June 14, 2010
CONSPIRACY / CARTELS
Recent Speech by Canada’s Commissioner of Competition Indicates Tougher Enforcement Stance Against Criminal Cartels
In a recent speech by Canada’s new Commissioner of Competition to the Canadian Bar Association’s Spring Competition Law Conference, the Commissioner outlined some of the Competition Bureau’s current enforcement and policy priorities following the recent significant amendments to Canada’s competition law. The Commissioner’s remarks included a number of comments regarding the Competition Bureau’s (the “Bureau”) enforcement policy in relation to the new criminal conspiracy rules, enforcement priorities, the Bureau’s new sentencing and leniency policies and, of particular note, indicating that the Bureau wants to take a tougher stance against criminal cartels (including seeking increased penalties against individuals involved in criminal cartel conduct). For more see: Recent Speech by Canada’s Commissioner of Competition Indicates Tougher Enforcement Stance Against Criminal Cartels.
Supreme Court of Canada Denies Leave to Appeal in DRAMS Price-Fixing Class Action
On June 3, 2010 the Supreme Court denied leave to appeal in the DRAMS price-fixing class action case (Infineon Technologies AG et al. v. Pro‑Sys Consultants Ltd.). In this important case, leave to appeal to the Supreme Court was sought from the British Columbia Court of Appeal that had approved the DRAM memory price-fixing class action. The British Columbia Court of Appeal had reversed the British Columbia Supreme Court’s decision and certified the class action against a group of five technology manufacturers accused of fixing their prices for computer memory chips. The Court of Appeal held that the British Columbia Class Proceedings Act should be “construed generously in order to achieve its objectives” – for example, to improve access to justice and avoid duplication in legal proceedings. The impact of the recent Supreme Court decision to deny leave in this case is that the British Columbia Court of Appeal’s decision is now the latest appellate judgment on the certification of competition law class actions in Canada and the first Canadian appellate decision certifying a contested competition law class action. For more see: Supreme Court of Canada Denies Leave to Appeal in DRAMS Price-Fixing Class Action.
U.S. Supreme Court Tackles Single v. Multiple Enterprise Question in Landmark American Needle (NFL) Case – Some Potential Implications for Canada’s New Conspiracy Rules
On May 24, 2010, the U.S. Supreme Court (“USSC”) delivered its opinion in the landmark American Needle antitrust case. In this important case, the USSC again visited the difficult question as to when an entity will be considered to be a single entity (as opposed to multiple entities) for the purposes of the application of Section 1 of the Sherman Act (Section 1 of the Sherman Act prohibits certain illegal restraints of trade and is the U.S. equivalent to the criminal conspiracy provisions under Section 45 of the Canadian Competition Act). For more see: U.S. Supreme Court Tackles Single v. Multiple Enterprise Question in Landmark American Needle (NFL) Case – Some Potential Implications for Canada’s New Conspiracy Rules.
Solvay Chemicals Fined $2.5 Million in Hydrogen Peroxide Price-Fixing Conspiracy
The Competition Bureau announced today that Solvay Chemicals has been fined Cdn. $2.5 million in relation to a hydrogen peroxide price-fixing conspiracy. According to the Bureau, Solvay Chemicals Inc. conspired with competitors to fix the price of hydrogen peroxide in Canada between July 1998 and December 1999, during which time its sales were approximately $15 million. In making the announcement, the Bureau stated that Solvay was the second party to plead guilty to fixing the price of hydrogen peroxide in Canada (together with Akzo Nobel Chemicals International BV, which pleaded guilty in November 2008 and was fined $3.15 million for its involvement in the conspiracy). The Bureau also stated that its investigation of other companies allegedly involved in this conspiracy was ongoing, while reiterating that detecting and eliminating criminal cartels remained one of its top enforcement priorities. Under the federal Competition Act, agreements between competitors (and potential competitors) to fix prices, allocate or divide markets or restrict output are criminal offences. In addition, as a result of recent amendments to the Competition Act that came into force in March, 2010, the penalties for contravention of the criminal conspiracy provisions of the Competition Act have been significantly increased to include fines of up to $25 million (per count) and/or imprisonment for up to fourteen years. For more see: Solvay Chemicals Fined $2.5 Million in Hydrogen Peroxide Price-Fixing Conspiracy.
Commissioner of Competition and Director of Public Prosecutions Sign Memorandum of Understanding
The Competition Bureau announced that the Commissioner of Competition (Melanie Aitken) and the Director of Public Prosecutions (Brian Saunders) have entered into a Memorandum of Understanding in relation to the investigation and prosecution of offences under the Competition Act. In Canada, under the federal Competition Act, the Competition Bureau is responsible for enforcing the Act including investigating alleged contraventions of the Act, while the Director of Public Prosecutions has exclusive jurisdiction to determine whether to commence prosecutions for alleged violations of the Act’s criminal offences, including the criminal conspiracy, bid rigging and criminal misleading advertising provisions.
Competition Bureau Announces Coming Into Force of New Conspiracy Regime
On March 12, 2010, the Competition Bureau announced the coming into force of Canada’s new two-track conspiracy regime.
Canada’s New Conspiracy Rules Come Into Force – March 12, 2010
On March 12, 2010, Canada’s new two-track criminal conspiracy regime came into force. The changes, which are the final recent Competition Act amendments to come into force, will significantly change the enforcement of criminal cartels in Canada and is expected to also have significant impacts on competition law private actions and class actions.
Effective March 12, 2010, Canada now has three new criminal conspiracy offences for “hard core” cartel conduct, making bare price fixing, market allocation/division and supply restriction agreements per se illegal – i.e., without the necessity of establishing any anti-competitive effects on a relevant market or markets. The penalties for contravening the newly enacted conspiracy provisions will also more than double with fines of up to CDN $25 million and/or imprisonment for up to fourteen years. At the same time, a second civil provision has come into force under which other commercial agreements (i.e., agreements that do not fall within the scope of the new criminal offences) may be reviewed, where they may prevent or lessen competition substantially. Some of the expected impacts of the new rules include: (i) increasing the risk of engaging in hard-core anti-competitive conduct (e.g., price-fixing agreements), (ii) lowering the bar for the Competition Bureau and private plaintiffs to establish a criminal conspiracy under section 45 (the criminal conspiracy provision of the Act), (iii) increasing the importance of reviewing commercial agreements (and other commercial arrangements, such as information sharing arrangements or joint ventures) for competition law compliance and (iv) potentially leading to an increase in private action activity in Canada.
CANADIAN MERGER CONTROL
Competition Bureau Issues New Policy on Hostile Transactions
On June 2, 2010 the Competition Bureau (the “Bureau”) published its new Policy on Hostile Transactions (the “Hostile Bid Policy”). According to the Bureau, the Hostile Bid Policy “describes the Bureau’s general approach to communicating information to a bidder and target during the course [of a merger review by the Bureau].” The Bureau’s new Hostile Hostile Bid Policy is the most recent in a series of new or updated merger-related guidelines and reports that the Bureau has recently issued following the recent adoption in Canada of a new two-track, U.S.-style merger control regime. Other recently issued merger-related guidelines and reports that the Bureau has issued in the past week include its new Merger Review Performance Report (analyzing notified transactions since its last Merger Review Performance Report in 2007) and its Draft Fee and Service Standards Handbook for Merger-Related Matters, which has been issued for public comment. For more see: Competition Bureau Publishes New Policy on Hostile Transactions.
Competition Bureau Issues New Merger Review Performance Report – May 2010
On May 31, 2010, the Competition Bureau issued its new Merger Review Performance Report (the “Merger Report”). The Bureau’s new Merger Report provides an update on the performance of the Bureau’s Mergers Branch since its last report was issued in 2007. For more see: Competition Bureau Issues New Merger Review Performance Report – May 2010.
Competition Bureau Issues New Draft Fee and Service Standards Handbook for Mergers for Comment
The Competition Bureau (the “Bureau”) announced today that it was seeking public comments on its new draft Fee and Service Standards Handbook for Merger-Related Matters. For more see: Competition Bureau Issues New Draft Fee and Service Standards Handbook for Mergers for Comment.
Competition Bureau Announces that GST No Longer Charged for Advance Ruling Certificates
Competition Bureau Announces GST Change
Merger Remedy Secured in Danaher Acquisition of MDS
2010 Merger Notification Threshold (Size of Transaction) Unchanged
2010 Size of Transaction Merger Threshold
Canada’s New Notifiable Transactions Regulations in Force
Canada’s New Notifiable Transactions Regulations
MISLEADING ADVERTISING
Competition Bureau Confirms Enforcement Approach to New Guidelines on “Made in Canada” and “Product of Canada” Claims
Enforcement Guidelines for “Product of Canada” and “Made in Canada” Claims
Competition Bureau Warns Against Deceptive Business Directories
Deceptive Business Directories Warning
Reitmans Agrees to Correct Misleading Smart Set Promotion
The Competition Bureau announced that Reitmans, one of Canada’s largest clothing retailers, has agreed to correct a misleading promotion by its division Smart Set. According to the Bureau, Smart Set had offered its customers a $25 “Savings Pass” for each $50 spent, with conditions that included an additional minimum purchase requirement of $50 and a limited redemption period. The Bureau stated that neither of these conditions had been disclosed in Smart Set’s in-store signage or on its website, contrary to the general misleading advertising provisions of the Competition Act. Reitmans has agreed to waive its additional purchase requirement to redeem a Savings Pass and extend the expiry date for its promotion. This recent case emphasizes that the general misleading provisions of the Competition Act prohibit not only literally false advertising claims, but can also potentially catch claims where the “general impression” of a representation is misleading (e.g., where material conditions, limitations or exclusions are not clearly disclosed). For more see: Reitmans Agrees to Correct Misleading Smart Set Promotion.
Infotel Directors Charged With Deceptive Telemarketing – April 12, 2010
Infotel Alleged Deceptive Telemarketing Case
DataCom Marketing Receives Record $15 Million Fine
Record $15 Million Fine for Business Directory Scam
ABUSE OF DOMINANCE
The Commissioner of Competition v. The Canadian Real Estate Association – Tribunal Date Set for Motions for Leave to Intervene
The federal Competition Tribunal has announced that a date has been set for the Tribunal to hear motions for leave to intervene in the Competition Bureau’s abuse of dominance application against The Canadian Real Estate Association. Motions for leave to intervene will be heard in Ottawa on Wednesday, June 30, 2010. For more see: Competition Bureau – Notice of Application, Canadian Real Estate Association – Response,Competition Bureau – Reply. For the intervenors’ requests for leave to intervene see: Lawrence Mark Dale – Request for Leave to Intervene and National FSBO Network Inc. – Motion for Leave to Intervene.
Competition Bureau Continues Challenge of CREA MLS Rules
CREA MLS Abuse of Dominance Case
Competition Bureau Refuses to Vary Interac Consent Order
Interac Association Request to Vary Consent Order
PROMOTIONAL CONTESTS
Manitoba-based Resort Company Penalized for Running Misleading Contests
On November 23, 2009 the Competition Bureau announced that Elkhorn Ranch & Resort Ltd., a Manitoba-based company that sells vacation property time shares, has agreed to pay CDN $170,000 for operating promotional contests in contravention of the promotional contest provisions of the Competition Act. For more information see: Resort Company Penalized for Running Misleading Contests.
TRADE AND PROFESSIONAL ASSOCIATIONS
Competition Bureau Announces Coming Into Force of Canada’s New Conspiracy Laws
New Canadian Laws for Agreements Between Competitors
Competition Bureau Continues Challenge of CREA MLS Rules
CREA MLS Abuse of Dominance Case
Competition Bureau Refuses to Vary Interac Consent Order
Interac Association Request to Vary Consent Order
Competition Bureau Issues Final Competitor Collaboration Guidelines
Competitor Collaboration Guidelines
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SERVICES AND CONTACT
I am a Toronto competition and advertising lawyer offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. I also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
My experience includes advising clients in Toronto, Canada and the US on the application of Canadian competition and regulatory laws and I have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal, pricing and distribution, Investment Canada Act and merger matters. For more information about my competition and advertising law services see: competition law services.
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Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
