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October 19, 2014

In an important decision released on October 17, 2014, Imperial Oil v. Jacques, 2014 SCC 66, the Canadian Supreme Court confirmed plaintiffs’ ability to obtain disclosure of wiretap evidence obtained in connection with criminal competition law investigations.

This case was an appeal from a decision of the Quebec Superior Court.  The lower court granted a motion by Quebec class action plaintiffs for disclosure of wiretap recordings obtained by the Competition Bureau (the “Bureau”) in connection with its ongoing Quebec gas price-fixing investigation.

During the investigation the Bureau intercepted and recorded some 220,000 private communications pursuant to seven court orders obtained under Part VI of the Criminal Code (the “Code”). Fifty-four charges have also been laid to date.

The Superior Court held that the wiretap evidence was both relevant to the plaintiffs’ civil proceedings (a class action commenced under section 36 of the Competition Act – the “Act”) and that neither the Act nor the Code created any immunity from disclosure.

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October 15, 2014

Guest post by Steven J. Cernak, Schiff Hardin LLP
Reprinted with permission

On October 14, the Supreme Court heard oral argument in North Carolina Board of Dental Examiners v. FTC, the latest in its long line of cases interpreting the state action exemption to the antitrust laws. Clients who participate on or interact with such boards should be interested in the result of this case.

At oral argument, most of the Justices seemed highly skeptical that an entity made up almost entirely of — and elected by — practicing dentists should be deemed a state agency whose actions did not require supervision just because the State said so. The fear seemed to be that a state could allow a group of competitors to pursue their private interests and evade the federal antitrust laws merely through state designation. On the other hand, the Justices clearly were uncertain whether the FTC’s proposed test properly decided this case, provided guidance for future cases, or would lead to efficient operations of such state licensure boards.

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October 13, 2014

Two really rather good articles caught my eye over the past several days – both discussing whether it is illegal under antitrust laws to merely be big.

The first, by Gordon Crovitz in the Wall Street Journal, discusses Peter Thiel’s view (co-founder of PayPal, first Facebook investor) that “creative monopolies” are not only good but in fact what every entrepreneur should aspire to (see: Three Cheers for ‘Creative Monopolies’). More specifically, Thiel argues that the most successful companies create unique products not commodities: “[a]ll happy companies are different: each one earns a monopoly by solving a unique problem. … failed companies are the same: they failed to escape competition.”

Thiel further distinguishes between firms that merely achieve significant size on the one hand from conduct that may attract antitrust scrutiny on the other – i.e., contrasting “illegal bullies or government favorites” from “creative monopolies [that] give customers more choices by adding entirely new categories of abundance to the world.”

In the second article, published last Friday in Vox, Matthew Yglesias wrote a rebuttal to a New Republic piece by Frank Foer in which he argues that “Amazon Must Be Stopped”. The New Republic piece labels Amazon a monopoly and argues for state-interventionist solutions – for example, “stripping Amazon of the power to set prices” or “depriving it of the ability to use its site to punish recalcitrant suppliers”. In support of his argument, Mr. Foer points to a number of claimed monopolistic acts engaged in by Amazon that include “undercutting competitors”, “squeezing suppliers” and by suggesting that Amazon, like the proto-giant retailer Walmart, has driven out small retailers (in Mr. Foer’s phraseology: “old department stores and grocers”).

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October 8, 2014

Concurrences Journal, in partnership with the New York University School of Law, will hold its inaugural conference “Antitrust in Emerging and Developing Countries” on Friday, October 24, 2014, at the NYU campus. This one-day conference (8:30am to 6:30pm) brings together speakers from China, Brazil, Mexico, South Africa, among other jurisdictions.

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September 30, 2014

Guest post by Steven J. Cernak, Schiff Hardin LLP
Reprinted with permission
Post originally appeared on the AntitrustConnect Blog

On October 14, the Supreme Court will hear oral arguments in North Carolina Board of Dental Examiners v. FTC, the latest in its long line of cases interpreting the state action exemption to the antitrust laws.  Dozens of amici have written briefs supporting both parties.  Those briefs reveal significantly different opinions about the costs and benefits of state licensure boards and how their actions should be treated under the antitrust laws.

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September 24, 2014

Canada’s Competition Bureau (the “Bureau”) has been working over the past year or two to update its competition law compliance guidelines and policies. Competition law compliance has also figured prominently in recent remarks by Canada’s new Commissioner of Competition, John Pecman (see for example: here). As part of the Bureau’s initiative to raise competition compliance awareness, on September 18th the Bureau issued a revised draft Corporate Compliance Programs Bulletin for public comment (see: here and here).

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September 23, 2014

With a major bid-rigging trial commencing in Ottawa in the IT sector, ongoing auto parts bid-rigging/cartel investigations including record $5 million and $30 million bid-rigging fines in Canada (see e.g., here) and the Charbonneau Commission competition/corruption probe wrapping up in Quebec, it is increasingly important for bidders and tendering authorities to understand the basics of Canadian bid-rigging law. For governments and tendering authorities it is also important to enhance their abililties to detect coordinated bids and tenders. In this respect, I thought I would update my Canadian bid-rigging law page and add, among other things, a few key tips for tendering authorities to detect bid-rigging (see bottom of post).

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September 23, 2014

In the advertising law world, general impressions matter – a lot. In Canada, the federal Competition Act even includes specific sections that provide that the general impression of a claim (i.e., not merely the literal meaning of an advertising claim or what may be included in disclaimers or contracts) is to be taken into account by a court or the Competition Tribunal in determining whether or not a claim is false or misleading.

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