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Competition & Foreign Investment Group

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Stikeman Elliott's Competition and Foreign Investment Group is a highly regarded market leader in Canada, consistently recognized nationally and internationally for its in-depth 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 firms frequently seek the Group's counsel on high-profile domestic and international mergers in which coordinated resolution of regulatory issues is critical. When corporations find themselves subject to proceedings under the Competition Act, either before the courts or the Competition Tribunal, we have extensive experience and 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.

  • Chambers and Partners - named Competition Team of the Year at the first annual Chambers Canada Awards. Ranked in Chambers Global and Chambers Canada as a Band 1 firm for Competition/Antitrust law, with sources saying "The quality of their work is at the top of the Bar - it's just impeccable."

  • GCR 100 - ranked as an Elite competition practice in Canada, (that publication's highest recognition) and included among the leading global competition law practices by the Global Competition Review.

  • Best Lawyers in Canada - eight group members listed in the area of Competition/Antitrust law.

  • Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada - three group members listed in the area of Competition Law.

  • Who's Who Legal 100 - five group members listed in the area of Competition Law by Law Business Research.

  • Expert Guide to the World's Leading Competition and Antitrust Lawyers - six group members listed in this publication by Legal Media Group.

  • Expert Guide to the World's Leading Women in Business Law - two group members listed by Legal Media Group.

  • Canadian Legal Lexpert Directory - six group members listed among those recommended in the area of Competition.


An Elite Practice Operating at the Very Highest Level

The outstanding skill and judgment of our team is displayed in both the number and complexity of deals our Group is involved. Our level of expertise is clearly indicated by the key matters we have acted on most recently:

  • Alstom S.A. as Canadian counsel for the board of directors, in its approval of GE's offer to acquire the power and grid businesses of Alstom, for a total consideration of approximately US$17B. In addition, GE agreed to sell its railroad signaling business to Alstom for approximately US$825M, as Alstom focuses on its transport activities.

  • Novartis International AG, as Canadian counsel, in the US$16B acquisition of oncology products from GlaxoSmithKline Plc.

  • Micro Focus International Plc, as Canadian counsel, in its US$2.35B acquisition of U.S.-based business-software provider The Attachmate Group Inc.

  • Allergan Inc., maker of the Botox wrinkle treatment, as Canadian counsel in its US$66B sale to Actavis plc.

  • Kohlberg Kravis Roberts, as Canadian counsel, in its US$1.1B acquisition of Internet Brands from Hellman & Friedman and JMI Equity.

  • Novartis International AG, as Canadian counsel, in the US$7.1B sale of Novartis' vaccines division to GlaxoSmithKline Plc.


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 practising 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 Merger-Related Matters and a number of Interpretation Guidelines. 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 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".

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 NeylanSusan 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 merger and acquisition 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 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.


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 ongoing Competition Act compliance advice to various Fortune 500 companies 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 2009/2010 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 has been ranked as one of the top 100 Women in Antitrust by Global Competition Review (GCR). Chambers Global's The Guide to the World's Leading Lawyers for Business has named her the top female competition litigator 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 well-known 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 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:

  • 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 anti-competitive behaviour in a particular marketplace; and

  • Commencing or defending private actions or applications brought under the Competition Act and under the common law in which anti-competitive conduct is alleged.

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Practices  
Related Practices
Contacts
Key Contacts

Montréal:
Louis P. Bélanger
Jean C. Fontaine

Toronto:
Paul Collins
Katherine L. Kay
Michael Kilby
Shawn C.D. Neylan
Mark Walli

Ottawa:
Jeffrey Brown
Lawson AW Hunter
Susan M. Hutton

Vancouver:
Shawn C.D. Neylan

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