Canadian Lawyer

May 2021

The most widely read magazine for Canadian lawyers

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Page 15 of 43

14 FEATURE CROSS EXAMINED believe in conflict of interest. I wouldn't talk to anybody while I was still in the job." While it was a risk, her public service expe- rience proved to be highly valuable for what she calls "professional leapfrogging" into her current role. Hugh MacKinnon, CEO of Bennett Jones, approached Aitken about starting a Washington office. "I remember thinking this is the best idea or the worst idea because nobody's ever done it before," Aitken says. "After I came out [of the Competition Bureau], everybody now listened, when perhaps they might not have considered me to have the credibility that I then had." While Aitken has been in private practice ever since, her time in public service allows her to offer insights that many of her competi- tors, especially those in Canada, can't. "I'm able to offer a better perspective in terms of risk assessing, who may have an issue, why they may have an issue," she says. Aitken says having more private practice lawyers in public service would also help reg- ulators, but several impediments make it par- ticularly difficult in Canada. One is geography since, unlike the trip from Washington and New York, lawyers can't commute to Ottawa from cities like Toronto and Vancouver. The other is the time commit- ment to become bilingual. "For people who are at a very important stage in their career, in their early 40s, as I was when I went in, it is a daunting idea to learn French." What may have seemed daunting at the time, though, is now paying off in spades. "After I came out [of the Bureau], every- body now listened, when perhaps they might not have considered me to have the credibility that I then had. So, you can do all the analysis in the world and have the greatest idea in the world, but if nobody listens, it's very hard to make an impact." In addition to Canadian legal expertise, Aitken can also provide insight into how U.S antitrust regulators think, having worked alongside them when she was a regulator. Outside of the large deals, she also points to some of the "unusual mandates" she has had in her current role. As a member of an "advi- sory counsel" created by CEO Carlos Brito of Anheuser-Busch InBev for its US$103-billion acquisition of SABMiller, Aitken worked with former enforcement heads from around the world to strategize. That role was "great fun" as Aitken was "getting together and talking about how are we going to deal with the geopolitical foreign investment [and] antitrust risks?" With debates about the regulations of Big Tech and a new U.S. administration in the White House, Aitken's role has taken on an even more vital for her clients — anticipating the next move of regulators that are becoming more aggressive. While she remains "assiduously not polit- ical," Aitken does voice strong opinions on how competition and antitrust cases should be approached by regulators and governments on both sides of the border. "I would like to see more enforcement [and] more resources to enforcement, not necessarily a change in the law. . . . They need to take surgical cases . . . conduct cases, merg- ers, whatever they are, rather than try to take on" large tech companies too broadly. For Canada specifically, Aitken says that, although it does not have "a very deep enforce- ment record," it will no doubt be looking at what happens in the U.S. If that means competition enforcement ramps up, Aitken's commitment to public service will only continue to serve her in her role. Aitken's recent experience includes acting for: • Tiffany & Co. in connection with the US$16-billion transaction with LVMH • Mylan Inc. in its US$5.3-billion acquisition of generic drug assets from Abbott Laboratories • American Airlines in its defence to class actions alleging capacity discipline and COVID-related complaints • Bristol-Myers Squibb in its US$74-billion acquisition of Celgene • Allergan plc. in its US$63-billion sale to AbbVie • Fiserv, Inc. in its US$22-billion acquisition of First Data • Time Warner in its US$85-billion acquisition by AT&T • Alere, Inc. in its US$5.3-billion acquisition by Abbott • St. Jude Medical Inc. in its US$25-billion acquisition by Abbott • Starwood Hotels & Resorts Worldwide, Inc. in connection with its US$12.2-billion acquisition by Marriott International, Inc. • Anheuser-Busch InBev in its US$103-billion acquisition of SABMiller RECENT EXPERIENCE

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