Archive for the 'Competition Law' Category
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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April 24, 2012
In anticipation of Canada’s new Anti-spam Act coming into force, the federal Government has launched another tool for Canadian consumers and businesses – a “Fight Spam Quiz”. The quiz (or rather quizzes – one for consumers and another for businesses and organizations) include questions about scareware, phishing, Wi-Fi and security, spambots, malware, spam, viruses, corporate Internet and e-mail usage policies, VPNs (virtual private networks) and Denial of Service (DoS) attacks. To take the quiz see: Fight Spam Quiz
Earlier today, the Retail Council of Canada (RCC) issued a news release and its submission to the Standing Committee on National Finance regarding retail pricing in Canada. The Committee commenced a study of the reasons for price differences in Canada and the United States last fall, and has heard from a wide spectrum of witnesses, including from government (the Competition Bureau, Canadian Heritage, Transport Canada, CBSA and Department of Finance), the private sector, academics and industry associations and groups.
In addressing the Committee, the RCC’s President Diane Brisebois urged them to “help set the record straight about the real causes of price differences in Canada versus the United States”.
According to the RCC, Canadian retailers are confronted by the following factors that impact retail pricing in Canada: (i) import duties on finished goods, (ii) supply management affecting food product prices (i.e., marketing boards that impact the prices of dairy, poultry and other products), (iii) vendor pricing (i.e., higher prices for Canadian retailers) and (iv) regulatory harmonization (e.g., in the book industry, in relation to which the RCC said Canada was the “poster child” for regulation leading to higher book prices). The RCC particularly emphasized existing “outdated” tariffs for adversely impacting Canadian retail prices.
The RCC’s submission discusses, among other things, the Canadian retail industry and suggested areas for government action (in relation to country pricing, duty remission on imported consumer goods, supply management and regulatory harmonization/red tape reduction).
Interestingly, the RCC did not address any competition or marketplace concentration issues in its submission, which is interesting given the high level of consolidation in many Canadian industries (including in some retail segments), except to comment on increased foreign competition:
The American Bar Association’s Section of Antitrust Law has launched a very interesting (if perhaps appealing only to competition/antitrust geeks) collection of video interviews with and speeches by some of the leading U.S. antitrust practitioners, enforcement officials and bench. Included are Anne Bingaman, Terry Calvani, Judge Frank Easterbrook, Eleanor Fox, William Kovacic, Tim Muris, Robert Pitofsky and Judge Richard Posner, among others.
In an interesting recent note, Jones Day has commented on a recent FTC administrative action against three of the largest U.S. suppliers of ductile iron pipe fittings (DIPF) alleging that they engaged in price-fixing and other anticompetitive behaviour. In connection with this case, the FTC has published a proposed consent order for public comment to resolve claims that one supplier, Star, violated section 5 of the Federal Trade Commission Act by engaging in price fixing.
The case is interesting in that the FTC’s complaint alleges that two of the suppliers, McWane and Sigma, invited the third, Star, to collude by communicating through a letter to common customers. The FTC also alleges that the suppliers utilized an industry trade association (the Ductile Iron Fittings Research Association) to exchange sales information to monitor and enforce the parties’ alleged agreement.
The FTC’s proposed consent order would prohibit Star from: (i) agreeing to fix, raise or stabilize DIPF prices (or allocate markets, customers or business opportunities for DIPF), (ii) soliciting any competitor to participate in such anti-competitive conduct or (iii) participate in any agreement between competitors to exchange competitively sensitive information (e.g., sales information).
In Canada, while there is no express provision in the Competition Act exclusively governing information exchanges, the principal risk of such exchanges between competitors is that they can lead to agreements (e.g., price-fixing agreements) that violate the criminal conspiracy provisions of the Competition Act (section 45). Such information can include prices, costs, customers, suppliers, markets, market shares and business and strategic plans.
Information exchanges can also be relevant in establishing the existence of an illegal agreement under section 45 (i.e., be used by the Bureau, a court or a private plaintiff to infer the existence of an agreement that violates section 45).
On April 19, 2012, the U.K. Office of Fair Trading (OFT) announced its decision that British Airways (BA) and Virgin Atlantic Airways (VAA) engaged in anti-competitive practices relating to passenger fuel surcharges and fined BA £58.5 million. This case relates to coordination between the airlines on surcharge pricing for long-haul flights through the exchange of pricing and other competitively sensitive information.
In making the announcement, the OFT said:
“This decision brings an end to this investigation and sends out a strong message that coordinating pricing through the exchange of confidential information between competitors is unlawful. The size of the fine underlines that it is important for companies to take steps to ensure that they have an effective compliance culture. The fine would have been higher still but for the co-operation provided by BA throughout the OFT’s investigation. Without this, together with BA’s admission of the infringement, the case would have taken considerably longer to resolve.”
According to the OFT, VAA brought the matter to the OFT’s attention and was not fined under the OFT’s leniency policy.
In Canada, the Competition Bureau also has Immunity and Leniency Programs, which are both increasingly important tools for the Bureau for the detection of cartels and important options for parties participating in criminal conduct under the Competition Act to reduce liability.
The case is also interesting in highlighting the risk of information exchanges between competitors.
In Canada, while there is no express provision in the Competition Act exclusively governing information exchanges, the principal risk of such exchanges between competitors is that they can lead to agreements (e.g., price-fixing agreements) that violate the criminal conspiracy provisions of the Competition Act (under section 45).
Information exchanges can also be relevant in establishing the existence of an illegal agreement under section 45 (i.e., be used by the Bureau, a court or a private plaintiff to infer the existence of an agreement that contravenes section 45).
Following amendments to Canada’s Competition Act in 2009 and 2010, agreements to exchange competitively sensitive information may also raise issues under section 90.1 of the Act (the civil reviewable practice section for agreements among competitors) if their effect is to prevent or lessen competition substantially.
Global Competition Review has published its 2012 edition of Vertical Agreements with a global survey of the regulation of vertical agreements including in Canada.
From GCR:
“Global Competition Review is delighted to publish the sixth edition of Vertical Agreements, 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.
Following the format adopted throughout the series, the same key questions are answered by leading practitioners in each of the 37 jurisdictions featured.”
The Institute of European and International Business Law from the University of St. Gallen in Switzerland will be hosting the nineteenth St. Gallen International Competition Law Forum ICF on June 7 and 8, 2012.
From the Institute of European and International Business Law:
“The Institute of European and International Business Law from the University of St. Gallen, Switzerland is pleased to invite you to the nineteenth St. Gallen Inernational Competition Law Forum ICF on June 7 and 8 2012. Once again, leading experts in national, European and international competition law will come together to discuss their ideas on the latest trends and developments in the field and their practical implications.
The St. Gallen International Competition Law Forum ICF prides itself on being one of the most established events of its kind in Europe. It attracts influential policy shapers, this year, for example, Joaquin Almunia (European Commissioner of Competition), Andreas Mundt (President of the German Competition Authority) and William Kovacic (Former Commissioner of the U.S. Federal Trade Commission) as well as internationally renowned academic experts and leading business practitioners.
You will find all information on the conference in the programme flyer (see: Programme) and under www.sg-icf.ch. As places are limited, we encourage early registration!
If you have further questions, please do not hesitate to contact the Institute of European and International Business Law (europarecht@unisg.ch).
We very much look forward to seeing you this summer in St. Gallen!”
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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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April 15, 2012
The Federal Office of the Privacy Commissioner has launched a new and enhanced website that includes new anti-spam legislation information relating to the role of the Privacy Commissioner (see: Online Privacy: Fighting Electronic Spam and Other Online Threats).
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
