Archive for the 'News' Category
Edward Elgar has published a new handbook on U.S. private antitrust enforcement entitled Private Enforcement of Antitrust Law in the United States. Overview:
“Private Enforcement of Antitrust Law in the United States is a comprehensive Handbook, providing a detailed, step-by-step examination of the private enforcement process, as illuminated by many of the country’s leading practitioners, experts, and scholars.
Contributors: W.K. Arends, A.C. Briggs, W.J. Bruckner, P.B. Clayton, C.C. Corbitt, E.L. Cramer, M.B. Eisenkraft, A.A. Foer, A.J. Gaughan, P. Gilbert, J. Goldberg, D.E. Gustafson, M.D. Hausfeld, K. Kinsella, R.H. Lande, J. Langenfeld, S. Martin, K.J.L. O’Connor, H.L. Renfro, J.D. Richards, V. Romanenko, J.L. Rubin, M.R. Salzwedel, A.E. Shafroth, D.C. Simons, S.P. Slaughter, R.M. Stutz, B.E. Sweeney, J. Tabacco, M.J. Waters, S. Wheatman, K.C. Wildfang, G.G. Wrobel, J.A. Zahid
Private Enforcement of Antitrust Law in the United States is a comprehensive Handbook, providing a detailed, step-by-step examination of the private enforcement process, as illuminated by many of the country’s leading practitioners, experts, and scholars. Written primarily from the viewpoint of the complainant, the Handbook goes well beyond a detailed cataloguing of the substantive and procedural considerations associated with individual and class action antitrust lawsuits by private individuals and businesses. It is a collection of thoughtful essays that delves deeply into practical and strategic considerations attending the decision-making of private practitioners. This eminently readable and authoritative Handbook will prove to be an invaluable resource for anyone associated with the antitrust enterprise, including both inexperienced and seasoned practitioners, law professors and students, testifying and consulting economists, and government officials involved in overlapping public/private actions and remedies.”
For more information and ordering details see:
Private Enforcement of Antitrust Law in the United States
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In what can only be described as a growing war against telecom advertising in Canada, the Competition Bureau announced on September 14, 2012 that it began proceedings in Ontario Superior Court against Bell Canada (“Bell”), Rogers Communications (“Rogers”), TELUS Corporation (“TELUS”) and the Canadian Wireless Telecommunications Association (“CWTA”) for alleged misleading advertising in relation to “premium texting services” (see: Competition Bureau Sues Bell, Rogers and Telus for Misleading Consumers: Bureau Seeks Customer Refunds and $31 Million in Penalties).
The Bureau is seeking both the maximum civil penalties available under the Competition Act (the “Act”) against Bell, Rogers and TELUS, as well as full restitution for consumers (amendments to the Act in 2009 both significantly increased the monetary penalties for misleading advertising and introduced a new restitution penalty). The Bureau is seeking a $1 million AMP against the CWTA.
According to the Bureau’s allegations, Bell, Rogers and TELUS (together with the CWTA) facilitated the sale of 3rd party premium-rate digital content – for example, news, advice, alerts, trivia quotations, horoscopes and ringtones – without adequate disclosure of their fees and suggestions were made in advertising for these products that the services were free.
In making the announcement the Bureau said:
“’Our investigation revealed that consumers were under the false impression that certain texts and apps were free,’ said Melanie Aitken, Commissioner of Competition. ‘Unfortunately, in far too many cases, consumers only became aware of unexpected and unauthorized charges on their mobile phone bills.’ The premium-rate digital content in question can cost up to $10 per transaction, and up to $40 for a monthly subscription, rates over and above standard text messaging plans.”
The premium 3rd party content was marketed through free wireless apps and online, and have been the subject of previous consumer studies (see: Paying a Premium: Consumers and Mobile Premium Services, a Public Interest Advocacy Centre report) and critical commentary (see here). The 2011 PIAC report found, among other things, that consumer premium mobile service problems were under-detected and underreported, that the industry often dismisses complaints and no agency tracks or handles related complaints (leading to a recommendation for measures to improve consumer protection in relation to premium mobile services).
This is also the most recent case is the latest in a series of high profile advertising law challenges made by the Bureau against Bell (price claims and disclaimers; see here and here), Nivea (performance claims and the general impression test; see: Nivea), Yellow Page Marketing (misleading business claims and disclaimers; see: here, here and here) and the ongoing Rogers case (performance claims, the general impression test and disclaimers; see: here).
The Bureau’s Claim & General Impression Test
The thrust of the Bureau’s Statement of Claim under Canadian competition law is twofold: first, that the wireless companies made false or misleading representations to the public online and over their wireless networks the general impression of which was that consumers could receive premium text messaging and other services free (when they were in fact charged for the content); and second, that claims were made that consumers were safeguarded from receiving and having to pay unauthorized charges, when in fact the wireless companies collected and facilitated such charges keeping a portion.
In this regard, in Canada the general misleading advertising provisions of the Act can be violated where claims are either literally false or convey a false or misleading general impression.
Interestingly, the Bureau has also imported the recent (and lower) general impression test from the Supreme Court of Canada’s decision in Richard v. Time, alleging that the telecoms’ false or misleading representations were targeted at wireless users, including “credulous, inexperienced, and vulnerable” persons, such as children.
The CWTA’s News Release and Control
In the CWTA’s news release, it indicates that it had in fact contacted the Bureau last year to investigate potential remedies for non-compliant advertising by companies utilizing Common Short Codes (and offer assistance in pursuing potential remedies), the Bureau chose instead to pursue litigation against the CWTA and the defendant telecos, that wireless carriers do not in fact create or control text messaging services (but rather only manage the billing for 3rd party creators and operators) and that the Bureau’s actions could disrupt Canadians’ access to text messaging services.
The control point made by the CWTA is an interesting, if not entirely settled point (i.e., in Canada, the degree to which a party, such as an ISP, must be linked to a false or misleading claim in order to be liable remains subject to debate).
In its Claim, the Bureau emphasizes the wireless companies’ involvement and control of the delivery of text messaging services, through third parties, alleging that the defendants are “far from being passive conduits” for the distribution of text messaging services, but rather provide third party providers with “privileged access” to their networks and the necessary infrastructure to deliver services (while collecting related revenues). According to the Bureau, the entire model for delivery of text messaging services through Short Codes and third parties has been established and is administered by the defendants, relying on their active participation.
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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September 13, 2012
The Canadian Corporate Counsel Association recently published a new article on Canada’s impending (but when?) new anti-spam legislation, entitled Canada’s Anti-spam Law: Filtering Relationships (by Yves Faguy).
The Montreal Economic Institute has published a new report on competition in the Canadian wireless sector entitled “Is the Canadian Wireless Sector Competitive”.
Introduction:
“Nearly two decades after having decided that it was not necessary to regulate the wireless telephone sector, the Canadian Radio-television and Telecommunications Commission (CRTC) decided this past April to revisit its decision and hold public consultations on the matter. It should soon announce whether or not it believes that formal regulation is required to ensure that the sector remains competitive. Wireless telephony now includes data transmission and has become a competitive factor for businesses in an environment in which communications technologies are developing rapidly.
Some observers of the Canadian wireless sector, basing themselves on certain Canadian and international studies, maintain that the sector is not competitive enough and that more regulation is required to force providers to lower prices, increase download speeds and improve service quality. These critics also believe that Canadian consumers are at a disadvantage compared with consumers in other developed countries and that Canada is constantly losing ground in terms of innovation, penetration rates and investment in infrastructure. At a time the CRTC is asking itself whether it should regulate the wireless sector, it is appropriate to look at the state of this industry in Canada.”
For a copy of the report see: Is the Canadian Wireless Sector Competitive?
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Global Conference on Environmental Taxation – BC Carbon Tax Panel – National Centre for Business Law
The University of British Columbia, Faculty of Law will be co-hosting a special panel on British Columbia carbon tax as part of the 13th Global Conference on Environmental Taxation (September 21, 2012 at the University of British Columbia, Faculty of Law – Allard Hall).
From UBC Faculty of Law:
“Research that has been a part of the previous twelve meetings of the Global Conference on Environmental Taxation (GCET) have helped form a theoretical and empirical foundation for environmental taxation. GCET work has been at the frontier of applied work on environmental taxation, and has rigorously examined the ramifications of environmental taxation in different jurisdictions, industries, and ecological settings. GCET has hosted a truly wide range of theoretical and applied policy research, providing global leadership in policy discussions on environmental policy instrument choice.
The University of British Columbia Faculty of Law, the UBC National Centre for Business Law, and the UBC Centre for Law and the Environment are proud to host the 13th GCET. The theme for the 2012 GCET will be Environmental Taxation: Barriers, Opportunities, and the Potential for Inducing Technological Innovation. The tripartite focus of the conference will be (1) the political, psychological, institutional and other barriers to adoption of environmental taxation, (2) emerging developments and new opportunities for introduction of environmental taxation, and (3) the potential for environmental taxation to induce technological innovation for the abatement of pollution. We wish to highlight a special call for papers, on the potential for environmental taxation to promote technological innovation for greenhouse gas abatement. Three papers will be selected for a special plenary session, and one paper will be selected for a special prize of $1000 (Cdn) and a travel allowance to be applied toward travel to this conference. For further details, please see the call for abstracts and papers.
Recently, on August 4, 2012, new Enhanced Labellilng for Food Allergen Regulations under the federal Food and Drugs Act came into force. These Regulations increase the labelling requirements for prepackaged foods sold in Canada containing specific types of priority allergens, gluten sources and added sulphites (see: Canada’s new food allergen labelling regulations came into force).
Health Canada has also issued a Food Allergen Precaution Statement Policy, which recommends that food manufacturers and importers voluntarily make declarations on the labels of prepackaged foods of the possible inadvertent presence of allergens.
Advertising Standards Canada will be holding two upcoming workshops on the basics of Canadian food related advertising regulations in Montreal (September 19th) and Toronto (September 25th). These two hour workshops will address common questions relating to Canadian food advertising related regulations, including how to compare foods, “common names”, how to claim that products are “fresh” / “natural” or “healthy”, nutrient content claims and health claims.
For more information see: The ABC’s of Food Advertising Regulations.
In a recent decision, the Federal Court of Appeal granted a stay of the Competition Tribunal’s May 29, 2012 decision in the contested CCS merger case Commissioner of Competition v. CCS Corporation.
This decision relates to a recent contested BC landfill merger, in which CCS Corporation acquired Complete Environmental Inc. and its wholly-owned subsidiary Babkirk Land Services (the first contested merger case in Canada in six years, an uncommon example of a “prevent” merger case under the Competition Act and a non-notifiable merger challenged by the Competition Bureau).
As a result of the Tribunal’s May decision, following a challenge of the merger by the Bureau, CCS Corporation (now Tervita Corporation) had been subject to a Tribunal order to divest the shares or assets of acquired Babkirk before the end of the year, after which a trustee was to be appointed to effect the sale. The Tribunal had also issued a related Divestiture Procedure Order in July, setting out the terms for the divestiture process (see: Divestiture Procedure Order).
In this regard, the Tribunal partially granted the Commissioner of Competition’s application accepting that the transaction would likely prevent competition substantially in the relevant secure landfill services market in Northern BC, though ordered divestiture rather than dissolution (see: Competition Tribunal Releases Decision in BC Landfill “Prevent” Merger Case and Commissioner of Competition v. CCS Corporation).
The stay of the Tribunal’s decision now granted by the Federal Court will apply until the final determination of the appeal. In granting a stay, the Court applied the test in RJR – MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. (S.C.C.), in which the Supreme Court set out a three-part test (serious issue, irreparable harm and balance of convenience).
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
