Archive for the 'Competition Bureau' Category
The Maple Group Acquisition Corporation (“Maple”) announced earlier today that it would extend its offer once again to acquire the TMX Group.
In making the announcement, Maple said:
“Maple and TMX Group are committed to the transaction and are working diligently to obtain the required regulatory approvals. To this end, they are in ongoing discussions with the regulators and have made numerous submissions to them, including a proposed CDS pricing model, and have proposed remedies to address concerns regarding equities trading.
As previously disclosed, under the Support Agreement between Maple and TMX Group, Maple has agreed to use commercially reasonable efforts to obtain all required regulatory approvals, including from the securities regulatory authorities and the Commissioner of Competition, and to accept all conditions, commitments and undertakings necessary to do so, provided they do not result in a “Material Detriment” as defined in the Support Agreement. Maple is continuing to seek to resolve outstanding issues and concerns raised by the securities regulatory authorities and the Competition Bureau. However, there can be no assurance that remedies short of a Material Detriment will address the issues and concerns raised by the securities regulatory authorities and the Commissioner or that the required regulatory approvals will be obtained.
Details of Maple’s offer are available in its Offer and Circular dated June 10, 2011, as varied by the Notice of Variation dated June 24, 2011, the Notice of Change and Extension dated August 8, 2011, the Notice of Extension dated September 29, 2011, the Notice of Variation and Extension dated October 31, 2011, the Notice of Extension dated January 31, 2012 and a further Notice of Extension to be filed by Maple on SEDAR and mailed to TMX Group’s shareholders in respect of the current extension of the offer. These documents are also available at www.abetterexchange.com.”
In an interesting recent decision by the Ontario Court of Appeal, the Court held that statements made by an enforcement agency, in this case the Competition Bureau, in relation to a criminal investigation, can be defamatory (see: TPG Technology Consulting Ltd. v. Canada (Industry Canada) 2012 ONCA 87 (Ont. C.A.)).
This decision is interesting for the Court’s analysis of Canadian defamation law, including the test to strike out a defamation claim, as well as its discussion of the distinction between statements that merely describe an accused being charged or investigated compared to those that suggest an accused is guilty of an offence.
According to the appellants, the Bureau’s charges against them and others of bid-rigging in violation of section 47 of the Competition Act and the manner in which those charges were communicated to the public were part of a “deliberate and malicious effort” to discredit and harm them.
William E. Kovacic (George Washington University), Robert C. Marshall (Pennsylvania State University), Leslie M. Marx (Duke University) and Halbert L. White (University of California) have published a new article on plus factors and agreement in antitrust law (see: “Plus Factors and Agreement in Antitrust Law”).
Summary of article (abstract):
“Despite the crucial role of concerted action to collusion among rival firms, few elements are more perplexing than the design of evidentiary standards to determine whether parallel conduct stems from collective or from unilateral decision making. Courts allow a collusive agreement to be established by circumstantial evidence, but the evidence must show additional evidence — “plus factors” — beyond parallel movement in price. Chief plus factors identified by courts have included actions contrary to each defendant’s self-interest unless pursued as part of a collective plan, phenomena that can be explained rationally only as a result of concerted action, evidence that defendants created the opportunity for regulation communication, industry performance data that suggests successful coordination, and the absence of a plausible legitimate business rational for suspicious conduct.
The frailties of the existing analytical tests for assessing plus factors impede the economically sensible resolution of many high-stakes antitrust cases where decisions made on the issue of conspiracy are decisive and such inadequacies may be magnified in the future. No cases have offered useful operational means for determining when the defendants have engaged in something more than consciously parallel conduct. It is possible to improve on existing approaches by focusing more precisely on the forms of behavior that firms use to communicate their intentions and to execute the tasks needed to achieve coordination on pricing, output, and other dimensions of effective collusion. Case law addressing plus factors has not established a methodology for ranking plus factors according to their probative value. The authors believe that the actions of an explicit cartel, and the outcomes of those actions, should illuminate the path to identifying plus factors and that any of those actions that surely do not result from unilateral conduct should be given special attention. Further, courts and enforcement agencies cannot address the agreement in question without awareness of remedial issues that stand in the background. Courts are left with a conundrum because they cannot meaningfully instruct firms not to react to their rivals’ pricing. When firms in an industry are players in a repeated game with substantially incomplete and asymmetric information, courts can examine buyer actions to attempt to distinguish between conduct that is an agreement in violation of the Sherman Act and conduct that is not.
This Article offers a way to increase understanding of plus factors and to improve the manner in which enforcement agencies and courts interpret them in individual cases by advocating the use of basic probability theory to rank plus factors in terms of their probative value. It proposes a formal definition of plus factors, a taxonomy of plus factors, and a coherent methodology for ranking them in terms of their probative values. It also proposes that plus factors should be considered in constellations whenever such groups are present because the probative value of the group can be far greater than the individual plus factors in the group.”
Circumstantial evidence and plus factors under Canadian law
Under the Canadian Competition Act, a court may infer the existence of a conspiracy, agreement or arrangement under the conspiracy offences of the Act (section 45) based on circumstantial evidence, with or without direct evidence of communication between or among the alleged parties (though a conspiracy agreement must still be proven on the criminal burden of proof, i.e., beyond a reasonable doubt). Some common examples of “plus factors”, sometimes also referred to as “facilitating factors”, that can be used to prove an unlawful conspiracy agreement, include evidence of meetings, simultaneous price increases or other simultaneous actions, statements inferring the existence of an agreement, enforcement or monitoring and conduct that can only be explained by the existence of an agreement.
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CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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February 24, 2012
In December 2010 Canada’s new anti-spam legislation was passed (the “Anti-spam Act”) which will, when it comes into force, be one of the strictest anti-spam regimes in the world (see: Anti-spam Act). The Anti-spam Act will require express or implied consent for the sending of “commercial electronic messages” or “CEMs” and also impose form (i.e., disclosure) and unsubscribe requirements for CEMs.
On February 23rd, the U.S. Department of Justice (“DoJ”) announced that two financial investors that purchased municipal tax liens at auction in New Jersey pleaded guilty to conspiring to rig bids for the sale of tax liens auctioned by municipalities in New Jersey.
In making the announcement, the DoJ said:
“Two financial investors who purchased municipal tax liens at auctions in New Jersey pleaded guilty today for conspiring to rig bids for the sale of tax liens auctioned by municipalities throughout the state, the Department of Justice announced.
A felony charge was filed today in U.S. District Court for the District of New Jersey in Newark, N.J., against Robert W. Stein of Huntington Valley, Pa., and David M. Farber of Cherry Hill, N.J. Under the plea agreements, which are subject to court approval, Stein and Farber have both agreed to cooperate with the department’s ongoing investigation.
According to the felony charge against Stein, from as early as 1998 until approximately spring 2009, Stein participated in a conspiracy to rig bids at auctions for the sale of municipal tax liens in New Jersey by agreeing to allocate among certain bidders on which liens to bid. According to the felony charge against Farber, from as early as the beginning of 2005 through approximately February 2009, Farber also participated in a conspiracy to rig bids at auctions for the sale of municipal tax liens in New Jersey. The department said that both Stein and Farber proceeded to submit bids in accordance with their agreements and purchased tax liens at collusive and non-competitive interest rates. “Today’s guilty pleas demonstrate that the Antitrust Division will not tolerate those who manipulate the competitive process in order to harm home and property owners,” said Sharis A. Pozen, Acting Assistant Attorney General in charge of the Department of Justice’s Antitrust Division.
The department said that the primary purpose of the conspiracies was to suppress and restrain competition to obtain selected municipal tax liens offered at public auctions at non-competitive interest rates. When the owner of real property fails to pay taxes on that property, the municipality in which the property is located may attach a lien for the amount of the unpaid taxes. If the taxes remain unpaid after a waiting period, the lien may be sold at auction. State law requires that investors bid on the interest rate delinquent homeowners will pay upon redemption. By law, the bid opens at 18 percent interest and, through a competitive bidding process, can be driven down to zero percent. If a lien remains unpaid after a certain period of time, the investor who purchased the lien may begin foreclosure proceedings against the property to which the lien is attached.”
In Canada, the federal Competition Act contains standalone bid-rigging offences under section 47 of the Competition Act. This is unlike some other major jurisdictions, where bid-rigging falls under general conspiracy (i.e., cartel) prohibitions. Under section 47 of the Competition Act, it is a criminal offence for bidders or tenderers to agree to:
1. Not submit a bid or tender;
2. Withdraw a bid or tender already submitted (an offence recently added to the Competition Act following wide-ranging amendments to the Competition Act in 2009 and 2010); or
3. Submit a bid or tender arrived at by agreement.
Bid-rigging in Canada is also a “per se” criminal offence, in that, like conspiracy agreements under section 45 of the Competition Act, it is not necessary to prove any anti-competitive effects on a relevant market (or markets) to make out an offence. All elements of the offence do, however, need to be established on the standard criminal burden of proof – i.e., beyond a reasonable doubt.
Global Competition Review (GCR) has recently published new editions of three of its highly regarded “Getting the Deal Through” Volumes: Cartel Regulation 2012, Intellectual Property & Antitrust 2012 and Dominance 2012.
On February 23, 2012, the U.S. Federal Trade Commission (“FTC”) announced that it had obtained a USD $359 million settlement order against an Alberta online marketer (Jessie Wilms) and related defendants.
In making the announcement, the FTC said:
“The Federal Trade Commission has stopped an Internet scheme that allegedly used bogus “free” product offers that deceived consumers in the United States and other countries and charged them for products and services they did not want or agree to purchase. A settlement order, reached as part of the FTC’s ongoing efforts to stamp out online marketing fraud, permanently bans Jesse Willms and his companies from using ‘negative-option’ marketing, a practice in which the seller interprets consumers’ silence or inaction as permission to charge them. The Willms settlement order imposes a judgment of $359 million that will be suspended upon Willms’s surrender of bank account funds and proceeds from the sale of his house, personal property, and corporate assets, including a Cadillac Escalade, fur coat, and artwork.
‘The fact that almost four million consumers fell prey to the lure of these ‘free trial’ offers is a stark reminder that ‘free’ offers can come at a huge price,’ said David Vladeck, Director of the FTC’s Bureau of Consumer Protection. ‘The FTC has stopped about $1 billion in online marketing fraud during the past two years by shutting down operations like this. But consumers still need to beware, because scam artists are constantly coming up with new ways to deceive people online.’”
According to the FTC, it worked with Canadian law enforcement officials, including the Alberta Partnership Against Cross-Border Fraud and Competition Bureau.
On January 6, 2012 the Competition Bureau announced its first cartel case under Canada’s amended Competition Act, partially brought under the new section 45 of the Competition Act.
In this case, two companies pleaded guilty of fixing the price of polyurethane foam and were fined a total of C $12.5 million (see: Cartels Update: Bureau Announces $12.5 Million Fine in First Price-fixing Case Under Amended Competition Act and Competition Bureau Sends Signal to Price-Fixers with $12.5 Million Fine).
In making the announcement, believed to be one of a number of new cartel cases currently being investigated, the Bureau highlighted its stepped-up enforcement of cartels:
“’Yesterday’s guilty plea is the first conviction under Canada’s amended conspiracy law,’ said Melanie Aitken, Commissioner of Competition. ‘This investigation highlights the Bureau’s reinvigorated mandate to stop consumer harm caused by price-fixing, and to secure significant fines for these serious criminal offences.’
In other recent public remarks, the Bureau has similarly indicated that it intends to enhance its investigation of cartels under Canada’s new conspiracy (cartel) rules:
“In our Criminal work, we continue to concentrate on the, admittedly, lengthy process of ‘changing the game’— reorienting our approach at the Bureau, our processes, and our mindset to a more appropriately aggressive stance to respond, as we must, to our new more powerful criminal provisions.
As we move forward with our new criminal regime, consistency, consistency, and consistency is our focus. There will be no arbitrary relaxing of standards under the Bureau’s watch — a practice that can only impair predictability and fairness in enforcement. Further, we will use our investigative tools such as searches, wiretaps and section 11 orders.
Cartels and bid–rigging continue to be our focus, given the seriousness of this conduct, and its unambiguously harmful nature. We are committed to advancing cases that matter to Canadians, doing so in a timely manner, and following them through to the end.”
(See: Commissioner of Competition, Keynote Speech at the Canadian Bar Association 2011 Fall Conference).
Based on these and other recent developments, we will be posting overviews of Canadian conspiracy and bid-rigging laws, each concluding with practical steps companies can take to reduce potential criminal liability (and overviews of the Bureau’s Immunity and Leniency Programs, which are increasingly proving to be key for both Bureau investigations and parties to reduce liability).
For Part 1 see: here.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
