It´s Not Over Until It´s Over: When Is the Deal Really Done?

By Dany H. Assaf, Bennett Jones and Sarah McLean, Ogilvy Renault

NOT SO LONG AGO, IT SEEMED THAT if you could successfully defend a preliminary injunction hearing (and, if necessary, a motion for an injunction pending appeal) and merge, there appeared to be a judicial tendency, and perhaps even a willingness by enforcers, to end the battle and not seek to "unscramble" your merger. However, in light of the D.C. Circuit Court of Appeals' most recent decision in Whole Foods, and such cases as Sony/BMG in the European Union and Labatt in Canada, you should not count your chickens too soon or even assume they will be allowed to hatch when the deal is closed.

Among other things, these cases have the potential to recalibrate some of the assumptions that have developed in recent times—that deals which survive initial court¹ challenges and are consummated are often safe in practical terms. In fact, the majority opinion in Whole Foods runs right over any remaining taboo against unscrambling a merger by curtly pointing out that "[o]nly in a rare case would we agree a transaction is truly irreversible."² In fact, the opinion goes even further: "The fact that Whole Foods has sold some of the Wild Oats' assets does not change our conclusion."³ In Labatt, although the merging parties similarly defended a preliminary injunction application and completed their transaction, Canada's Commissioner of Competition continues to challenge their deal. In addition, despite denying the Commissioner's motion for an injunction and permitting the merger, Canada's Competition Tribunal stated it would impose a remedy down the line if one is warranted. The issue, it noted, is "whether the remedy is impaired, rather than considering strictly the reversibility of the action."⁴

Although a trend towards very considered (and reconsidered) merger decisions may promote more tested (and possibly more accurate) merger analysis and a healthy counterbalance between the powers of enforcement agencies and courts, any such trend also has its risks, not only to the merging parties but also to the markets and public more broadly. For example, in the Sony/BMG case,Advocate General Kokott stressed that only with a timely and definitive decision "will the participating undertakings, and indeed the market generally, have legal certainty as to whether the concentration was lawfully effected."⁵ Echoing Judge Kavanaugh's sentiment in his quotation above from Whole Foods, Attorney General Kokott perceived that with further judicial reversals in Sony/BMG, "a state of uncertainty would again arise. . . Such a situation of uncertainty lasting a number of months or even years could have negative effects on the participating undertakings and on the markets generally." ⁶

With such examples of the courts' increasing willingness not to shy away from an opportunity to intervene when cases are brought before them and consider remedies even for closed deals, key questions are raised for future merger reviews. In the following sections, we consider some of the reasons why this type of post-closing litigation is occurring, the considerable uncertainty it creates, and some of the lessons merging parties and the markets may take from these developments.

Why Legal Clearance and Closing Doesn't Necessarily Mean It's Over

It is important to keep in mind that courts have always been key players in merger review in the United States, Canada, and the European Union. In fact, in both the United States and Canada, merging parties do not need a formal approval from the relevant enforcement authority to close their deal, and the agencies can only block a transaction by bringing court proceedings and obtaining a favorable opinion. As a result, the courts may make the initial formal and binding enforcement call. More specifically, in the United States and Canada, courts are typically first called upon to make a preliminary decision on whether or not to block a transaction, and depending on the result of this preliminary decision, may never be asked to make a final ruling on whether a transaction is anticompetitive. Since in many cases, such as, for example, Arch Coal,⁷ preliminary decisions were influential on, if not dispositive of, a merger's fate, it is worth considering how the ongoing challenges in Whole Foods, Sony/BMG, and Labatt could alter the dynamic between preliminary court findings and the ultimate outcome of a merger review.

There are a variety of reasons why certain merger reviews are being contested longer and prolonged well beyond clos-ing. These factors, although they apply in differing proportions in different jurisdictions, may be grouped into a few general categories: (1) courts' willingness to find anticompetitive harm and impose remedies for transactions that have been consummated; (2) agencies' reaffirmed focus on getting the "right" answer to a merger assessment, regardless of when or how long it takes, as evidenced by the number of postmerger studies being conducted in key jurisdictions; and (3) private parties and agencies challenging informal practices that have evolved around merger review processes.

Courts' Increasing Willingness to Intervene When "Asked." As mentioned above, Sony/BMG, Labatt, and Whole Foods are all recent high-profile examples in the United States, Canada, and the European Union of courts showing an increasing willingness to overrule, even if on a preliminary basis, enforcement agencies' initial decisions or deny granting enforcers additional time to review the merger.

In the European Union, the Commission's initial decision to permit the transaction in Sony/BMG was overturned by the Court of First Instance's later findings in Impala,8 before the Court of First Instance's Sony/BMG decision was itself set aside by the Court of Justice and the matter sent back to the Court of First Instance.⁹ The European courts had also previously, and notably, overturned the Commission's prohibition decisions in Airtours,¹⁰ Schneider,¹¹ and Tetra Laval.¹²

In March 2007, Canada's Competition Commissioner sought an interim order to prevent Labatt Brewing Company Limited from acquiring Lakeport Brewing Income Fund for an additional thirty days because the Commissioner believed she needed more time to conduct her investigation.¹³ The Tribunal did not agree with the Commissioner and denied her motion for additional review time.With the lapse of the required waiting period, and no injunction in place to prevent the merger, the parties closed their transaction.¹⁴ The Competition Bureau nevertheless continues its investigation into the merger.¹⁵

In August 2007, the FederalTrade Commission was denied a preliminary injunction to enjoin Whole Foods Market, Inc. from acquiring Wild Oats Markets, Inc. until the FTC could conduct an administrative proceeding.16 The court of appeals also denied the FTC's motion for an injunction pending the appeal of the district court's order.¹⁷ Days later,Whole Foods completed its acquisition of Wild Oats.¹⁸ The FTC appealed the district court's order and was successful. The court of appeals remanded the case to the district court for reconsideration and raised the possibility that post-closing remedies may ultimately be imposed.¹⁹ The litigation between the parties continues both in the courts and before the FTC.²⁰

The question going forward is whether these cases are a sign of things to come in future merger reviews where stakeholders, whether they are antitrust authorities or potentially third parties, increasing rely on courts and courts are more than happy to intervene even if it means overturning the status quo or disagreeing with the specialized antitrust enforcer. If so, this could result in additional uncertainty in merger review practice because of factors related to courts and their processes such as: (i) differences between the legal standard that applies to temporarily enjoin a merger rather to block it permanently; (ii) the evidence that is reasonably available to the court in an interlocutory rather than a final proceeding; (iii) when and how third parties are involved in merger proceedings; and (iv) the potential breadth of merger remedies that a court could impose.

A PRELIMINARY INJUNCTION IS NOT A FINAL INJUNCTION. For understandable business reasons, in many past cases, private parties felt comfortable closing a transaction when they won a preliminary challenge to the deal and were willing to carry the residual antitrust risk that the deal could be unscrambled if the agency decided to continue a substantive challenge. However, if agencies increasingly persist in their challenges and if courts, such as those in Whole Foods, are more comfortable "unringing" the bell, parties must be aware that courts may ultimately arrive at final decisions that significantly vary from their preliminary decisions (or an agency's earlier decisions).This result is possible, even though the substantive facts related to the merger may not have materially changed between challenges, partly because of differences in their processes. For one thing, the differences in the legal tests that apply to preliminary injunctions and challenges to permanently block a merger may lead to different results. For instance, if the FTC brings a preliminary injunction motion under section 13(b) of the FTC Act, it must effectively meet a public interest test. But if it wants to permanently block a merger, it must prove the substantive elements of section 7 of the Clayton Act, which it seeks to do in an administrative hearing before the agency.²¹ (In contrast, the Department of Justice typically combines the preliminary and permanent injunction hearing in one proceeding in federal court because it does not have administrative authority.)

Similarly, in Canada, the Commissioner may move for a temporary motion to stall a merger on the basis of a test that has little to do with the standard to permanently block a merger.²² Courts may be required to decide preliminary injunction matters on the basis of tests that dramatically differ from the tests they would ultimately use to block a merger, and understandably, their findings may vary as a result.

MORE EVIDENCE AVAILABLE IN FINAL PROCEEDINGS.
In addition, different results may arise because the evidence that will be available in a final proceeding will likely be more extensive than the evidence that could be available in a preliminary injunction proceeding. The rushed and abbreviated nature of a preliminary injunction hearing necessarily limit both the amount and the quality of evidence that can be marshalled to either side's case. InWhole Foods, the district court heard the FTC's request for a temporary restraining order and preliminary injunction less than two months after the FTC's application.²³ (It did, however, follow a several months' long second request investigation.) In this regard, the court of appeals' references to the FTC's "poorly explained evidence"²⁴ and "these cogent criticisms—which neither Whole Food's expert nor the district court ever addressed"²⁵ might not have occurred had there been more time for the FTC to prepare its case.

In Labatt, the Commissioner filed an application for an interim order exactly six days before the Tribunal made its decision.²⁶ However, the Tribunal wrote:

Again, with more time for the litigants (in these cases, the agencies) to prepare, perhaps the outcomes of these hearings would have been different.

Parties presenting their case at a hearing to unwind a completed merger could also present evidence of the merger's actual effects on a market and courts would have to consider the post-merger facts on the ground. In particular, the courts would be able to scrutinize the merged entity's behavior for any anticompetitive signs in a post-merger environment, where there are almost always market disruptions for competitors. The agencies would also have more opportunity to conduct probative economic studies and seek evidence from affected customers, suppliers, and competitors. On the other hand, the fact that the merger has already taken place may aid the private parties' case in some instances. Interestingly, in Whole Foods, the court of appeals' concurring opinion noted that "the companies have already merged, and although this doesn't moot the case, it may well affect the balance of the equities, likely requiring the district court to take additional evidence."²⁸However, the court did confirm that private benefit alone would never be enough to carry the day.²⁹

THIRD PARTIES MAY ONLY BE INVOLVED LATER IN THE PROCESS. The role of third parties, and the uncertainty this adds to the process, is another unknown that arises in judicial review of mergers. The application by Impala to review the Sony/BMG merger is perhaps the most prominent recent example of a third-party intervention in the merger review process in which a court took the opportunity to overturn an agency's decision to approve a deal. Third parties may also seek to prevent mergers on antitrust grounds in the United States, as recent litigation brought by private plaintiffs in the high-profile InBev/Anheuser-Busch transaction has shown.³⁰TheTunney Act,³¹ which applies to consent decrees entered into by the Department of Justice, allows interested parties to file comments before the approval of a consent decree. In contrast, in Canada, third-party challenges to registered consent decrees are permitted only after the fact.Third parties seem to have limited scope to challenge a merger, or in particular, any consent agreement the Commissioner enters into with the merging parties.³² However, with regard to the Tribunal process, the fact that third parties can come out of the woodwork and challenge such a consent agreement only after the fact is a source of potential uncertainty in and of itself relative to the Tunney Act process.

THERE ARE BROAD REMEDIES AVAILABLE—ANYTHING IS ON THE TABLE. There is also uncertainty in predicting any remedial outcome of a merger review by the courts because of the latitude that courts have to remedy merger abuses, whether they occur prior or post-closing. As the Canadian Competition Tribunal wrote in Labatt, "A merger can be broken up, competition can be restored, though it may be difficult to do and inconvenient."³³ Under the Canadian Competition Act, rescission is also an available remedy if necessary.³⁴ Similarly, the majority opinion of the court of appeals in Whole Foods stressed that the courts are "clothed with large discretion" to create remedies to unlawful mergers which may include divestiture but may also require that an antitrust violator "do more to than return the market to the status quo ante"³⁵ and the concurring opinion elaborated on the court's other options which range from "issuing a hold separate order . . . to ordering the transaction partially or entirely rescinded."³⁶

GettingMerger Review "Right" in the Public Eye. Competition agencies are accustomed to having their decisions subject to public criticism and judicial review. Recently, however, there appears to be a renewed cautiousness by several agencies toward merger review (even if it takes additional time). Consistent with this sentiment, many are engaging in retrospective studies of their past merger decisions to evaluate the impact of their decisions. Agencies may be inclined to continue to pursue post-closing review for mergers they believe may be anticompetitive. This occurs because of an increasingly broad perspective of the public interest, which includes the need to establish precedents and perhaps even have courts rule on controversial cases to increase the transparency of merger review results. Also, from an enforcement perspective, one vigorously prosecuted merger could have a ripple effect on future transactions and the public's perception of antitrust enforcement.

As reflected in the prevalence of post-merger studies undertaken by various key agencies,³⁷ there seems to be an enhanced interest in understanding the impact of merger review on the affected stakeholders and for agencies to obtain and study additional information on what the "right" answers in merger review should be. In some ways, this renewed focus also signals additional cautiousness on the part of agencies, which may translate into longer and more "bullet proof" reviews that are more likely to withstand challenges in courts as well as in the public domain. If courts continue to be more interventionist in merger reviews, they will only reinforce this additional cautiousness.

Private Parties and Agencies Challenging Informal Practices. Such cases as Labatt and Whole Foods are notable because they force courts to determine issues that have often been addressed informally by the parties and agencies, such as merger review timelines and issues of merger closing and business integration. As previously mentioned, the Whole Foods case strongly reaffirms that agencies and courts will not necessarily exempt from break-up a closed merger that has survived initial court challenges. In the past, often a court's preliminary injunction decision was determinative of whether a merger was challenged further or whether the parties proceeded with the deal. In Canada, Labatt highlighted the difference between the formal merger waiting periods regarding closing under the Competition Act and the practice of delaying closing until the Competition Bureau's review was complete. ³⁸ Private parties have also motivated courts and agencies to speed up their decision timelines, and courts are now required to consider questions such as how "merged" a merger really is. Both factors have consequences on a merger's substantive analysis.

TENSION BETWEEN TIMELINES. There can be notable differences between mandated waiting periods and business timelines; agency review timelines and business timelines; and court timelines and business timelines.When the tension between these timetables becomes unsustainable, post-closing review becomes more likely because the transaction is more likely to have closed or was required to close because of overriding business or enforcement pressures.

During the review process, when an agency feels like it is being forced to make a premature decision, it will often divert its attention and resources to launch a court challenge, which then allocates resources away from its substantive merger review. This, in turn, may lead to a more rushed analysis that can be more easily challenged.

Business timelines can also conflict with court practice. As the court of appeals in Whole Foods remarked: "We appreciate that the district court expedited the proceeding as a courtesy to the defendants, who wanted to consummate their merger just thirty days after the hearing . . . but the court should have taken whatever time it needed to consider the FTC's evidence fully."³⁹ Whether this was a factor for the court of appeals in overruling the district court is not certain. What is clear is that the court of appeals decision resulted in uncertainty for the transaction which was cleared by the lower court and had closed.

FACTS ON THE GOUND: HOW "MERGED" IS THE MERGER? Courts will also need to contemplate the degree to which the financial and legal closing of a merger equates to the merger's operational closing and business integration. As this line is more closely considered, the line between pre- and post-closing remedies is becoming somewhat blurred. As the court of appeals in Whole Foods wrote:

As noted above, the facts on the ground may have an impact on the balance of equities tests courts typically apply to injunctive remedies. They may also influence both the remedies implemented and the probability that they will be imposed.

How to Respond

In this environment of additional uncertainty, where courts seem to possess a greater willingness to unring the bell, and deal timelines are becoming more compressed, there is a need for counsel to revisit their approaches to the key deal issues below and consider:

The Value of Obtaining Comfort from the Agencies. Although there will always be cases where the parties or the agency insist that the courts must settle matters, it is still generally accepted that no one prefers litigation and the cost and uncertainty it entails. If courts really are signaling a greater appetite to intervene, and with decisions going in different directions, is it better for all concerned to work even harder to find a resolution among the parties and avoid the courts? Although agency "sign off " on a transaction does not necessarily prevent challenges by third parties in some jurisdictions, it is, by itself, still the most effective way to mitigate antitrust risk for the parties. Does the value of comfort from the agencies increase with multi-jurisdictional deals where parties want to reduce the risk of multiple court challenges across jurisdictions?

Third Party Concerns. As the Sony/BMG case shows, third parties in some jurisdictions can challenge the merger review process and potentially disrupt the deal post-closing. As a result, to the extent that parties to a merger can anticipate, identify, and address third-party concerns, is there a greater need today to deal with third parties up-front, to the extent that this is appropriate?

Focus on Deal Risk Allocation. Deal risk traditionally focused on getting to closing, but how do we view it now in light of these cases? In the event that a merger is now more likely to be subject to extensive challenge post-closing and potentially be broken up after the deal is done, are there new risks, how significant are these risks, and who should bear these risks? Is it now prudent to consider more regularly any post-closing adjustments to price, the nature of post-closing litigation support, or other matters if the parties can legally close, but are subject to an extensive post-closing merger review and remedies?

Deal Timelines. While antitrust issues are often only one of many considerations in deal timing, as Whole Foods most dramatically shows, an aggressive timeline may push agencies and courts into making decisions that are later vulnerable to challenge and require defending. There are clear short term gains in closing as quickly as possible, but they may sow the seeds of longer-term pain and uncertainty.With closing now not necessarily being as clear a finish line when it comes to antitrust risk, how much time one gives the agency becomes a more difficult question.

Hold Separate Agreements. If courts are more willing to "unring the bell," are there cases where it would make sense for parties to close their deal while voluntarily holding the businesses separate until it is quite certain that the antitrust challenges are over? From a business perspective, it may be far worse to tear a company apart rather than just wait until the antitrust outcome is final.

Integration Strategies. The opposite strategy to that of negotiating voluntary hold separate agreements is an accelerated integration of operations to "scramble the eggs" thoroughly and assert a merger's facts on the ground as soon as possible. While this clearly carries some risks, in certain circumstances it may still be appropriate in law and the best strategy to assert the reality of a merger and deter parties and courts from unwinding it.

As in every antitrust case, the facts, the parties' tolerance for risk, and agency response will be significant determinants of which, if any, of these approaches are best suited to pursuing the parties' objectives in this new climate.

Conclusion

Every once in a while there are cases that have the potential to shake things up and force us to re-examine the way we practice. It is not every day we see a decision like Whole Foods from an appeals court or a merger story play out like that in Sony/BMG or Labatt. If these cases represent a new age of increased judicial intervention in merger cases, in particular where the deals have closed and the assets have been scrambled post agency or court approval, then merger review practice will also have to adapt to manage these new uncertainties. Although there will always be conflicting interests, this will require agencies, parties, and markets alike to adjust and consider whether the risk of unknown judicial intervention actually provides a greater incentive to all concerned to work things out and avoid the courts. Alternatively, it may simply encourage either side to always appeal to judicial authorities because, after all, it appears almost any bell can now be unrung._

Footnotes

^{1 For convenience, we include Canada's Competition Tribunal, a quasi-judicial administrative tribunal, in our definition of "court" throughout.}

^{2 FTC v. Whole Foods Market, Inc., 533 F.3d 869, 874 (D.C. Cir. 2008).}

^{3 Id.}

^{4 Canada (Comm'r of Competition) v. Labatt Brewing Co., [2007] C.C.T.D. No. 5 (Comp. Trib.) at ¶ 61, available at http://www.ct-tc.gc.ca/english/ CaseDetails.asp?x=67&CaseID=282#387. The Competition Tribunal's decision was affirmed earlier this year by the Federal Court of Appeal in Canada (Commissioner of Competition) v. Labatt Brewing Co., [2008] F.C.J. No. 79. Subsequent to the Competition Tribunal's decision, Bennett Jones LLP was retained as counsel to the Commissioner.}

^{5 Case C-413/06 P, Bertelsmann AG v. Sony BMG Music Entm't, 2007 WL 4334882, at ¶ 81 (E.C.R. Dec. 13, 2007).}

^{6 Id. ¶ 83.}

^{7 See, e.g., FTC v. Arch Coal, Inc., 329 F. Supp. 2d 109 (D.C. Cir. 2004) (FTC withdrew its complaint after losing a preliminary injunction and an injunction pending appeal); FTC v. Libbey, Inc., 211 F. Supp. 2d 34 (D.C. Cir. 2002) (merger foundered after the FTC won a preliminary injunction); see also United States v. Oracle Corp., 331 F. Supp. 2d 1098 (N.D. Cal. 2004) (merger closed on January 7, 2005, after the U.S. Department of Justice failed to obtain an order enjoining the merger of Oracle with PeopleSoft).}

^{8 Case T-464/04, Independent Music and Labels Ass'n (Impala) v. Comm'n, 2006 E.C.R. II-2289.}

^{9 Sony/BMG, supra note 4. See also Rachel Brandenberger et al., Bertelsmann and Sony Judgment: Implications for the Law and Practice of EC Merger Control, ANTITRUST, Fall 2008, at 87.}

^{10 Case T-342/99, Airtours plc v. Comm'n, 2002 E.C.R. II-2585.}

^{11 Case T-77/02, Schneider Elec. SA v. Comm'n, 2002 E.C.R. II-4201.}

^{12 Case C-13/03, Comm'n v. Tetra Laval BV, 2005 E.C.R. I-1113.}

^{13 See Labatt Brewing Co. [2007], supra note 4.}

^{14 CNW Group, Labatt Offer for Lakeport Brewing Income Fund Successful— Labatt Acquires All 0f the Trust Units of Lakeport, http://www.newswire.ca/ en/releases/archive/March2007/29/c8458.html.}

^{15 Competition Bureau of Canada, Speaking Notes for Sheridan Scott, Commissioner of Competition: The Canadian Competition Bureau's Approach to Merger Remedies, Trade Practices Workshop (Aug. 10–12, 2007, available at http://www.competitionbureau.gc.ca/epic/site/cbbc.nsf/en/02393e. html. In the context of its investigation, the Competition Bureau sought document production orders from several private parties in February and in November 2007, some of which were set aside by the Federal Court of Canada in Canada (Comm'r of Competition) v. Labatt Brewing Co. [2008], F.C.J. No. 127.}

^{16 FTC v. Whole Foods Market, Inc., No. 07-1021, 2007 WL 2377000, at *49 (D.D.C. Aug. 16, 2007).}

^{17 FTC v. Whole Foods Market, Inc., 533 F.3d 869, 872 (D.C. Cir. 2008).}

^{18Whole Foods Market Closes Acquisition of Wild Oats Markets, Secures $700 Million Senior Term Loan to Fund Merger and Signs New Five-Year $250 Million Revolver, WHOLEFOODSMARKET.COM, Aug. 28, 2007, http://www. wholefoodsmarket.com/company/press-releases.php#self.}

^{19Whole Foods, 533 F.3d at 881–82. On November 21, 2008, the D.C. Circuit Court of Appeals denied Whole Foods' petition for a rehearing en banc.}

^{20 See, e.g., Respondent's Motion to Disqualify the Commission as Administrative Law Judge and to Appoint a Presiding Official Other than a Commissioner, Whole Foods Market, Inc., FTC Docket No. 9324, 2008 WL 3524664 (Aug. 8, 2008)). Interestingly, subsequent to to the D.C. Circuit's decision, in its petition for rehearing en banc, Whole Foods argued that "[t]he panel decision, if allowed to stand, would enable the Federal Trade Commission to obtain preliminary relief upon any showing above certain defeat. As Judge Kavanaugh warned in his dissent, this 'allows the FTC to just snap its fingers and block a merger.'" Petition for Rehearing En Banc at 2, Federal Trade Commission v. Whole Foods Market, Inc., No. 07-5376 (D.C. Cir. Aug. 26, 2008).}

^{21 For example, the district court in Whole Foods was to decide under section 13(b) of the FTC Act whether a preliminary injunction should be granted if "weighing the equities and considering the Commission's likelihood of ultimate success, such action would be in the public interest." 15 U.S.C. § 53(b). In contrast, the test for ultimate success in a motion to prevent a merger is set out in section 7 of the Clayton Act, where mergers are prohibited "where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition . . . may be substantially to lessen competition, or to tend to create a monopoly." 15 U.S.C. § 18. It is worth noting that the U.S. Department of Justice cannot resort to section 13 of the FTC Act and therefore faces a higher legal burden than the FTC in obtaining a preliminary injunction post Whole Foods.}

^{22 In Canada, section 100 of the Competition Act, R.S.C. 1985, c. C-34 as amended, permits the Commissioner of Competition (the head of the Competition Bureau) to make an application to the Competition Tribunal for an order prohibiting any act directed at completing a merger for thirty days if, among other requirements: (1) the Commissioner certifies that an inquiry is being made under the formal inquiry provisions of the Competition Act; (2) in the Commissioner's opinion, more time is necessary to complete the inquiry; and (3) "the Tribunal finds that in the absence of an interim order a party to the proposed merger or any other person is likely to take an action that would substantially impair the ability of the Tribunal to remedy the effect of the proposed merger on competition under that section because that action would be difficult to reverse." In order to permanently block a merger under section 92, the Commissioner would have to convince the Tribunal that "a merger or proposed merger prevents or lessens, or is likely to prevent or lessen, competition substantially . . ." and that the efficiency defense in section 96 would not save it. Id.}

^{23 FTC v. Whole Foods Market, Inc., 533 F.3d 869, 873 (D.C. Cir. 2008).}

^{24 Id. at 872–73.}

^{25 Id. at 888.}

^{26 Labatt Brewing Co. [2007], supra note 4, ¶ 2.}

^{27 Id. ¶ 52 (emphasis added).}

^{28Whole Foods, 533 F.3d at 890 (Tatel, J., concurring).}

^{29 Id. at 875.}

^{30 Associated Press, Beer Drinkers Challenge InBev-Anheuser-Busch Deal, INT'L HERALD TRIB., Sept. 10, 2008, available at http://www.iht.com/articles/ ap/2008/09/10/business/NA-US-InBev-Anheuser-Busch.php. See also Press Release, Dep't of Justice, Justice Department Requires Divestiture in InBev's Acquisition of Anheuser-Busch (Nov. 14, 2008), available at http://www.usdoj.gov/atr/public/press_releases/2008/239430.htm.}

^{31 15 U.S.C. §§ 16(b)-(h).}

^{32 Burns Lake Native Dev. Corp. v. Canada (Comm'r of Competition), [2006] C.C.T.D. No. 16 (Comp. Trib.).}

^{33 Labatt Brewing Co. [2007], supra note 4, ¶ 42. For a description of Canadian merger remedies practices, see Dany H. Assaf & Sarah K. McLean, Recent Developments in Canadian Merger Remedies: Expediency, Means, and Ends, ANTITRUST, Spring 2007, at 86 (2007).}

^{34 Competition Act, supra note 22, § 92.}

^{35Whole Foods, 533 F.3d at 874.}

^{36 Id. at 890 (Tatel, J., concurring) (internal citations omitted).}

^{37 See, e.g., Mark Neumann & Margaret Sanderson, Ex Post Merger Review: An Evaluation of Three Competition Bureau Merger Assessments (Aug. 1 2007), available athttp://www.competitionbureau.gc.ca/epic/site/cbbc. nsf/en/02447e.html; Paolo Buccirossi et. al., Ex-Post Review of Merger Control Decisions (Dec. 2006, available at http://ec.europa.eu/comm/competition/ mergers/studies_reports/lear.pdf; PricewaterhouseCoopers, Ex Post Evaluation of Mergers (Mar. 2005), available at http://www. competitioncommission.org.uk/our_role/evaluation/ex_post_evaluation_of_ mergers.pdf; Fed. Trade Comm'n & U.S. Dep't of Justice,Merger Challenges Data, Fiscal Years 1999–2003 (Dec. 18, 2003), available at http:// www.usdoj.gov/atr/public/201898.htm.}

^{38 Section 123 of the Competition Act, supra note 22, prescribes mandatory waiting periods before closing following the Commissioner's receipt of information required to be provided for transactions that meet the thresholds in Part IX of the Competition Act for notification. Depending on the form of notification filed, these waiting periods are either 14 or 42 days. The Competition Bureau has also published a Fee and Service Standards Handbook that establishes and sets out its own administrative review timelines for mergers. Depending on whether the Competition Bureau classifies a merger as "non-complex," "complex," or "very complex," the review timeline ranges from 2 weeks, to 10 weeks, to 5 months, respectively, from the date a complete filing was made. In complex and very complex cases there is often a large discrepency in timing between when a notifiable merger is legally permitted to close and when the Competition Bureau may provide comfort that a merger will not be challenged.}

^{39Whole Foods, 533 F.3d at 882.}

^{40 Id. at 891 (Tatel, J., concurring).}

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.