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Factors Discussed by Courts and Tribunals 5. State of Market Before the Merger • Canadian Competition Tribunal: If pre-merger markets are highly uncompetitive, almost any lessening or prevention of competition will be substantial • Airtours: Presumption of competitive pre-merger market put a focus on what the merger would change • Arch Coal: Competitive pre-merger market undermined postmerger co-ordination theory • DFA: Parties' 1992 price fixing pleas did not bar transaction 18
Factors Discussed by Courts and Tribunals • Schneider/Legrand 6. Price Comparisons • Appreciably higher prices in France than in other national markets supported conclusion that merger would strengthen or create a dominant position in France • Staples/Office Depot • Product market defined to be sale of office consumables through office supply superstores in part because Staples' prices were 15% higher where it faced no superstore competitor 19
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 17: Factors Discussed by Courts and Tri
Page 29: John Bodrug jbodrug@dwpv.com 1 Firs

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