booklet here - Stikeman Elliott LLP

MISLEADING ADVERTISING &
MARKETING PRACTICES
SEMINAR
STIKEMAN ELLIOTT LLP
|
MONTRÉAL
TORONTO
OTTAWA
CALGARY
VANCOUVER
OCTOBER 24, 2013
NEW YORK
LONDON
SYDNEY
www.stikeman.com
MISLEADING ADVERTISING &
MARKETING PRACTICES
AGENDA
OCTOBER 24, 2013
7:30 am
Breakfast and Registration
8:00 am
Welcome and Introductions
Paul Collins
Head of Competition and Foreign Investment Group
Stikeman Elliott, Toronto
8:05 am
Presentations
The Evolving Fair Business Practices Branch Mandate and
Priorities
Brendan Ross
Major Case Director and Strategic Policy Advisor
Fair Business Practices Branch
Competition Bureau Canada, Ottawa
Recent Enforcement Issues in Misleading Advertising and
Marketing
Lisa Campbell
Deputy Commissioner of Competition
Fair Business Practices Branch
Competition Bureau Canada, Ottawa
8:55 am
Question and Answer Period
9:15 am
Closing Remarks
STIKEMAN ELLIOTT LLP
MISLEADING ADVERTISING &
MARKETING PRACTICES
CONTENTS
SPEAKERS
OCTOBER 24, 2013
Paul Collins
Head of Competition and Foreign Investment Group
Stikeman Elliott, Toronto
Brendan Ross
Major Case Director and Strategic Policy Advisor
Fair Business Practices Branch
Competition Bureau Canada, Ottawa
Lisa Campbell
Deputy Commissioner of Competition
Fair Business Practices Branch
Competition Bureau Canada, Ottawa
RESOURCE
Marketing & Advertising Top 10 List and Resources
FIRM PROFILE
An overview of Stikeman Elliott, our Marketing, Advertising & Compliance
and Competition & Foreign Investment Groups
STIKEMAN ELLIOTT LLP
MISLEADING ADVERTISING &
MARKETING PRACTICES
PROFILES OF TODAY’S SPEAKERS
OCTOBER 24, 2013
Paul Collins
Head of Competition and Foreign Investment Group
Stikeman Elliott, Toronto
Brendan Ross
Major Case Director and Strategic Policy Advisor
Fair Business Practices Branch
Competition Bureau Canada, Ottawa
Lisa Campbell
Deputy Commissioner of Competition
Fair Business Practices Branch
Competition Bureau Canada, Ottawa
STIKEMAN ELLIOTT LLP
Paul Collins
5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9
Direct: (416) 869-5577 Fax: (416) 947-0866 pcollins@stikeman.com
Law Practice
Paul Collins is head of the Competition and Foreign Investment Group. He practises corporate and
commercial law and specializes in the area of competition law, providing both transactional and general
compliance advice as well as advice in the area of marketing and advertising law. Mr. Collins is also a
leading advisor for foreign investors in connection with the Investment Canada Act. His practice puts him
in constant contact with the federal Competition Bureau and the Investment Review Division of Industry
Canada. He is a past chair of the Executive Committee of the Canadian Bar Association Competition Law
Section.
From May 2010 to May 2012, Mr. Collins served as Senior Deputy Commissioner – Mergers Branch with the Competition Bureau where, as the head of the Mergers Branch, he was instrumental in the
Bureau’s review of high-profile corporate transactions, as well as the development of key Bureau policies
arising from the significant amendments to the Competition Act introduced in 2009. Such Bureau
policies/guidelines include the revised Merger Enforcement Guidelines published in October 2011, as well
as the Merger Review Process Guidelines, the Fee and Service Standards Handbook for Mergers and
Merger-Related Matters, and a number of Interpretation Guidelines. During Mr. Collins’ tenure with the
Bureau, he was a member of its Senior Management Committee. Mr. Collins is already well-established
as a Canadian leader in competition law and his direct experience with the day-to-day workings of the
Bureau over the last two years will only enhance his practice.
Professional Activities
Mr. Collins is an active member of the Canadian Bar Association (Competition Law Section) and the
Antitrust Law Sections of both the International Bar Association and the American Bar Association. He
has been an adjunct professor at the University of Toronto Faculty of Law. He is the former chair of the
Legislative Reform and Competition Policy Subcommittee of the Canadian Bar Association (Competition
Law Section). He has spoken at numerous conferences organized by the Canadian Bar Association, the
International Bar Association, American Bar Association and The Canadian Institute.
Speaking Engagements and Publications
Mr. Collins’ recent speaking engagements include:
> “Navigating Foreign Investment Restrictions in International Mergers and Acquisitions in the United
States, Canada and Beyond” New York Global Law Week 2013, New York State Bar Association,
International Section, May 2013, New York City, New York.
> “Stock Exchange Mergers in Canada, the US and EU,” 2012 Annual Competition Law Fall
Conference, Canadian Bar Association, September 2012, Gatineau, Quebec.
> “A Brave New World: Mergers Practice in 2012,” 2012 Annual Competition Law Spring Forum,
Canadian Bar Association, May 2012, Toronto, ON.
STIKEMAN ELLIOTT LLP PROFILE
> “The New Merger Guidelines: Getting the Deal Through,” 2011 Annual Competition Law Fall
Conference, Canadian Bar Association, October 2011, Gatineau, Quebec.
> “Global Enforcers Roundtable,” 5th Annual Global Antitrust Enforcement Symposium, Georgetown
Law, September 2011, Washington, DC.
> “Current Developments in Merger Law and Enforcement,” 15th Annual IBA Competition Conference,
September 2011, Florence, Italy.
> “Antitrust Enforcement Priorities,” Second Annual Chicago Forum on International Antitrust Issues,
June 2011, Chicago, Illinois.
> “Trends and Development in Merger Policy and Analysis,” 10th Annual Conference of the
International Competition Network, May 2011, Den Haag, Netherlands.
> “Cooperation in Merger and Unilateral Conduct Matters,” ICN Cooperation Roundtable, March 2011,
Washington, DC.
> “Merger Enforcement Guidelines & Second Stage Merger Review Process,” 10th Annual Competition
Law & Policy Forum, Northwind Professional Institute, Langdon Hall, February 2011, Cambridge, ON.
> “Creeping Acquisitions,” Meeting of the Organisation for Economic Co-Operation & Development
(OECD), February 2011, Paris, France.
> “Recent Developments in Canadian Competition Law,” Stikeman Elliott Competition Group Seminar,
February 2011, Toronto, ON.
> “Merger Review Under the New Regime,” Competition Law Essentials for Business Lawyers and
Executives, Osgoode Professional Development CLE, January 2011, Toronto, ON.
> “M&A Issues Confronting the Competition Bureau,” 8th annual Advanced Mergers & Acquisition
Conference, December 2010, Vancouver, BC.
> International Competition Network Merger Workshop, November 2010, Rome, Italy.
> Mergers & Acquisition Conference, October 2010, Toronto, ON.
> “Antitrust regulation for natural resources,” Joint session with the Antitrust Committee, International
Bar Association Conference, October 2010, Vancouver, BC.
> “’Right this Way, SIR’: Evaluating the Direction of the New Canadian Merger Review Process,” 2010
Canadian Bar Association Annual Fall Competition Law Conference, September October 2010,
Gatineau, QC.
> “International Competition/Antitrust Update,” 2010 Corporate Counsel World Summit, September
2010, Toronto, ON.
A sampling of Mr. Collins’ publications includes:
> Co-author (with Michael Laskey) “Competition Law – Recent Developments of Importance”,
Lexpert/American Lawyer Magazine Guide to the Leading 500 Lawyers in Canada 2012 (December 2012).
> Contributor, Commentaries, Competition Act and Commentary (Butterworths, 2010).
> Antitrust Law Journal – (Vol. 73, No. 1, 2005) – “The Aspen Skiing Case from a Canadian
Competition Law Perspective” – co-authored with D. Jeffrey Brown and Kevin Rushton.
> World Competition – September 2003 – “An Analysis of the Proposal to Decriminalize the AntiCompetitive Pricing Practices under the Competition Act”.
> The Law and Economics of Canadian Competition Policy – University of Toronto Press – May 2002
with Professors Trebilcock, Winter, and Iacobucci. This book has been awarded the prestigious 2002
Douglas Purvis Memorial Prize for a work of excellence relating to Canadian economic policy.
STIKEMAN ELLIOTT LLP PROFILE
Mr. Collins is listed and recognized in the following publications:
> The 2013 Chambers Global's The Guide to the World's Leading Lawyers for Business as a
recommended lawyer for Competition/Antitrust.
> Global Competition Review's The International Who’s Who of Competition Lawyers & Economists
2013 and The International Who’s Who of Business Lawyers 2014.
> Global Competition Review’s Country Survey: Canada described Mr. Collins as a “crucial
component” to Stikeman Elliott’s Competition & Foreign Investment practice and as “among the most
talented and well-regarded in the country”.
> Legal Media Group’s
Lawyers/Economists.
2012
Guide
to
the
World’s
Leading
Competition
and
Antitrust
> The 2010 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada for Competition.
> The Best Lawyers in Canada 2010 in Competition/Antitrust Law.
> The 2010 Lexpert Guide to the Leading U.S./Canada Cross-border Corporate Lawyers in Canada in
the area of Competition Law.
> The 2010 Lexpert Guide to the Leading U.S./Canada Cross-border Litigation Lawyers in Canada in
the area of Competition Law
> The Canadian Legal Lexpert Directory 2009 as a practitioner “most frequently recommended” in the
Competition Law sector.
> Ranked by Lexpert as one of Canada’s Top 40 Lawyers Under Age 40.
Representative Work
Mr. Collins has acted for:
> Ticketmaster in connection with its merger with Live Nation.
> Yahoo! in connection with its search agreement with Microsoft.
> Ciena in connection with its acquisition of certain businesses from Nortel.
> EDS Corporation in connection with its acquisition by Hewlett-Packard.
> Yahoo! in connection with its proposed services agreement with Google.
> Huntsman Corporation in connection with its proposed acquisition by Hexion.
> Groupe Pernod Ricard in connection with its acquisition of the Absolut vodka brand.
> Wrigley in connection with its merger with Mars.
Education
University of Toronto (LL.B. 1992, Honours BA economics 1989).
Background
Mr. Collins is fluent in Greek.
Bar Admission
Ontario, 1994.
STIKEMAN ELLIOTT LLP PROFILE
Brendan Ross
50 Victoria Street, Gatineau, Québec K1A 0C9
(800) 348-5358
Brendan Ross is the Major Case Director & Strategic Policy Advisor for Misleading
Advertising and Labelling at the Competition Bureau. He is a 15 year veteran of the Fair
Business Practices Branch. During that time, he has been involved in every aspect of
enforcement and policy development in the branch, and is an authority on the application of
the deceptive marketing practices provisions of the Competition Act. He sits as vice-chair of
the Marketing Practices Committee of the Canadian Bar Association’s National Competition
Law Section.
Lisa Campbell
50 Victoria Street, Gatineau, Québec K1A 0C9
(800) 348-5358
Lisa Campbell joined the Competition Bureau as Deputy Commissioner of the Fair Business
Practices Branch in 2010. She has worked in both the private and public sectors, and has
significant experience in law and policy. Ms. Campbell’s articles on the legal implications of
emerging technologies have appeared in Canadian and international publications.
MISLEADING ADVERTISING &
MARKETING PRACTICES
RESOURCE
Marketing & Advertising Top 10 List and Resources
OCTOBER 24, 2013
STIKEMAN ELLIOTT LLP
MARKETING & ADVERTISING
TOP 10 LIST AND RESOURCES
ADVERTISING
1
General Impression
2
Disclaimers and Contradictory Messages
3
Disclaimers should be used to clarify, and not contradict,
the advertisement’s main message. Disclaimers that
contradict the main message can make an advertisement
false or misleading. Disclaimers should be legible,
unhidden and clearly linked to the advertisement’s main
message.
Third Party Rights & Privacy
8
If an advertisement uses trade-marks, logos, images,
photographs, quotes, voices, tag-lines, or names of third
parties, it is important to make sure that the advertisement
does not infringe the intellectual property, privacy or
personality rights of those third parties.
Also, if an advertisement campaign contemplates the
collection, use or disclosure of personal information, you
should obtain adequate consent from the individuals to
whom the personal information pertains. Make sure the
appropriate privacy statement is used.
Children
9
Environmental Claims
Performance Claims
4
When making claims regarding performance or efficacy, you
must have sufficient evidence to substantiate the claims.
The reliability of any source you use must be considered. It
should be clear to you that the claim is based on adequate
and proper testing.
5
Special Regulations (Pre-clearance)
6
7
Whether a representation is false or misleading depends
on the general impression conveyed and not just the
literal meaning. Even if the statements or illustrations are
literally true, they may create an impression that is false or
misleading.
Savings and Price Claims
Price comparisons or savings claims can trigger the
ordinary selling price provisions of the Competition Act.
Such claims should meet the time or volume test specified
in the Competition Act and should not otherwise be false or
misleading. In particular, you should be able to substantiate
the ordinary price you are claiming. The MSRP is usually
not an appropriate ordinary price. Also, “Sales” and
“Special Offers” must actually be sales and special offers.
Certain types of advertisements are governed by special
legislation, for example, applicable provincial legislation
will govern credit disclosure, including mathematical
calculations for financial matters, such as leases. Certain
advertisements need pre-clearance. For example, certain
broadcast advertisements must be cleared through the
Advertising Standards Council.
Ensure the advertisement complies with the Canadian
Code of Advertising Standards, which includes provisions
regarding safety, violence, gender portrayal, bullying,
denigration, and comparative advertising.
|
MONTRÉAL
TORONTO
OTTAWA
CALGARY
The Competition Bureau has issued guidelines containing 18
specific requirements for environmental claims in advertising.
Such claims may not be vague or non-specific. The use of
phrases such as “green” or “environmentally friendly”, and
claims of sustainability are discouraged. All claims must,
among other things, be reliable, supported by accurate and
available data, and be accompanied by a detailed explanation
of the environmental benefit in close proximity to the claim
itself. A product cannot claim to be free of something that was
never part of the product before and all claims must take into
consideration the life cycle of the product and not be solely
based on the final product.
10 Contest Advertisements
Safety, Violence, Gender Portrayal and Denigration
STIKEMAN ELLIOTT LLP
Advertising to children requires special care. Advertisements
should not take advantage of the less developed judgement
and greater impressionability of children. All guidelines of
relevant broadcast, marketing and sales authorities should be
taken into account. Broadcast advertising directed at children
is not permitted in Quebec.
VANCOUVER
If a contest is advertised, the advertisement should include
the following information: (a) how to enter; (b) the
number, type and value of prizes; (c) any regional allocation
of prizes; (d) any skill-testing question requirement; (e)
the contest closing date; (f) the odds of winning, and other
facts that materially affect the chances of winning; (g) the
fact that no purchase is necessary; (h) how to obtain full
contest rules; and (i) any material qualifications regarding
prizes, eligibility or manner of playing.
NEW YORK
LONDON
SYDNEY
www.stikeman.com
Stikeman Elliott Marketing
& Advertising Lawyers:
CONTEST DISCLOSURE
1
No Purchase Necessary
2
Element of Skill
3
4
5
TORONTO
Generally, a no-purchase method of entry is required. Check to make sure
that your contest includes an acceptable no-purchase method of entry.
The contest should incorporate an element of skill, such as a
mathematical skill-testing question.
Chances of Winning
Disclose the odds of winning (e.g., “1 in 100 chances to win.”) or that the
odds of winning are not determinable (e.g., “Chances of winning depend
on the number of entries received.”)
Describing the Prize
Any material prize details and qualifications must be disclosed, including
any regional allocation of prizes.
Dates, Times and Numbers
6
Check to make sure that all dates, times and numbers in the contest rules
are correct.
7
Termination/Amendment
8
9
10
Distribution of Prizes
Prizes must be distributed to winning entrants without undue delay.
The rules should provide the contest sponsor a right to terminate or
amend the contest.
Privacy Issues
Consider carefully how an entrant’s personal information will be
collected, used and/or disclosed. You must obtain the consent of
the entrants to the collection, use and disclosure of their personal
information. The consent you obtain must be sufficiently broad to
cover everything you plan to do with the information. Systems should
be in place to ensure that the personal information of entrants is only
collected, used and disclosed for the purposes for which consent has
been obtained.
Children
Where contests are open to children, special care must be taken to
ensure adequate disclosure, especially in any advertisements. Entry
should be conditional on consent from a parent/guardian and a publicity
liability waiver executed by parent/guardian.
Québec
If the contest is open to residents of Québec, specific Québec legal
requirements for contests must be met.
KEY RESOURCES
1
2
3
Competition Bureau
www.competitionbureau.gc.ca
Advertising Standards Canada
www.adstandards.com
Régie des alcools, des courses et des jeux
www.racj.gouv.qc.ca
4
Canadian Marketing Association
www.the-cma.org
5
Office of the Privacy Commissioner of Canada
www.privcom.gc.ca
6
Consumer Protection Act
www.e-laws.gov.on.ca
© STIKEMAN ELLIOTT LLP | www.stikeman.com
This publication provides general commentary only and is not intended as legal advice.
Paul Collins
(416) 869-5577
pcollins@stikeman.com
Jinky Dominguez (Law Clerk)
(416) 814-6761
jdominguez@stikeman.com
Michael Kilby
(416) 869-5282
mkilby@stikeman.com
Marisa Muchnik
(416) 869-6829
mmuchnik@stikeman.com
Ashley Piotrowski
(416) 869-5648
apiotrowski@stikeman.com
Jennifer Rad (Law Clerk)
(416) 868-2289
jrad@stikeman.com
OTTAWA
Jeffrey Brown
(613) 564-3472
jbrown@stikeman.com
David Elder (Privacy Specialist)
(613) 566-0532
delder@stikeman.com
Justine Whitehead
(Intellectual Property Specialist)
(613) 566-0541
jwhitehead@stikeman.com
CALGARY
Gus Lu
(403) 781-9182
glu@stikeman.com
Gianfranco Matrangolo
(403) 266-9071
gmatrangolo@stikeman.com
VANCOUVER
Robert Kiesman
(604) 631-1474
rkiesman@stikeman.com
Alice Krzyskow
(604) 631-1318
akrzyskow@stikeman.com
MONTRÉAL
Jonathan Auerbach
(IP and Trademark specialist)
(514) 397-3095
jauerbach@stikeman.com
Catherine Jenner
(514) 397-3356
jenner@stikeman.com
Jason Streicher
(514) 397-2420
jstreicher@stikeman.com
VISIT OUR COMPETITION BLOG
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MISLEADING ADVERTISING &
MARKETING PRACTICES
FIRM PROFILE
An overview of Stikeman Elliott, our Marketing, Advertising & Compliance
and Competition & Foreign Investment Groups
OCTOBER 24, 2013
STIKEMAN ELLIOTT LLP
Firm Profile
Stikeman Elliott is one of Canada's leading
business law firms, recognized for top tier
services in each of our core practice areas –
corporate finance, M&A, real estate, corporatecommercial law, banking, structured finance,
tax, insolvency, competition and foreign
investment, employment and business litigation.
We are regularly retained by domestic and
international companies in a wide range of industries including financial services, insurance,
technology, telecommunication, transportation, manufacturing, mining, energy, infrastructure
and retail.
The firm's Canadian offices are leaders in their
respective jurisdictions. The firm has more
lawyers ranked than any other Canadian firm in
the Corporate, M&A and Corporate Finance
categories of legal directories from Chambers
Global, Best Lawyers and Lexpert. Its National
Litigation Group, whose specializations include
class actions, securities litigation, antitrust and
restructurings, has been ranked among the top
business litigation practices in Canada by
Chambers Global, Lexpert and Benchmark.
The firm is also well known for its extensive
regulatory and government relations expertise;
the latter anchored by its office in Ottawa.
We have prominent cross-border expertise, as the first Canadian firm to open offices in
London and New York, and extensive experience in the U.S., Europe, China, South and
Southeast Asia as well as in Latin America, the Caribbean and Africa. Our 500 lawyers
include many of Canada's most prominent business practitioners and litigators, and our
depth across practice areas enables clients to benefit from efficient, expert teams of lawyers
at all levels. The firm has also invested heavily in cutting-edge knowledge management and
project management systems in order to assure our clients of advice of the highest quality.
STIKEMAN ELLIOTT LLP FIRM PROFILE
Recognition for Our Work
#1 Nationally for ranked lawyers in
M&A/Corporate and rated as a Top Tier Firm
#1 Canadian firm in Capital Markets, M&A and
Corporate-Commercial Law with most lawyers
ranked by the 2012 Guide to the Leading 500
Lawyers in Canada
#1 Canadian firm in Capital Markets, M&A and
Corporate-Commercial Law with more lawyers
ranked than any other firm
Ranked Top Tier in Capital Markets, M&A and
Project Finance
Ranked Top Tier in Capital Markets, M&A and
Corporate-Commercial Law
STIKEMAN ELLIOTT LLP FIRM PROFILE
Marketing, Advertising & Compliance Group
Stikeman Elliott’s Marketing, Advertising and Compliance Group consists of members drawn
from the firm’s leading Competition and Foreign Investment Group as well as its CorporateCommercial Group. As it applies to marketing and advertising, competition law and
consumer protection law are complex and constantly evolving, and business practices that
appear innocuous to clients may in fact contravene relevant legislation. Our members
proactively respond to client needs and ensure they receive legal counsel unique to their
objectives in a timely and cost-effective manner, regardless of the complexity. They also
ensure strategies meet all applicable laws and regulations.
To assist our clients with keeping abreast of timely industry developments and issues, the
Group offers a blog on legal, legislative and policy matters at www.TheCompetitor.ca.
Our Services
The Group provides, on a regular basis, marketing and advertising compliance (including
Competition Act and provincial consumer protection legislation) advice to leading Canadian
and international businesses across a wide range of industries, including food and consumer
goods, automotive, pharmaceutical and healthcare, financial services, insurance and retail.
Our lawyers routinely review, comment and provide risk assessments and risk mitigation
advice, typically within very short time frames. We offer these services across Canada and
have specific expertise in the highly-regulated Quebec market.
For over 20 years our team has closely assisted our clients in many marketing practices
including,
> Advertising and marketing, including TV/infomercials, radio, print, online, mobile and
social media;
> Distribution strategies;
> Pricing strategies, maintenance and claims;
> Product labelling;
> Warranty advertising;
> Pre-clearance where required by certain industries;
> Financial legal disclosure including credit and lease advertising considerations;
> Contests and other promotional strategies;
> Comparative advertising;
> Disclaimers and contradictory messages;
STIKEMAN ELLIOTT LLP MARKETING, ADVERTISING AND COMPLIANCE
> Intellectual property considerations including trademarks, music and personality rights;
> Social networking campaigns; and
> Privacy considerations including management of personal information in the context of
marketing campaigns and compliance with federal and provincial laws.
Stikeman Elliott's experienced counsel have a keen awareness of market trends, legislative
change and policy initiatives, and can help companies avoid unwelcome surprises, including
Competition Bureau investigations and civil or criminal actions by:
> Conducting a compliance audit to identify and report on any aspects of a client's
procedures or policies that raise potential issues;
> Designing, in collaboration with the client's operations personnel, a comprehensive
compliance program;
> Conducting seminars to educate staff on compliance pitfalls common in their industry;
and
> Advising with respect to document management (i.e., creation and retention).
Our multi-disciplinary team is comprised of lawyers practicing in the areas of competition,
privacy, environmental, technology, regulatory and litigation, who often work closely and
seamlessly to provide comprehensive advice and utilize a cost-effective mix of partners,
associates and clerks to serve clients. We have represented clients with respect to
misleading advertising claims, price claims and product performance claims, including the
defence of class actions.
Our experience includes liaising with various government regulators, such as the federal
Competition Bureau, provincial regulators and industry self-regulatory bodies such as
Advertising Standards Canada and the Television Bureau of Canada (also known as
Telecaster, a body which has promulgated infomercial guidelines). Members of our Group
are actively involved with the Canadian Bar Association Competition Law Section’s
Marketing Practices Committee. They are committed to being at the forefront of important
emerging issues and understanding the fast-evolving practices in this area, as well as
providing influence where they can.
Connected to the Industry
In order to keep ourselves at the forefront of industry trends and changes to regulations, we
are actively involved in industry organizations, including the Advertising Standards Canada,
Food and Consumer Products of Canada and the Canadian Marketing Association. In fact,
a member of the Group has recently been appointed as the Special Digital Privacy Counsel
to the Canadian Marketing Association. Our lawyers are recognized as experts and speak at
various legal and industry conferences, including The Canadian Institute's Advertising and
Marketing Law Conference, and for the Food and Consumer Products of Canada
organization.
STIKEMAN ELLIOTT LLP MARKETING, ADVERTISING AND COMPLIANCE
Competition and Foreign Investment Group
Experience & Expertise
Stikeman Elliott’s Competition and Foreign Investment Group is a highly regarded market
leader in Canada, widely and consistently recognized nationally and internationally for its indepth knowledge and expertise in the practice of competition law under the Competition Act
and foreign investment review under the Investment Canada Act.
The Group has extensive experience acting on major national and international
transactions, criminal investigations, class and other civil actions, Competition Tribunal
proceedings regarding mergers, abuse of dominance and other reviewable matters, and
day-to-day compliance in a wide range of industries, including the transportation, media and
entertainment, financial services and insurance, stock exchange, energy, natural resources,
waste management, communications, construction aggregates and food and beverage
sectors.
Canadian and international corporations and foreign law
Stikeman Elliott launches
firms frequently seek the Group’s counsel on high-profile
domestic and international mergers in which coordinated
first competition law blog
resolution of regulatory issues is critical. When
by any major Canadian
corporations find themselves subject to proceedings
law firm.
under the Competition Act, either before the courts or the
Competition Tribunal, we have extensive experience and
WWW.THECOMPETITOR.CA
expertise to effectively represent them. In criminal and
class and other private actions, the Group frequently represents Canadian, American,
European and Asian corporations. Where appropriate, advantageous settlements are
negotiated and implemented on a nationwide basis.
The Group’s extensive experience as counsel on major multinational transactions allows
members to work closely and effectively with M&A attorneys in the Canadian, European,
U.S. and Pacific Rim offices of Stikeman Elliott, and with colleagues in leading U.S.,
European and Asian law firms.
GLOBAL RANKINGS & ACHIEVEMENTS
Consistently high rankings are a clear reflection of the Group’s well-earned reputation in
major cross-border and domestic legal work.
> Global Competition Review: Country Survey: Canada (2013) – ranked as among
the most talented and well-regarded in the country.
> Global Competition Review 100 (2013, 13th edition) – ranked as an Elite competition
practice in Canada and included along the top leading global competition law practices
by the Global Competition Review.
> Chambers Global 2013: The World's Leading Lawyers for Business ranked as
among the best law firms in competition/antitrust in Canada by Chambers and Partners.
Chambers notes "There is important bench strength at Stikeman Elliott: the firm
remains a force" and "[s]trong players in competition".
STIKEMAN ELLIOTT LLP
www.stikeman.com
COMPETITION BUREAU AND INVESTMENT CANADA RELATIONS - MERGERS
AND MUCH MORE
As the only major Canadian competition law practice with a strong presence in Ottawa, Stikeman
Elliott maintains a healthy relationship with key players in the Government of Canada. On an
ongoing basis, the group deals with officials of the Competition Bureau, Investment Canada, the
Department of Finance, the Department of Justice, Transport Canada and other important
government departments and agencies, such that regulatory strategies are seamlessly
integrated. Consistent with their active participation in legal and policy development, members of
our Group are regularly consulted on potential amendments and policy initiatives relating to the
Canadian Competition Act and the Investment Canada Act.
Our firm is unique in its involvement in Investment Canada matters in that we have members of
the Competition and Foreign Investment Group practicing in our Ottawa office. The close
proximity to civil officials and other government departments means better relationships with
parties involved in Investment Canada matters. We have successfully acted on the most
noteworthy foreign investment transactions in the past few years and possibly in Canadian
history, China National Offshore Oil Company (CNOOC), as Canadian counsel, in its acquisition
of Calgary-based Nexen Inc., and Potash Corporation of Saskatchewan Inc. in its defence of
BHP Billiton’s unsolicited take-over bid. Appearing on different sides of these transactions, once
for the foreign buyer and once for the Canadian target defending against the take-over bid,
speaks to the diversity and capabilities of our practice. Our foreign investment experience, and
our unique ability to coordinate the increasingly important public relations and government
relations aspect of foreign investment review, is a testament as to why we continue to be
specifically sought out by clients to handle sensitive transactions in this area.
Paul Collins, one of the top competition lawyers in Canada, leads the Competition & Foreign
Investment Group. His practice involves transactional and general compliance advice, including
Investment Canada Act advice, as well as marketing and advertising law. He offers a unique
value to clients as a result of his recent position at the Competition Bureau, where he served as
Senior Deputy Commissioner from May 2010 to May 2012. As head of the Bureau’s Mergers
Branch and a member of its Senior Management Committee, Mr. Collins was instrumental in the
review of high-profile corporate transactions. Additionally, he contributed his expertise to the
development of key Bureau policies arising from the significant amendments to the Competition
Act introduced in 2009 -- including the revised Merger Enforcement Guidelines, the Merger
Review Process Guidelines, the Fee and Service Standards Handbook for Mergers and MergerRelated Matters and a number of Interpretation Guidelines. Mr. Collins is already wellestablished as a Canadian leader in competition law and his direct experience with the day-today workings of the Bureau during his two year term at the Bureau has only enhanced his
practice. Chambers Global recently noted that he is “one of the most solid competition lawyers
in Canada".
STIKEMAN ELLIOTT LLP COMPETITION AND FOREIGN INVESTMENT GROUP
Lawson A.W. Hunter, Q.C., is one of Canada’s foremost experts on competition and regulatory
matters and noted by GCR as “one of the pre-eminent names on the Canadian antitrust scene,”
and by Chambers Global as “an icon in the field" who is singled out by clients for his
"exquisite judgement". Mr. Hunter, in his role as Counsel, continues to be an active member of
the Competition and Foreign Investment Group advising on many of the Group’s transactions.
He returned to Stikeman Elliott after five years as Executive Vice President and Chief Corporate
Officer at BCE Inc. His service at BCE followed ten years as head of Stikeman Elliott’s
Competition and Foreign Investment Group. Mr. Hunter also spent a number of years in the
federal public service, during which he led Canada’s competition regulator and was primarily
responsible for the drafting of the Competition Act. Mr. Hunter advises a wide variety of
Canadian and multinational corporations on all aspects of federal regulatory law and policy,
including competition and foreign investment legislation issues. He is particularly noted for his
experience as an advisor on the regulatory aspects of mergers and acquisitions. Mr. Hunter’s
experience in Investment Canada and government relations played an integral role with Potash
Corporation of Saskatchewan Inc. in its defence of BHP Billiton’s unsolicited take-over bid and
most recently he played a key role in the representation of China National Offshore Oil
Company (CNOOC), as Canadian counsel, in its acquisition of Calgary-based Nexen Inc.
Group members Shawn Neylan, Susan Hutton and Jeffrey Brown have combined experience
that spans many years and includes advising national and international clients on a full range of
competition and foreign investment law issues, with a focus on complex multi-jurisdictional
transactions, including leading regulatory teams that secure approvals under the Competition Act
and the Investment Review Act. They also provide competition compliance advice to businesses
in relation to both unilateral and collaborative conduct. They have been recognized repeatedly
as leading lawyers in various national and international publications and have written and spoken
extensively on competition and foreign investment law issues..
Keeping on top of developments in Ottawa helps us ensure that M&A matters pursued by our
clients are efficiently completed on the terms negotiated. We work diligently to minimize the risk
of regulatory interference by the Commissioner of Competition and other Government agencies
in transactions involving Canadian businesses, and advise leading Canadian businesses with
respect to ongoing Competition Bureau and government relations. In particular, we:
> Advise generally on the competition law governing mergers and acquisitions;
> Provide an objective assessment of the likelihood that a proposed acquisition would
lead to intervention by the Commissioner;
> Prepare pre-merger notification materials and/or apply to the Commissioner for an advance
ruling certificate or advisory opinion in respect of a proposed transaction, where appropriate;
> Structure transactions so as to eliminate or minimize the risks of challenge by the
Commissioner;
> Liaise with the Competition Bureau and Investment Canada to enable our clients to
complete their transactions in a timely manner;
> Advise clients in connection with investigations initiated by the Commissioner, whether
civil or criminal in nature;
> Advise clients in connection with search warrants or other formal inquiry procedures
initiated by the Commissioner;
> Assist clients in lodging complaints with the Competition Bureau; and
> Advise generally with respect to the Commissioner’s or Investment Canada’s position
on or interpretation of various issues of importance to clients.
STIKEMAN ELLIOTT LLP COMPETITION AND FOREIGN INVESTMENT GROUP
MARKETING, ADVERTISING AND COMPLIANCE
Competition law is complex and constantly evolving, and business practices that appear
innocuous to clients may in fact contravene the Competition Act. The Group provides
proactive ongoing Competition Act compliance advice and recommendations to various
clients on many marketing practices, such as advertising, distribution strategies and pricing
strategies. Stikeman Elliott’s experienced competition counsel have a keen awareness of
market trends, legislative change and policy initiatives, and can help companies avoid
unwelcome surprises, including Bureau investigations and civil or criminal actions, by:
> Conducting a compliance audit to identify and report on any aspects of a client’s
procedures or policies that raise compliance issues;
> Designing, in collaboration with the client’s operations personnel, a comprehensive
compliance program;
> Conducting seminars to educate staff on compliance pitfalls common in their industry;
and
> Advising with respect to document management (i.e., creation and retention).
We are also actively involved in various industry organizations, including Advertising
Standards Canada and Canadian Marketing Association; and our lawyers speak regularly
at conferences, such as The Canadian Institute's Advertising and Marketing Law
Conference, and for the Food and Consumer Products of Canada’s workshops.
COMPETITION LITIGATION - Before the Courts and the Competition Tribunal
Competition litigation is an increasingly active and complex business reality in Canada. The
recent amendments to the Canadian Competition Act further expand the range of conduct
and the seriousness of the consequences to parties in civil proceedings, including cases
before the Competition Tribunal and in court. Stikeman Elliott’s competition litigators have
the experience, knowledge, judgment and skills to represent our clients effectively in this
very dynamic and strategically important area.
Stikeman Elliott’s competition litigation practice is led by Katherine Kay, one of Canada's
premier competition litigators. Ms. Kay was recently ranked as one of the top 100 Women in
Antitrust in 2013 by Global Competition Review (GCR). Chambers Global 2013 The Guide to
the World's Leading Lawyers for Business named her one of the top competition litigators in
Canada and considers her "a star litigator" who is "practical and tenacious on her feet." It
further noted that "there are very few people who practise cartel work at such a high level."
She was also described in previous GCR Country Surveys as "arguably the best competition
litigator Canada has to offer."
Ms. Kay is lead counsel on a broad range of cases dealing with all aspects of competition
law. Recently, she represented such high profile matters such as Air Canada in its response
to the Commissioner of Competition's application to the Competition Tribunal opposing the
proposed Canada-U.S. cross-border joint venture with United Continental Holdings.
The Group’s competition litigators, who include Eliot Kolers and Danielle Royal, have
extensive experience and the strategic judgment and outstanding advocacy skills to secure
the best possible results for our clients. They understand the ins and outs of Canadian
antitrust law and the practice and approach of the regulatory authorities and who are wellknown to the Competition Tribunal and courts at all levels and in all jurisdictions. Our
litigators work very closely with our colleagues on the solicitors’ side of Canadian
STIKEMAN ELLIOTT LLP COMPETITION AND FOREIGN INVESTMENT GROUP
competition practice, and members of our Group draw on the experience and judgment of
the litigation team on a daily basis.
The competition litigators represent national and international clients in a variety of matters ,
including:
> Criminal investigations and proceedings, involving corporations as well as directors,
officers and employees, including immunity and leniency applications
> Defending class actions, which are typically commenced on a national basis mirroring
similar U.S. actions and often following Canadian criminal investigations
> Representing clients who are a merging party, or who oppose a particular merger, both
in dealing with the Competition Bureau and then before the Competition Tribunal, on a
contested or consent basis
> Defending clients in contested proceedings before the Competition Tribunal in which
allegations of anticompetitive conduct or violations of consumer protection measures in
the Competition Act are made by the Commissioner of Competition or, under recent
amendments to the Competition Act, by private individuals in certain areas
> Making or responding to complaints to the Competition Bureau regarding anticompetitive behaviour in a particular marketplace
> Commencing or defending private actions or applications brought under the
Competition Act and under the common law in which anti-competitive conduct is alleged
VALUE-ADDED CLIENT RESOURCES
As part of our effort to remain at the forefront of client service, we have developed a
competition law blog, featuring practical information and commentary on important legal and
policy developments in this area of law, including merger issues, criminal prosecutions, class
actions, abuse of dominance and refusal to deal, Investment Canada Act economic and
national security reviews, legislative and policy updates, and ministerial and enforcement
agency appointments. The site is fully searchable with extensive archived materials,
indexed by topic, and allows users to subscribe for immediate updates via email, RSS feed
or Twitter. The blog is available at www.TheCompetitor.ca.
The Group annually contributes to LexisNexis’
Competition Act & Commentary.
This
publication is a concise guide to competition law
in Canada, and contains the relevant legislation,
regulations, rules and guidelines, plus a “Year in
Review” and updated commentary written by
Group members.
“It is very good to have
such first class up-to-date
material.”
CLIENT DISCUSSING COMPETITION ACT &
STIKEMAN ELLIOTT LLP COMPETITION AND FOREIGN INVESTMENT GROUP
COMMENTARY
Competition and Foreign Investment
Experience
Our leading competition and foreign investment practice operates at the very highest level
and the outstanding skill and judgment of our team is displayed in both the number and
complexity of deals in which our Group is involved. Our level of expertise is clearly indicated
by the key matters we have acted on most recently:
TRANSACTIONS
Communication, Entertainment and Media
> Rogers Communications Inc. in its acquisition of unused network spectrum of Shaw
Communications Inc. (2013)
> Gores Group, as Canadian counsel, in its US$225M acquisition of Harris Broadcast
Communications from Harris Corporation. (2013)
> Acosta Sales & Marketing, as Canadian counsel, in its acquisition of Mosaic Sales
Solutions from Court Square Capital Partners, amount undisclosed. (2012)
> Universal Music Holdings Limited, subsidiary of Vivendi S.A., as Canadian counsel,
in its US$1.9B acquisition of EMI Group Global Limited, subsidiary of Citigroup Inc.
(2012)
> Dalian Wanda Group Co., as Canadian counsel, in its US$2.6B acquisition of AMC
Entertainment Holdings, creating the world’s largest movie theater operator. (2012)
> Astral Media Inc. in the C$3.38B sale to BCE Inc.(2012)
> Yellow Media Inc. in the C$72.5M sale of LesPAC Inc.’s assets to Mediagrif Interactive
Technologies Inc. (2011)
> Ontario Teachers' Pension Plan in the $1.32B sale of a majority stake in Maple Leaf
Sports and Entertainment to Rogers Communications and BCE Inc. (2011)
> Motorola Mobility Holdings, Inc., as Canadian counsel, in its US$12.5B proposed
acquisition by Google Inc. (2011)
> Yellow Media Inc. in its $708M sale of Trader Corporation to funds advised by Apax
Partners. (2011)
Consumer Products, Services and Retail
> FGL Sports Ltd., a division of Canadian Tire Corporation, Limited, in its C$85M
acquisition of Pro Hockey Life Sporting Goods Inc., a premier sports retailer with 23
urban, high-end hockey stores operating in five provinces across Canada. (2013)
> Garda World Security Corporation in its C$110M acquisition of G4S Cash Solutions
(Canada) Ltd. (2013)
> Advanced Auto Parts Inc., as Canadian counsel, in its US$2B acquisition of General
Parts International Inc., creating the largest North American retailer of auto parts.
(2013)
> Sobeys Inc. and Empire Company Limited in its C$5.8B acquisition of all property
and assets constituting the business of Canada Safeway Limited from Safeway Inc.
(2013)
STIKEMAN ELLIOTT LLP COMPETITION AND FOREIGN INVESTMENT GROUP
> Hudson’s Bay Company in its US$2.9B acquisition of Saks Incorporated, including
indebtedness (2013)
> TreeHouse Foods, Inc., as Canadian counsel, in its C$187M acquisition from
TorQuest Partners LLC and other shareholders of Associated Brands GP Corporation.
(2013)
> H.J. Heinz Co. in its US$28B acquisition by Berkshire Hathway Inc. and 3G Capital.
(2013)
> Canadian Tire Corporation Limited in the C$85M acquisition by its wholly-owned
subsidiary, FGL Sports Ltd., of Pro Hockey Life Sporting Goods Inc. (2013)
> Sysco Corporation in its acquisition of Distagro, the foodservice division of grocery
retailer Metro Richelieu Inc., for an undisclosed amount. (2012)
> Golden Gate Capital and Blum Capital in their US$2B acquisition of Collective
Brands, Inc. (including Payless ShoeSource, Airwalk, Vision Street Wear, Sims and
Lamar Snowboards Brands) (2012)
> Apax Partners, as Canadian counsel, in its C$1.1B acquisition of Garda World Security
Corporation. (2012)
> Bauer Performance Sports Ltd. in its US$64M acquisition of Cascade Helmets
Holdings, Inc., a leading manufacturer and distributor of men’s and youth lacrosse
helmets in North America. (2012)
> Bright Food Group Co., one of China’s largest food groups, as Canadian counsel, in
its US$1.9B acquisition of Weetabix Ltd. from private equity owner Lion Capital LLP.
(2012)
Distribution and Wholesale
> Air Liquide Canada, a subsidiary of Air Liquide Group, the world leader in gases for
industry, health and the environment, in the acquisition of all the assets of Sunox
Industrial Gases Inc., a Canadian-owned independent filler and welding products
distributor, specializing in the distribution of industrial gases, welding equipment and
propane. Amount undisclosed. (2012)
> Clairvest Group Inc. and Clairvest Equity Partners Limited Partnership in its
C$35M sale of their combined interests in Van-Rob Inc. to Kirchhoff Automotive GmbH.
(2011)
> TPG Capital and Nexeo Solutions Canada Corp. in its US$979M acquisition of
Ashland Distribution from Ashland Inc. (2011)
Energy, Natural Resources and Agriculture
> Hochschild Mining plc, a company listed on the London Stock Exchange, in its
US$280M acquisition of all of the issued and outstanding shares of International
Minerals Corp. it does not already own, by way of a court-approved plan of
arrangement. (2013)
> Louisiana-Pacific Corp., as Canada counsel, in its US$1.1B acquisition of Vancouverbased Ainsworth Lumber Co. (2013)
> Skookumchuck Pulp Inc., a subsidiary of Paper Excellence Canada Holdings
Corporation, one of Canada’s largest pulp mill operators, in its C$95M acquisition of the
Skookumchuck NSBK pulp mill and related assets, located near Skookumchuck, British
Columbia, from Tembec Inc., a leading manufacturer of forest products, lumber, pulp,
paper. (2013)
> EDF EN Canada Inc. in its agreement with Enbridge Inc. under which Enbridge will
invest approximately C$170M to acquire a 50% interest in the 150-megawatt (MW)
Massif du Sud Wind Project in Quebec. (2013)
STIKEMAN ELLIOTT LLP COMPETITION AND FOREIGN INVESTMENT GROUP
> Centrica plc and Qatar Petroleum International in their C$1B joint acquisition of
majority of Suncor Energy Inc’s remaining conventional natural gas and crude oil assets
and associated infrastructure located in the Western Canadian Sedimentary Basin.
(2013)
> Quintana Energy Partners L.P., as Canadian counsel, in its US$40M acquisition of
Corsa Coal Corp. (2013)
> Harry Winston Diamond Corporation in its US$750M sale of its luxury brand diamond
jewelry and timepiece division, Harry Winston Inc., to The Swatch Group Ltd. (2013)
> JSC Atomredmetzoloto in its C$1.3B acquisition of the remaining 48.6% percent of all
Uranium One Inc., it does not already own. (2013)
> China National Offshore Oil Company, as Canadian counsel, in its acquisition of
Calgary-based Nexen Inc. for approximately US$19.5B in cash, including the
assumption of debt. The deal is the largest Chinese acquisition of a foreign company.
(2013)
> Richardson International Limited in connection with Glencore International plc's
C$6.1B purchase of Saskatchewan-based Viterra Inc. Glencore has agreed to divest
the majority of Viterra's $2.6B Canadian assets and certain other assets to Richardson
International and Agrium Inc., two of Canada's largest agricultural firms. (2012)
> Potash Corporation of Saskatchewan Inc. in its defence of BHP Billiton Ltd.'s
US$38.6B unsolicited take-over bid, with the bid being subsequently withdrawn after the
historic decision of Investment Canada to reject the proposal. (2010) Winner of IFLR
2011 award for Canadian Law Firm of the Year for its work on this and other
transactions.
> Sinopec International Petroleum Exploration and Production Corporation in its
$10.3B acquisition of Addax Petroleum Corporation, the largest outbound acquisition by
a PRC entity has been awarded Asian-Counsel’ Deals of the Year 2009 and the M&A
Atlas Awards Global M&A Deal of the Year ($5+ billion). (2009)
Financial Services, Insurance and Investment
> Advent International, as Canadian counsel, in its acquisition of P2 Energy Solutions
from Vista Equity Partners for an undisclosed amount. P2 is a Denver–based provider
of software, geospatial data and land management tools to the upstream oil and gas
industry. (2013)
> Kleiner Perkins Caulfield & Byers, as Canadian counsel, in its sale of its investment
in EEStor, Inc. to Zenn Motors Company Inc., amount undisclosed. (2013)
> Cartesian Capital, a New York-based private equity firm, in the acquisition of Public
Mobile by Thomvest Seed Capital and Cartesian for an undisclosed amount.
> Sprott Resource Lending Corp. in connection with its C$243M sale to Sprott Inc.
> Birch Hill Equity Partners in its C$412M acquisition of Softchoice Corporation. (2013)
> CAI Capital Management Co. in the sale of all its interests in Corix Infrastructure Inc.
to affiliates of British Columbia Investment Management Corporation, amount
undisclosed. (2012)
> The Hillman Companies in its C$103M acquisition of H. Paulin & Co., Limited. (2013)
> Warburg Pincus LLC, as Canadian counsel, in its C$155M acquisition of a majority
stake in Endurance Energy Ltd. (2012)
> KKR & Co. in its US$1.12B acquisition of Capital Safety Ltd. from Arle Capital Partners
LLP. (2011)
STIKEMAN ELLIOTT LLP COMPETITION AND FOREIGN INVESTMENT GROUP
> HSBC Bank Canada in the C$206M sale of HSBC Securities (Canada) Inc. to National
Bank of Canada. (2011)
> TriWest Capital Partners in connection with its financial sponsorship of Wynnchurch
Capital’s investment in NSC Minerals (2011)
Manufacturing and Industrial
> Nova Capital in the sale of all assets of portfolio company, Wilkinson Steel and Metals
Inc., to Samuel, Son & Co. for an undisclosed amount. (2013)
> The Sherwin-Williams Company, as Canadian counsel in its US$2.3B acquisition of
Consorcio Comex, S.A. de C.V. from Achar family (2013)
> ABB Ltd., as Canadian counsel, in its acquisition of Thomas & Betts, a U.S. electrical
components maker, for US$3.9B. (2012)
> Nalco Holding Company in its US$5.4B sale to Ecolab Inc. (2011)
> Smurfit-Stone Container Corp. as Canadian regulatory counsel in relation to its
US$3.5B acquisition by Rock-Tenn Co. making it North America’s second-biggest
containerboard producer. (announced 2011)
> Solideal International S.A. in connection with its sale to Camoplast, Inc. (2010)
> Timminco Limited in its joint venture transaction with Dow Corning Corporation
regarding the silicon metal production facilities of Timminco’s wholly-owned subsidiary,
Bécancour Silicon Inc. Dow Corning acquired a 49% equity interest in Québec Silicon
Limited Partnership, the new joint venture entity that owns the silicon metal operations
in Bécancour, Québec, in consideration for net cash proceeds of approximately
US$40.3M. (2010)
> Grupo ACS, a Spanish construction firm, as Canadian counsel, in connection with its
bid in Germany for at least 50% of German group HOCHTIEF AG. The bid, which
would form the largest infrastructure company in the Western world, is reported to be
worth US$3.55B. (2010)
Pharmaceutical, Agri-chemical and Medical Products
> Bausch + Lomb, as Canadian counsel, in its C$8.7B acquisition by Valeant
Pharmaceuticals International, Inc. (2013) .
> Angiotech Pharmaceuticals, Inc. in the C$362.5M sale of certain of its subsidiaries,
comprising Angiotech’s Interventional Products Business, to Argon Medical Devices,
Inc. (2013) .
> Analogic Corporation, as Canadian counsel, in its acquisition of Ultrasonix Medical
Corporation by way of plan of arrangement for approximately US$83M. (2013)
> Baxter International Inc., as Canadian counsel, in its US$4B (SEK26.5B) acquisition
of Gambro AB, a privately held kidney dialysis product company based in Sweden.
(2012)
> Gamma-Dynacare Medical Laboratories, one of Canada’s largest providers of
laboratory services and solutions, in its acquisition of the human drug and alcohol
testing division of Maxxam Analytics International Corporation. Undisclosed value.
(2012) – UPDATED
> Catalyst Health Solutions Inc., as Canadian counsel, in its US$4.4B sale to SXC
Health Solutions, Corp. (2012)
> Cardinal Health, Inc. in its C$165M agreement to acquire Futuremed Healthcare
Products Corporation. (2011)
STIKEMAN ELLIOTT LLP COMPETITION AND FOREIGN INVESTMENT GROUP
> Eurazeo Croissance in its C$52.1M acquisition of 83% of 3S Photonics SA’s capital
(2011)
> Centric Health Corporation in its acquisition of Motion Specialties Inc. (2011)
> OraSure Technologies Inc. in its US$50.7M acquisition of DNA Genotek Inc. (2011)
Real Estate
> Specialty Care Inc. in its C$254M sale of a portfolio of 10 properties in Ontario to
Leisureworld Senior Care Corporation.
> Canadian Apartment Properties Real Estate Investment Trust (CAPREIT) in its
C$455M acquisition of a portion of TransGlobe Apartment REIT properties. (2012)
> Marshall & Swift/Boeckh in its C$18M agreement with Symbility Solutions Inc. (2012)
> Toronto-5001 Yonge Street Inc. in the C$108M sale of its office tower to Dundee Real
Estate Investment Trust (2012)
> Morguard Corporation and Morguard Real Estate Investment Trust in its
$165M acquisition of Place Innovation located within Technoparc Montreal, the largest
technology park in Canada. (2010)
Technology
> Dell Inc., as Canadian counsel, in connection with its US$24.4B privatization. (2013)
> Permian Mud Services, Inc., as Canadian counsel, in its US$2.2B sale to Ecolab.
(2012)
> Dell Inc., as Canadian counsel, in its US$2.4B acquisition of Quest Software. (2012)
> KRG Capital LLC, as Canadian counsel, in its investment in Convergint Technologies
LLC, for an undisclosed amount. (2012)
> The Carlyle Group, as Canadian counsel, in its US$3.3B acquisition of Getty Images
Inc. from Hellman & Friedman LLC. (2012)
> FMC Technologies, Inc., as Canadian counsel, in its C$282M acquisition of Pure
Energy Services Ltd. (2012)
> 20-20 Technologies Inc., in its C$77M acquisition by Vector Capital Corporation.
(2012)
> Toshiba Tec Corp., as Canadian counsel, in its US$850M acquisition of the point-ofsale terminal business from IBM Corp. (2012)
> ABB Ltd., as Canadian counsel, in its US$3.9B acquisition of Thomas & Betts. (2012)
Transportation and Travel
> Westco Aircraft Holdings, Inc. in its C$134M acquisition of Interfast Inc. (2012)
> Volkswagen AG in its $20B bid for German truck manufacturer MAN SE (2011)
> Vector Aerospace Corporation in its C$625M sale of its issued and outstanding
common shares to Eurocopter Holding, a subsidiary of EADS, by way of a take-over
bid. (2011)
> Dynamex Inc., as Canadian counsel, in connection with its US$248M sale to
TransForce Inc. (2011)
> Algoma Central Corporation with respect to its C$85M acquisition of Upper Lakes
Group Inc.’s partnership interest in Seaway Marine Transport and related entities.
(2011)
STIKEMAN ELLIOTT LLP COMPETITION AND FOREIGN INVESTMENT GROUP
Competition Litigation Experience
The Group’s recent competition litigation experience includes:
> Pro Sys Consultants Ltd. v. Infineon Technologies AG. et al. (2013) Ontario, Quebec
and British Columbia (acting for defendant in class actions commenced in Ontario,
Quebec and British Columbia alleging price-fixing in computer memory chips called
DRAM. Successfully defeated certification in British Columbia and Quebec at first
instance. The British Columbia Court of Appeal overturned the dismissal of the
certification motion; leave to appeal to the Supreme Court of Canada was dismissed. The
Quebec Court of Appeal reversed the motion judge and authorized the proceeding as a
class action, and the Supreme Court of Canada has now granted leave to appeal that
decision. This is the first indirect purchaser price-fixing class action certified in Canada.
The case raises many cutting edge issues regarding the test for certification and
aggregate damages.)
> Hi! Neighbour Flooring Covering Co. v. Future Foam (2013) Ontario and British Columbia
(acting for defendant in class actions alleging price-fixing of polyurethane foam.)
> Fanshawe College v. LG Display Co. et al. (2013) Ontario, British Columbia and Quebec
(acting for defendants in three provinces in proposed class actions alleging price-fixing
conspiracy in LCD panels and products. Contested certification motion has been argued
and is under appeal in Ontario).
> HarperCollins Publishing Inc. et al. (2012) British Colombia, Ontario and Quebec
(alleging price-fixing in electronic books.) (Kay, Martineau)
> Fairhurst v. DeBeers S.A et al. (2012) British Columbia, Ontario, Quebec,
Saskatchewan (in a class action alleging price-fixing in Canadian diamond prices and
resulting in a jurisdictional challenge in competition class action. The appeal in the
British Columbia Court of Appeal was heard and leave to appeal to the Supreme Court
of Canada was dismissed.)
> Foster v. Briggs & Stratton et al. (2012) Ontario and Quebec (acting for defendant in
proposed misrepresentation and conspiracy class action).
> Commissioner of Competition v. Air Canada et al. (2012) Competition Tribunal (acted for
Air Canada in its response to the Commissioner of Competition's application to the
Competition Tribunal opposing the proposed Canada-U.S. cross-border joint venture with
United Continental Holdings. The case was the first challenge under the civil competitor
collaboration provisions added to the Competition Act in the 2009 amendments.)
> 2038724 Ontario Limited et al. v. Gordon Food Services et al. (2011) Ontario (a
franchise class action brought by franchisees alleging anti-competitive conduct with
respect to distribution arrangements in place between Quiznos as franchisor and GFS as
distributor.)
> Commissioner of Competition v. Canadian Real Estate Association (2010) Competition
Tribunal (acted for CREA in a case alleging abuse of dominance in the market for
residential real estate brokerage services. The Commissioner alleges that CREA, by
virtue of its ownership of certain MLS® trademarks, has abused its dominant
position. The case was resolved in late 2010. It involved a number of groundbreaking
legal issues, including the interplay between intellectual property and competition law).
STIKEMAN ELLIOTT LLP COMPETITION AND FOREIGN INVESTMENT GROUP
C o mp etiti o n a n d F or e ig n In v es t m ent
Group:
RECOGNITION AND ACHIEVEMENTS
"Excellent firm with an excellent grasp on the issues surrounding the competition/antitrust
area. A key player in the market."
Global Competition Review’s GCR 100
• Global Competition Review 100 (2013, 13th edition)
Ranked as an Elite competition practice in Canada and included among the top
leading global competition law practices by the Global Competition Review.
• Chambers Global 2013: The World's Leading Lawyers for Business
Ranked as among the best law firms in competition/antitrust in Canada by
Chambers and Partners. Chambers notes: "There is important bench strength at
Stikeman Elliott: the firm remains a force." "Strong players in competition."
• Global Competition Review: Country Survey: Canada (2013)
ranked as among the most talented and well-regarded in the country.
• Best Lawyers in Canada 2014
Five group members listed in the area of Competition/Antitrust Law.
• Global Competition Review: Top 100 Women in Antitrust 2013
One group member named in the top 100 women in antitrust survey
• 2013 The International Who's Who of Competition Lawyers and Business
Lawyers
Members listed by Law Business Research.
• 2013 Canadian Legal Lexpert Directory
Four group members listed among those recommended in the area of Competition.
• 2012 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada
Two group members listed in the area of Competition.
• 2012 Expert Guide to the World’s Leading Women in Business Law
Two group members listed by Legal Media Group.
• 2012 Expert Guide to the World's Leading Competition and Antitrust Lawyers
Six group members listed in this publication by Legal Media Group.
STIKEMAN ELLIOTT LLP COMPETITION AND FOREIGN INVESTMENT GROUP
Stikeman Elliott’s Competition and Foreign
Investment Group
TORONTO
Tel: (416) 869-5500
Paul Collins
pcollins@stikeman.com
Head of Competition and Foreign Investment Group
Sultana Bennett
sbennett@stikeman.com
D. Jeffrey Brown
jbrown@stikeman.com
Jinky Dominguez, Law Clerk
jdominguez@stikeman.com
Lawson Hunter, Q.C.
lhunter@stikeman.com
Susan M. Hutton
shutton@stikeman.com
Katherine L. Kay
kkay@stikeman.com
Michael Kilby
mkilby@stikeman.com
Eliot N. Kolers
ekolers@stikeman.com
Michael Laskey
mlaskey@stikeman.com
Marisa Muchnik
mmuchnik@stikeman.com
Shawn C.D. Neylan
sneylan@stikeman.com
Ashley M. Piotrowski
apiotrowski@stikeman.com
Jennifer Rad, Law Clerk
jrad@stikeman.com
Danielle K. Royal
droyal@stikeman.com
Mark Walli
mwalli@stikeman.com
OTTAWA
Tel: (613) 234-4555
Paul Beaudry
pbeaudry@stikeman.com
D. Jeffrey Brown
jbrown@stikeman.com
David Elder
delder@stikeman.com
Lawson Hunter, Q.C.
lhunter@stikeman.com
Susan M. Hutton
shutton@stikeman.com
Nicholas McHaffie
nmchaffie@stikeman.com
Megan MacDonald
mmacdonald@stikeman.com
Alexandra Stockwell
astockwell@stikeman.com
MONTREAL
Tel: (514) 397-3000
Louis P. Bélanger
lbelanger@stikeman.com
Michel Décary
mdecary@stikeman.com
Stephen W. Hamilton
shamilton@stikeman.com
CALGARY
Tel: (403) 266-9000
Chris W. Nixon
cnixon@stikeman.com
Brad Grant
Bgrant@stikeman.com
VANCOUVER
Tel: (604) 631-1300
Shawn C.D. Neylan
sneylan@stikeman.com
NEW YORK
Tel: (212) 371-8855
Kenneth Ottenbreit
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