It´s Not Over Until It´s Over: When Is the Deal Really Done?

By Dany H. Assaf, Bennett Jones and Sarah McLean, Ogilvy Renault

NOT SO LONG AGO, IT SEEMED THAT if you could successfully defend a preliminary injunction hearing (and, if necessary, a motion for an injunction pending appeal) and merge, there appeared to be a judicial tendency, and perhaps even a willingness by enforcers, to end the battle and not seek to "unscramble" your merger. However, in light of the D.C. Circuit Court of Appeals' most recent decision in Whole Foods, and such cases as Sony/BMG in the European Union and Labatt in Canada, you should not count your chickens too soon or even assume they will be allowed to hatch when the deal is closed.