Competition/Antitrust & Foreign Investment

Clients trust McCarthy Tétrault’s Competition/Antitrust & Foreign Investment Group with their most strategic and critical competition, foreign investment and national security matters and foreign law firms trust us with their valued clients.  Whether as advisors or as litigators, our team has earned a stellar reputation both nationally and internationally, and works hard to maintain that reputation with every mandate.  We pride ourselves on being practical, business friendly and responsive to clients’ timing and commercial requirements.

We help grow and defend your business

We represent clients on the full range of competition and foreign investment issues, including:

See some of our most significant mandates below.

Clients frequently identify competition and foreign investment as areas of law where they continue to turn to external counsel for help.  Our strength lies in our ability to help clients understand Canada’s complex constellation of competition, foreign investment and national security laws and help them to comply with those laws or address competition concerns in Canada. 

With the Competition Bureau increasingly using its investigative powers to scrutinize mergers and inquire into business practices, clients turn to us as trusted expert advisors.  We provide the full spectrum of competition law services --  from our expertise in transactional matters and investigations, to litigating high-stakes competition matters.  Drawing from this considerable experience, we provide our clients with a deep understanding of how the Competition Bureau operates.  We help clients in every sector cut through the complexities of the law, whether that involves mergers, joint ventures and strategic alliances, monopolistic practices, distribution and other vertical agreements, misleading advertising, cartels, or competition law class actions.  

We also have one of the most experienced foreign investment review and national security practices in Canada, routinely assisting both foreign investors acquiring Canadian businesses and Canadian businesses that are being acquired by foreign investors. 

Canada’s Leading Lawyers

Our lawyers are leaders of Canada’s Competition and Foreign Investment Bar. Our group and our lawyers consistently rank highly in Canadian and international directories like Chambers, Who’s Who Legal, Global Competition Review and Lexpert.  We hold leadership positions within the relevant Sections and Committees of the American Bar Association and Canadian Bar Association, including the 2018-2019 Chair of the CBA’s National Competition Section, Chair of Canada’s annual Forum on Competition Law,  as well as co-chairing the GCR’s Annual Antitrust Law Leaders Forum.   Our lawyers have been ranked as among only a very few number of “Thought Leaders” in Canada by Who’s Who Legal. We also publish widely, both online and in print, including contributing to and being the general editor of Canada’s first-ever textbook on competition litigation, Litigating Competition Law in Canada (LexisNexis 2018).  Finally, we have multiple lawyers in our group who have spent considerable periods of time working internationally in our UK office and in the EU, UK and US at international law firms, giving us a global perspective that is unique as compared to other Canadian competition law practices, and lawyers who have held important positions at the Competition Bureau or otherwise have been retained as a trusted advisor to the Competition Bureau.

With our ability to integrate expertise in both of Canada’s legal systems (civil and common law) and both of Canada’s official languages (English and French,) our group is also truly national in scope.  We help clients address any competition or foreign investment issue, regardless of where in Canada it arises and regardless of which Canadian official language our client would like to communicate in. As a result, our group is entrusted to advise on many of Canada’s most significant and industry-changing competition and foreign investment matters.  

We understand the global nature of business.  Competition and antitrust authorities around the world, including Canada’s Competition Bureau, are increasingly coordinating their enforcement activities (and the same is expected to increase in frequency in the area of national security reviews).  In tandem, clients and counsel throughout the world, including the United States, Europe and Asia, need Canadian lawyers who can handle their international transactions, investigations, litigation and compliance counselling.  We are adept at working with international firms to ensure clients receive competition and foreign investment advice that aligns with their global strategies.

Global Coordination

We understand the global nature of business.  Competition and antitrust authorities around the world, including Canada’s Competition Bureau, are increasingly coordinating their enforcement activities (and the same is expected to increase in frequency in the area of national security reviews).  In tandem, clients and counsel throughout the world, including the United States, Europe and Asia, need Canadian lawyers who can handle their international transactions, investigations, litigation and compliance counselling.  We are adept at working with international firms to ensure clients receive competition and foreign investment advice that aligns with their global strategies.

Merger Review

Clients turn to us to for our extensive experience in clearing complex mergers and, when necessary, our ability to litigate to get their deals through the Competition Tribunal.  We guide clients through all aspects of the merger review process from identifying and mitigating potential competition issues at the earliest stages of a deal to successfully navigating clients through merger notifications, onerous production requests (including supplementary information requests), and consent agreement negotiations with the Competition Bureau.  Our team has acted on many of Canada’s most significant domestic and international transactions.  Clients and counsel in the United States, Europe, Asia and elsewhere trust us to handle their international transactions that raise competition issues in multiple jurisdictions. 

See some of our most significant mandates below.

Clients no longer need to hire third party service providers to deal with document collection, review and production.  With our robust in-house e-discovery services (MT3), responses to Competition Bureau information requests (including supplementary information requests) are managed in a highly efficient and cost-effective manner. 

Competition Litigation

No firm in Canada has more Chambers-ranked competition litigators than McCarthy Tétrault. Whether for defending criminal prosecutions and investigations, litigated enforcement proceedings, private Competition Tribunal applications, or complex competition class actions, our team has the depth and experience that clients expect. Our team also edits and has contributed chapters to Canada’s first book on this topic: Litigating Competition Law in Canada (LexisNexis: 2018).

Our competition litigation team includes partners who have worked at and for the Competition Bureau, litigating some of its most important cases. Our in-depth understanding of the Competition Bureau’s enforcement approach, coupled with our experience before the Competition Tribunal, places us in a unique position when it comes to advising clients on contentious competition matters.  Our litigation experience spans the complete spectrum of competition matters, including defending criminal prosecutions, responding to criminal and civil investigations, defending Tribunal proceedings and defending class actions before the courts.  We have acted on many landmark competition cases, which is why we are sought after whenever the prospect of a litigated competition case arises.  Our competition litigation practice is part of the rich history of litigation expertise at McCarthy Tétrault.

We are uniquely placed in Canada when it comes to litigating competition class actions because of our ability to litigate in all provinces, including in French in Quebec.  With litigators who are recognized as leaders nationally by industry publications like Chambers, Who’s Who Legal, Benchmark, Best Lawyers and Lexpert, clients know that their matter is in good hands. Our strong track record of successfully defending and defeating high profile antitrust class actions is also one reason that foreign lawyers frequently trust us with their most significant clients, when those clients are named in Canadian lawsuits. 

See some of our significant mandates below.

Clients no longer need to hire third party service providers to deal with document collection, review and production.  With our robust in-house e-discovery services (MT3), document productions are managed in a highly efficient and cost-effective manner. 

Cartels and Criminal Investigations

Our litigation practice includes defending and protecting our clients’ interests in criminal investigations and proceedings across a wide range of industries.  In addition to defending prosecutions and responding to criminal investigations, we represent clients in immunity and leniency applications in international and domestic cartels.  Canada’s immunity and leniency program has unique features that require expert assistance.  Our team has unparalleled experience with cartel matters having advised on almost all of the national and international cartel cases in Canada over the past 20 years.  We routinely coordinate strategies with clients and counsel in the United States, Europe and other jurisdictions on cartel investigations and related immunity and leniency applications. 

See some of our significant mandates below.

Advertising and Marketing

Mobile and online advertising is ubiquitous and growing.  The Competition Bureau’s enforcement in this area is likewise intensifying, and our team includes a former Assistant Deputy Commissioner with the Bureau who oversaw advertising and marketing practices investigations.  With the Competition Act’s dual track regimes to address deceptive marketing practices – a civil and a criminal regime – the potential penalties are significant.  We have the expertise and insight into the Bureau’s advertising enforcement approach to help our clients navigate these competition law risks.  We regularly advise clients in all of their advertising and marketing needs, from risk mitigation to high stakes litigation.

Compliance and Counselling

The Competition Bureau has recently highlighted the need for companies and firms to maintain a credible and effective competition compliance program, including the possibility for a fine discount in the event that a party is found to have engaged in a criminal cartel.  Clients call on us to work with them to solve and manage their critical competition compliance challenges.  With our in-depth understanding of the complexities that can arise from supplier, customer and competitor relationships, we specialize in helping our clients develop and maintain robust competition compliance policies and programs and regularly offer training for our clients’ employees and managers.  See 5 Things All Companies Need to Know About the Competition Bureau’s updated Corporate Compliance Program Bulletin.   We also advise companies on how to proactively deal with matters that may raise competition concerns, such as pricing, advertising, search and seizure, abuse of dominance and interactions with competitors.  Multinational clients and counsel in the United States, Europe and other jurisdictions turn to us to handle their compliance counselling, knowing that the advice we provide will fit in well with the client’s global strategies.

Foreign Investment and National Security Reviews

We are the preeminent Canadian firm in foreign investment and national security reviews.  Our foreign investment specialists guide clients through the complexities of the Investment Canada Act which applies to acquisitions and establishments of and investments in Canadian businesses by non-Canadian investors.   We have helped a wide range of Canadian and foreign clients, including state-owned enterprises and sovereign wealth funds, to clear deals and minimize regulatory risk.

Acting on behalf of global investors, sometimes in coordination with foreign law firms, including from the United States, Europe, China, Middle East, Africa and Asia, we are internationally renowned for securing Investment Canada Act approvals from both the Minister of Innovation, Science and Economic Development and, in the case of Canadian cultural businesses, the Minister of Canadian Heritage.  We have extensive experience working with foreign counsel on sensitive cross border matters, including reviews before the Committee on Foreign Investment into the United States (CFIUS).  Our clients benefit from our experience in:

  • Net benefit reviews —We represent clients before both the Investment Review Division and the Cultural Sector Investment Review directorate. We secure "net benefit to Canada" determinations and negotiate and help clients comply with undertakings when necessary.
  • National security reviews  — Our lawyers are amongst the few in Canada to advise multiple clients through the full national security review process. We help clients through that process and regularly coordinate the Canadian national security review with similar foreign reviews (such as CFIUS).
  • Investments by state-owned enterprises — The Canadian government assesses investments by SOEs differently than those by non-SOE investors. We help clients to successfully navigate the regulatory review process, addressing sensitive legal and political issues.
  • Investments in cultural businesses — We have extensive experience working on investments that raise cultural issues in industries such as books, magazines, videos, video games, music, film and television, so as to help clients through the Department of Canadian Heritage’s review of an investment in Canadian cultural business.

See some of our most significant mandates below.

" They displayed the passion necessary when conveying our position and doing everything they could to advocate for our side. They were very strong advocates, right to the end. They made some lemonade out of lemons. "
Client, Chambers

Significant Mandates

Merger Review, Foreign Investment and National Security Reviews

We have acted on many of Canada’s most significant domestic and international transactions, including:   

  • Pinnacle Foods Inc. on its US$10.9 billion proposed acquisition by ConAgra Brands, Inc.
  • L3 Technologies, Inc. on its merger with Harris Corp to create a combined company with US$33 billion in sales
  • WestJet on its proposed US-Canada transborder joint venture with Delta Air Lines
  • Messer Group and CVC on their joint acquisition of the North and South American industrial gas business of Linde following out of the Praxair/Linde transaction
  • Federal-Mogul on its US$5.4 billion acquisition by Tenneco Inc.
  • Shire plc on its US$62 billion acquisition by Takeda Pharmaceuticals
  • The Carlyle Group and AkzoNobel on the US$12.5 billion proposed acquisition by The Carlyle Group and GIC of the Specialty Chemicals business of AkzoNobel
  • WillScot Corporation on its US$1.1 billion acquisition of Modular Space Holdings Inc.
  • Blackstone Group on its US$20 billion acquisition of the Financial & Risk Business of Thomson Reuters
  • CCCI International Holding Limited on its $1.51 billion proposed acquisition of Aecon Group Inc.
  • Nestlé S.A. on its acquisition of Atrium Innovations Inc. for US$2.3 billion
  • 21st Century Fox Inc. on the US$52.4 billion acquisition of Fox's film and television assets by Walt Disney Co.
  • The Dow Chemical Company on its US$130 billion merger of equals with E.I. du Pont de Nemours & Company to form DowDuPont
  • Enbridge Inc. on its $37 billion merger with Spectra Energy Corp.
  • Molson Coors on its US$12 billion acquisition of the Miller beer brands
  • Kraft Foods Group on its US$60 billion merger with H.J. Heinz Company to form The Kraft Heinz Company
  • Glentel Inc. in its acquisition by BCE Inc. and Rogers Telecommunications
  • Glencore/ Viterra in the acquisition of TRT-ETGO, the largest oilseed processing plant in Eastern Canada
  • LaFarge SA in its merger with Holcim Ltd.
  • Rio Tinto’s US$38 billion acquisition of Alcan

Competition Litigation, Cartels and Criminal Investigations

We have unparalleled experience with cartel matters and are widely recognized as leaders for complex competition class actions and litigated enforcement proceedings.  Representative matters include:

  • Acting for Nomura Securities in SSA Bonds price-fixing class action
  • Acting for Credit Suisse in Forex conspiracy class action
  • Acting for defendants in class action alleging collusion between luxury car makers
  • Lead counsel to Rakuten Kobo in e-books litigation
  • Lead counsel to the Commissioner of Competition in Tervita hazardous waste merger litigation
  • Defending Competition Tribunal proceedings alleging abuse of dominance (Direct Energy) and deceptive marketing (Bell Canada, Leon’s)
  • Defence of criminal price-fixing charges regarding chocolate products, charges stayed in 2015
  • Representing clients in confidential cartel investigations regarding auto parts, computer components, building materials and other products
  • Immunity and leniency applications in international and domestic cartels in various industries