Archive for the 'News' Category
Yesterday was a banner day for the European Commission, which imposed a total of €255 million against parties in the freight forwarders and window mountings cartels.
In the freight forwarders cartel, the Commission fined 14 international groups of companies a total of €169 million for participating in four cartels between 2002 and 2007 to fix the prices and other trading conditions for international freight forwarding services.
Interestingly, the parties in this case took rather elaborate and colourful steps to conceal the cartel, organizing their contacts in a so-called “Gardening Club” and using code-names based on vegetables (e.g., asparagus and baby courgettes) when the parties talked about fixing prices. The parties also set up a specific Yahoo e-mail account to facilitate the cartel and information exchanges between them.
Rob Currie, a professor at the Schulich School of Law, Dalhousie, has written a rather good and interesting note on Bill C-30 (the “Lawful Access” Bill or “Protecting Children From Internet Predators Act”) and the Council of Europe’s Cybercrime Convention, which Canada is a signatory to.
He discusses Canada’s participation in the Cybercrime Convention, the fact that Canada has not yet ratified based on an absence of investigative tools that are a prerequisite to ratification and the wider objectives of the Convention.
On March 28, 2012, the U.S. Department of Justice, Antitrust Division issued its 2012 annual newsletter, which includes summaries of the DoJ’s Civil and Criminal Programs, International Program and competition advocacy and policy efforts in 2011.
Some interesting merger-related highlights of the DoJ’s newsletter include its report that premerger notifications in the U.S. under the HSR Act were up over 24% in 2011 (1,450 notifications in FY 2011 compared to 1,166 in 2010) and that it filed16 enforcement actions since April 1, 2011 (an increase from 6 in the previous year). The DoJ discusses the following transactions, among others: AT&T Inc. / T-Mobile USA Inc., H&R Block Inc. / TaxACT, NASDAQ QMX and IntercontinentalExchange Inc. / NYSE Euronext, VeriFone Systems Inc. / Hypercom Corp. and three high profile patent-related transactions: Google Inc.’s acquisition of Motorola Mobility Holdings Inc., the acquisitions by Apple Inc., Microsoft and RIM of Nortel Networks patents and the acquisition by Apple of Novell Inc. patents.
Our friends at the Canadian Council on International Law (CCIL) have issued a call for papers for the CCIL’s 41st Annual Conference entitled “SOS International Law: International Law in Times of Crisis and Emergency” to be held in Ottawa from November 8-10, 2012.
From the CCIL:
“The Canadian Council on International Law invites paper proposals from faculty members, doctoral level graduate students in law and related disciplines, and practitioners, on topics dealing with the theme of its 41st Annual Conference: ‘SOS International Law: International Law in Times of Crisis and Emergency’.
Crises and emergencies come in many forms. They may be financial, environmental or purely political, as states break apart, governments are ousted or armed conflicts occur. From the financial turmoil in the United States and Europe, to the surge for democracy in the Arab world and resulting civil conflicts, to natural disasters in Haiti and Japan, and to the predicament of nuclear proliferation in Iran and elsewhere, international relations have been preoccupied by these crises and emergencies. And behind these newspaper headlines are countless crises averted or emergencies abated, where early intervention forestalls disasters before they emerge.
In a curious story that caught my eye today, CTV reported that the City of Ottawa is threatening to terminate its contracts with companies found to have conspired to fix the price of gas in Ottawa and ban all future City purchases from them.
According to CTV, City of Ottawa Councilors Stephen Blais and Steve Desroches sent a letter to Canadian Tire, Mr. Gas and Pioneer in Ottawa, all of which pleaded guilty in Ontario Superior Court last week to fixing the price of gas in 2007 and were fined $2 million (see: Competition Bureau Announces $2 Million Fines in Ontario Gas Price-fixing Case).
This case is the second major gasoline price-fixing investigation that the Bureau has disclosed in the past several years (the Bureau is currently concluding the largest criminal investigation in its history in relation to gasoline price-fixing in Quebec – see: Further Individual Pleads Guilty in Quebec Gasoline Price-fixing Cartel).
On March 23, 2012, the CRTC announced that it had imposed a $24,000 administrative monetary penalty against Quebec telemarketing company Les Aliments S.R.C. Inc. for calling consumers registered on the National Do Not Call List (DNCL) and failure to pay registration fees to the National DNCL operator.
Under the Unsolicited Telecommunications Rules, telemarketers are prohibited from calling consumers registered on the DNCL (unless express consent has been obtained). The Rules also require telemarketers to be registered on the National DNCL and pay registration fees to the National DNCL operator.
Les Aliments took the position that the Rules had not been violated regarding calls to one complainant because it had an existing business relationship (the Rules do not apply to telemarketing where there is an existing business relationship, as defined) and should be acquitted of other violations because it acted in good faith and exercised due diligence (a due diligence defence exists under the Telecommunications Act).
Anti-corruption: Anti-Corruption Regulation 2012 (including Canada) – GCR (March 2012)
From GCR:
“Getting the Deal Through is delighted to publish the fully revised and updated sixth edition of Anti-Corruption Regulation, a volume in our series of annual reports, which provide international analysis in key areas of law and policy for corporate counsel, cross-border legal practitioners and business people.
Following the format adopted throughout the series, the same key questions are answered by leading practitioners in each of the 54 jurisdictions featured. New jurisdictions this year include Argentina, Croatia, Cyprus, Ireland and Turkey.”
For more information see:
Anti-Corruption Regulation 2012
Competition: Cartel Regulation 2012 (including Canada) – GCR (February 2012)
From GCR:
“Global Competition Review is delighted to publish the fully revised and updated twelfth edition of Cartel Regulation, a volume in the Getting the Deal Through series of annual special reports providing international analysis in key areas of law and policy for corporate counsel, cross-border legal practitioners and business people.
The globalisation of the world’s economy means that cartel investigations are increasingly likely to be faced simultaneously in multiple jurisdictions. In the format adopted throughout the series, the same key questions are answered by leading practitioners in 46 jurisdictions worldwide. New jurisdictions this year include Belgium, Ecuador, Hungary, Indonesia, Slovakia and Zambia.”
For more information see:
On March 22, 2012, the Competition Bureau issued revised draft Abuse of Dominance Guidelines for public comment. The Bureau had previously issued updated draft Abuse Guidelines in January, 2009 (the Bureau’s Abuse of Dominance Guidelines have not been updated since 2001).
Generally speaking, under section 79 of the federal Competition Act, abuse of dominance occurs when a dominant firm (or firms) engages in a practice of anti-competitive acts that results in a prevention or substantial lessening of competition. Canada’s modern abuse of dominance provisions were added to the Act following significant amendments in 1986.
Like other major jurisdictions, in Canada it is not dominance per se that is prohibited, but rather the abuse of a dominant position (Canada does not, unlike the United States, recognize attempted monopolization).
To establish abuse of dominance, the Commissioner of Competition must establish the following elements on an application to the federal Competition Tribunal:
1. A firm (or firms) is dominant in a relevant market (dominance);
2. The firm has engaged in a practice of anti-competitive acts; and
3. The firm’s conduct has resulted in (or is or is likely to result in) a prevention or substantial lessening of competition.
Some of the highlights of the Bureau’s revised draft Abuse Guidelines, which are markedly shorter and more concise that than its previous guidelines, include:
Affirming that market power alone (or high prices) is insufficient to warrant intervention under the abuse of dominance provisions of the Act.
Confirming existing Competition Tribunal jurisprudence in relation to the elements of abuse of dominance (market power, a practice of anti-competitive acts and prevention or substantial lessening of competition). The Bureau also emphasizes that market power is a necessary prerequisite to abuse of dominance inquiries.
Taking the position that, during abuse of dominance inquiries, the Bureau will “generally afford parties the opportunity to respond to [its] concerns regarding alleged contraventions of section 79 and propose an appropriate resolution to address them.”
Indicating a general preference by the Bureau for settlements by way of registered consent agreements (consistent generally with the Bureau’s departure in recent years away from more informal resolutions, such as undertakings).
Articulating the Bureau’s general use of the hypothetical monopolist test for product and geographic market definition.
Setting out more clearly and concisely than previous guidelines the Bureau’s approach to quantitative and qualitative factors for product and geographic market definition. This is one of the most appealing refinements in the Bureau’s new draft Abuse Guidelines.
Increasing the previous “bright line” share thresholds for single firm dominance, with the Bureau now taking the position that a market share of less than 35% will generally not prompt further examination (unchanged), that a market share between 35% and 50% may be examined by the Bureau (a stricter standard for complainants than in the previous guidelines, where a market share of 35% or more would have “generally [prompted] further examination”) and that a market share of 50% or more will generally prompt further examination (increased from the previous 35%).
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
