Recent Competition Law Developments in the United States

and Canada

Sandeep Vaheesan

Special Counsel

American Antitrust Institute

November 19, 2013

U.S. Department of Justice Draws a Line in the Sand on Mergers

Anheuser-Busch InBev/Modelo– World’s largest brewer proposed to purchase Mexico’s largest

brewer

American Airlines/US Airways– Merger between two of the five largest airlines in the U.S.

DOJ filed suit to block both deals in industries with high concentration and history of consolidation

Remedies determine ultimate success of merger cases

Federal Trade Commission: Activism and Restraint

FTC v. Actavis– Pay-for-delay pharmaceutical settlement subject to antitrust

scrutiny under rule of reason Presumptively illegal standard rejected

– FTC expected to continue enforcement against these anticompetitive deals

No Action Against Office Depot/OfficeMax– Market for office supplies broadly defined

Amazon and Walmart found to be competitors of office supply superstores

– How to define product markets with rise of internet retailers?

Supreme Court’s War on Private Enforcement Continues

Comcast v. Behrend– Heightened standards for class certification– Plaintiffs will need to introduce more evidence in

early stage of litigation American Express v. Italian Colors

– Individual arbitration clauses in consumer contracts will almost always be enforceable

– Major blow for class actions in general– Congress could, in theory, reverse this ruling

Canadian Competition Law Moves in a Pro-Consumer Direction

Standing for indirect purchasers– Supreme Court of Canada ruled that indirect purchasers have

standing to bring antitrust suits– Decision departs from U.S. federal law under which indirect

purchasers do not have standing (Illinois Brick rule) Tervita/Complete Environmental

– Operator of only hazardous waste landfill in Northeastern British Columbia acquired rival that had obtained permit to open competing landfill

– First challenge under “pure prevention of competition” statutory provision

Analogous to potential competition doctrine in U.S. law