YCLI: CLE Session Pre-Merger Notification: Getting It Right

Debbie Salzberger, Stikeman Elliott LLPPatrizia Martino, Competition Bureau

January 23, 2009

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About MNUAbout MNU

• Acknowledge receipt of filing• Review for completeness• Assignment of files• Helpful Documents:

- Fee & Service Standards HandbookOnline: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/01337.html

- Notifiable Transactions and Advance Ruling Certificates under the Competition Act: Procedures Guide Online: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02935.html

- Interpretation GuidelinesOnline: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/01747.html

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Best Best PracticesPractices

• Original affidavit to follow electronic filing

• Two hardcopies of long-form filing should be provided

• Size constraints on electronic filings

• Timing considerations

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Overview of Common Issues with Notification FilingsOverview of Common Issues with Notification Filings

• Notice to foreign authorities

• Financial statements

• Principal categories of products

• Documents required under 4.10 of the long-form filing

• Documents required under 6.2 of the long-form filing

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Key Issues with Notification FilingsKey Issues with Notification Filings

1) Affiliates • Definition in s. 2(2) of the Act:

s. 2(2) Affiliated corporation, partnership or sole proprietorship – For the purposes of this Act,(a) one corporation is affiliated with another corporation if one of them is the subsidiary of the other or

both are subsidiaries of the same corporation or each of them is controlled by the same person; (b) if two corporations are affiliated with the same corporation at the same time, they are deemed to be

affiliated with each other; and(c) a partnership or sole proprietorship is affiliated with another partnership, sole proprietorship or a

company if both are controlled by the same person.

• How do you determine relevant vs. non-relevant affiliates?

• What is the meaning of “significant” assets in Canada or “significant” gross revenues from sales in, from or into Canada?

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Key Issues with Notification FilingsKey Issues with Notification Filings

2) Customer/Supplier Lists• Are you providing current customer/supplier lists

with annual value/volume of sales/purchases?• How do you determine whether or not you can

claim certain customers/suppliers are not relevant?• Can you aggregate the lists?• Are there any vertical issues with the transaction?

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Key Issues with Notification FilingsKey Issues with Notification Filings

3) S. 116 claims• Are you relying on s. 116(1) (i.e., not reasonably

obtainable) or s. 116(2) (i.e., not relevant)?• Have you included a detailed justification for your

claim?• Are the s. 116 claims referred to in the affidavit?• Keep in mind s. 116(3) – Commissioner may

require information be supplied.

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Other Other ConsiderationsConsiderations

• Strategies to consider when preparing a filing (i.e., ARC request vs. short-form filing vs. long-form filing)

• Considerations in bumping from short-form filing to long-form filing

- Who makes this decision?

- Alternatives?

• Market contacts

• Waivers

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Qs & As

Contact Info:

Debbie Salzberger, Stikeman Elliott LLP(416) 869-5667dsalzberger@stikeman.com

Patrizia Martino, Competition Bureau(819) 953-7092patrizia.martino@bc-cb.gc.ca