Archive for the 'News' Category
November 24, 2012
On November 23, 2012, the U.K. Office of Fair Trading (OFT) announced that it had written to 100 leading price comparison websites (“PCWs”) asking that they take steps to ensure they were providing clear information to consumers (see: here). In making the announcement, which followed a detailed Review of Price Comparison Websites, the OFT said:
“The OFT has written to 100 leading price comparison websites asking them to ensure they are providing clear information to consumers, after a review published today by the OFT suggested that some sites could do more to improve trust amongst the public.
The review says that in general, price comparison websites have represented a major step forward for consumers, enabling them to secure better value when buying goods and services, but that some people are missing out on potential savings because of a lack of trust. The review also says that the role of such sites is likely to become even more important in the future as online sales continue to grow and initiatives such as the Government’s ‘midata’ project put more information in consumers’ hands.
As part of its review, the OFT conducted a web sweep of 55 price comparison sites which found that a number of sites could improve their privacy policies and their complaints and redress processes. It also identified scope for some sites to provide greater clarity about the way search results are presented, and clear identification of the business operating the website.”
Some of the specific issues considered by the OFT in its Price Comparison Website Report include privacy (e.g., the collection of customer information relating to searches and disclosure and use of information), transparency of information (e.g., how searches are ranked, commercial relationships between comparison sites and vendors and the proportion of the market searched) and complaints and exclusions of liability (e.g., clarity of complaints policies and scope of exclusions of liability).
Recommendations made by the OFT to PCWs include ensuring that privacy policies are clear; being clear about how search results are presented; being clear about the nature of the search; ensuring that there is a clear complaint and redress process; and ensuring clear identification of the website’s operator. The OFT also issued “six top tips” for consumers to keep in mind for price comparison sites.
In Canada, like other jurisdictions, comparative advertising can be a perfectly legitimate and consumer enhancing advertising strategy. It can also, however, in some instances raise issues including misleading advertising (or performance claim), defamation or intellectual property concerns – for example, the recent Rogers performance claims case involving a challenge by the Bureau of Rogers for comparative cell phone reliability claims made by Rogers.
November 24, 2012
Competition/antitrust law penalties in Canada, of course, do not compare to the magnitude of those in the EU or U.S. (where fines can reach hundreds of millions of dollars or Euros).
Having said that, given that 2012 is drawing to a close, I was curious what the fines in Canada have been over the past year. In this regard, though not exhaustive, the following is a brief tiptoe through the cartel, bid-rigging and misleading advertising fine landscape in the last year in Canada:
$12.5 million – Two companies sentenced in relation to a price-fixing cartel for polyurethane foam (January, 2012) (see: here).
$9 million – Five companies and three individuals held to have violated the misleading advertising provisions of the Competition Act (March 2, 2012) (see: here).
$5.5 million – An airline sentenced in relation to an international air cargo price-fixing cartel (July 19, 2012) (see: here).
$2 million – Three companies sentenced in relation to a gas price-fixing conspiracy in Kingston and Brockville, Ontario (March, 2012) (see: here).
$1.5 million – A company sentenced in relation to a price-fixing conspiracy in the aftermarket automotive lights market; part of the ongoing global auto parts cartel investigation (May, 2012) (see: here).
$500,000 – A company sentenced in relation to a gas price-fixing conspiracy in Belleville, Ontario (April 13, 2012) (see: here).
$125,000 – A company sentenced in relation to a bid-rigging cartel for federal government contracts (July 30, 2012) (see: here).
November 20, 2012
Earlier today, the Canadian Department of Justice announced that the final provisions of its omnibus crime bill, the Federal Safe Streets and Communities Act, eliminating conditional sentences for some serious crimes have come into force. In making the announcement, Canada’s Federal Attorney General said:
“’Our Government has a strong record of putting victims first, getting tough on serious and violent offenders, and keeping our streets and communities safe’ … ‘House arrest should not be available for offenders of serious crimes like sexual assault, kidnapping, and human trafficking. Those who commit these violent crimes must serve their time behind bars, not in the comfort of their homes and that is exactly the issue this legislation corrects.’”
On March 13, 2012, amendments to section 742.1 of the Criminal Code (the “Code”), which were part of the Federal Government’s omnibus crime bill (Bill C-10), received Royal Assent. The changes also restrict the availability of conditional sentences for some Competition Act offences.
In particular, where a person is convicted of an offence and a court imposes a sentence of less than two years, the court may impose a conditional sentence (i.e., served in the community), except in certain circumstances. These now include where an offence is an indictable offence with a maximum term of imprisonment of 14 years or life, which includes sections 45 and 47 of the Competition Act (conspiracy agreements and bid-rigging), as well as manslaughter, aggravated assault, arson and fraud over $5,000.
Other offences for which conditional sentences will not be available also include the following offences when prosecuted by indictment: prison breach, criminal harassment, sexual assault, kidnapping, human trafficking, theft over $5,000 and motor vehicle theft.
November 20, 2012
The C.D. Howe Institute published a new competition/antitrust related report today entitled “Closing the Back Door Route to Cartels: The Need to Clarify the Regulated Conduct Doctrine” that calls for the Competition Bureau to clarify how the regulated conduct defence applies and how the Bureau may act as an advocate of competition in regulated sectors.
I found this new report somewhat curious, in that it harkens back to the significantly more advocacy focused efforts of Canada’s former Commissioner of Competition (Sheridan Scott), who was highly engaged, among things, in efforts to deregulate segments of the health care sector (uncoupling dental hygienists from dentist oversight for example) and producing a significant report on competition in the professions (Self-regulated Professions Report). It is also not clear that the Bureau has an appetite to expand its guidance of its approach to the RCD (or amplify its advocacy efforts) given that in the past few years it has been moving in the opposite direction – i.e., narrowing some guidelines (e.g., its recently updated Abuse of Dominance Guidelines) and showing an increased focus on enforcement (not advocacy) and a desire to expand Canadian competition law through the courts (not through more guidelines).
Having said that, some increased clarity and certainty in relation to mergers in regulated sectors, including as recommended in this new report those regulated by the CRTC and the Bureau, would certainly be welcome.
Overview:
“The Competition Bureau should actively engage in competition matters in regulated sectors of the economy, where anti-competitive conduct may be protected by government legislation or authority. This is the consensus view of the C.D. Howe Institute’s Competition Policy Council, which held its fourth meeting on November 8, 2012.
Members of the Council held that the Bureau should more clearly delineate the scope of anti- competitive practices that it sees as protected by provincial or federal legislation or delegated authority; and it should be directly engaged in regulatory decisions that potentially impair competition. As well, the Bureau should contribute independent analysis in merger reviews in regulated sectors. …
At Issue: The Regulated Conduct Doctrine (RCD) protects cartels, and potentially other forms of anti-competitive conduct, that would otherwise be subject to scrutiny under the Competition Act if, according to the Competition Bureau’s interpretation, the conduct is authorized by provincial or federal legislation or authority. Although the RCD is prominent in provincially regulated sectors – such as agriculture marketing boards, professional services, energy and alcohol retailing – conduct in federally regulated sectors – such as transportation, telecommunications and broadcasting – may also potentially be protected under the RCD.
November 16, 2012
The following are some of the more interesting competition, advertising and regulatory law developments that caught my eye over the past several days, at least to the extent they have a bearing on Canada or companies doing business in Canada:
BCE and Astral plan to work towards reworking their deal to obtain regulatory clearance (see: here and here), following a rejection of the deal by the federal CRTC.
The Malaysian state-owned oil company Petronas was reported to be revising undertakings to obtain Investment Canada Act clearance for its acquisition of Progress Energy (see: here).
The CRTC launched new web pages for their planned mandatory wireless code consultations that include the “top 100 liked” comments for a new wireless code (see: here).
Earlier today, Canada’s Finance Minister gave some further indications that the Federal Government may soon reveal new Investment Canada Act rules for FDI in Canada and that the new rules may include “limits” (see: here). Any such rules would replace and/or supplement existing Investment Canada Act provisions and guidelines under the ICA (e.g., those specifically relating to national security or state-owned-enterprises).
More testimony unfolded in the ongoing Quebec corruption and competition law probe relating to allegations of municipal bribes and bid-rigging in the construction sector in Quebec (Monique Muise at the Gazette in Montreal has the best feed going on this, plus she has a sense of humour and, if I may say, classic Quebecois ability to take things in stride – see: here).
November 16, 2012
I did a bit of a quick sweep earlier today for new Canadian competition, advertising and regulatory law texts and this one, recently published by Oxford University Press, caught my eye on class action regimes around the world including Canada. Given the accelerating rate of class action activity in Canada, including in the competition and advertising law areas, I thought this was a worthy hole to fill (and to keep filling).
Abstract:
“World Class Actions: A Guide to Group and Representative Actions around the Globe is a guide for attorneys and their clients on the procedures available for class, group, and representative actions throughout the world. It helps lawyers navigate and develop strategies for litigation and risk management in the course of doing business abroad, or even in doing business locally in a way that impacts interests abroad.
Part I of the book provides a jurisdiction-by-jurisdiction survey of the class action, group, collective, derivative, and other representative action procedures available across the globe. Each chapter is written from a local perspective, by an attorney familiar with the laws, best practices, legal climate, and culture of the jurisdiction.
Part II provides guidance from the perspective of international attorneys practicing in foreign jurisdictions and the art of counseling and representing clients in international litigation. It also covers a variety of topics related to transnational, multi-jurisdictional, and class or collective actions that involve international issues and interests.
Each chapter offers practice tips and cultural insights helpful to an attorney or litigant facing a dispute in a particular part of the world. Many of the chapters introduce key books, treatises, articles, or other reference materials to foster further research. Its focus on international class and group litigation law from a practitioner’s perspective makes World Class Actions an essential guide for the lawyer or client.”
Jurisdictions included in this new global class action text include Canada, as well as the U.S., Australia, a number of major European jurisdictions, China, India and the Asia-Pacific region.
For more information see: World Class Actions: A Guide to Group and Representative Actions Around the Globe.
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November 14, 2012
CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules and forms for a Canadian contest/sweepstakes? I offer a selection of Canadian contest rules and forms for random draw, skill and other common types of Canadian contests (i.e., contest precedents and forms). For more information see Canadian Contest Forms/Precedents.
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In what I think was the most tragic legal story I saw today – in terms of human nature and near financial gain (but not quite) though not perhaps true human tragedy – the Montreal Gazette reported that a Quebec court has denied a lottery player’s claim to a $27 million jackpot – for a seven second delay in buying his ticket.
November 14, 2012
When companies think about competition law compliance, the focus is often on senior management and board compliance – that is, ensuring that the board, and a firm’s directors and officers, have a clear understanding of competition law rules. That is not to say that it is not well known that managers, and in particular a company’s sales force, are often at the center of competition/antitrust issues. Practically, however, companies often approach compliance from the top down with an expectation that senior management will disseminate the compliance message down through an organization. Sometimes that is the case. In more cases, however, it seems that it is not – as is evidenced by the Competition Bureau’s perennial complaint that many companies have compliance programs, but fail to effectively implement them.
In this regard, a recent U.K. paper caught my eye on the role of marketing managers in global cartels entitled “The Role of Sales and Marketing Managers Within International Cartels” (J.K. Ashton & A.D. Pressey).
This study looked at 56 major international cartels investigated by the European Union with findings that include the fact that marketing and sales managers have been involved in a substantial percentage of cartels (42.9%), are seldom the most senior managers, tended to involve global cartels (in manufacturing more than distribution industries) and involved information exchanges in the context of predominantly market allocation and price-fixing arrangements.
Interestingly, this study also looks at some of the strategies cartels have used to avoid detection (including minimizing meetings, punishing “cheating” and more levels of organizational hierarchy – i.e., buffers between marketing personnel and senior management), marketing managers’ involvement in trade associations and statistics of U.S. incarceration of foreign nationals and the reliance of whistle blowers in investigations.
Abstract:
“Although the study of international cartels has a considerable lineage our understanding of their organization, operation and management remains limited. This study attends to this omission through examining the role of marketing and sales managers within international cartels using a content analysis of 56 major international price-fixing cartels over two decades (1990-2009). It is reported that marketing and sales managers are demonstrably involved in many international cartels (42.9% of all cartel cases), albeit often accompanied by more senior managers from other firm functions. Marketing and sales managers appear most frequently within worldwide and manufacturing industry cartels and where market allocation and customer-sharing practices occur. In light of these findings it is important to reassess both managerial attitudes towards inter-firm collaborations and enhance the position of antitrust concerns within business school syllabi.”
For a copy of the paper see: Who Manages Cartels? The Role of Sales and Marketing Managers within International Cartels.
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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)
