Canadian COMPETITION LAW

May 31, 2010

The Competition Bureau (the “Bureau”) announced today that it was seeking public comments on its new draft Fee and Service Standards Handbook for Merger-Related Matters (the “Fee Handbook”).

In issuing its new Fee Handbook, the Bureau stated:

“Given recent amendments to the merger provisions of the Competition Act and to the Notifiable Transactions Regulations, the Bureau’s Fee and Service Standards Handbook for Merger-Related Matters provides updated guidance on how the Bureau determines the complexity of a proposed transaction, sets out the information required by the Bureau to commence the applicable service standard, and explains when service standards may be paused or terminated.”

The Fee Handbook is intended to provide guidance on how the Bureau determines the complexity of a proposed notifiable transaction and matters that are the subject of a request for a written opinion (i.e., regarding the application of the Notifiable Transactions provisions of the Competition Act).  Interested parties may submit comments until Monday, August 2, 2010.  Some of the highlights of the Bureau’s new draft Fee Handbook are discussed below together with an overview of Canada’s recently amended merger control regime.

OVERVIEW OF THE COMPETITION BUREAU’S DRAFT FEE HANDBOOK

Early Consultation

The Bureau strongly encourages parties to a proposed transaction to consult with the Bureau before (or as soon as possible after) making a pre-merger notification filing or a request for an Advance Ruling Certificate (“ARC”).  In this regard, the Bureau states that “early consultation ensures that sufficient information is submitted to facilitate complexity designation, to trigger the commencement of the service standard period, and to better identify any potential competition concerns at an early stage.”

Complexity Designations for Transactions

The senior Bureau officer assigned to review a proposed notifiable transaction, in consultation with an Assistant Deputy Commissioner (Mergers Branch), will determine the complexity designation for a notifiable transaction.  In this regard, the Bureau states that “numerous factors, including product market, geographic market, market shares and barriers to entry, are considered in determining whether a proposed transaction is non-complex, complex or very complex.”  Where a proposed transaction has been classified as “non-complex”, following the receipt of sufficient information, the parties to the transaction will be promptly informed of the complexity level and applicable service standard.  Similarly, where a proposed transaction is classified as “complex” or “very complex”,  the Bureau states that it often takes longer to classify the transaction.  The Bureau states that parties will be notified as soon as reasonably possible within the new initial 30 day waiting period that a supplementary information request (“SIR”) will be issued and that parties will “generally be provided with a draft SIR and given an opportunity to engage in pre-issuance dialogue.”

Non-Complex Mergers

The Bureau states that it will consider “non-complex” mergers to be transactions where there is no or minimal overlap and that “minimal overlap” includes combined post-merger market shares of less than 10% in any relevant market (and market shares of less than 10% for either party in any relevant upstream/downstream market).  Non-complex transactions also include transactions with moderate overlap (post-merger market share between 10% and 35% in any relevant market and market shares between 10% and 35% for either party in any relevant upstream/downstream market) where “significant mitigating factors” are present (e.g., the relevant markets are well known to the Bureau, barriers are low, a large number of effective remaining competitors and market participants have expressed no competition concerns).  The Bureau also states that between 2002 and 2010 approximately 88% of notified transactions were classified as non-complex.

Complex Mergers

The Bureau states that it will consider “complex” mergers to be transactions where there are indications that the transaction may create, maintain or enhance market power.  In this regard, the Bureau states that proposed transactions where the combined post-merger market share of the parties is potentially 35% or more will generally be classified as either complex or very complex.  In addition, the Bureau will also consider proposed transactions where the combined post-merger market share is less than 35% to be complex where there are one or more complicating factors (e.g., market definition is challenging, barriers to entry, few effective remaining competitors, credible complaints and coordination with foreign competition authorities is necessary).  The Bureau also states that between 2002 and 2010 approximately 10% of notified transactions were classified as complex.

Very Complex Mergers

The Bureau states that it will consider “very complex” mergers to be those where early in its review there are grounds to believe that the proposed transaction is likely to create, maintain or enhance market power.  This includes mergers where the post-merger market shares will likely exceed 35% and/or the market shares of either party in any upstream/downstream market will likely exceed 35% and there are other complicating factors (e.g., a merger between participants in a concentrated industry, market definition is challenging, high barriers to entry, complex theories of anti-competitive harm, potential failing firm or efficiencies defences, well-substantiated complaints and coordination with foreign competition authorities is necessary).  The Bureau also states that “very complex cases often progress to the formal inquiry stage, usually require the issuance of a SIR and may require the use of formal powers under section 11 of the Act to collect information from third parties.”  Finally, the Bureau states that from 2002 to 2010 approximately 2% of notified transactions were classified as complex.

Information Required to Commence Service Standard Periods

The Bureau states that merging parties may elect to supply the information required to commence its service standard periods as part of an ARC request or together with a notification and competition brief.  The Bureau also sets out the information that, in its view, is sufficient to commence the applicable service standard periods for non-complex mergers (with no or minimal overlap), non-complex mergers with moderate overlap and complex and very complex mergers.

Written Opinions

The Bureau also provides guidance in its draft Fee Handbook for parties seeking binding written opinions under section 124.1 of the Competition Act.  The Bureau states that it “will not provide a written opinion under section 124.1 that requests an assessment of the competitive effects of a proposed transaction under the merger provisions”, which will be limited to written opinions regarding the application of the Notifiable Transactions provisions of the Act.

Service Standards

The Bureau sets out its new service standard periods for its review of notified transactions under Canada’s new merger control regime.  For merger notification filings and ARC requests, the Bureau’s standard periods are as follows: (i) non-complex transactions (14 days), (ii) complex transactions (60 days), (iii) very complex transactions (120 days) and (iv) SIRs (30 days).  For written opinions, the Bureau’s service standard periods are as follows: (i) non-complex transactions (14 days) and (ii) complex transactions (28 days).

Market Contacts

The Bureau states that it is “standard practice in merger reviews for the Bureau to communicate with market participants, including customers, suppliers and competitors of the merging parties” (except in relation to non-complex mergers with no or minimal overlap).

The Bureau also states that it will not commence the applicable service standard until it is able to conduct market contacts, but will “consider exercising its discretion to agree to a request to defer making market contacts in respect of a proposed transaction that is the subject of an ARC request only.”

Termination of the Service Standard Period

The Bureau states that the applicable service standard period will end when the parties are either: (i) issued an ARC or No Action Letter or (ii) the merging parties are advised that, absent a remedy, the proposed transaction is likely to prevent or lessen competition substantially in a relevant market.

Additional Information Requests and Timing Agreements

The Bureau states that while “in the vast majority of non-complex mergers, the information requirements set out in [its Fee Handbook] will be sufficient for the Bureau to complete its assessment of a proposed transaction”, it may require additional information from merging parties in some circumstances in order for it to complete its review.  Where a timing agreement is in place, the Bureau states that any additional information will be sought on a voluntary basis.  (Where a timing agreement is in place that provides: (i) for the Bureau to continue with its review beyond the expiry of any applicable statutory waiting period, (ii) the parties will work cooperatively with the Bureau to address additional information requests from the Bureau through a voluntary process and (iii) the parties have agreed not to complete the transaction for an agreed-upon period of time to allow the Bureau to complete its review of the transaction).

OVERVIEW OF CANADA’S NEW MERGER CONTROL REGIME

Like most other major jurisdictions, under Canadian competition law merger control is one of the three main pillars of Canadian competition law (together with conspiracy/cartel and abuse of dominance/monopoly rules).  As a result of amendments made to the Competition Act (the “Act”) in 2009, Canada now has a U.S.-style two-stage merger control regime.  The pre-merger notification provisions of the Act require both parties to specified types of transactions that exceed the statutory monetary thresholds under the Act to file pre-merger notification filings with the Bureau.  In addition, regardless of size, any transaction that falls within the statutory definition of “merger” under the Act, which is broad, is also potentially subject to substantive review by the Bureau to determine whether it is likely to result in a substantial prevention or lessening of competition in a relevant market (or markets).  For mergers that exceed the statutory monetary thresholds, notification is mandatory and failure to pre-notify is a criminal offence.

Pre-merger Notification

For a transaction to be notifiable in Canada it must: (i) involve the acquisition of an “operating business” in Canada, (ii) be one of five specified types of transactions, (iii) exceed the statutory monetary thresholds and (iv) not fall within one of the statutory exceptions in the Act.

Canadian Operating Business

In order for a transaction to be notifiable in Canada, it must involve the acquisition of an “operating business” in Canada, which is defined under the Act as a business undertaking in Canada to which employees employed in connection with the undertaking ordinarily report for work.  In this regard, the Bureau has taken the position that employees may include both independent contractors and part-time employees.

Types of Transactions

The five types of transactions that require pre-merger notification filing, assuming all of the other requirements for notification are met, are: (i) asset acquisitions, (ii) share acquisitions, (iii) amalgamations, (iv) non-corporate combinations and (v) acquisitions of interests in non-corporate combinations.

Thresholds

In order to be notifiable a transaction must also exceed the “size of parties” and “size of transaction” thresholds under the Act.

With respect to the size of parties threshold, the parties to a transaction and their affiliates’ Canadian assets (or gross revenues from sales in, from or into Canada) must exceed $400 million.  With respect to the size of transaction threshold, the book value of the target’s assets in Canada, or annual gross revenues from sales in or from Canada generated by those assets, must exceed $70 million.

For share acquisitions, there is an additional threshold that must be met.  For the acquisition of public companies, the acquisition must result in the acquirer holding more than 20% of the voting shares (more than 50% if more than 20% is already held).  For the acquisition of private companies, the acquisition must result in the acquirer holding more than 35% of the voting shares (more than 50% if more than 35% is already held).

Exceptions

The Act also contains a number of exceptions from the pre-merger notification requirements.  These include certain ordinary course acquisitions of real property and goods, an underwriting exception, transactions between affiliates and where an Advance Ruling Certificate (”ARC”), which is one form of pre-merger clearance available under the Act, is obtained.

Who Must Notify

Both parties to a transaction (i.e., both the acquirer and the target) are required to file a pre-merger notification filing.  Parties may request that an ARC or alternatively a “no action” letter be issued.  Parties will also often file a separate competitive effects brief together with the filing setting out the reasons why the proposed transaction is unlikely to prevent or lessen competition substantially in the relevant market(s).

Waiting Periods

Canada is a suspensory jurisdiction, in that parties to a notifiable transaction are prohibited from completing the transaction after filing unless the applicable waiting period has expired (or affirmative clearance has been received).  As a result of the recent amendments, Canada now has a U.S. style two-stage merger review process.

Under the new regime, filing triggers an initial 30 calendar day waiting period during which the parties to a transaction are not permitted to complete unless clearance has been received (either by receipt of a no action letter or ARC).  During this initial 30 day waiting period the Bureau may advise the parties to the transaction that it does not intend to challenge the transaction.  Alternatively, where the Bureau takes the position that there are potential issues, it now has the power to issue supplementary information requests (a “SIR”) (the Canadian equivalent to U.S. second requests).  If the Bureau issues a SIR, the waiting period stops until a complete response to the SIR has been filed upon which a second 30 day waiting period begins during which the parties are not permitted to close (again, unless affirmative clearance is received).

Under the new regime, there is no limit as to how long the second request process can take.  This is because the burden is on the merging parties to complete the request and, where a second request is made, the “clock” will not start again until the order has been fully complied with (compared to the lesser standard of substantial completion in the U.S).

In addition, while merging parties are free to complete a transaction after 30 days of complying with a second request, the Bureau is not required to have completed its review by that time.  As such, parties may either opt to wait for the Bureau to complete its review or close and assume the risk that the Bureau may challenge the transaction post-completion.

The recently amended Act also now gives a court or the Tribunal new powers relating to non-compliance with the statutory waiting periods.  These include, in the case of proposed transactions, the power to issue an interim injunction or compel the filing of information and, in the case of completed transactions, the power to order that the merger be dissolved, an order for the divestiture of shares or assets or “administrative monetary penalties” (essentially civil fines) of up to $10,000 for each day of non-compliance.

Clearance

Parties may complete a notifiable transaction when: (i) an ARC is received (the strongest form of clearance under the Act and typically issued in non-complex transactions where there are few or no issues and no overlap), (ii) a “no action letter” is received stating that the Commissioner does not at that time intend to seek a remedial order or (iii) the applicable statutory waiting period has expired.  It is worth noting, however, that the Bureau has the power to continue to review a transaction after the applicable waiting periods have expired if clearance has not been received.

Hostile Transactions

There are special rules under the Act for hostile transactions.  Under these rules, the initial 30 day review period begins on receipt of a complete filing from the bidder and the Bureau will notify the target that a filing has been received from the bidder and give the target 10 days to file from the date the target is notified.  In addition, the second 30 day waiting period, where a SIR has been issued, begins when the Bureau receives the requested information from the bidder (i.e., regardless of when the target complies), a process that is intended to prevent targets from stalling a transaction by delaying filing.

Filing

The Bureau’s Merger Notification Unit (“MNU”) is responsible for all pre-merger notifications in Canada. The MNU also gives guidance to parties regarding timing and information requirements for merger notification filings and enforces compliance with the pre-merger notification provisions of the Act.  In February, 2010 the new Notifiable Transactions Regulations came into force and the Bureau issued its new single notification form.

Substantive Review of Mergers

Broadly speaking, substantive review of mergers in Canada involves an analysis as to whether a proposed transaction is likely to prevent or lessen competition substantially in one or more relevant markets post-merger (i.e., the primary competition law issue is to assess whether and to what extent a merged firm may be able to exercise market power post-merger).  Whether a merger is likely to prevent or lessen competition substantially in a relevant market turns largely on whether the merged firm will be likely to exercise a materially greater degree of market power in a relevant market (or markets) post-merger.

The framework to analyze the potential anti-competitive effects of a transaction includes evaluative criteria set out in the Act, past Tribunal merger decisions and the Bureau’s Merger Enforcement Guidelines (“MEGs”) (though the latter are not law).  In assessing potential competition issues associated with a merger, the Bureau considers both unilateral effects (i.e., whether the merged firm alone is likely to be able to exercise market power post-merger) as well as coordinated effects (i.e., whether a group of firms together are likely to be able to exercise market power post-merger).

This analysis of market power involves, among other things, the review of a number of factors including the estimated market shares of the parties, concentration in the relevant market (or markets), barriers to entry and other so-called “evaluative criteria” that include effective remaining competition, foreign competition and the countervailing power of customers, among other criteria.

With respect to market shares, the Bureau takes the position in its MEGs that it will generally not challenge a merger on the basis of a concern of a unilateral exercise of market power where the post-merger share is less than 35% and will not generally challenge a merger on the basis of a concern of coordinated effects if: (i) the combined post-merger share of the four largest firms in the relevant market (CR4) is less than 65% or (ii) the post-merger share of the merged entity is less than 10%.

Challenging Mergers

The Bureau has exclusive jurisdiction to challenge mergers in Canada and may challenge a merger either pre- or post-completion.  Where the Bureau takes the position that a proposed merger is likely to prevent or lessen competition substantially, the Commissioner may seek remedial orders from the Tribunal including an order to block the merger (in the case of a proposed transaction) or an order for the dissolution of assets of shares (in the case of a completed merger).  The Bureau has also sought injunctions in the past to allow more time for substantive review and may challenge a transaction for up to one year after closing, which time period has recently been shortened from the previous three years.  However, while the Commissioner has the power to make applications to the Tribunal for remedial orders, contested merger proceedings are relatively uncommon in Canada and the majority of issues are typically resolved by way of negotiated settlement (i.e., consent agreements for the divestiture of assets or in some cases “behavioral remedies”).

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