Guest post by Jeremy Richler
May 18, 2013
It seems almost everyone has a cell phone, simply unable to live without one. We rely on our mobile phones not just to communicate with others but to email, surf the net, text, download movies and music, and catch the headlines.
But virtually all Canadians, hooked as they are to these irresistible devices, complain that they are being gouged, with unreasonable prices, interminable three-year contracts, and poor service. Desperate to seek a more reasonable alternative, Canadians come to the inescapable conclusion that the prospect of an immediate bargain with a rival competitor is slim to none.
The sad truth is, this initial hunch is the right one. Canadian cell phone rates are among the highest in the developed world. An OECD comparative study back in 2009 found that Canadians were paying the third highest rates for “medium usage” cell phone packages in the developed world, with only Americans and Spaniards spending more than us (see: here).
And if Canadians were hoping for some good news they are, at least for the very moment, desperately out of luck.
The lack of competition in our cell phone market is a major contributor to our prohibitive rates and disappointing customer service. Our “big three” cell phone companies, Bell, Rogers and Telus control “nearly 94% of cell phone services,” and as a result, “Canadians pay some of the highest prices for mobile phone service in the industrialized world” (see: here).
And if you thought the news was bad, it only gets worse from here. Telus has recently announced its intention to purchase the smaller carrier Mobilicity for $380 million. William Aziz, chief restructuring officer of Mobilicity favours the acquisition, insisting that “Mobilicity has been losing a significant amount of money every month” and that the financial strength of Telus is a win-win, an acquisition being “the best alternative for Mobilicity” (see: here).
May 16, 2013
There used to be a saying that nothing in life is free. In Australia, it seems, there are no free TVs, or at least not that many. In a curious case posted by the Australian ACCC earlier today (or was that yesterday?), it announced that it had settled an allegedly false free TV promotional offer with Australian cable company FOXTEL.
According to the ACCC, FOXTEL ran a promotion on, naturally TV, claiming that customers who subscribed to a 12 month plan would receive a free 22 inch neoniQ TV within ten days of cable service installation. As it turns out, 8,400 people subscribed but the offer was limited to 1,500 free TVs, with a large number of subscribers never receiving the promised TVs.
It seemed to me in reading this case that it also illustrated a few points relevant in Canada, including ensuring that advertising claims are both true and not misleading (e.g., through banner or headline claims that cannot stand on their own or may be contradicted by disclaimers), the importance of including any important conditions or limitations in clear language and in close proximity to primary claims (e.g., limitations on promotional giveaways or other offers), and following through on promotional claims (e.g., that advertised claims are generally fulfilled, as well as ensuring that the award of promotional contest prizes are not unduly delayed and that reasonable quantities of products are available where “bargain price” type claims are made, as required by the Competition Act).
The Competition Bureau has on occasion challenged marketers for making allegedly false “free” claims, including Moores where the Bureau alleged that the retailer’s “buy one get one free” suit claims failed to adequately disclosing the fact that the offer applied to select designer suits only, Premier Fitness Clubs for allegedly making “free trial offer” claims where there were additional fees or contract requirements to qualify, and more frequently sweepstakes promoters for making false or deceptive “free” prize claims.
May 14, 2013
In an interesting though not totally unexpected development, the Competition Bureau announced earlier today that it was appealing the Competition Tribunal’s decision in the TREB abuse of dominance case to the Federal Court of Appeal (Commissioner of Competition v. The Toronto Real Estate Board, file no. A-174-13).
In dismissing the Bureau’s case, the Tribunal essentially concluded that the Bureau’s application had been wrongly made under the abuse of dominance provisions of the Competition Act (section 79) while suggesting that the more appropriate provision was the new civil agreement section of the Competition Act, section 90.1 (based, in part, on finding that TREB did not compete in the relevant market, residential real estate services in the GTA and, as such, any anti-competitive acts could not therefore be directed toward a competitor).
In announcing the appeal, Interim Commissioner of Competition John Pecman said:
“Allowing the Tribunal’s finding to stand could leave a significant loophole in the application of the Competition Act … While most trade associations comply with the Competition Act, we are concerned that, if the Tribunal’s decision is left to stand, trade associations may be tempted to develop rules aimed at preventing or eliminating potential new forms of competition.”
In the Bureau’s notice of appeal, in which it is seeking that the Tribunal’s order be set aside and the case returned to the Tribunal for re-determination, it argues among other things that the Tribunal erred by:
1. Finding that section 79 does not apply to industry associations that do not compete in the market in which effects are alleged to be occurring, but engage in anti-competitive conduct in their members’ market (which appears to be the argument that under section 79 it is only necessary to control “a” market). On the face of section 79 it is also possible to make challenges where a firm possesses market power in one market and through anti-competitive acts competition is prevented or lessened in another.
May 12, 2013
In one of the most curious Canadian competition related stories that caught my eye last week, many Canadian lobster fishermen in the Maritimes have collectively stopped fishing in an apparent protest over what they say are unfairly low lobster prices.
According to media reports (see e.g.: here, here and here), lobster fishermen in P.E.I., New Brunswick and Nova Scotia have tied up boats in a collective effort to raise wholesale lobster prices that have ranged between $2.75 and $4.00 (for canner and market-sized lobsters). Evidently, attempts by the P.E.I. Fishermen’s Association to negotiate higher prices with processors have been unsuccessful.
While RCMP are reportedly on protest scenes to “keep the peace” so to speak, relatively little is being said about the potential competition law implications of this lobster blocade. While some fishermen have been reported as saying that the current prices are “unreasonable”, “unfair” and the like, the Competition Act prohibits agreements between competitors to fix prices, divide markets or prevent or lessen supply (i.e., the criminal conspiracy offences of the Competition Act that were amended in 2009 are potentially broad enough to make collective boycotts a criminal offence, in the absence of a valid exemption or defense).
The Competition Act does, however, include some qualified exemptions for collective bargaining activities, which include combinations between workmen or employees for their “own reasonable protection”, agreements involving employer associations relating to collective bargaining with their employees and a specific exemption for certain collective activities involving fishermen. The fisherperson carve-out exempts: “contracts, agreements or arrangements between or among fishermen or associations of fishermen and persons or associations of persons engaged in the buying or processing of fish relating to the prices, remuneration or other like conditions under which fish will be caught and supplied to those persons by fishermen”.
While the more general collective bargaining exemptions are qualified to, among other things, combinations limited to the “reasonable protection” of workmen/employees and, in the case of the employer association exemption, collective bargaining with an employer association’s employees, the fisherperson exemption of the Act (subsection 4(1)(b)) is somewhat more broadly worded and, as such, might potentially provide more of a “safe harbour” for lobster fishermen collectively refusing to fish and sell their catches in this case.
May 8, 2013
The C.D. Howe Institute has published a new report on cartel detection entitled Coming in From the Cold: Improving Cartel Detection and Reporting. The report argues in general that the Competition Bureau and federal government should ensure that sufficient resources and policy emphasis are placed on the investigation, detection and prosecution of domestic cartels (i.e., Canadian price-fixing and other conspiracies).
Currently, the Bureau’s tools for detecting price-fixing, bid-rigging and other criminal competition/antitrust cartels include the ability to obtain wiretaps, its Immunity and Leniency Programs and Competition Act whistleblower protections. Under the Bureau’s current Immunity Program, which the Bureau has described as its “single most powerful means of detecting criminal activity”, a party or company implicated in criminal conduct under the Competition Act may offer to cooperate with the Bureau in an investigation and, if all of the requirements of the program are met, receive full immunity from prosecution. Under the Bureau’s Leniency program, applicants that are not entitled to full immunity – for example, because they are not first in – may still be eligible for 50% or 30% reductions in fines.
The C.D. Howe report suggests that, given the disparity between the Bureau’s participation in many international cartel investigations, such as the auto parts and Libor cases, and relative rarity of domestic prosecutions, that the Bureau’s current policies may be insufficient to motivate cartel members to self-report.
In this regard, the report recommends that: the Bureau’s cartel detection policies should aim to increase the likelihood of a successful and thorough prosecution even where there may only be one cartel defector; the awareness of the potential criminality of cartel behavior and existence of Immunity and Leniency Programs should be increased; and ensure that there are clear differences in how Immunity Program participants are treated (compared to subsequent Leniency Program members) to create a stronger incentive to report.
Some of the points made by the new C.D. Howe report that I found interesting include raising the questions of whether foreign and domestic immunity applicants may face different incentives to report, whether more domestic cartel enforcement would lead to more case law (there is presently a significant dearth in Canadian s. 45 conspiracy cases that the C.D. Howe group says is, based in part, on the fact that most foreign defendants do not contest Canadian fines) and a skepticism that more economic data or statistical approaches would yield much in terms of increased cartel detection.
May 7, 2013
In a very interesting recent development, Bloomberg, Reuters and others are reporting on the first lawsuit filed in the new (well newer) financial product “fixing” case involving credit default swaps (CDS) (see here, here, here, here and here). CDS are financial instruments intended to protect investors in the event a borrower (e.g., a company, state, etc.) they have invested in default on their payments. CDS are also used for speculation.
According to media, an Ohio pension fund, the Sheet Metal Workers Local 33 Cleveland District Pension Plan, is seeking damages against Goldman Sachs, Citigroup Inc. and ten other banks that, according to the pension fund, have restrained competition for credit default swaps (CDS) in violation of federal antitrust law. Other defendant banks include Bank of America, Deutsche Bank, UBS, Morgan Stanley, Barclays, BNP Paribas, Credit Suisse and RBS. In its complaint, the pension fund states: “The CDS market has been starkly divided between those who control and distort the market and those who, in order to participate in the market, must abide by their distortions”.
More specifically, the complaint (Sheet Metal Workers v. Bank of America Corporation et al) that was filed on May 3rd in the Illinois Northern District Court, seeks “buy side” damages incurred in buying or selling CDS contracts to the “sell side” defendant dealers between 2008 and 2011, alleging that the defendants illegally coordinated to limit competition raising fund managers’ costs. The complaint alleges that CDS prices were “fixed at artificially derived levels” by the banks and that they used their influence on the boards and committees of Markit (an index and data provider), the International Swaps and Derivatives Association (ISDA) and the Depositor Trust & Clearing Corp. (DTCC) to block new market entrant trading platforms keeping the market privately traded (and with wide spreads for buying and selling CDS contracts).
April 30, 2013
As previously announced, the Ontario Government has now introduced for first reading new proposed legislation for wireless contracts and services in Ontario (Bill 60 – An Act to strengthen consumer protection with respect to consumer agreements relating to wireless services accessed from a cellular phone, smart phone or any other similar mobile device).
In making its new announcement yesterday, along with the introduction of the Bill, Ontario’s Ministry of Consumer Services said:
“Ontario is taking steps to strengthen consumer protection by introducing legislation today that would, if passed, make it easier for consumers to understand the costs and terms of their cell phone and wireless services contracts.”
According to the Ministry, the new proposed consumer protection legislation would: limit the costs associated with cancelling a contract; require contracts to be written in plain, easy-to-understand language; ensure that wireless contracts clearly spelled out which services consumers get with a basic fee (and which services would result in a higher bill); and disclose the total price of wireless services in advertising.
This newest proposed provincial wireless code comes at the same time as the ongoing federal wireless code consultations and considerable debate over the future of wireless competition in Canada, which has included criticism of allegedly failed Federal policies to spur more wireless competition in Canada and the expected sale of some of Canada’s smaller wireless carriers.
April 30, 2013
A large part of my practice relates to competition/antitrust and advertising law compliance for companies and associations. In this regard, while the Canadian Competition Bureau has a Corporate Compliance Programs Bulletin that includes an outline of its recommended basic elements for effective competition compliance programs for companies and trade associations, this new International Chamber (ICC) “Antitrust Compliance Toolkit” caught my eye, given that compliance programs can, and typically are, customized for particular business and risk issues.
Launched last week at the 5th ICC Roundtable on Competition Policy in Warsaw, the ICC’s Toolkit includes chapters on the following 11 topics: compliance imbedded as company culture and policy; compliance organization and resources; risk identification and assessment; antitrust compliance know-how; antitrust concerns-handling systems; handling internal investigations; disciplinary action; antitrust due diligence; compliance certification; compliance incentives; and monitoring and improvement.
BOOKS
The Competition Law Guide for Trade Associations in Canada is a practical and concise summary of Canadian competition law for trade, professional and other associations and their advisors
COURSES
Competition Law and REALTORS®: What You Say and Do Matters was designed by ACRE with the assistance of CREA to help Canadian REALTORS® understand and comply with Canadian competition law
For more see: ACRE