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