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Factors Discussed by Courts and Tribunals 12. Commercial Links Between Competitors • United Grain Growers consent order (Canada –2002): Restrictions on information flow from and influence over canola processor subsidiary because it competed with a minority shareholder of acquirer • DFA: 50% non-voting interest and inherent economic incentives insufficient to provide grounds for injunction in light of contractual restraints • Court saw DOJ's case as an "ephemeral theory" • Airtours: Evidence of common institutional investors (30-40% of the shares) among 3 of the 4 major competitors not proof of tendency toward collective dominance absent evidence of shareholder involvement in management 26
Factors Discussed by Courts and Tribunals 13. Significance of "Fixes" by the Parties • Arch Coal: Court took into account agreement by Arch to divest one of two acquired mines to a new competitor • Tetra Laval/Sidel: CFI took Tetra Laval's offered commitments into account • CFI relied on abuse of dominance provisions and existing order against Tetra Laval – i.e., EC needs to show anticompetitive effects through legal leveraging • DFA: Court took into account conversion to non-voting shares and contractual restrictions on information flow put in place after government complaint was filed 27
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 25: Factors Discussed by Courts and Tri
Page 29: John Bodrug jbodrug@dwpv.com 1 Firs

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