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Factors Discussed by Courts and Tribunals 2. Corporate Documents • Southam: Internal documents and consultant's study commissioned by daily newspaper identified community newspapers as a competitive threat, but Tribunal said they were not in the same market • Supreme Court: "… thinking something is so does not make it so. A company can believe that it is competing with another company without it actually (or legally) being so." • Southam: Internal document discussing risk of community newspaper as "springboard" for entry into daily newspaper market was insufficient on its own to establish substantial prevention of competition • Superior Propane: Tribunal referred to only one internal document to establish likely entry in Atlantic Canada by acquired party 12
Factors Discussed by Courts and Tribunals 2. Corporate Documents • Tetra Laval: Tetra's internal analysis of "opportunity to take a leading position" in aseptic PET filling machines not decisive: • CFI: "the mere fact that Tetra believes it is possible to achieve a leading position in the market … as the preeminent company, does not in itself, in the absence of other evidence to support that analysis, have any probative value" • <strong>Oracle</strong>: Evidence of Microsoft representative downplaying functionality and competitiveness of its products was "wholly discounted" because of partner's contradictory promotional material 13
Page 1 and 2: STANDARD OF PROOF IN MERGER CASES K
Page 3 and 4: Persuading the Regulator • Merger
Page 5 and 6: Persuading the Regulator • Custom
Page 7 and 8: Factors Discussed by Courts and Tri
Page 11: Factors Discussed by Courts and Tri
Page 29: John Bodrug jbodrug@dwpv.com 1 Firs

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