Canadian COMPETITION & ANTITRUST LAW

Obstruction. Obstruction of an inquiry or examination under the Competition Act is a criminal offence, with the potential for “unlimited” fines (i.e., in the discretion of the court), imprisonment for up to 10 years, or both (s. 64 of the Competition Act). Failure to comply with investigatory orders or search warrants is also a criminal offence, with potential penalties of unlimited fines (i.e., in the discretion of the court), imprisonment for up to two years, or both (s. 65(1)). The destruction or alteration of records that are sought by the Bureau is yet another criminal offence, with the potential for unlimited fines (i.e., in the discretion of the court), imprisonment for up to 10 years, or both (s. 65(3)). See also Competition Bureau, Information Bulletin on Sections 15 and 16 of the Competition Act: “Any attempt to impede and/or prevent the execution of a search warrant, and any attempt to remove or destroy records subject to a search warrant will be taken very seriously by the Commissioner. Pursuant to section 64 of the Act, it is an offence to impede or prevent or to attempt to impede or prevent any inquiry or examination under the Act. Subsection 65(1) of the Act provides that where a search warrant has been issued under the Act, it is an offence to refuse to allow the Commissioner or Bureau staff named in the warrant, to enter and search the premises, including any computer system found on the premises. A person convicted under either of these provisions is liable to a maximum fine of $5,000 or two years in prison or both.  Under subsection 65(3), every person who destroys or alters (or causes to be destroyed or altered) a document or other thing covered by a search warrant is guilty of an offence and may be liable to a penalty of up to five years in prison and a $50,000 fine or both.  Where a corporation commits an offence under section 65, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted. In addition, where circumstances warrant, the obstruction of justice provision found in the Criminal Code (section 139) may also be used.”

Oligopoly. OECD, Policy Roundtable, Oligopoly (1999), Overview: “Oligopolies are markets where profit maximizing competitors set their strategies by paying close attention to how their rivals are likely to react.  In these conditions, firms might differentiate their products, which can benefit some consumers, but at a price.  Oligopoly inter-dependence can also foster anti-competitive co-ordination.  Competition laws prohibit collusion that raises prices, restricts output or divides markets.  But the laws do not prohibit conscious parallelism.  Thus firms in an oligopoly might imitate their rivals’ pricing and other competitive behavior in a process that harms consumer welfare, yet without reaching an explicit agreement.”  OECD, Policy Roundtable, Oligopoly (1999), citing Clamp-All Corp. v. Cast Iron Soil Pipe Institute, 851 F.2d 478, 484 (1^st Cir. 1988) (Breyer J.) and Richard A. Posner, “Oligopoly and the Antitrust Laws: A Suggested Approach”, 21 Stan. L. Rev. 1562, 1566 (1969): “‘… a market structure with a small number of sellers – small enough to require each seller to take into account its rivals’ current actions and likely future responses to its actions.’  Recognized interdependence is the hallmark of oligopoly.’”

Oligopsony power. Competition Bureau, Competitor Collaboration Guidelines (2009) at p. 33: “Oligopsony power occurs where a market power in the relevant purchasing market is exercised by a coordinated group of buyers.”  See definition of monopsony power.

Overcharge.  A measure of injury used in competition/antitrust cases.  See e.g., P.L. Anderson et al., “Damages in Antitrust Cases”, AEG Working Paper 2007-2: “The economic effects on consumers and producers are reflected in two legal measures of damages.  Determining the appropriate legal measure of damages depends on the nature of the alleged restraint on competition.  In price fixing cases under Section 1 of the Sherman Act and monopolization cases under Section 2 [of the Sherman Act] cartel members collude or a monopolist withholds output in an effort to increase profits, which causes consumers to pay higher prices.  This is commonly called ‘overcharge’ injury.”  There are other uses of ‘overcharge’ as well: the seller’s injury when a buyer’s cartel suppresses the price; and the buyer’s injury when they purchase a product that has been illegally ‘tied’ to another product or service. …”

Overlap. “Overlap” is a colloquial term or shorthand way of referring to product or geographic markets in which both parties in a merger have a presence (i.e., potential areas of post-merger concentration that may lead to anti-competitive effects).  See also the definitions of “geographic market definition”, “market definition”, “market share”, “product market definition” and “substantial lessening of competition”.