New Bureau policy for information in hostile transactions
On June 2, 2010, the Competition Bureau released a policy statement regarding its approach to the disclosure of information to companies involved in hostile transactions. Bidders and targets in hostile or unsolicited transactions can have competing interests, posing challenges for the Bureau when it comes to complying with its confidentiality obligations under the Competition Act. Although the Bureau has an explicit obligation to immediately notify a target of the date upon which the Bureau receives a pre-merger notification filing from the bidder, the Act does not otherwise address the issue of information sharing in the context of hostile or unsolicited transactions.
The Bureau's new policy statement sets out that when the Bureau provides to one party information regarding such matters as the anticipated duration of the Bureau review and its views on whether the transaction would substantially lessen or prevent competition, it will also “strive to disclose” that information “equitably” with the other party, subject to the restrictions in the Competition Act. There is therefore a stance favouring the sharing of information but which also recognizes that there will be limitations required by law in some cases.
