Archive for the 'Mergers' Category
The Competition Bureau announced today that it will begin publishing monthly reports of concluded merger reviews, which the Commissioner of Competition Melanie Aitken had referred to in recent public statements.
In making the announcement the Bureau said:
“The report will contain a list of merger reviews concluded in the prior month where: a pre-merger notification was made under section 114 of the Competition Act; and/or a request was made for an advance ruling certificate under section 102 of the Act.
The report will provide the names of the parties to the transaction, the industry sector involved, and the result of the Bureau’s review.
The first report, for the month of February 2012, will be published at the beginning of March and at the beginning of each month thereafter.”
This announcement is the latest in a number of recent merger related initiatives by the Bureau, which have included a recent Merger Remedies Study Summary, newly updated Merger Review Process Guidelines and Merger Enforcement Guidelines and new Hostile Transactions Interpretation Guidelines.
The Globe and Mail, Reuters, Bloomberg and others reported that Maple Group, composed of 13 Canadian financial institutions, extended its C $3.8 billion mixed cash and share offer for the TMX Group for a fourth time to February 29th.
Maple’s offer to acquire the TMX is subject to approval from provincial securities regulators and the Competition Bureau, which commenced a second-stage review in November, 2011.
Some of the potential issues the transaction raises include a high degree of concentration in the trading services market and access and pricing issues in relation to clearing and settlement services, as in addition to combining the TMX with Alpha (Canada’s second largest exchange) the transaction would also include the acquisition of CDS Inc., Canada’s currently not-for-profit equity and fixed-income securities clearing operator.
Businessweek, the Wall Street Journal and others reported yesterday that Maple Group Acquisition Corp., composed of 13 Canadian financial institutions, will once again extend its Cdn. $3.73 billion mixed cash and shares offer for the TMX Group beyond the previous January 31st deadline if regulatory approvals are not received.
Maple’s offer to acquire the TMX is subject to approval from provincial securities regulators and the federal Competition Bureau, which initiated a second-stage review with the Commissioner of Competition announcing in November, 2011 that the Bureau had “serious concerns” about the transaction.
Some of the potential issues the transaction raises include a high degree of consolidation in the trading services market and issues based on access and pricing of clearing and settlement services, as the transaction would also include the acquisition of CDS Inc., Canada’s currently not-for-profit equity and fixed-income clearing operator.
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We are pleased to provide this global competition update, with a focus on Asia Pacific, from our friends at Rajah Tann in Singapore.
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Happy New Year! Welcome to our refreshed Competition Review 2012, which presents an overview of developments in competition laws from around the world in the past few months, with a focus on ASEAN and Asia. This issue covers developments, which have occurred in the second half of 2011 that may interest you.
Each of the decisions and studies discussed below is intended to give you a flavor of the issues in the competition and anti-trust scene so that, when you review your business activities, structure new deals or make acquisitions, you have these issues at the back of your mind and provide for them. For ease of convenience we have organized our Competition Review into three sections – anti-competitive agreements, abuse of dominance and mergers.
We set out below some of the key principles that emerge from the cases discussed below:
(a) co-operating with competition authorities for a speedy resolution may help reduce penalties (see EU: European Commission (‘Commission’) Fines Producers Of CRT Glass €128 Million In Cartel Settlement);
(b) a competition authority may recommend shareholders to replace their directors or officers if they do not fully cooperate with investigations (see Indonesia: Indonesian Competition Authority KPPU Recommends President Director Be Replaced);
(c) even though a competition authority may not have powers to review mergers, it may investigate the transaction for other anti-competitive aspects (see Malaysia: Malaysia Competition Commission (‘MYCC’) To Investigate Air Asia-Malaysian Airlines (‘MAS’), Share Swap And Collaborative Agreement);
(d) exchanging information between competitors through a third party, such as software service providers, may lead to a violation of competition laws if the exchange is of sensitive information (see UK: Motor Insurers Agree To Limit Data Exchange And Provide Commitments to the Office Of Fair Trading (‘OFT’)); and
(e) not all jurisdictions, where merging parties have presence, will require merger notification. Undertakings with large presence in one jurisdiction may not have sufficiently significant presence in other jurisdictions that crosses notification triggers (see Indonesia: Microsoft’s Acquisition Of Skype Does Not Need Notification).
The past year has been a busy one for Canadian competition law.
Developments in 2011 include new cases, enforcement and legislation in most key areas including abuse of dominance (the Competition Bureau’s ongoing challenge of The Toronto Real Estate Board and CREA settlement in late 2010), criminal conspiracy (developments in price-fixing class action litigation and some Bureau enforcement), refusal to deal (several important private access section 75 cases, including a decision of the Federal Court of Appeal), contested mergers (in the waste and airline markets), price maintenance (the merchant fees case involving Visa and MasterCard) and misleading advertising (involving Bell Canada, Rogers and others).
The Competition Bureau is testing the new rules under Canada’s Competition Act, which came into force in 2009 and 2010, and private plaintiffs are creating new law in a number of ongoing competition/antitrust class actions in Canada (principally indirect purchaser price-fixing cases relating to the sale and supply of dynamic random access, or “DRAMs”, high fructose corn syrup and computer operating systems).
At the same time, several new pieces of legislation have been introduced including a federal omnibus crime bill, which will eliminate conditional sentences for some competition law offences, and sweeping new anti-spam legislation (Bill C-28 or “FISA“) that once in force will be among the strictest anti-spam regimes in the world.
The Commissioner of Competition, and other federal enforcement officials including the RCMP, have also expressed intentions to adopt tougher enforcement stances in relation to competition law and other white collar crime.
In general, these developments mean that it remains important for Canadian companies, organizations and their executives to maintain a practical awareness of Canadian competition law.
Some of the key competition law and related developments of 2011 include:
In an interesting Washington Post article, Cecilia Kang and Jia Lynn Yang write about why the U.S. Federal Communications Commission (FCC) opposed AT&T’s acquisition of T-Mobile (see: How AT&T Fumbled its $39 Billion Bid to Acquire T-Mobile).
While the Department of Justice sued to block the merger in August (see: Justice Department Files Antitrust Lawsuit to Block AT&T’s Acquisition of T-Mobile) the FCC issued a report on November 29th which concluded that the transaction raised “significant competitive concerns” in the mobile market, and “’substantial and material’ questions about [the transaction’s] competitive effects on roaming, wholesale, and resale services, backhaul, and handsets” (see: Commissioner Copps on the Staff Report on the ATT/T-Mobile Merger). The FCC also concluded that the “parties’ claim that [the transaction] would lead to lower prices is flawed and over-estimates the benefits that would be passed on to consumers.”
According to the authors of the Post article, the “king of Washington lobbyists” and a “bare-knuckled brawler that spares no expense to win any fight”, may have used undue lobbying pressure on Washington regulators that resulted in its failure to acquire T-Mobile.
On December 7, 2011, the International Competition Network (ICN) published its updated ICN Work Product Catalogue, with interactive links to ICN reports and documents from 2008 to 2011 in the advocacy, cartel (conspiracy), mergers and unilateral conduct (monopoly / abuse of dominance) areas.
The Wall Street Journal reported earlier today that the Ontario Securities Commission (“OSC”) has approved Alpha (Alpha Trading Systems Limited Partnership and Alpha Exchange Inc.), Canada’s largest alternative trading platform to the TSX, as a stock exchange (see: Ontario Securities Regulator Allows Alpha to be Exchange).
The OSC’s Recognition Order sets out the terms and conditions of Alpha’s recognition as an exchange and the review process to be followed for the rules, policies and other similar instruments of Alpha Exchange.
The TMX, which owns and operates the TSX, is currently subject to a Cdn. $3.8 billion friendly bid by Maple Group, which requires, in addition to Provincial securities regulatory approvals in Ontario, Quebec, Alberta and British Columbia, clearance by the federal Competition Bureau. Alpha’s shareholders include a number of the Maple Group consortium’s investors including CIBC, Dejardins, National Bank and Scotia.
Last week the Commissioner of Competition expressed “serious concerns” about the Maple/TMX transaction, which is currently subject to a second stage review by the Bureau (see: Commissioner of Competition Addresses Current Enforcement Priorities in Two Wide-ranging Talks in Vancouver).
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Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
