Tuesday 24 May 2011

Scrambled companies

It's mostly just the language of the headnote in this which is great:

"The Commissioner of Competition (Applicant) v. Superior Propane Inc. and ICG Propane Inc. (Respondents)


Court of Appeal, Linden J.A.--Ottawa, September 8, 9, 18 and 19, 2000.
Competition -- Practice -- Motion for stay of Competition Tribunal decisions, continuing hold separate order with respect to merger of respondents -- Not necessary to prevent eggs from being scrambled -- Irreparable harm not established as feasible to divide merged business within reasonable time period."

Though in all fairness it does follow the language of counsels' submissions and the judgment:

"[11]I must now consider the second hurdle that must be overcome by the applicant, irreparable damage. Counsel for the Commissioner, basing himself on U.S. authorities, argued eloquently that once the eggs are scrambled, they cannot be unscrambled. In other words, if the two companies are allowed to proceed with the merger pending the appeal, it will be almost impossible to undo the damage caused by this in the event of success in the Court of Appeal...

[13]In my view, the metaphor of scrambled eggs is dramatic, but not entirely apt. When one scrambles eggs it is impossible to unscramble them, but a merged company is not exactly like scrambled eggs. It can be broken up, though it is maybe difficult to do so. Competition can be restored. It is not enough for it to be hard or inconvenient to do so. To obtain a stay, the damage must be truly irreparable and proved to be so."

No comments:

Post a Comment