canada, The Lexpert Guide ryder.gilliland@blakes.com paul.schabas@blakes.comto the Leading US/Canada Cross-Border Jason Gudofsky Julie SolowayCorporate Lawyers in Canada, The Lexpert Direct: 416-863-3184 Direct: 416-863-3327Guide to the Leading US/Canada Cross- jason.gudofsky@blakes.com julie.soloway@blakes.comBorder Litigation Lawyers in Canada, The Randall Hofley James SullivanCanadian Legal Lexpert Directory, Law Direct: 416-863-2387/613-788-2211 Direct: 604-631-3358Business Research’s The International randall.hofley@blakes.com james.sullivan@blakes.comWho’s Who of Competition Lawyers, Navin Joneja Craig C. ThorburnLegal Media Group’s Guide to Leading Direct: 416-863-2352 Direct: 416-863-2965Practitioners: China and Guide to the navin.joneja@blakes.com craig.thorburn@blakes.comWorld’s Leading Competition and Antitrust Robert E. Kwinter Micah WoodLawyers/Economists. Direct: 416-863-3283 Direct: 416-863-4164 robert.kwinter@blakes.com micah.wood@blakes.com MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated Office
  • 31. Competition Litigation “ ...the firm’s competition department is both the largest and the busiest in Canada, by all accounts handling more mergers, cartel investigations and class actions than any other firm in the country. ” Law Business Research’s The GCR 100 (10th Edition)Overview intervenors such as Chapters/Indigo, Interac Rogers, Church Dwight v. Sifto and UPS and Imperial Oil. v. Purolator. We have provided advice on theSometimes the best defence is a strong negotiation of numerous consent agreementsoffence. Blakes competition litigators play Class Action Defence – We have represented such as Forzani, Sears and GoodLife, asa key role in Canada’s largest and most defendants in leading antitrust class actions, well as emerging cases with respect to theexperienced competition law practices. Blakes including recent decisions by the B.C. Court manner in which the Competition Act appliesis frequently at the forefront of high-profile of Appeal in DRAM and the Superior Court to intellectual property rights: Apotex v. Eli Lillycompetition litigation matters, including of Ontario in the Hydrogen Peroxide class and Company.contentious mergers, advertising, abuse actions. Other significant class-action cases onof dominance, reviewable trade practices which Blakes lawyers have acted include Air Demonstrated Expertiseand other civil matters before the Canadian Cargo, rubber chemicals, chocolate, LCDs and the vitamin case, the first major class action of q RXQVHO WR Bell Aliant in defence of aCompetition Tribunal, the Federal Court of its kind. successful injunction relating to misleadingAppeal and the Supreme Court of Canada. Our advertising claims [Bell Aliant v. Rogers, 2010lawyers also appear before the superior courts Criminal Investigations (including N.B.Q.B. 166]and the Supreme Court of Canada on criminal cartels) – We have extensive experiencematters and class actions. q RXQVHO WR John Deere Limited in respect defending corporations as well as directors and officers in investigations and court of a class action proceeding involving allegedMuch of the Firm’s work in this area involves proceedings under the criminal law provisions conspiracy relating to lawn equipment understrategic advice to best position matters for of the Competition Act, including some of the the Competition Act.success in the event of litigation as well aspreventing problems before they lead to most high-profile cases in Canadian history, q RXQVHO WR Nestlé Canada Inc. in respect oflitigation through prudent advice concerning such as the PANS case before the Supreme a class action proceeding involving allegedthe structuring of business transactions and Court of Canada. Blakes lawyers have also price fixing in respect of chocolate.the conduct of business affairs. acted as senior Crown counsel in a number of major criminal prosecutions. q RXQVHO WR Arkema Inc., a major chemicalBlakes lawyers have acted as litigation counsel company in the defence of a national classin: Abuse of Dominance – We have represented action alleging conspiracy to fix prices clients in connection with abuse of dominance of hydrogen peroxide in violation of theContentious Mergers – There are six investigations or inquiries conducted by the Competition Act.merger cases that form the primary body Competition Bureau, including Air Canada/of merger jurisprudence in Canada. Blakes q RXQVHO WR Lufthansa in the settlement CanJet, Tele-Direct and Nutrasweet. Blakeshas represented the parties in all five of the of class proceedings in Quebec, Ontario lawyers acted as lead counsel in Canada Pipe,cases in which the parties were successful and B.C. brought by direct and indirect the only abuse of dominance case to go to(Southam, CP Ships, Hillsdown, Superior purchasers of air cargo services. the Federal Court of Appeal and the SupremePropane, and Labatt). In Labatt, Blakes lawyers Court of Canada.successfully defended an application for aninjunction to block the closing of a merger Other Civil Matters – We have represented Continued on reversebefore the Competition Tribunal and the clients on other matters under theFederal Court of Appeal and successfully Competition Act, including refusal-to-dealmoved to set aside production orders issued cases such as Fred Deeley and Wyeth.by the Federal Court. Blakes lawyers have Blakes lawyers represented clients in variousacted as litigation counsel in some of the most advertising matters and acted as counsel invigorously contested “consent order” cases some of the leading misleading advertisingwhere there was concerted opposition by cases in Canada, including Bell Aliant v. MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated Office Blake, Cassels Graydon LLP | June 2011
  • 32. q RXQVHO WR Samsung Electronics Co. Ltd. Proud to be recognized as the pre-eminent q /DZ %XVLQHVV 5HVHDUFKnV The International in respect of various class proceedings. firm in Canada by the following directories and Who’s Who of Competition Lawyers 2011 publications:q RXQVHO WR Microsoft Corporation and q /DZ %XVLQHVV 5HVHDUFKnV Who’s Who Legal: Microsoft Canada Co. in defence against q Chambers Global: The World’s Leading Canada 2010 the certification of class actions, brought Lawyers for Business 2011 q The 2011 Lexpert Guide to the U.S./Canada across Canada, alleging that purchasers q Global Competition Review’s The GCR Cross-border Litigation Lawyers in Canada of Microsoft operating systems and 100 (11th Edition) and Global Competition productivity software were overcharged as a q /HJDO 0HGLD *URXSnV The Best of the Best Review’s Canada Country Survey result of alleged anticompetitive conduct by 2009 Microsoft against its competitors. q The Best Lawyers in Canada 2011 q /HJDO 0HGLD *URXSnV Guide to the World’sq RXQVHO WR Labatt Brewing Company q The 2011 Lexpert/American Lawyer Guide to Leading Competition and Antitrust Lawyers Limited with respect to its C$200-million the Leading 500 Lawyers in Canada 2009 acquisition of Lakeport Brewing Income q PLC Which Lawyer? 2011 Fund, before the Competition Bureau, the Competition Tribunal, the Federal Court and q The Canadian Legal Lexpert Directory 2011 the Federal Court of Appeal.q RXQVHO WR Interac Association in its application to the Competition Tribunal for an Contact Details amendment and replacement of a consent order originally issued in 1996 — the first For more information on Blakes Competition Litigation Group, please case of its kind under the recently amended contact one of our partners below: Competition Tribunal Rules.q RFRXQVHO IRU Rhône-Poulenc Biochimie Calvin S. Goldman, Q.C. Brian A. Facey S.A. in a matter under section 45 of the Co-chair Co-chair Competition Act that was resolved through Direct: 416-863-2280 Direct: 416-863-4262 Federal Court proceedings. cal.goldman@blakes.com brian.facey@blakes.comq RXQVHO WR The Forzani Group Ltd. in its Catherine Beagan Flood Claude Marseille resolution with the Competition Bureau of Direct: 416-863-2269 Direct: 514-982-5089 misleading ordinary price allegations. cbe@blakes.com claude.marseille@blakes.comq RXQVHO WR D PDMRU H[KLELWRU LQ WKH Réal Forest Mark A. Morrison successful resolution of the Competition Bureau’s investigation of business practices Direct: 514-982-5088 Direct: 403-260-9726 by major Canadian film distributors and real.forest@blakes.com mark.morrison@blakes.com exhibitors. Jeff W. Galway David T. Neaveq RXQVHO WR DQ DUW GHDOHU LQ WKH GHIHQFH RI DQ Direct: 416-863-3859 Direct: 604-631-3338 action alleging conspiracy with a competitor jeff.galway@blakes.com david.neave@blakes.com to fix prices in violation of the Competition Act. The class action was subsequently Ryder L. Gilliland Francis Rouleau dismissed when a U.S. settlement was Direct: 416-863-5849 Direct: 514-982-4016 reached that included Canadians. ryder.gilliland@blakes.com francis.rouleau@blakes.comq RXQVHO WR D PDMRU SKDUPDFHXWLFDO FRPSDQ Jason Gudofsky Paul B. Schabas in the defence of a proposed class action Direct: 416-863-3184 Direct: 416-863-4274 alleging conspiracy to fix prices of certain jason.gudofsky@blakes.com paul.schabas@blakes.com vitamins in violation of the Competition Act. Randall Hofley James Sullivanq RXQVHO WR D PDMRU IRRG FRPSDQ LQ WKH Direct: 416-863-2387/613-788-2211 Direct: 604-631-3358 defence of a national class action alleging randall.hofley@blakes.com james.sullivan@blakes.com conspiracy to fix prices of chocolate in violation of the Competition Act. Robert E. Kwinter Robert Torralbo Direct: 416-863-3283 Direct: 514-982-4014Recognition robert.kwinter@blakes.com robert.torralbo@blakes.comFor the third consecutive year, Blakes was Glenn F Leslie . Seumas M. Woodsnamed “Canada’s Law Firm of the Year” by Direct: 416-863-2672 Direct: 416-863-3876Who’s Who Legal and “Law Firm of the Year: glenn.leslie@blakes.com seumas.woods@blakes.comCanada” in the PLC Which Lawyer? Awards. MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com * Associated Office
  • 33. We “‘A top-notch national presence in the “Again topping the table is the capable, area; it deserves really high praise. roundly respected competition team at A huge team with key practitioners. It Blake, Cassels Graydon LLP... Couldn’t always delivers. ’” And even those firms that can go toe- Chambers Global: The World’s Leading Lawyers to-toe with Blakes, cite the firm as the for Business 2011 pre-eminent practice in the country.” Have Canada Country Survey, “...the firm’s competition department Global Competition Review, November 2010 is both the largest and the busiest in Said It Canada, by all accounts handling more Law Firm of the Year: Canada – mergers, cartel investigations and “Great lawyers who take exceptional class actions than any other firm in the care in being thorough. First class Better country.” advice.” Law Business Research’s PLC Which Lawyer? Awards 2010 The GCR 100 (10th Edition) Ourselves Chambers Global: The World’s Leading Lawyers for Business 2011 ranks Blakes in Band 1, its top tier for competition/antitrust (including litigation and foreign investment review). Group Co-chair Calvin S. Goldman, Q.C. received the only “star individual” ranking for a CanadianAbout the Blakes Competition, competition lawyer in Canada. Chambers Global ranks seven Blakes lawyers in this category.Antitrust Foreign Investment Group Global Competition Review’s The GCR 100 (11th Edition) and Global Competition Review’s Canada Country Survey ranks the Blakes Competition Group in the “Elite” category, the review’sThe Blakes Competition, Antitrust Foreign highest designation.Investment Group is repeatedly acknowledged PLC Which Lawyer? 2011 recognizes Blakes as having one of the leading competition practicesas the leading practice in Canada. Blakes is in Canada, with seven endorsed lawyers.frequently retained by major domestic and Law Business Research’s The International Who’s Who of Competition Lawyers 2011 ranks the Blakes Competition Group as a leader, with five competition lawyers individually rankedinternational companies and by international including Group Co-chairs Calvin S. Goldman, Q.C. and Brian A. Facey, and partnersand domestic law firms to provide “best in Jason Gudofsky, Robert E. Kwinter and Julie Soloway. In the 2010 edition, Co-chair Calvin S. Goldman, Q.C., was ranked as a “Most Highly Regarded Individual” out of a list of 20class” strategic counsel and representation in worldwide leaders. According to the publication, he “is one of the worldwide leaders in this sector.”merger reviews, cartel investigations, abuse Co-chair Brian A. Facey “is vastly experienced, and provides a very high quality service.”of dominance cases, distribution practices, The Canadian Legal Lexpert Directory 2011 ranks the Blakes Competition Group in its topadvertising matters, and other competition category, “Most Frequently Recommended,” and recognizes Calvin S. Goldman, Q.C., Brian A. Facey, Randall Hofley and Robert E. Kwinter as leading lawyers.issues. Blakes is also a leading firm with respectto securing merger approvals for non-Canadian Legal Media Group’s 2012 Guide to Leading Practitioners: China ranks Calvin S. Goldman, Q.C. and Brian A. Facey as leading lawyers in the area of competition law.purchasers under Canada’s foreign investmentlaws, which are typically required in all The 2011 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada ranks Calvin S. Goldman, Q.C. and Brian A. Facey as leading lawyers in the area of competition law.transactions where a non-Canadian purchases a The 2011 Lexpert Guide to the Leading US/Canada Cross-Border Corporate Lawyers inCanadian business. Canada ranks Calvin S. Goldman, Q.C. and Brian A. Facey as leading lawyers in the area of competition law. The 2010 Lexpert Guide to the Leading US/Canada Cross-Border Litigation Lawyers in Canada ranks Calvin S. Goldman, Q.C. and Brian A. Facey as leading lawyers. The Best Lawyers in Canada 2011 ranks five Blakes competition lawyers as leaders. Calvin S. Goldman, Q.C. is recognized as Best Lawyers’ Toronto Competition/Antitrust Lawyer of the Year 2010. Legal Media Group’s Expert Guide to Competition and Antitrust Lawyers/Economists 2011 ranks Calvin S. Goldman, Q.C., Brian A. Facey, and Robert E. Kwinter as leading lawyers.MONTRÉAL OTTAWA TORONTO CALGARY VANCOUVER NEW YORK CHICAGO LONDON BAHRAIN AL-KHOBAR* BEIJING SHANGHAI* blakes.com*Associated Office Blake, Cassels Graydon LLP
  • 34. Calvin S. Goldman, Q.C. Partner, Toronto Office Blake, Cassels Graydon LLP Direct 416-863-2280 Facsimile 416-863-2653 cal.goldman@blakes.comProfileCalvin Goldman is the Co-chair of the Competition, Antitrust Foreign Investment Group at Blake,Cassels Graydon LLP. Cal obtained an LL.B. from Osgoode Hall Law School (1973 Gold Medallist) andan LL.M. from Harvard Law School (1974). Cal began his professional career at Blakes in 1976, after heclerked for Justice Spence of the Supreme Court of Canada. He remained with Blakes specializing inantitrust litigation until 1986, when he was appointed to be the Director (since renamed Commissioner) ofthe Competition Bureau in the Canadian government. As such, he was the first head of the CompetitionBureau under the new Competition Act. He returned to private practice in 1990.Cals practice covers all aspects of Canadian competition law, including domestic and internationalmergers, abuse of dominance, cartels, civil reviewable matters and counselling on trade practices, as wellas representation in foreign investment reviews under the Investment Canada Act.Most recently, Cal has represented: Maple Group Acquisition Corporation, as co-counsel in connection with its offer to acquire TMX Group Inc. in a transaction valued at C$3.7-billion BHP Billiton PLC on its US$40-billion offer to acquire Potash Corporation of Saskatchewan Merck Co., Inc. on its US$41-billion merger with Schering-Plough Corporation Nestlé S.A. in connection with the sale of a 52 per cent interest in Alcon, Inc. to Novartis A.G. for US$28.1-billion Sinopec International Petroleum Exploration and Production Company in its acquisition of a 9.03 per cent stake in Syncrude Canada Ltd. from ConocoPhillips for US$4.65-billion Yellow Media Inc. in connection with its acquisition of Canadian Phone Directories Holdings Inc. (Canpages) from an investor group led by private equity firm HM Capital Partners Suncor Energy Inc.s C$43-billion merger with Petro-CanadaIn addition, the following are some of the clients for whom Cals representation in recent years is publiclyknown: Akzo Nobel, Aventis S.A., Bell Canada, Bioproducts Inc., ConocoPhillips, CTVglobemedia,Fortune Brands, General Electric Company, Genworth Financial, International Paper Company, Johnson Johnson, Kyowa Hakko Kogyo Co., Ltd., Lucent Technologies, Microsoft Corporation, National HockeyLeague, Praxair, Samsung, Torstar Corporation, Waste Services Inc. and Whirlpool Corporation.Since returning to the private sector, Cal has become known as a pre-eminent competition lawyer both in
  • 35. Canada and abroad. Internationally, he was the only Canadian lawyer included in the November 2001issue of Global Counsel magazine as one of the top 10 antitrust lawyers in the world. Most recently, hewas the only Canadian competition lawyer nominated for Lawyer of the Year in the 2011 GCR Awards. Heis the only Canadian competition lawyer recognized as a star individual for competition law in ChambersGlobal: The Worlds Leading Lawyers for Business 2011; this highest ranking is one he has held for anumber of years. Cal is also recognized in Law Business Researchs The International Whos Who ofBusiness Lawyers 2010 , where he is ranked among the top 20 Most Highly Regarded Individuals in thearea of competition law, and according to the publication, he is one of the worldwide leaders in thissector. He also is named one of the worlds top 25 competition and antitrust lawyers in Legal MediaGroups The Best of the Best 2009. Cal was also the only Canadian identified in Law Business ResearchsThe International Whos Who of Business Lawyers 2007 as one of the 16 most highly regardedcompetition lawyers in the world.Cal is also recognized in: PLC Which Lawyer? 2011 The 2011 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada The 2011 Lexpert Guide to the Leading US/Canada Cross-border Corporate Lawyers in Canada Legal Media Groups 2012 Guide to Leading Practitioners: China The Best Lawyers in Canada 2011 - Cal was voted by peers as one of the leading competition lawyers in Canada and Best Lawyers Toronto Competition/Antitrust Lawyer of the Year 2010 The Canadian Legal Lexpert Directory 2011 Law Business Researchs Whos Who Legal: Canada 2010 The 2010 Lexpert Guide to the Leading US/Canada Cross-border Litigation Lawyers in CanadaPast comments by clients, peers and media include: Chambers Global: The Worlds Leading Lawyers for Business 2011 noted that Cal ... maintains his reputation as a superb lawyer who knows the area inside-out Chambers Global: The Worlds Leading Lawyers for Business 2010 referred to Cal as a ... pre- eminent strategic thinker Law Business Researchs Whos Who Legal: Canada 2010 noted that Cal ... is recognized worldwide for his unbelievable technical expertise Law Business Researchs The International Whos Who of Competition Lawyers 2009 referred to Cal as an audacious lawyer, who has built real momentum for the group The National Post, Legal Post, July 21, 2009, noted Blake, Cassels Graydon comes through on Suncor deal.... The moral of the story? Dont bet against Cal Goldman and the competition team at Blake, Cassels Chambers Global: The Worlds Leading Lawyers for Business 2009 cited He is a force of nature. He brings strong legal clarity and technical finesse, and is indispensable on matters going to the
  • 36. board and involving the regulatorsProfessional AchievementsOver the course of his career, Cal has been appointed to a number of positions, in addition to having beenthe head of the Competition Bureau, including: Assistant special counsel for the Attorney General of Canada in the uranium cartel proceedings, 1977-1983 Vice-chair of the Competition Law and Policy Committee of the Organisation for Economic Co- operation and Development (OECD), 1987-1989 Queens counsel in December, 1987 First appointee to the Soloway Chair of Business and Trade Law, University of Ottawa, 1989-1990 Special counsel to the Attorney General of Canada in the appellate proceedings relating to the constitutionality of the conspiracy section of the Competition Act, 1991-1992 Consultant to the Canadian Competition Bureau on Merger Review Process, 2008Professional OrganizationsFurther to his competition law practice, Cal maintains a very active role in several professionalorganizations. He now holds or has held the following positions: Co-chair of the International Task Force of the American Bar Association (ABA) Section of Antitrust Law Co-chair of the Task Force on the International Competition Network of the International Chamber of Commerce Special adviser to the Competition Committee of the Business and Industry Advisory Committee to the OECD North America regional vice-chair of the Lex Mundi Antitrust Competition and Trade Practice Group Member of the advisory board of the BNA Antitrust Trade Regulation Report Past non-U.S. lawyer representative to the Council, ABA Section of Antitrust Law Past chair (2004-2007) of the International Task Force of the ABA Section of Antitrust Law Past president of the Harvard Law School Association of Toronto Member of the Deans Advisory Committee of Osgoode Hall Law School, Toronto Since 1995, appointed by the Canadian government to the roster of panellists for binational dispute resolution under the North American Free Trade Agreement Co-editor of Competition Law of Canada (Juris Publishing) Former council member (2002-2004) of the ABA Section of Antitrust Law Former chair of the Competition Policy Committee of the Canadian Council for International Business Past international editor (2001-2002) of the ABAs Antitrust Magazine, and a past member of the Task Force on the ICPAC Report of the ABA Section of Antitrust Law Past co-chair (1999-2001) of the International Antitrust and Foreign Competition Law Committee of the ABA Section of Antitrust Law Past chair of the National Competition Law Section of the Canadian Bar Association (CBA), 1995- 1996 Appointed to the honourary board of directors of the Public Policy ForumCal has published extensively and spoken widely in Canada, the United States, Europe and a number ofcountries in Asia on the subjects of competition law, trade practices and the interface between competitionpolicy and trade policy. In this regard, he has been a speaker at various antitrust/competition policyprograms organized by the ABA, the CBA, the International Bar Association, the Canadian CompetitionBureau, The World Bank, the World Trade Organization, the OECD Business and Industry Advisory
  • 37. Committee, the United Nations Conference on Trade and Development, the Conference Board and theFordham Corporate Law Institute, among other organizations.Recent PublicationsCo-author - Promoting Fairness in Competition Law Enforcement, Lessons from MultilateralOrganizations and the Canadian Experience, Antitrust in the Americas Conference, Presented by theAmerican Bar Assocation Section of Antitrust Law and IBRAC, Rio De Janeiro, Brazil, June 16-17, 2011.Author - Contemporary US-Canada Cross-Border Merger Review: Tradeoffs In Policy ObjectivesBetween Harmonization, Simplification, and Accountability, 15th Annual EU Competition Law and PolicyWorkshop Merger Control in European and Global Perspective, Florence, Italy, November 12, 2010.Co-author - Contemporary Canadian Merger Review: New Challenges in Multi-JurisdictionalTransactions, International Bar Association 2010 Annual Conference, Vancouver, British Columbia,October 5, 2010.Co-author - The Intersection Between Intellectual Property Rights and Competition Law: A CanadianPrimer, Presented at the IBAs 21st Annual Communications Competition Law Conference, Barcelona,Spain, May 17-18, 2010.Co-author - Due Process in Competition Law Enforcement: A Dialogue on Best Practices BetweenAgencies and Business, International Chamber of Commerce Roundtable, Istanbul, Turkey, April 30,2010.Co-author - The Institutional Design of Canadian Competition Law: The Evolving Role of theCommissioner, Loyola University Chicago School of Law, Chicago, Illinois, September 11, 2009,subsequently published in Loyola University Chicago Law Journal, Vol. 41, No. 3, Spring 2010.Co-authors - A Canadian Perspective on the Evaluation of Evidence in Antitrust and Merger Cases in theContext of Recent Changes to Canadas Competition Law, 14th Annual EU Competition Law and PolicyWorkshop, Florence, Italy, June 19-20, 2009.Co-author - Practical Perspectives in Handling International Antitrust Cases: Lessons from the CanadianExperience, American Bar Association, 57th Antitrust Law Spring Meeting, Washington, D.C., March 25-27, 2009.Contributing Author - The Relationship Between Financial Sector Conditions and Competition Policy,Summary of Discussion Points Presented by the Competition Committee of the Business and IndustryAdvisory Committee to the OECD Competition Committee Roundtable on Competition and the FinancialCrisis, February 17-18, 2009.Co-author - Cartel Settlements In Criminal And Civil Proceedings - A Canadian Perspective, 13th AnnualEU Competition Law and Policy Workshop, Antitrust Settlements under EC Competition Law, Florence,Italy, June 6-7, 2008.Co-author - Merger Enforcement Guidelines - Lessons From The Canadian Experience, Paperpresented by Calvin Goldman at Indias New Merger Notification Regime Benefits of and Scope for MergerEnforcement Guidelines, New Delhi, India, March 16-18, 2008.Co-author - Recent Developments in Canadian Criminal and Civil Cartel Enforcement and Joint Defencein Canada , American Bar Association/International Bar Association, 2008 International CartelConference, January 30, February 1, 2008.Recent Professional ActivitiesSpeaker - Regulatory Implications of a Large Foreign Transaction, Insight Advanced Mergers Acquisitions, St. Andrews Club and Conference Centre, Toronto, Ontario, May 30-31, 2011.Speaker - What Weight Is and Should Be Given to Hypothetical Entry/Repositioning Arguments?, GCRs
  • 38. Antitrust Law Leaders Forum, Miami, Florida, February 3-5, 2011.Presenter - Contemporary US-Canada Cross-Border Merger Review: Tradeoffs In Policy ObjectivesBetween Harmonization, Simplification, and Accountability, 15th Annual EU Competition Law and PolicyWorkshop Merger Control in European and Global Perspective, Florence, Italy, November 12, 2010.Presenter - Contemporary Canadian Merger Review: New Challenges in Multi-JurisdictionalTransactions, International Bar Association 2010 Annual Conference, Vancouver, British Columbia,October 5, 2010.Presenter - The Institutional Design Of Canadian Competition Law: The Evolving Role Of TheCommissioner, Loyola University Chicago School of Law Symposium, Chicago, Illinois, September 11,2009.Presenter - Due Process in Competition Law Enforcement: A Dialogue on Best Practices BetweenAgencies and Business, International Chamber of Commerce Roundtable, Istanbul, Turkey, April 30,2010.Presenter - A Canadian Perspective on the Evaluation of Evidence in Antitrust and Merger Cases in theContext of Recent Changes to Canadas Competition Law, 14th Annual EU Competition Law and PolicyWorkshop, Florence, Italy, June 19-20, 2009.Presenter - Practical Perspectives in Handling International Antitrust Cases: Lessons from the CanadianExperience, American Bar Association, 57th Antitrust Law Spring Meeting, Washington, D.C., March 25-27, 2009.Speaker - Mergers, Abuse and Cartels: The World in Review, Canadian Bar Association 2008 AnnualFall Conference on Competition Law, Gatineau, Quebec, September 17-19, 2008.Speaker - Balancing the Challenges of Globalisation with National Goals of Competition Policy, St.Gallen Symposium 2008, University of St. Gallen, Switzerland, May 15-17, 2008.Presenter - Merger Enforcement Guidelines - Lessons From The Canadian Experience, Indias NewMerger Notification Regime Benefits of and Scope for Merger Enforcement Guidelines, New Delhi, India,March 16-18, 2008.Panellist - Recent Developments in Canadian Criminal and Civil Cartel Enforcement and Joint Defence inCanada, American Bar Association/International Bar Association, 2008 International Cartel Conference,January 30-February 1, 2008.Recent Media AppearancesMentioned - Natural Evolution of a Very Large Group, Article by Julius Melnitzer, National Post,Financial Post, Legal Post, p. FP13, May 12, 2010.Mentioned - Blake, Cassels Graydon Come Through Suncor Deal, Article by Jim Middlemiss, NationalPost, July 21, 2009.Quoted - Competition Act Changes Affecting Mergers, Article by Jim Middlemiss, National Post,Financial Post, May 26, 2009.Mentioned - Suncor Offer Tests Rules on Competition, Article by Jim Middlemiss, National Post, March25, 2009.Quoted - Dont Get Caught Offside in Rules Changes; Wrong Advice on Competition Act Could beCostly, National Post, Financial Post, March 23, 2009.Quoted - Dont Get Caught by Competition Act Changes, Article by Jim Middlemiss, National Post,Financial Post, March 20, 2009.Quoted - Devil in Details of New Merger Review Process, Article by Jim Middlemiss, National Post,Financial Post, March 18, 2009.
  • 39. EducationAppointed Queens Counsel - 1987Admitted to the Ontario Bar - 1976LL.M., Harvard Law School - 1974LL.B. (Gold Medallist), Osgoode Hall Law School - 1973
  • 40. Brian A. Facey Partner, Toronto Office Blake, Cassels Graydon LLP Direct 416-863-4262 Facsimile 416-863-2653 brian.facey@blakes.comProfileBrian Facey is the Co-chair of the Blakes Competition, Antitrust Foreign Investment Group, widelyregarded as the leading and largest competition law practice in Canada. For almost 20 years, Brian hasadvised clients in hundreds of regulatory matters, including cross-border and domestic mergertransactions, criminal cartel cases, class actions, and distribution and advertising matters under theCompetition Act.Earlier this year, The Globe and Mail, one of Canadas leading business newspapers, referred to Brian asone of Canadas most prominent competition lawyers. He is also internationally recognized as a leadinglawyer by directories such as Chambers Global: The Worlds Leading Lawyers for Business, which refersto his razor-sharp business acumen and notes that he always sees the best angle to tackle the matter.Law Business Researchs The International Whos Who of Business Lawyers has noted that Brian is oneof the absolute best in the country right now. He is also ranked in the Legal Media Groups Guide toLeading Practitioners: China, having been nominated by peers and in-house counsel as a preeminentcompetition and antitrust expert with experience on China matters.Brian also represents foreign-controlled investors, including state-owned investors and foreigngovernments, under the provisions of the Investment Canada Act and the State-Owned EnterpriseGuidelines, which regulate the acquisition of foreign control of Canadian businesses, and has securedapprovals for foreign investors in many of Canadas key industries.Brian is also recognized as a top competition litigation counsel. As noted by Lexpert magazine Facey [is]among a rare breed of top-rated competition solicitors not afraid to get on his feet in litigation. In thisregard, he has appeared before the Competition Bureau, the Competition Tribunal, the Federal Court, theFederal Court of Appeal and various levels of Ontario courts. Once again, he will be profiled in TheLexpert Guide to the Leading U.S./Canada Cross-Border Litigation Lawyers in Canada in the 2011 edition.Brian has extensive experience advising international and Canadian companies on the competitionaspects of MA transactions and has been involved in many of Canadas most significant cases includingrepresenting: The Forzani Group Ltd. on its sale to Canadian Tire Corporation, Limited for C$770-million Intact Financial Corporation, one of Canadas leading property and casualty insurance companies, on its C$2.6-billion acquisition of the Canadian insurance businesses of AXA SA DISH Network Corp. in connection with its US$320-million acquisition of Blockbuster Inc. CTVglobemedia Inc. with respect to its C$3-billion sale to BCE Inc.
  • 41. Biovail Corporation on its US$8-billion merger with U.S. public company Valeant Pharmaceuticals International Inc. Smith International, Inc. with respect to its US$12-billion merger with Schlumberger Limited Hertz Global Holdings Inc. with respect to its US$1.5-billion offer to acquire Dollar Thrifty Automotive Group Inc. Millipore Corporation in connection with its acquisition by Merck KGaA for US$7.2-billion Yellow Pages Group Co. in connection with its C$225-million acquisition of Canadian Phone Directories Holdings Inc., and its C$2.6-billion acquisition of SuperPages in the phone directories business. Suncor Energy Inc. with respect to its C$43.3-billion merger with Petro-Canada Baker Hughes International with respect to its US$5.5-billion acquisition of BJ Services Company Merck Co., Inc. with respect to its US$41.1-billion merger with Schering-Plough Corporation TUI Travel PLC and Sunwing Travel Group Inc. in connection with the acquisition of First Choice Canada Inc. (an affiliate of TUI Travel) by Sunwing InBev in connection with its US$52-billion acquisition of Anheuser-Busch XM Satellite Radio Holdings Inc. with respect to its US$13-billion merger with Sirius Satellite Radio Inc. Aluminum Corporation of China with respect to its US$20-billion proposed investment in Rio Tinto PLC InBev/Labatt Brewing Company Limited with respect to its C$200-million acquisition of Lakeport Brewing Income Fund, before the Competition Bureau, the Competition Tribunal, the Federal Court and the Federal Court of Appeal ConocoPhillips in connection with its US$40-billion acquisition of Burlington Resources Inc.Competition LitigationAs to competition litigation matters, Brian is currently appearing or has appeared before the courts in thefollowing matters: Foster, et al. v. Sears Canada Inc., et al., Toronto 766-2010, (ON Sup Ct) Chesterman Farm Equipment Inc. v. CNH Canada Ltd., (18 August 2009) R. v. John Deere Limited, (11 September 2009), Ottawa T-1836-04, (Fed. Ct of Canada) Jazz Air LP v. Toronto Port Authority, 2009 FC 253, 343 FTR 165 Canada (Commissioner of Competition) v. Labatt Brewing Co., [2007] CCTD No. 5, 2007 Comp.
  • 42. Trib. 9 Canada (Commissioner of Competition) v. Labatt Brewing Co., 2008 FC 59, 323 FTR 115 Canada (Commissioner of Competition) v. Labatt Brewing Co., 2008 FCA 22, 289 DLR (4th) 500 Canada (Commissioner of Competition) v. Sears Canada Inc., [2005] CCTD No. 1, 2005 Comp. Trib. 2 R. v. Royal Group Technologies (Quebec) Inc., (26 January 2004), Toronto Canada (Commissioner of Competition) v. Cascades Fine Papers Group Inc., 2004 FC 95, [2004] F.C.J. No. 155 Canada (Commissioner of Competition) v. Superior Propane Inc., [2000] CCTD No. 15 2000 Comp. Trib. 15 Canada (Commissioner of Competition) v. Superior Propane Inc., 2001 FCA 104, 199 DLR (4th) 130 Canada (Commissioner of Competition) v. Superior Propane Inc., [2002] CCTD No. 10, 2002 Comp. Trib. 16 Canada (Commissioner of Competition) v. Superior Propane Inc., 2003 FCA 53, 223 DLR (4th) 55 R. v. Rhône Poulenc S.A., (14 September 1999), Toronto T-1666-99, (Fed. Ct of Canada)RankingsBrian is recognized as one of Canadas leading lawyers in every major lawyer-ranking publicationincluding: Chambers Global: The Worlds Leading Lawyers for Business PLC Which Lawyer? The Lexpert Guide to the Leading U.S./Canada Cross-Border Litigation Lawyers in Canada The Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada Law Business Researchs The International Whos Who of Competition Lawyers Global Competition Review: A Guide to the Worlds Leading Competition Law and Economics Practices Legal Media Groups Guide to Leading Practitioners: China Legal Media Groups Guide to the Worlds Leading Competition/Antitrust Lawyers The Canadian Legal Lexpert Directory
  • 43. The Best Lawyers in CanadaProfessional AchievementsBrian is vice-chair of the executive committee of the Canadian Bar Associations National Competition LawSection. He is active in the American Bar Association - Antitrust Section and the International BarAssociation. He was a founder and past co-chair of the Foreign Investment Review Committee of theNational Competition Section of the Canadian Bar Association, which represents the views of theCanadian bar in relation to investments by non-Canadians. Brian has spoken to audiences in Canada andabroad, and has written articles for the Antitrust Law Journal, the Antitrust Bulletin, Antitrust Magazine,World Competition, the Competition Policy Record, Global Competition Review and Fordham CorporateLaw Institute.Brian is co-author of a leading treatise on Canadian competition law entitled Competition and AntitrustLaw: Canada and the United States, LexisNexis, 2006. For more than a decade, he was an adjunctprofessor of competition law at one of Canadas leading law schools. He has testified before the CanadianSenate and Parliamentary Committees on amendments to the Competition Act. He was appointed by theCommissioner of Competition as an external consultant to the Competition Bureau in relation to the recentamendments to Canadas competition laws.Recent PublicationsCo-author - Never a Dull Moment: Recent Developments in Canadian Competition Law, CanadaInternational Report, International Bar Association Antitrust Newsletter, Vol. 24, Issue No. 2, October2011.Co-author - Collective Redress For Cartel Damages in Canada - Overview and Outline of Issues, 16thAnnual EU Competition Law and Policy Workshop, Florence, Italy, June 17-18, 2011.Co-author - New Year, New Guidance, New Focus, New Powers - Whats New in Competition Law?,Canada International Report, International Bar Association Antitrust Newsletter, Vol. 24, Issue No. 1, April2011.Author - Should Canada Revise Its Merger Enforcement Guidelines, American Bar Association Section ofAntitrust Law, 2011 Annual Spring Meeting, Washington, D.C., March 31, 2011.Co-author - The New Merger Review Process under the Competition Act: Strategies and Tactics forTaking Regulatory Risk off the Table, The Canadian Institute - Exploiting MA Opportunities in aRecovering Economy, Toronto, Ontario, October 19-20, 2010.Co-author - Foreign Investments in Canada - Sovereign Wealth Funds, State-Owned Enterprises andNational Security Review under the Investment Canada Act, International Bar Association 2010 AnnualConference, Vancouver, British Columbia, October 5, 2010.Co-author - Tempests in a Teapot, Sovereign Wealth Funds, State-Owned Enterprises and NationalSecurity Review under the Investment Canada Act, Presented at the Canadian Bar Associations ForeignInvestment Review Committee (FIRC) Conference - Investment Canada Act: New Law and Policy,Toronto, Ontario, June 4, 2010.Co-author - The Intersection Between Intellectual Property Rights and Competition Law: A CanadianPrimer, Presented at the IBAs 21st Annual Communications Competition Law Conference, Barcelona,Spain, May 17-18, 2010.Co-author - The Reinvigoration of Canadian Antitrust Law - Canadas New Approach to Merger Review,Competition Law International, April 2010.Co-author - Canadas New Competition Regime: Compliance Guidance for General Counsel, Presentedat the Association of Corporate Counsels 2009 Annual Meeting, Boston, Massachusetts, October 19,
  • 44. 2009.Co-author - Open for Business, But Not for Sale - Sovereign Wealth Funds, State-Owned Enterprises andNational Security Review Under the Investment Canada Act, Presented at the Canadian Bar Association,2009 Annual Competition Law Fall Conference, Gatineau, Québec, September 24-25, 2009.Co-author - Competition Review Panel Report, Blakes Bulletin on Competition Law, June 2008.Co-author - Sovereign Wealth Funds: Friend or Foe? Report from Address by Minister Flaherty, BlakesBulletin on Competition Law, January 2008.Co-author - Federal Court Ruling Reins in Competition Bureau: Beer Subpoenas Set Aside Federal CourtRuling Reins in Competition Bureau: Beer Subpoenas Set Aside , Blakes Bulletin on Competition Law,January 2008.Author - Canadas Merger Timing Decision (Labatt) Upheld on Appeal, Blakes Bulletin on CompetitionLaw, January 2008.Recent Professional ActivitiesSpeaker - Debate This! The Two Sides to the Top Ten Competition Law Developments Everyone Needsto Know About, CBA Competition Law 2011 Spring Forum: Focus on Civil, Toronto, Ontario, May 3, 2011.Speaker - The New Horizontal Merger Guidelines: Implications for U.S. and Global Mergers, 59th ABAAntitrust Law Spring Meeting, Washington, DC, March 30 - April 1, 2011.Moderator - Antitrust Challenges in a Digital World, 10th Annual Competition Law and Policy Forum,Northwind Professional Institute, Langdon Hall, Cambridge, Ontario, February 23-25, 2011.Moderator and Co-author - Top 5 Things Every Corporate Counsel Needs to Know about CanadianCompetition Law, Canadian Corporate Counsel Association 2010 Corporate Counsel World Summit,International Competition/Antitrust Update, Toronto, Ontario, September 26-28, 2010.Speaker - Tempests in a Teapot, Sovereign Wealth Funds, State-Owned Enterprises and NationalSecurity Review under the Investment Canada Act, Canadian Bar Associations Foreign InvestmentReview Committee (FIRC) Conference - Investment Canada Act: New Law and Policy, Toronto, Ontario,June 4, 2010.Speaker - The Intersection Between Intellectual Property Rights Competition Law: A Canadian Primer,IBA 21st Annual Communications Competition Law Conference, Barcelona, Spain, May 17-18, 2010.Speaker - Canadas New Approach to Merger Review, International Bar Association 13th AnnualCompetition Conference, Fiesole, Italy, September 11-12, 2009.Speaker - New Governments - New Antitrust Laws: The Reinvigoration of North American AntitrustEnforcement, Association of Corporate Counsel, Boston, Massachusetts, October 19, 2009.Moderator - Open for Business, But Not For Sale. Sovereign Wealth Funds, State-Owned Enterprisesand National Security Review under the Investment Canada Act, CBA 2009 Annual Competition Law FallConference, Gatineau, Québec, September 24-25, 2009.Speaker - The New Competition Act: An Ounce of Prevention..., 2009 CCCA National SpringConference, Montreal, Québec, April 5-7, 2009.Moderator - 2008 Fall Meeting, ABA Section of International Law, Hilton Hotel, Brussels, Belgium,September 23-27, 2008.Speaker - Merger Review and Sovereign Wealth Funds: A Report on Canada, Lex Mundi, North AmericaRegional Conference, Loews Miami Beach Hotel, Miami, Florida, January 31-February 2, 2008.Speaker - High Stakes MA - Getting Deals Done in the Face of Significant Regulatory Hurdles, 11thAnnual In-house Counsel Congress, Toronto, Canada, November 22-23, 2007.Speaker - Competition Law, Canadian Bar Association 2007 Fall Conference, Gatineau, Québec,
  • 45. October 11-12, 2007.Speaker - Abuse of Dominance: International Covergence or Divergence?, Spring Competition LawConference, International Bar Association and Canadian Bar Association, Toronto, Canada, May 3-4,2007.Speaker - Merger Investigation and Analysis Subgroup, International Competition Network, Dublin,Ireland, April 5, 2007.Speaker - Private Antitrust Actions in Canada, Civil Law v. Common Law: Litigation of Antitrust DamagesClaims in National Courts, International Bar Association, Chicago, Illinois, September 21, 2006.Speaker - A World of Monopolies: Comparative Approaches to Abuse/Monopolization, Canadian BarAssociation Spring Meeting, Toronto, Canada, May 26, 2006.Speaker - The Essentials of Competition Law, Ontario Bar Association, Toronto, Canada, May 9, 2005.Recent Media AppearancesQuoted - Observers Praise Enforcement Push in Canada, Article by Ron Knox, Global CompetitionReview, October 6, 2011.Panellist - The Interview 2011, Interview by Jacquie McNish of The Globe and Mail regarding the keydevelopments and controversies of the past year in competition law, The Canadian Bar Association 2011Annual Fall Competition Law Conference, Gatineau, Quebec, October 5-7, 2011.Quoted - Competition Watchdog Sinking Teeth Into Mergers: Lawyer, Article by Jeff Gray, The Globe Mail, January 11, 2011.Quoted - EU Ruling Creates Confidentiality Minefield, Article by Jim Middlemiss, National Post, FinancialPost, Legal Post, p. LP5, September 22, 2010.Quoted - Beware the Competition Cops, Article by Jim Middlemiss, National Post, Financial Post, p. FP9,September 20, 2010.Quoted - Canada Takes Merger Revision Lead From U.S., Article by Faaez Samadi, Global CompetitionReview, September 8, 2010.Quoted - Canada Approves Telecoms Deal, Article by Faaez Samadi, Global Competition Review,August 16, 2010.Interviewed - Natural Evolution of a Very Large Group, Interviewed by Julius Melnitzer, National Post,Financial Post, Legal Post, p. FP13, May 12, 2010.Quoted - Canada Issues Regulations for Initial Merger Filings, Article by Ron Knox, Global CompetitionReview, February 9, 2010.Quoted - A Competition Convergence, Article by Julius Melnitzer, Lexpert, February 2010.Quoted - Quaint Canada Called No Match for Price-Fixers, Article by Jacquie McNish and Jeff Gray, TheGlobe and Mail, January 27, 2010.Mentioned - Leading Litigation Lawyers - Class Action Litigation Comes of Age, Article by MarzenaCzarnecka, Report on Business, The Globe and Mail, December 2009.Quoted - Under the Merger and Monopoly Microscope, Article by Karim Bardeesy, The Globe and Mail,September 30, 2009.Quoted - Bureau Report Draws Flak; One Sided, Article by Jim Middlemiss, The National Post, August13, 2008.Quoted - Review Exonerates Competition Bureau, Article by Janet McFarland, The Globe and Mail,August 13, 2008.Quoted - Proposed Recommendations Would Improve Canadas Competitiveness, Article by Robert
  • 46. Todd, Law Times, July 6, 2008.Mentioned - Big Deals Canadian, The American Lawyer, March 1, 2008.Quoted - Competition Bureau Under Fire Over Beer, Article by Jim Middlemiss, The National Post,February 6, 2008.Mentioned - Competition Bureau May Turn to Superior Court, Article by Tim Naumetz, Law Times,February 4, 2008.Quoted - Competition Decision Means Faster Mergers, Article by Julius Melnitzer, The National Post,January 30, 2008.Quoted - Lakeport/Labatt Right on Target, Article by J. McNish, The Globe and Mail, January 28, 2008.Quoted - Watchdog Will Have to Change its Tactics, Article by T. Tedesco, The National Post, January26, 2008.Quoted - Mergers May Move Faster After Court of Appeal Decision, Article by J. McNish, The Globe andMail, January 23, 2008.Quoted - Over Before it Began; Bankers Own Mistakes Caused 1998 Merger Failures, Insider Says,Article by Sean Silcoff, The National Post, January 19, 2008.Quoted - The Bell Canada Buyout: Canadas Largest Private Equity Deal, Article by John Jaffey, TheLawyers Weekly, January 18, 2008.Quoted - Canadas Competition Bureau: Untangling the Web, Article by Julius Melnitzer, Lexpert,October 2007.Quoted - Art of the Case, Article by Julius Melnitzer, Lexpert, September 2007.Quoted - Labatt Ruling Means Mergers Will Happen Faster, Article by Jennifer McPhee, Law Times,April 13, 2007.EducationAdmitted to the Ontario Bar - 1993LL.M. (Antitrust Economics and Law Concentration), Georgetown University - 1997LL.B. (Hon., Economics), University of British Columbia - 1991B.A., University of Toronto - 1988
  • 47. Jason Gudofsky Partner, Toronto Office Blake, Cassels Graydon LLP Direct 416-863-3184 Facsimile 416-863-2653 jason.gudofsky@blakes.comProfileJason Gudofsky is a Partner in the Competition, Antitrust Foreign Investment Group.Jason advises domestic and foreign firms on all aspects of competition law. He regularly provides strategicadvice to firms involved in merger and joint venture transactions, including providing risk assessments,navigating reviews through the Canadian Competition Bureau and, where appropriate, co-ordinating andworking with economists and foreign counsel. In addition to advising on mergers, Jason provides adviceon all other aspects of competition law, including in respect of strategic alliances, unilateral conduct, cartelinvestigations and compliance matters. He has been involved in the negotiation of complex remedies andorders with the Competition Bureau and before the Competition Tribunal in the context of both mergersand cartel investigations. He has provided competition law advice to clients in a wide range of sectors,including technology, media, advertising, natural resources, oil and gas (upstream and downstream),energy, pharmaceuticals, chemicals, manufacturing, consumer goods, transportation and financialservices.Jason has an active practice advising foreign investors and Canadian vendors under the InvestmentCanada Act and related guidelines, including the guidelines on investments in Canada by foreign state-owned enterprises. He has represented numerous clients before the Investment Review Division ofIndustry Canada and the Cultural Sector Investment Review branch of Canadian Heritage. He hasnegotiated undertakings in a wide range of industries to secure net benefit to Canada determinations,this being the standard necessary for reviewable investments to be completed under the InvestmentCanada Act. Jason also completed the first assessment by the Minister of Industry under the new nationalsecurity provisions of the Investment Canada Act.Before joining Blakes, Jason practised as a senior associate in the Brussels office of a leadinginternational law firm. His practice focused on EU competition law, where he provided advice in respect ofa broad range of commercial practices (Articles 81 and 82 EC Treaty) and merger transactions (e.g.,Alcan/Pechiney (II) and IBM/Rational).Jason has advised on a large number of high-profile transactions in both the EU and Canada.Representative transactions in Canada include: Sinopec International Petroleum Exploration and Production Company/Daylight Energy Ltd. Synthes, Inc./Johnson Johnson Continental Airlines, Inc./United Airlines Sinopec International Petroleum Exploration and Production Company/ConocoPhillips Yellow Media Inc./Canpages Jilin Jien Nickel/Goldbrook Ventures Ericsson/Nortel (CDMA/LTE) SAPA/Indalex Limited Suncor Energy Inc./Petro-Canada
  • 48. Merck Co., Inc/Schering-Plough Corporation Microsoft, in respect of the Google/Yahoo! Agreement Evraz Group/IPSCO Akzo Nobel/Imperial Chemical Industries Weyerhaeuser Company/Domtar Continental AG/Siemens VDO Alcatel/Lucent Johnson Johnson/Pfizer Consumer Healthcare Fortune Brands/Pernod Ricard Whirlpool/Maytag ConocoPhillips/Burlington Resources Kinder Morgan/Terasen Air Canada/Canadian Airlines Canadian National/Burlington Northern Santa Fe Canadian Imperial Bank of Commerce/Toronto-Dominion BankJason has published numerous articles in leading Canadian and international journals in the areas ofcompetition law, international trade law and foreign investment review. He has spoken at conferencesorganized by the Canadian Bar Association and the American Bar Association, and has been an activemember and contributor of policy work to both associations, including being the former chair of theReviewable Matters/Unilateral Conduct Committee and former vice-chair of the International Competition Trade Law Committee, National Competition Law Section of the Canadian Bar Association.Jason has been recognized as a leading lawyer in various domestic and international legal publications,as follows: Chambers Global: The Worlds Leading Lawyers for Business 2011 PLC Which Lawyer? 2011 Law Business Researchs The International Whos Who of Competition Lawyers 2011 Global Competition Review, ranked among the top 40 antitrust lawyers worldwide under the age of 40 (2008 survey entitled 40 under 40) Lexpert magazine, ranked among the top 40 lawyers in Canada under the age of 40 (2008 survey entitled Rising Stars)Recent PublicationsCo-author - Recent Developments in Canadian Private Equity, Blakes Article, September 2011.Co-author - Canada Chapter, Law Business Researchs Getting the Deal Through - Vertical Agreements(2011).Co-author - Abuse of Joint Dominance - Is the Cure Worse than the Disease?, CBA 2010 AnnualCompetition Law Conference, Gatineau, Quebec, September 30 - October 1, 2010.Co-author - Merger Remedies: A Canadian Perspective on Getting to Deal Completion, International BarAssociation Conference/IBRAC 2010, São Paulo, Brazil, May 13-14, 2010.Co-author - Developments in Canadian Private Equity, The In House Lawyer, September 2009.Co-author - Canadian Merger Control: Strategic Considerations Options for Navigating the Process ,IBA Conference 2008, Buenos Aires, Argentina, October 12-17, 2008.
  • 49. Co-author - Is the Welcome Mat Still Out? - Foreign Investment Review in Canada, ABA Fall Meeting,Section of International Law, Brussels, Belgium, September 23-27, 2008.Co-author - Smooth Sailing to Closing: Navigating Through the Canadian Merger Control Process, CBAFall Conference on Competition Law, Gatineau, Quebec, September 18-19, 2008.Co-author - Investment Canada Giving Greater Scrutiny to Foreign Investments?, Blakes Bulletin onCompetition Law, April 2008.Co-author - Sovereign Wealth Funds: Friend or Foe? Report from Address by Minister Flaherty, BlakesBulletin on Competition Law, January 2008.Recent Media AppearancesQuoted - Regulator Considers Harmonized MA Rules, Article by Sandra Rubin, The Globe and Mail,October 6, 2010.Quoted - One Little no Changes Everything , The Globe and Mail, April 2008.EducationAdmitted to the Ontario Bar - 1998Postgraduate Diploma in EC Competition Law, University of London, Kings College - 2004M.E.S., York University - 1997LL.B., Osgoode Hall Law School - 1996B.A., University of Western Ontario - 1992
  • 50. Julie A. Soloway Partner, Toronto Office Blake, Cassels Graydon LLP Direct 416-863-3327 Facsimile 416-863-2653 julie.soloway@blakes.comProfileJulie Soloway is a Partner in the Competition, Antitrust Foreign Investment Group. She advises bothdomestic and foreign clients on all aspects of competition law, with a particular emphasis on multinationalmergers and acquisitions. Julie also provides advice on strategic alliances, unilateral conduct cases,criminal and civil investigations and compliance matters. Julie has advised many foreign investors,including state-owned investors, on the Investment Canada Act (including the State-Owned EnterpriseGuidelines), which regulate the acquisition of foreign control of Canadian businesses. She has securedapprovals for foreign investors in many of Canada’s key industries, including the pharmaceutical, financialservices and technology sectors.Julie has secured regulatory clearance on a number of Canadas most complex and high-profiletransactions, including The Forzani Group/Canadian Tire; Intact Financial/AXA SA; Caterpillar/Bucyrus;Nestlé/Novartis; Nestlé/Kraft; Biovail/Valeant; Agrium/CF; Bemis/Rio Tinto; Nestlé/Vitality Foodservice;Aluminum Corporation of China/Rio Tinto; and Agrium/UAP.Julie is recognised as a leading competition lawyer in PLC Which Lawyer? 2011 and Law BusinessResearch’s The International Who’s Who of Competition Lawyers 2011. Recently, Law BusinessResearch’s Who’s Who Legal: Canada 2010 referred to Julie as “a real star in the making”.Julie has served on the American Bar Associations (ABA) Section of Antitrust Law leadership for sevenyears. She is vice-chair of the Merger and Acquisition Committee of the ABAs Section of Antitrust Law.She is a past member of the editorial board of the ABAs Antitrust Law Developments Annual Update andpast vice-chair of the Unilateral Conduct Committee. She is also past chair of the International Competitionand Trade Law Committee of the Canadian Bar Associations (CBA) Competition Law Section (2003-2005)and the CBAs Foreign Investment Review Committee (2005-2007) (a committee representing the views ofthe Canadian bar in relation to foreign investments in Canada). Julie serves as an active non-governmental adviser to the International Competition Network.Julie has a strong international background, including a diploma in European competition law from KingsCollege (London), a doctorate in international trade law (Toronto) and a degree in international, Europeanand comparative law (Brussels). She is on the editorial board of North American Corporate Lawyer andhas authored or co-authored numerous articles on competition law, foreign investment and internationaltrade, as well as spoken at many conferences on these topicsSignificant matters include:• Bank of America/MBNA Canada on the acquisition of MBNA Canadas credit card portfolio by TD Bank Group in a transaction valued at C$8.5-billion• Caterpillar Inc. on its US$8.6-billion acquisition of Bucyrus International, Inc.• Public Sector Pension Investment Board and British Columbia Investment Management Corporation on its acquisition of TimberWest Forest Corp. for C$1-billion
  • 51. • Forzani Group Ltd. on its acquisition by Canadian Tire Corp. for C$770-million• Intact Financial Corporation, Canada’s leading property and casualty insurance company on its C$2.6- billion acquisition of the Canadian insurance businesses of AXA SA• DISH Network Corporation in connection with its US$320-million acquisition of Blockbuster Inc.• Nestlé S.A. in connection with the sale of a 52 per cent interest in Alcon, Inc. to Novartis A.G. for US$28.1 billion• Biovail Corporation on its US$8-billion merger with U.S. public company Valeant Pharmaceuticals International• Bemis Company in its proposed acquisition of the U.S. flexible packaging assets of the Alcan Division of Rio Tinto Americas, a US$1.2 billion transaction• Nestlé S.A. in connection with its acquisition of Kraft Foods Inc.s frozen pizza business in the U.S. and Canada for US$3.7 billion• Nestlé Professional in connection with its acquisition of Vitality Foodservice Inc. for US$208 million• Agrium Inc. in connection with its US$4.8-billion bid for CF Industries Holdings, Inc.• Canadian Hydro Developers, Inc. on its C$1.6-billion acquisition by TransAlta Corporation• Macquarie Group Limited in connection with its proposed C$116 million acquisition of Tristone Capital Inc.• Aluminum Corporation of China with respect to its C$19.5-billion investment in Rio Tinto PLC• InBev SA in connection with its US$45-billion acquisition of Anheuser-Busch• Nestlé S.A. in connection with the sale of a 24.85 per cent interest in Alcon, Inc. to Novartis A.G. for US$10.4-billion• Vertex Pharmaceuticals Incorporated, as Canadian counsel, in connection with its acquisition of ViroChem Pharma Inc.• Agrium Inc. in connection with its US$2.6-billion acquisition of UAP• Continental AG in connection with its US$15.7-billion acquisition of Siemens VDO• Galenica AG in connection with its acquisition of Aspreva Pharmaceuticals Corporation for US$ 943 million• Bell Canada Enterprises in connection with its proposed C$57.1-billion sale to a group led by the Ontario Teachers Pension Plan• Kinross Gold Corporation in connection with its US$3.1-billion acquisition of Bema Gold Corporation• Canetic Resources Trust in connection with its C$900-million acquisition of certain oil and natural gas interests• General Electric in connection with GE Water Process Technologies US$689-million acquisition of Zenon Environmental Inc.• ConocoPhillips in connection with its C$40-billion acquisition of Burlington Resources Inc.• Yellow Pages Group in connection with its C$436-million acquisition of Trader Media Corporation• The Gillette Company in connection with its US$57-billion acquisition by the Procter Gamble Company
  • 52. Recent PublicationsCo-author - Contemporary Canadian Merger Review: New Challenges in Multi-JurisdictionalTransactions, International Bar Association 2010 Annual Conference, Vancouver, British Columbia,October 5, 2010.Co-author - Canada Chapter, The Merger Control Review, Law Business Research, pp. 68-80,September 2010.Co-author - Antitrust and Airlines in Canada: What Can Competition Provide?, Competition LawInternational, pp. 10-16, June 2009.Co-author - Competition, Anti-trust and Foreign Investment Trends, The In-House Lawyer, Issue 170, pp.14-15, May 2009.Co-author - The New Era in Canadian Merger Review, North American Corporate Lawyer, Volume X,No. 1, 2008.Co-author - Competition Law Recent Developments of Importance, The 2009 Lexpert / American LawyerGuide to the Leading 500 Lawyers in Canada, 11th Edition, p. 233-237.Co-author - Competition and Foreign Investment Law Trends in Canada, Inside Counsel, p. 31,December 2008.Author - Report on the International Competition Network Unilateral Conduct Working Group, UnilateralConduct Committee Newsletter, American Bar Association Section of Antitrust Law, Spring 2008.Co-author - Sovereign Wealth Funds: Friend or Foe? Report from Address by Minister Flaherty, BlakesBulletin on Competition Law, January 2008.Recent Professional ActivitiesPanellist - Current Topics in Canadian Merger Enforcement, The Canadian Bar Association 2011 AnnualFall Competition Law Conference, Gatineau, Quebec, October 5-7, 2011.Invited Speaker – Panel on Best Practices and Practical Tips for Navigating the New SIR Process,Ontario Bar Association - Navigating Canadas New Competition Law Regime – Practical Advice forGuiding Your Clients to Success, November 5, 2010, Toronto.Moderator – Brown Bag on The Efficiencies Defence: The Role of Reasonable Business Justificationsand Efficiencies in Reviewing Unilateral Conduct, American Bar Association Section of Antitrust Law,October 22, 2008.Moderator - Brown Bag on the ICN Unilateral Conduct Working Group, American Bar AssociationSection of Antitrust Law, July 31, 2008.Moderator - From Standard Oil to Today: Antitrust Enforcement in the Oil Industry, American BarAssociation Section of Antitrust Law Spring Meeting, March 27, 2008.
  • 53. Invited Speaker - Provide testimony on the possible reform of the Investment Canada Act, before theFederal Competition Policy Review Panel, February 15, 2008.Recent Media AppearancesMentioned - Canada Tweaks Merger Guidelines During Final Revision, Global Competition Review,Article by Ron Knox, October 11, 2011.Quoted – New Canada Merger Enforcement Guidelines Echo US Steps, Law360, Article by JacquelineBell, October 6, 2011.Mentioned – Canada Bank Bids for MBNA, Global Competition Review, Article by Rosalind Donald,August 30, 2011.Mentioned – Canadian Firms Lead on TD Banks $8.7 Billion Purchase of Bank of Americas CardBusiness, Article by Hannah DApice, The American Lawyer, August 17, 2011.Quoted - Competition Watchdog Tosses Aside the Kid Gloves, The Toronto Star, Article by LesWhittington, August 1, 2011.Quoted - Canada Secures First Guilty Plea in Ventilation Case, Global Competition Review, Article byRosalind Donald, July 20, 2011.Mentioned - Caterpillar/Bucyrus gets China go-ahead, Global Competition Review, July 11, 2011.Mentioned - Blakes, McMillan, Olser, Stikeman Advise On Intacts $2.7 Billion AXA Buy, Article by DanKaplan, The American Lawyer, June 3, 2011.Mentioned - Canadian Sporting Goods Deal Gains Competition Counsel, Global Competition Review,Article by Ron Knox, May 10, 2011.Quoted - Competition Issues Take Centre Stage, Article by Patricia Chisholm, Investment Executive,p. 22, November 1, 2010.Quoted - UK Insurer Stands by Rejected Bid, Global Competition Review, August 17, 2010.Quoted - Canada Nails Roofers Association, Global Competition Review, June 23, 2009.Quoted - Canada Publishes Guidelines on Company Collaboration, Global Competition Review, May 11,2009.Quoted - Focus Shifts to Getting in Line with Amendments, Law Times, p.3, March 23, 2009.Quoted - CBA Asks for Consultation on Competition Act Changes, Canadian Lawyer Magazine(InHouse) - Online, February 17, 2009.Quoted - Canada Charges Construction Companies, Global Competition Review, November 11, 2008.Quoted - Canada Convicts Another in Fuel Case, Global Competition Review, November 3, 2008.Quoted - Partnership Grows at Blake Cassels, Global Competition Review, February 15, 2008.
  • 54. Quoted - Canadian Minister Rules on Foreign Investment, Global Competition Review, December 12,2007.Quoted - Canadian Government Considers New Policies to Restrict Foreign Investment, Article by KeithEcker, Inside Counsel, P. 36, December 2007.Quoted - Lawyers Urge Caution on New Foreign Investment Rules, Article by Jennifer McPhee, LawTimes, P. 5, October 29, 2007.EducationPostgraduate Diploma (EC Competition Law), Kings College London - 2003S.J.D. (Doctorate, International Trade Law), University of Toronto - 2000Admitted to the Ontario Bar - 1995LL.M. (International, European and Comparative Law), Vrije Universiteit Brussel - 1993LL.B., University of Western Ontario - 1992B.A. (Economics), University of Western Ontario - 1989
  • 55. Campbell StrategiesBarry R. CampbellBarry Campbell, President of Campbell Strategies in Toronto, served as aMember of the Parliament of Canada from 1993 to 1997. During that time, heserved as Parliamentary Secretary to the Minister of Finance (later PrimeMinister), The Right Honourable Paul Martin. In this capacity, he assisted in thedevelopment of the budgetary policy of the Government of Canada, and assistedin tax policy, trade policy and financial services sector policy. Mr. Campbellserved for two years as Vice-Chair of the House of Commons StandingCommittee on Finance.Prior to his election to Parliament, Mr. Campbell practiced corporate law inToronto. Mr. Campbell served as a Legal Counsellor at the InternationalMonetary Fund in Washington, D.C.Mr. Campbell is a graduate of McGill University, McGill Law School (LL.B.’75,BCL’76), and the Harvard Law School (LL.M.’77). He has published numerousarticles on political life, trade law, competition law, international banking, the debtcrisis and international sanctions.Campbell Strategies provides strategic political counsel and relatedcommunications advice to clients facing public policy or regulatory challenges. barry@campbellstrategies.com

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