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a special supplement to ACC Docket sponsored by Borden Ladner Gervais LLP

1 Share Safely: How to Avoid Gun-Jumping and Inadvertent Waiver of Privilege When Making a Deal in Canada By Denes Rothschild

6 A lululemon Counsel’s Flexible Work-Life Balance By Karmen Fox

8 See This, Canada By ACC

Share Safely: How to Avoid Gun-
Jumping and Inadvertent Waiver
of Privilege When Making a Deal
in Canada

By Denes Rothschild, partner ( drothschild@blg.com), Borden Ladner Gervais LLP

Are you considering an
acquisition of a Cana-
dian business? Beyond the
standard considerations of
whether you need to seek
merger clearance and/or
foreign investment review,1 you’ll need
to make sure that the pre-closing steps of
all parties involved don’t run afoul of the
conspiracy or merger notification provi-
sions in the Competition Act. In additon,
as in-house counsel, you’ll need to en-
sure that all applicable legal privileges are
maintained over communications related
to the transaction.

“Gun-jumping” in potential violation
of the conspiracy and/or merger
notification provisions of the
Competition Act

Merging parties or those contemplat-
ing a deal are not allowed to “jump the
gun” and act as if they are a single party
before a deal has closed. In transactions
that exceed the threshold and require
notification under the Competition
Act, improper premerger integration
can be perceieved as a violation of the
notification scheme. Further, regardless
of whether a deal requires notification, if
the merging parties are competitors, the
improper pre-closing sharing of informa-
tion can run afoul of the criminal price-
fixing prohibition, exposing the parties
and their employees to fines of CA$25
million and up to 14 years in prison.
These serious concerns mean that
strict limits must be placed on what
confidential information is being shared
between merging parties before closing.
The most sensitive confidential infor-
mation at issue in any case is competi-
tively sensitive information, particularly
forward-looking and related to:
• Pricing;