Archive for the 'News' Category
December 7, 2012
Ever interested in all things web and competition, this very spiffy new competition law blog launched by King & Wood Mallesons caught my eye: In Competition. From KWM
“Conveying recent developments within the competition space – covering access, authorizations, cartels, consumer protection, enforcement, litigation mergers, reform, antitrust – across a range of jurisdictions.”
I wish KWM all the best with their new site!
December 7, 2012
Earlier today, the Competition Bureau announced that five individuals have been charged under the Criminal Code and Competition Act for allegedly misleading and deceptive telemarketing (see: Five Individuals Facing Charges for Fraudulent and Misleading Telemarketing Calls).
In making the announcement, the Bureau said:
“In August 2006, a Bureau investigation revealed two telemarketing operations in Montréal using questionable tactics. One, using names such as ‘Advance Financial’, ‘Consumer Benefit’, and others, promoted government grants to American citizens. The other, using names including ‘Global Electronic Solutions/Solutions Électroniques Global’ and ‘Federal Emergency Medical Supply/Agence Federal des Produits Medicales (sic)’, promoted the sale of office supplies and medical kits to Canadian and American businesses. The operations were shut down following a search in December 2006. The combined revenue of the two operations is estimated to be as much as $840,000.
The Bureau’s investigation determined that some of the alleged tactics used during the telemarketing calls included implying that the caller represented a business that had an existing relationship with the victim’s company, indicating that certain products or services were required under government rules, or implying that the call was being made on behalf of a government agency.”
In Canada, the Competition Act makes it a criminal offence to engage in deceptive telemarketing and also requires certain disclosure to be made during telemarketing calls.
In particular, under the Competition Act’s deceptive telemarketing provisions, it is a criminal offence to: (i) make materially false or misleading representations; (ii) operate a contest where the delivery of a prize is conditional on prior payment or certain disclosure is not made (regarding the number and value of prizes, area or areas to which they relate and odds of winning); (iii) offer free or below cost products, as consideration for supplying another product, unless disclosure is made of the fair market value of the first product (and any restrictions, terms or conditions relating to its supply); or (iv) offer products for sale grossly in excess of their fair market value where their delivery is conditional on prior payment by buyers.
December 6, 2012
I am always interested in innovation and trends, both in marketing generally and in relation to my own practice. Lawyers can, well, be rather slow to embrace change. In this regard, I’ve been seeing a continued trend toward video, both on the web generally – for example in this interesting Globe note this morning: Need more proof of the power of video on the web? Here it is – as well as with my own clients, colleagues (well some of them at least) and more recently enforcement agencies in Canada and Internationally.
Following this trend, several enforcement agencies using video have caught my eye including this short (but good) Consumer Protection BC video on expiry dates and gift cards this morning: A Consumer Question About Gift Cards and a video contest being used by the RCMP to promote drug prevention awareness.
These Canadian examples of enforcers using video also reminded me of the recent excellent cartel compliance video by the Australian ACCC – The Marker – a short film produced by the ACC to illustrate the potentially significant effects that involvement in a cartel can have on individuals and businesses (see: ACCC gets on the front foot with cartels film ‘The Marker’) and this series of price-fixing videos uploaded to YouTube by the Singapore Competition Commission – see: here.
It seems to me this is a good trend for lawyers and enforcers and that we’ll probably see a lot more like them down the road.
For more on gift card, contest and cartel laws in Canada see: Gift Cards, Contests and Cartels.
December 6, 2012
The American Bar Association’s Section of Antitrust has published its Fall 2012 edition of Antitrust Magazine, which includes articles on:
Antitrust Litigation: What’s Changed in Twenty-Five Years (W. Kolasky), Merger Policy Twenty-Five Years Later: Unilateral Effects Move to the Forefront (A.R. Dick), Reflections on Cartel Enforcement (I. Simmons, K.R. O’Rourke), Time for a Global ‘One-Stop-Shop’ for Leniency Markers (J.M. Taladay), The ISO Litigation Legacy of Eastman Kodak Co. v. Image Technical Services (J.I. Gleklen), Crossing the Streams of Price and Promotion Under the Robinson-Patman Act (R.M. Steuer), The More Things Change, the More they Stay the Same: Applying Section 5 to Emerging Marketing Practices (L.J. Fales, E.T. Berge), Antitrust in No One’s World (E.M. Fox), From Activity to Accomplishment: Competition Law and Performance Measure (W.E. Kovacic), Economics and Competition Law: A Two-Sided Market? (J. Jayaratne, J.A. Ordover), Thinking Fast, Free, and Fashionable: Competition and Consumer Protection in a Mobile Internet World (H.C. Su) and When Does Buyer Power Become Monopsony Pricing? (J.D. Shively).
December 5, 2012
In interesting and wide ranging comments given earlier today in Vancouver, as a prelude to published remarks, the Interim Commissioner of Competition John Pecman discussed current Bureau priorities, some key enforcement trends and gave some indication of future policy direction at the Bureau.
Perhaps appropriately, the Interim Commissioner began his remarks by noting that today, December 5th, has been designated by the Indian based NGO CUTS International as “world competition day” (with this year’s topic being designated by CUTS as the impact of cartels on the world’s poor).
Some highlights from the Interim Commissioner’s remarks included:
Enforcement. An overarching theme of today’s discussion in Vancouver was a continued focus on enforcement and an unwavering willingness by the Bureau to commence litigation (though underscored throughout the talk by a message that the Bureau continues to be interested in collaboration and dialogue). While the Interim Commissioner said that the Bureau’s default is generally to work collaboratively, the Bureau will continue not to hesitate to litigate. The Interim Commissioner also spoke about a desire to return to some of the “bread and butter” priorities of the Bureau in both the criminal and deceptive marketing areas. Interestingly, the Interim Commissioner indicated that despite recent Federal budgetary cuts, the Bureau was working toward enhancing its internal litigation capabilities.
Consultations & New Guidelines. The Interim Commissioner indicated that the Bureau would be commencing consultations with the competition bar in Canada in the new-year, as well as stakeholders, business groups and procurement groups to amplify and clarify several key areas, including the Bureau’s Immunity and Leniency Programs and electronic document production. The Interim Commissioner also indicated that the Bureau would be working towards issuing new price maintenance guidelines, FAQs for unilateral conduct and new general guidelines on Bureau enforcement. The Interim Commissioner also suggested a desire by the Bureau to move away from issuing advisory opinions in individual cases toward a focus on published materials (i.e., guidelines).
Maxzone. With respect to the recent decision by Chief Justice Crampton in the Maxzone case, the Interim Commissioner indicated that the decision both sends a strong message that serious white-collar crime conduct akin to fraud should be appropriately punished (including by increasing recommendations for prison sentences) while other aspects of the decision were less workable practically, for example Chief Justice Crampton’s suggestion that defendants should work to achieve restitution with plaintiffs prior to plea agreements (which can delay criminal investigations). In this regard, the Interim Commissioner commented on the existing partition between private actions and criminal enforcement, saying there already existed a mechanism for restitution (section 36 of the Competition Act – the provision under which private civil actions in Canada are commenced). Overall, however, Mr. Pecman described the ongoing shift of Canadian courts toward sterner sentencing and recent Criminal Code sentencing amendments eliminating conditional sentences for cartel and bid-rigging offences as a “sea change” to how competition law offences are treated in Canada.
November 28, 2012
The Fraser Institute has published the eighth edition of its Economic Freedom of North America report (economic freedom defined as “the ability of individuals and families to make their own economic decisions, free from government influence”).
Some key findings made by this new report include (not surprisingly) Alberta ranking first in economic freedom, Canadian provinces making up four of the top ten Canadian and U.S. jurisdictions and Canadian provinces (surprisingly) ranking ahead of U.S. states in average levels of economic freedom.
The report was compiled by examining key indicators of Canadian and U.S. economic freedom, including size of government, taxation, rule of law and property rights and levels of regulation based on 2010 data.
Abstract:
“This is the eighth edition of the annual report, Economic Freedom of North America. The statistical results of this year’s study persuasively confirm those published in the previous seven editions: economic freedom is a powerful driver of growth and prosperity. Those provinces and states that have low levels of economic freedom continue to leave their citizens poorer than they need or should be.
November 28, 2012
In an interesting Ontario class action decision issued on November 16th, the Ontario Superior Court of Justice found George Brown College liable, among other things, for violating the Ontario Consumer Protection Act (“CPA”) in relation to representations in a college course calendar about a graduate business program (George Brown’s International Business Management Program).
The student plaintiffs in this case alleged that George Brown failed to deliver what was promised for their program: the ability to obtain three particular industry designations in addition to the college’s certificate. The program stated that students could “complete three industrial designations/certifications in addition to the George Brown College Graduate Certificate” which were in fact not available without additional courses and fees.
George Brown took the position that students received what promised – a George Brown graduate certificate and opportunity to complete the industry accreditations in the future – insisting “there was nothing inaccurate” in its program description and denied liability. The school’s view was also that reasonable students that diligently researched industry websites would have understood that George Brown was only offering a preparatory platform for the future completion of the three listed designations.
The plaintiff students initially filed a complaint to their program advisor after which, when unsuccessful, they commenced a class action founded on negligent misrepresentation, breach of contract and violations of the CPA.
In assessing the students’ claim, the Court found that the students’ interpretation of the course description was reasonable, and that they were right to assume that they would graduate not only with the George Brown graduate certificate but also the three stated industry designations/certifications (or on a more nuanced interpretation, at least the required courses for the designations).
The Court held that on a plain reading of the description, the reasonable interpretation was that students could complete courses to obtain the designations, not merely an “opportunity to advance to complete”. The Court also found that if qualifications were necessary, such as the fact that the program only provided “preparation” for future accreditations, it could easily have said so.
November 27, 2012
The C.D. Howe Institute published a new report on the Canadian Investment Canada Act and state-owned enterprises (SOEs): Speed Dating or Serious Courtship? Canada and Foreign State-Owned Enterprises. Abstract:
“If Canada wants to benefit from Asia’s long-term growth potential, there is no getting around the need to do business, carefully, with state-owned enterprises (SOEs), according to a report released today by the C.D. Howe Institute. In ‘Speed Dating or Serious Courtship? Canada and Foreign State-Owned Enterprises,’ author Daniel Schwanen discusses how Canada can address concerns about the potential impacts of investment by foreign SOEs in Canadian companies.”
For a copy of the C.D. Howe Institute’s new report see: Speed Dating or Serious Courtship? Canada and Foreign State-Owned Enterprises.
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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)
