April 7, 2014
As an update to two association cases that I blogged about last December (see: here), this past Friday the U.S. Federal Trade Commission (FTC) announced that it had approved settlements with two professional associations for allegedly restraining competition through association codes of ethics.
In these two cases, the FTC took issue with association codes of ethics put into place by an associations of music teachers and another of legal support professionals that allegedly restricted members’ ability to: solicit competitors’ clients; charge fees lower than “community averages”; offer free services; or engage in certain types of price and comparative advertising.
New Books: Canadian Competition Law Developments & Trends in 2013, in CLE BC’s Annual Review of Law & Practice 2014
April 4, 2014
The Continuing Legal Education Society of British Columbia (CLE BC) has published its Annual Review of Law & Practice – 2014. This summary of major areas of Canadian law applicable in British Columbia includes my co-authored chapter on Canadian competition law developments and trends in 2013.
Cartel Enforcement: In Europe, Like Canada, Cat & Mouse Game: Remarks by EC Competition Head Almunia, Some Thoughts for Canada
April 3, 2014
I recently read delivered by European Commission competition head Joaquin Almunia in Brussels on the topic of cartel enforcement (see: Fighting against cartels: A priority for the present and for the future). He discussed, among other things, recent European cartel cases, fines achieved, cartels in innovation and fast moving markets and recent detection strategies (see highlights at the bottom of this post).
Readers of my blog will know that I find cartel detection and enforcement one of the most interesting, if not the most interesting, aspect of working in the competition law area. Perhaps it’s the game theory associated with the formation, maintenance and detection of cartels that I find so fascinating.
New Anti-Cartel Compliance Materials Issued by Competition Bureau, Including Trade Associations Pamphlet
March 30, 2014
Canada’s Competition Bureau has issued a number of new anti-cartel (Competition Act conspiracy) compliance materials, including an updated version of its Bid-Rigging Pamphlet and two new pamphlets: a Competitor Collaboration Pamphlet (a more comprehensive set of Bureau enforcement guidelines on this topic already exists) and an entirely new Trade Associations Pamphlet.
The Bureau had been planning to issue a standalone Bulletin on associations several years ago, but has evidently opted to rely on the association related discussion in its Competitor Collaboration Guidelines and this newly issued short pamphlet. The Bureau has also issued a new video on competition law compliance.
March 30, 2014
One competition law topic that I continually find interesting is joint ventures (i.e., collaborations between competitors). While this is a significant area, with a variety of competition law issues that may need to be addressed in relation to a broad spectrum of types of JVs (e.g., joint marketing, joint production, joint R&D, etc.), I have always found the issues that can arise in the JV context very interesting.
These can include, among other things: questions of whether a JV is one or multiple entities (for the application of cartel/conspiracy rules); whether, if challenged on concerted theories of harm, a JV should be reviewed on a per se or rule of reason standard (or in Canada, under our amended Competition Act, as a criminal conspiracy under section 45 or under the civil agreements provision, with an assessment of competitive effects); how to structure JVs to minimize competition/antitrust law risk (e.g., in relation to the flow of competitively sensitive information between JV partners); and whether, and to what extent, merger control rules should apply to JVs.
March 30, 2014
In an interesting and important decision issued late last week, the British Columbia Supreme Court has certified a Competition Act class action against Visa Canada Corporation, MasterCard International Inc. and a number of major banks (including Bank of America, BMO, Bank of Nova Scotia and CIBC) (Watson v. Bank of America Corporation, 2014 BCSC 532). In this case the plaintiff seeks to represent two classes of Canadian merchants who accepted payments for goods or services by way of Visa and MasterCard credit cards from 2001 to the present.
At issue in the case are “default interchange fees” and other interchange fees paid by merchants to accept Visa and MasterCard credit cards, as well as certain “network rules” established by Visa and MasterCard governing merchants’ participation in credit card networks. In particular, the plaintiff pleaded several theories of harm for the alleged harm suffered by merchants, including based on breaches of the former criminal price maintenance offences of the Competition Act (under section 61), former and current conspiracy offences of the Act (under section 45), civil conspiracy, and unlawful interference with economic interests.
March 29, 2014
Private parties may commence damages actions under the Competition Act (the “Act”) for violations of the criminal provisions of the Act (under Part VI) or a breach of a court or Competition Tribunal (“Tribunal”) order made under the Act.
Competition law private actions in Canada are typically commenced in the context of (i) wholesale or retail customers alleging damages as a result of a conspiracy between suppliers (e.g., a price-fixing conspiracy relating to a product, input, etc.), (ii) consumers alleging damages as a result of misleading advertising claims (e.g., false or misleading claims in relation to a product, investment or other business opportunity, etc.) or (iii) competitors alleging damages based on another party’s (or parties’) violation of the misleading advertising or criminal conspiracy offences under the Act.
March 27, 2014
The University of Calgary’s School of Public Policy has published a new research paper on Canada’s foreign investment regime entitled China’s State-Owned Enterprises and Canada’s FDI Policy (authored by Wendy Dobson, University of Toronto).
“In December 2012, after Ottawa approved the takeover of Canada’s Nexen by the state-owned Chinese oil giant, CNOOC Ltd., Prime Minister Stephen Harper offered an explanation to clarify the government’s evolving position on takeovers from foreign state-owned enterprises. But rather than clarifying, the government succeeded instead in adding further ambiguity to an already opaque approvals process. Such takeovers would face “strengthened scrutiny” over the extent and nature of the foreign government’s corporate control, he said, and would only be permitted in “exceptional circumstance.” In other words, an approvals process already contingent on subjective judgment — thanks to the lack of transparency inherent in the pivotal “net-benefits test,” and the onus it puts on the bidder to prove itself a worthy buyer — would now involve even more layers of subjective judgment. This is particularly ironic given that, as Canada’s foreign-investment rules become cloudier and more prone to government interference, in China itself, regimes governing foreign direct investment (FDI) and state-owned enterprises are becoming increasingly transparent and market-oriented.