Archive for the 'Competition Law' Category
On March 28, 2012, the CRTC published its final Regulations under the Anti-spam Act (see: Electronic Commerce Protection Regulations (CRTC)).
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.
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).
ABA International Antitrust Committee – March 2012 Newsletter
The International Antitrust Law Committee of the American Bar Association has published its March 2012 Newsletter, which includes articles on trends in antitrust enforcement in CEE countries, investigation of cartels in Russia, a note on Ecuador’s Antitrust Act and competition compliance in the EU.
ABA Section of Antitrust Law – Market Definition in Antitrust (March 2012)
The ABA Section of Antitrust Law has published Market Definition in Antitrust: Issues and Case Studies.
From the ABA:
“Market Definition in Antitrust: Issues and Case Studies provides a comprehensive analysis of the issues involved in defining markets in antitrust cases. Market definition is central to most antitrust cases, because determining the existence of market power typically requires the definition of a relevant market. This book will prove a valuable guide to antitrust practitioners and consulting economists who are dealing with market definition.
This book is a thorough and accessible single volume practical guide to the definition of relevant markets and to empirical techniques that have been used in a variety of industries. The first chapter provides an overview of the theoretical concept of a relevant market. The remaining chapters provide industry-specific illustrations of how markets are defined in different contexts. The economic and legal analysis of product market definition has advanced significantly past the simple tests that were put forth in the Supreme Court’s 1962 decision in Brown Shoe Co. v. United States. Similarly, the analysis of geographic markets has come to recognize the limitations of the tests that focus exclusively on shipment patterns.
Data limitations and institutional considerations mean that there is no cookie-cutter approach to market definition that can be applied in all contexts. This book describes modern methods of market definition and analyzes their application in actual cases.”
For more information see:
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)
