Tervita Corp. et al. v. Commissioner of Competition et al.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Citation: (2015), 467 N.R. 97 (SCC),2015 SCC 3,380 DLR (4th) 381,[2015] ACS no 3,[2015] 1 SCR 161,[2015] SCJ No 3 (QL)
• Date: 27 March 2014

Tervita Corp. v. Competition Commr. (2015), 467 N.R. 97 (SCC)

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[French language version follows English language version]

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Temp. Cite: [2015] N.R. TBEd. JA.008

Tervita Corporation, Complete Environmental Inc. and Babkirk Land Services Inc. (appellants) v. Commissioner of Competition (respondent)

(35314; 2015 SCC 3; 2015 CSC 3)

Indexed As: Tervita Corp. et al. v. Commissioner of Competition et al.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

January 22, 2015.

Summary:

Tervita Corp. held two of the four permits issued in Northeastern British Columbia for the operation of secure landfills for the disposal of hazardous waste generated by oil and gas operations, and operated two landfills pursuant to them. A permit for another secure landfill site was held by Babkirk Land Services Inc. (Babkirk), a wholly owned subsidiary of Complete Environmental Inc. (Complete). Tervita acquired the shares of Complete, including Babkirk and the Babkirk site. The Commissioner of Competition had opposed the transaction on the ground that it was likely to substantially prevent competition in secure landfill services in Northeastern British Columbia. After closing, the Commissioner asked the Competition Tribunal to order, pursuant to s. 92 of the Competition Act, that the transaction be dissolved, or in the alternative, that Tervita divest itself of Complete or Babkirk. The Tribunal ordered Tervita to divest itself of the shares or assets of Babkirk. Tervita, Complete and Babkirk appealed.

The Federal Court of Appeal, in a decision reported at (2013), 446 N.R. 261, dismissed the appeals. The Court upheld the Tribunal's conclusion that the merger would likely substantially prevent competition. With respect to the s. 96 efficiencies defence, the Court held that the Tribunal erred in a number of respects. In its fresh assessment of the evidence, the Court concluded that the merger only provided marginal gains in efficiency which were not significant enough to approve a merger under s. 96. Tervita, Complete and Babkirk appealed.

The Supreme Court of Canada, Karakatsanis, J., dissenting, allowed the appeal, set aside the divestiture order and dismissed the s. 92 application. The Tribunal's conclusion that the merger was likely to substantially prevent competition was correct. On the balancing test under s. 96, the efficiencies defence applied to prevent the making of an order under s. 92. "The Commissioner failed to meet her burden, resulting in the quantifiable anti-competitive effects being assigned a weight of zero. The Federal Court of Appeal properly rejected the environmental effects. There are therefore no proven qualitative anti-competitive effects. Tervita successfully proved quantifiable 'overhead' efficiency gains resulting from Babkirk obtaining access to Tervita's administrative and operating functions. In this case, these proven gains met the 'greater than and offset' requirement. As there were no quantifiable or qualitative anti-competitive effects proven by the Commissioner, the efficiencies defence applies, and the Federal Court of Appeal was incorrect to conclude otherwise."

Karakatsanis, J., disagreed with the majority's approach to the s. 96 efficiencies defence and the conclusion that Tervita was entitled to the benefit of that defence.

Abella, J., although otherwise agreeing with the reasons of the majority, thought that reasonableness was the applicable standard, not correctness.

Trade Regulation - Topic 229

Regulatory bodies - Commissioner or director - Competition Act - Statutory duties - [See sixth Trade Regulation - Topic 680 ].

Trade Regulation - Topic 245

Regulatory bodies - Competition tribunal - Decisions - Standard of review - The appellant challenged the divestiture order made by the Competition Tribunal under s. 92(1) of the Competition Act - The Federal Court of Appeal applied a correctness standard of review to the Tribunal's determinations of questions of law - The Supreme Court of Canada, with the exception of Abella, J., agreed that correctness was the applicable standard in this case - "The questions at issue are questions of law arising under the Tribunal's home statute and therefore a standard of reasonableness presumptively applies ... . However, the presumption of reasonableness is rebutted in this case. A decision or order of the Tribunal on a question of law is appealable as of right as if 'it were a judgment of the Federal Court' with the proviso that leave is required for appeals on questions of fact (Competition Tribunal Act ... s. 13(1))." - Abella, J., thought that the applicable standard was reasonableness - "To apply correctness in this case represents a reversion to the pre-Pezim era. Creating yet another exception by relying on the statutory language in this case which sets out a right of appeal, undermines the expertise the statute recognizes. This new exception is also, in my respectful view, an inexplicable variation from our jurisprudence that is certain to engender the very 'standard of review' confusion that inspired this Court to try to weave the strands together in the first place." - See paragraphs 34 to 39, 169 to 180.

Trade Regulation - Topic 677

Competition - Mergers - Remedies - Divestiture order - The Supreme Court of Canada, in setting aside a divestiture order, addressed the "prevention" branch of s. 92(1) of the Competition Act and the steps in determining whether a merger engaged that branch - "The concern under the 'prevention' branch of s. 92 is that a firm with market power will use a merger to prevent competition that could otherwise arise in a contestable market. The analysis under this branch requires looking to the 'but for' market condition to assess the competitive landscape that would likely exist if there was no merger. It is necessary to identify the potential competitor, assess whether but for the merger that potential competitor is likely to enter the market and determine whether its effect on the market would likely be substantial." - See paragraphs 60 to 79.

Trade Regulation - Topic 677

Competition - Mergers - Remedies - Divestiture order - This was the first case in which the Supreme Court of Canada had the opportunity to focus on the "prevention" branch of s. 92(1) of the Competition Act - The appellant ("Tervita") argued that in order to establish that the merger was likely to substantially prevent competition, a party to the merger had to be a potential competitor based on the assets, plans and businesses of the party at the time of the merger - The Supreme Court of Canada disagreed - "The Tribunal's analytical framework and conclusion that the merger will likely substantially prevent competition are, in my view, correct. ... It used a forward-looking 'but for' analysis to determine whether the merger was likely to substantially prevent competition. The Tribunal identified the acquired party, the Vendors, as the focus of the analysis. The Tribunal then assessed whether, but for the merger, the Vendors would have likely entered the relevant product market in a manner sufficient to compete with Tervita." - See paragraphs 80 to 83.

Trade Regulation - Topic 680

Competition - Mergers - Defences - Efficiency - The Supreme Court of Canada reviewed the history of the statutory efficiencies defence (s. 96 of the Competition Act) and the adjudicative treatment of the defence prior to this case - The Court concluded that "[t]he s. 96 efficiencies defence requires an analysis of whether the efficiency gains of the merger, which result from the integration of resources, outweigh the anti-competitive effects, which result from the decrease in or absence of competition in the relevant geographic and product market. As the Federal Court of Appeal explained in Superior Propane II, 'This is, in substance, a balancing test that weighs efficiencies on one hand, against anti-competitive effects on the other.'" - See paragraphs 85 to 90.

Trade Regulation - Topic 680

Competition - Mergers - Defences - Efficiency - The Supreme Court of Canada discussed the different possible methodologies for the comparative exercise under s. 96 of the Competition Act; namely, the "total surplus standard", and the "balancing weights" approach recognized by the Competition Tribunal and the Federal Court of Appeal in the Superior Propane series of cases - The Court set out the principles developed in the Superior Propane cases, and stated that those principles "provide the foundation for the analysis of the s. 96 efficiencies defence. These principles serve as the backdrop to the legal issues in the present case: consideration of whether specific efficiencies are valid efficiencies for the purposes of the defence and the proper approach to the balancing exercise under s. 96." - See paragraphs 91 to 101.

Trade Regulation - Topic 680

Competition - Mergers - Defences - Efficiency - The appellant merging party argued that the Competition Tribunal erred in rejecting valid efficiencies from its consideration of the efficiency gains, namely those referred to by the Tribunal as Order Implementation Efficiences (OIEs) - The appellant claimed certain transportation and market expansion efficiencies resulting from the operation of a secure landfill facility at a location closer to some customers - The Supreme Court of Canada held that both the Tribunal and the Federal Court of Appeal were correct that the OIEs were not cognizable efficiencies under s. 96 - "A distinction should be drawn between efficiencies claimed because a merging party would be able to bring those efficiencies into being faster than would be the case but for the merger (what could be called 'early-mover' efficiencies), and efficiencies that a merging party could realize sooner than a competitor only because the competitor would be delayed in implementing those efficiencies because of legal proceedings associated with a divestiture order (what the Tribunal identified as OIEs). While ... OIEs are not cognizable efficiencies under s. 96, early-mover efficiencies are real economic efficiencies that are caused by the merger, and not by delays associated with legal proceedings; were it not for the merger, the economy would not gain the benefit of those efficiencies that would have accrued in the time period between the merger and the actions of a future competitor." - See paragraphs 102 to 107.

Trade Regulation - Topic 680

Competition - Mergers - Defences - Efficiency - The appellant merging party submitted that Order Implementation Efficiences (OIEs) had to be considered because s. 96 of the Competition Act afforded paramountcy to the statutory objective of economic efficiency, such that all efficiencies, however arising, had to be considered - The Supreme Court of Canada disagreed - "Section 96 does give primacy to economic efficiency. However, s. 96 is not without limitation. ... In order for a party to gain the benefit of the s. 96 defence, the Tribunal must be satisfied that the merger or proposed merger has brought about or is likely to bring about gains in efficiency. The Tribunal must also find that the gains in efficiency would not likely be attained if a s. 92 order were made. In addition, and despite the paramountcy given to economic efficiencies in s. 96, s. 96(3) prohibits the Tribunal from considering a 'redistribution of income between two or more persons' as an offsetting efficiency gain. The limitation in s. 96(3) demonstrates that Parliament does not intend for all efficiency gains, however arising, to be taken into account under s. 96." - See paragraphs 110 to 113.

Trade Regulation - Topic 680

Competition - Mergers - Defences - Efficiency - The transportation and market efficiencies at issue in this case were efficiency gains resulting from the operation of a secure landfill facility at a location closer to some customers - The Supreme Court of Canada stated that "subject to the proper classification of those efficiencies in this case, the OIEs [Order Implementation Efficiences] specifically are efficiency gains resulting not from the merger itself, but from the implementation time associated with a divestiture order ... . Efficiencies that are the result of the regulatory processes of the Act are not cognizable efficiencies under s. 96. The OIEs result from the operation and application of the legal framework regulating competition law in Canada. The provision states that the merger or proposed merger must bring about or be likely to bring about gains in efficiency. The OIEs are efficiencies which are not attributable to the merger. They are attributable to the time associated with the implementation of the divestiture order." - For that reason, among others, the Court held that both the Tribunal and the Federal Court of Appeal were correct that the OIEs were not cognizable efficiencies under s. 96 - See paragraphs 114 and 115.

Trade Regulation - Topic 680

Competition - Mergers - Defences - Efficiency - The Supreme Court of Canada discussed the content of the Commissioner's burden under s. 96 of the Competition Act to prove the anti-competitive effects - "The Commissioner's burden is to quantify by estimation all quantifiable anti-competitive effects. Estimates are acceptable as the analysis is forward-looking and looks to anti-competitive effects that will or are likely to result from the merger. The Tribunal accepts estimates because calculations of anti-competitive effects for the purposes of s. 96 do not have the precision of history. However, to meet her burden, the Commissioner must ground the estimates in evidence that can be challenged and weighed. Qualitative anti-competitive effects, including lessening of service or quality reduction, are only assessed on a subjective basis because this analysis involves a weighing of considerations that cannot be quantified because they have no common unit of measure (that is, they are 'incommensurable'). Due to the uncertainty inherent in economic prediction, the analysis must be as analytically rigorous as possible in order to enable the Tribunal to rely on a forward-looking approach to make a finding on a balance of probabilities. In this case, the Commissioner did not quantify quantifiable anti-competitive effects and therefore failed to meet her burden under s. 96." - See paragraphs 122 to 126.

Trade Regulation - Topic 680

Competition - Mergers - Defences - Efficiency - In this case, the Commissioner of Competition failed to meet her burden to quantify the quantifiable anti-competitive effects - The Supreme Court of Canada held that, as a result, the Tribunal should have assigned zero weight to the quantifiable anti-competitive effects - "The Federal Court of Appeal recognized that '[a] quantitative effect which has not in fact been quantified should not be considered as a qualitative effect' ... but went on to hold that the non-quantified deadweight loss should be assigned a weight of 'undetermined' ... . With respect, I cannot agree. ... [T]he quantifiable anti-competitive effects should be fixed at zero. Quite simply, where the burden is not met, there are no proven quantifiable anti-competitive effects. ... [T]his approach is consistent with that in civil proceedings where a party has failed to discharge its burden of proof with respect to loss ... . In addition, setting the effects at zero where the Commissioner has failed to meet her legal burden is consistent with taking an approach to the balancing analysis that is objectively reasonable. In setting the weight at undetermined, the Federal Court of Appeal allowed for subjective judgment to overtake the analysis. ... The jurisprudence has consistently recognized the importance of an objective approach to the balancing analysis ... The Federal Court of Appeal's 'undetermined' approach also raises concerns of fairness to the merging parties." - See paragraphs 127 to 137.

Trade Regulation - Topic 680

Competition - Mergers - Defences - Efficiency - The issue to be determined was whether the statutory standard of "greater than, and will offset" required that the merging parties demonstrate that the efficiencies not only merely exceeded the anti-competitive effects, but in addition offset them - The Commissioner of Competition argued that the statutory language mandated a threshold level of "more than marginal" efficiency gains in order for the efficiencies defence to succeed - The Supreme Court of Canada disagreed - "Together, the terms 'greater than' and 'offset' mandate that the Tribunal determine both quantitative and qualitative aspects of the merger, and then weigh and balance these aspects. ... This is a flexible balancing approach, but the Tribunal's conclusions must be objectively reasonable." - See paragraphs 143 to 146.

Trade Regulation - Topic 680

Competition - Mergers - Defences - Efficiency - The Supreme Court of Canada framed the balancing test under s. 96 of the Competition Act as a two-step inquiry - "First, the quantitative efficiencies of the merger at issue should be compared against the quantitative anti-competitive effects (the 'greater than' prong of the s. 96 inquiry). Where the quantitative anti-competitive effects outweigh the quantitative efficiencies, this step will in most cases be dispositive, and the defence will not apply. There may be unusual situations in which there are relatively few quantified efficiencies, yet where truly significant qualitative efficiencies would support the application of the defence. However, such cases would likely be rare in view of the emphasis of the analysis on objectivity and the impermissibility of asserting unquantified-but-quantifiable efficiencies as qualitative efficiencies. Qualitative considerations must next be weighed. Under the second step, the qualitative efficiencies should be balanced against the qualitative anti-competitive effects, and a final determination must be made as to whether the total efficiencies offset the total anti-competitive effects of the merger at issue (the 'offset' prong of the inquiry). For the Tribunal to give qualitative elements weight in the analysis, they must be supported by the evidence and the reasoning for the reliance on the qualitative aspects must be clearly articulated. ... [T]he two-step analysis preserves the ability of the Tribunal to select the quantitative methodology to be employed, provided this quantitative comparison is conducted within step one of the framework" - See paragraphs 147 and 148.

Trade Regulation - Topic 680

Competition - Mergers - Defences - Efficiency - The Supreme Court of Canada held that the Federal Court of Appeal erred in holding that an anti-competitive merger could not be approved under s. 96 if only marginal or insignificant gains in efficiency resulted from that merger - "With respect, the Federal Court of Appeal's conclusion that marginal efficiency gains cannot meet the requirements for the s. 96 defence to apply does not take into account the fact that the analysis under s. 96 is a balancing exercise. Proven efficiency gains must be assessed relative to any proven anti-competitive effects. Efficiency gains of a smaller scale may not be 'marginal' when compared to and weighed against anti-competitive effects of an even smaller degree." - See paragraph 153.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [paras. 35, 169].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, dist. [paras. 35, 39]; appld. [para. 170].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [paras. 35, 170].

Commissioner of Competition v. Superior Propane Inc. et al., [2001] 3 F.C. 185; 269 N.R. 109; 2001 FCA 104, leave to appeal refused, [2001] 2 S.C.R. xiii, refd to. [paras. 36, 88].

Air Canada v. Commissioner of Competition et al., [2002] 4 F.C. 598; 288 N.R. 113; 2002 FCA 121, refd to. [para. 36].

Commissioner of Competition v. Canada Pipe Co., [2007] 2 F.C.R. 3; 350 N.R. 291; 2006 FCA 233, refd to. [paras. 36, 50].

Commissioner of Competition v. Labatt Brewing Co. et al. (2008), 372 N.R. 305; 64 C.P.R.(4th) 181; 2008 FCA 22, refd to. [para. 36].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, dist. [paras. 37, 39]; appld. [para. 169].

McLean v. British Columbia Securities Commission, [2013], 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, dist. [paras. 37, 39]; appld. [para. 169].

Canadian Waste Services Holdings Inc. et al. v. Commissioner of Competition et al. (2001), 11 C.P.R.(4th) 425 (Comp. Trib.), affd. [2003] N.R. Uned. 45; 24 C.P.R.(4th) 178; 2003 FCA 131, leave to appeal refused (2004), 328 N.R. 392, refd to. [para. 44].

Canada (Director of Investigation and Research) v. Hillsdown Holdings (Canada) Ltd. (1992), 41 C.P.R.(3d) 289 (Comp. Trib.), refd to. [para. 44].

Canada (Commissioner of Competition v. Superior Propane Inc.) (2000), 7 C.P.R.(4th) 385 (Comp. Trib.), revd. on other grounds [2001] 3 F.C. 185; 2001 FCA 104, refd to. [para. 54].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 56].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 66].

Canada (Director of Investigation and Research) v. Laidlaw Waste Systems Ltd. (1992), 40 C.P.R.(3d) 289 (Comp. Trib.), refd to. [para. 71].

BOC International Ltd. v. Federal Trade Commission (1977), 557 F.2d 24 (2nd Cir.), refd to. [para. 72].

Commissioner of Competition v. Superior Propane Inc. (2002), 18 C.P.R.(4th) 417 (Comp. Trib.), affd. [2003] 3 F.C. 529; 300 N.R. 104; 2003 FCA 53, refd to. [paras. 88, 199].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1; 2012 SCC 35, refd to. [para. 170, footnote 2].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 172].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 175].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canadian National Railway Co. v. Canada (Attorney General) et al., [2014] 2 S.C.R. 135; 458 N.R. 150; 2014 SCC 40, refd to. [para. 176].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 176].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 2011 SCC 59, refd to. [para. 176].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 176].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 176].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Creston Moly Corp. v. Sattva Capital Corp. [2014] 2 S.C.R. 633; 461 N.R. 335; 2014 SCC 53, refd to. [para. 179].

Statutes Noticed:

Competition Act, R.S.C. 1985, c. C-34, sect. 92, sect. 93, sect. 96 [Appendix].

Authors and Works Noticed:

Campbell, A. Neil, Mergers Law and Practice: The Regulation of Mergers Under the Competition Act (1997), pp. 21 [para. 85]; 152 [para. 87].

Canada, Competition Bureau, Merger Enforcement Guidelines (2011), para. 12.4 [para. 102].

Canada, Hansard, House of Commons Debates, 1st Sess., 33rd Parl. (April 7, 1986), vol. VIII, p. 11962 [para. 87].

Canada, Minister of Consumer and Corporate Affairs, Competition Law Amendments: A Guide (1985), p. 4 [para. 87].

Facey, Brian A., and Brown, Cassandra, Competition and Antitrust Laws in Canada: Mergers, Join Ventures and Competitor Collaborations (2013), pp. 141 [para. 44]; 205 [para. 51]; 253 to 255 [para. 102]; 256 to 257 [para. 91 et seq.].

Facey, Brian A., and Assaf, Dany H., Competition and Antitrust Law: Canada and the United States (4th Ed. 2014), pp. 9, 10 [paras. 85, 86]; 205 [para. 42]; 209 [para. 43].

Facey, Brian A., Hilton-Sullivan, Gregory, and Graham, Mark, The Reinvigoration of Canadian Antitrust Law - Canada's New Approach to Merger Review (2010), 6 C.L.I. 28, p. 33 [para. 117].

Hansard - see Canada, Hansard, House of Commons Debates.

Musgrove, James B., MacNeil, Janine, and Osborne, Michael, eds., Fundamentals of Canadian Competition Law (2nd Ed. 2010), pp. 29 [para. 44]; 185 [para. 47].

Stanbury, W.T., and Reschenthaler, G.B., Reforming Canadian Competition Policy: Once More Unto the Breach (1981), 5 Can. Bus. L.J. 381, p. 388 [para. 85].

Trebilcock, Michael, Winter, R.A., Collins, P., and Iacobucci, E.W., The Law and Economics of Canadian Competition Policy (2002), pp. 146 to 151 [para. 99].

Waddams, S.M., The Law of Damages (5th Ed. 2012), paras. 10.10 to 10.30 [para. 129].

Wakil, Omar, The 2014 Annotated Competition Act (2013), p. 246 [para. 44].

Counsel:

John B. Laskin, Linda M. Plumpton, Dany H. Assaf and Crawford G. Smith, for the appellants;

Christopher Rupar, John Tyhurst and Jonathan Hood, for the respondent.

Solicitors of Record:

Torys, Toronto, Ontario, for the appellants;

Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on March 27, 2014, before McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The Court delivered the following judgment and reasons, dated January 22, 2015:

Rothstein, J. (McLachlin, C.J.C., and Cromwell, Moldaver and Wagner, JJ., concurring) - see paragraphs 1 to 168;

Abella, J., partially concurring - see paragraphs 169 to 180;

Karakatsanis, J., dissenting - see paragraphs 181 to 200.