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CCCA_V6No4_CoverStory-FIN_CCCA 11/26/12 1:19 PM Page 26 Cover litigation or disputes with the bureau.” For Putney, this new era of revised competition laws and increased enforcement — especially on the public stage — demands more caution.“[All this] causes com- petition law analysis to change somewhat, so if compa- nies are going to engage in certain conduct,the analysis is a little bit different,” he says.“The bureau also made use of the media to great effect to publicize its actions;if a company is involved in a dispute with the bureau and maybe things weren’t heading toward a resolution that the bureau would find acceptable, a company would be well-advised to have a media plan in place.” It also may have made companies more aware of competition law and more likely to take steps to avoid a possible battle with the bureau.“To some extent,this may have very well effectively deterred anti-competi- tive conduct for cases in which people may not have been aware of the legislation, or had the impression it wasn’t actively enforced,” says John Bodrug, a partner with DWVP.“These cases can be helpful for corporate counsel who are seeking to implement compliance programs within their companies and trying to demonstrate to employees that this is an important area of the law and they have to take it seriously.” The bureau’s high media profile also probably helped many companies avoid running afoul of the rules. Aitken made a point of being available to Canada’s lead- ing media organizations to explain the bureau’s reason- ing and positions.This helped companies realize what the bureau was looking for and what types of cases it would pursue.“Whenever she made comments, I cer- tainly took them to heart because there are not a lot of opportunities for people to get a sense of where the bureau is heading,its priorities,and how it views differ- ent situations.So,I always thought it was very helpful to listen whenever Melanie Aitken spoke,” Putney says. The dramatic shift in the bureau’s approach to enforcement did not come without warning, however, Goldman says: “[Aitken] indicated in a number of speeches that while she would prefer to resolve mat- ters, she would be willing to litigate to the extent nec- essary. And when you put that together with the vari- Subrata Bhattacharjee ous media interviews and relatively high media pres- National trade and competition group ence she had,along with the filing of high-profile con- Heenan Blaikie tested cases, it’s fair to say her background as a litigator Toronto came through in her administration of the Competition ALENA GEDEONOVA Act. Collectively, it reflected a view on the Street that her administration was a very tough enforcer.” 26 CCCA Canadian Corporate Counsel Association WINTER 2012