The former Canadian Commissioner of Competition is demonstrating the value in her current role
Melanie Aitken first realized she felt a calling to public service in the late 1990s when she was litigating the Superior Propane case against the Competition Bureau.
“It was, in our world, a big case,” says Aitken, who was a partner at Davies Ward Phillips & Vineberg LLP at the time. “It was the first case where the efficiencies defence was relied upon. And because we didn’t think efficiencies was going to be that important, I was put in charge of efficiencies.”
As luck would have it, the efficiencies argument became very important, and Aitken took the case to the Federal Court of Appeal.
But what struck Aitken when she worked on this case was how fascinating the government’s role was.
“I think it was eye-opening for me to see how interesting the job was on the public side. . . . It was a much more complex exercise in the sense of the constituencies that needed to be consulted and satisfied.”
A few years later, Aitken left Davies to take a role as senior counsel at the Department of Justice in Ottawa. After that two-year secondment, Aitken joined the partnership at Bennett Jones LLP in 2003.
She stayed at Bennett Jones until 2005, when she accepted a role that puzzled many of her private practice peers at the time: senior deputy commissioner of competition, mergers at the Canadian Competition Bureau.
“I do recall everyone kind of scratching their head as to why I would do it. And to me, it didn’t seem like such a crazy thing,” says Aitken. “I also looked south of the border, where there’s a much more robust revolving door, particularly in areas like antitrust, where just about anybody who’s anybody in the field has at least one tour of duty in one of the agencies.”
Aitken took her unconventional and more U.S.-based approach to the Competition Bureau in a now well-known tenure as the Canadian Commissioner of Competition from 2008 to 2012. Her focus on aggressive enforcement and high-publicity cases brought the agency out of the shadows and made her much better known than the average bureaucrat.
When Aitken’s tenure ended, she moved to Washington not knowing what she would do.
“I’m one of those people who strongly 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 experience 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.
While Aitken has been in private practice ever since, her time in public service allows her to offer insights that many of her competitors, 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 regulators, but several impediments make it particularly 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 commitment 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], everybody 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 “advisory 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 political,” 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, mergers, 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 enforcement 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.
Hear more from Aitken, who is a speaker at the Canadian Lawyer Competition Law Webinar on May 26.
PROFILE
Name: Melanie Aitken
Current position: Co-head, Competition, Antitrust & Foreign Investment, Bennett Jones (US) LLP
Key dates:
2013: establishes U.S. presence of Bennett Jones in current role
2008-2012: serves as Canadian commissioner of competition
2006-2008: serves as senior deputy commissioner of competition, mergers
2003-2005: litigation and antitrust partner, Bennett Jones LLP
2001-2003: senior counsel, Department of Justice Canada
1994 – 2002: litigation partner, Davies Ward Phillips & Vineberg LLP
RECENT EXPERIENCE
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
Editor's Note: this article has been corrected to clarify that the Superior Propane case did not go to the Supreme Court of Canada.
