Archive for the 'Conspiracy' Category
New (2012) advertising, competition/antitrust, cartel, trade and class action law books from Oxford University Press:
The Class Action Playbook – Brian Anderson and Andrew Trask
From OUP:
“The Class Action Playbook is a unique and strategic “how to” guide for practitioners seeking to bring or defend a class action. Every important issue is addressed, including the initial shape of the proposed action, choice of forum, case-management schedules, pre-certification discovery and motions activity, briefing and argument of the class-certification motion, class notice, preparation for trial, class settlements, and the binding effects of class action judgments.
Experienced practitioners Brian Anderson and Andrew Trask analyze what decisions the plaintiff and defendant must make at each stage of a proposed class action, and the considerations that might drive different strategies at each stage. The authors explain the importance of every issue, the choices available to each side, and the factors each side should consider in choosing the best path to follow.
This Second Edition covers six relevant cases from the historic 2010 and 2011 Supreme Court terms; official commentary on class actions with citations to the new American Law Institute’s statement of the Principles of Aggregated Litigation, and where it upholds plaintiffs’ or defendants’ arguments; a discussion on emerging class action litigation tactics, including the use of arbitration clauses and the use of motions to strike class allegations; new appellate-court trends in class-action law, including developments in adequacy of representation, superiority, and use of experts at class certification.”
For more see: OUP: Class Action Playbook
A few days ago we posted a short note describing the Royal Bank of Scotland N.V. (Canada) Branch (“RBS”) obtaining a stay in Ontario Superior Court to produce documents under section 11 orders obtained by the federal Competition Bureau (the “Bureau”) (see: RBS Wins Stay in LIBOR-TIBOR Price-fixing Case).
On March 1, 2012, the omnibus crime bill currently making its way through the House and Senate (Bill C-10) passed third reading and was adopted by the Senate with 6 amendments (adopting a February 28, 2012 Senate Committee Report – see: Standing Senate Committee on Legal and Constitutional Affairs – Ninth Report).
Bill C-10, if it comes into force, will amend the current section 742.1 of the Criminal Code to provide that where a person is convicted of an offence and the court imposes a sentence of less than two years, the court may impose a conditional sentence (i.e., that the sentence be served in the community), except in certain circumstances.
The Competition Bureau announced earlier today that it was kicking off Fraud Prevention Month with a series of panel discussions on fraud prevention across Canada that will assemble experts from law enforcement agencies, academics and business and consumer groups.
In making the announcement, the Bureau said:
“The Competition Bureau is organizing a series of panel discussions on fraud prevention across Canada that will bring together experts from law enforcement agencies, academia, as well as businesses and consumer groups. The focus of these discussions will be on practical strategies for fighting fraud and raising awareness so that Canadians can protect themselves in the marketplace, particularly in the online and mobile environments. These events will take place at the University of Ottawa on March 6, at the University of Alberta in Edmonton on March 8, and at Concordia University in Montreal on March 13.
Fraud is a crime that affects individuals, businesses and the economy as a whole. ‘It’s a matter of confidence,’ said Melanie Aitken, Commissioner of Competition. ‘Consumers need to know enough to make informed purchasing choices, based on advertising that is truthful and complete.’
The Competition Bureau, along with the Fraud Prevention Forum, plays an important role in helping Canadians get the information they need to be informed and confident consumers. Consumers also have a role to play in stopping fraud by arming themselves with the facts and reporting fraud when they encounter it.
The Fraud Prevention Forum, chaired by the Competition Bureau, is comprised of more than 125 private sector firms, consumer and volunteer groups, government agencies, and law enforcement organizations that have come together to help combat fraud and raise awareness. During Fraud Prevention Month, Forum members will participate in a number of targeted activities across the country, designed to raise awareness among consumers and businesses about the dangers of fraud.”
Recent fraud related cases that the Bureau has been involved in include bid-rigging (see: here and here), price-fixing (see: here, here, here, here, here and here), market division (see: here), deceptive telemarketing (see: here and here) and deceptive marketing cases (see: here and here).
On February 13, 2012, the Federal Court of Appeal released an important limitations period judgment in Garford Pty Ltd. v. Dywidag Systems International.
In this case, the Australian company Garford commenced an action against Dywidag Systems International and several individual defendants seeking damages for alleged infringement of some of Garford’s Canadian patents and based on alleged violations of section 45 of the Competition Act (criminal conspiracy agreements).
In a lower court decision, the Federal Court granted the defendants summary judgment dismissing Garford’s claim on the basis that it was limitation barred under the Competition Act.
Section 36 of the Competition Act contains specific limitation periods that require, among other things, claims to be brought within two years of the relevant conduct (“two years from … the day on which the conduct was engaged in”).
Garford appealed, and the Federal Court dismissed its appeal. The Court of Appeal held that it could find no error in the lower court’s application of the law or factual findings and was “in substantial agreement with [its] reasoning with respect to the limitation period.”
Garford had argued that the lower court erred in failing to hold that the “discoverability principle” applied to extend the limitation period under section 36. The “discoverability principle” or “rule” operates on the theory that, in competition law matters, the start of the limitation period should be postponed until the time a plaintiff knew (or ought to have known) of the anti-competitive conduct.
The Court of Appeal held that the issue of discoverability did not arise on the facts of this case because, among other things, between April 10, 2006 (the date on which Garford’s solicitors sent a cease and desist letter to the defendants) and the date the action was commenced (August, 2008 – more than two years later) there were no new facts relevant to the alleged breaches of section 45. In the Court’s words: “the information available to Garford on April 10, 2006 was essentially the same information it had when it commenced the action.”
Interestingly, however, the Court of Appeal left the door open for the discoverability rule to apply in other cases:
“For these reasons, the judge’s findings of fact, which on the applicable standard of review cannot be set aside in this case, preclude any argument based on discoverability, assuming without deciding, it is legally available.”
As such, the applicability of the discoverability rule as a mechanism to extend the limitation period under section 36 of the Competition Act remains unsettled.
The Competition Bureau has published its February edition of CB In Brief (see: CB In Brief – February 2012).
This edition includes announcements relating to the Chicoutimi Hospital bid-rigging case, 2012 increase of the size of transaction merger threshold and the Bureau’s new monthly reports of concluded merger reviews.
We are pleased to announce that we will be facilitating a compliance course at the Real Estate Board of Greater Vancouver on February 29, 2012 entitled “Competition Law and REALTORS®: What You Say and Do Matters”.
About this course:
Competition Law and REALTORS®: What You Say and Do Matters was designed by ACRE with the assistance of CREA to help Canadian REALTORS® understand and comply with Canadian competition law. While Canadian competition law applies to all real estate professionals, this course was designed specifically for REALTORS®. This course provides an overview in plain language of Canadian competition law and practical compliance guidelines to assist REALTORS® in complying with Canadian competition law and a number of illustrative case studies. This national competition law course is available to members of Canadian real estate boards and associations. Read the rest of this entry »
To celebrate our new competition law handbook for associations – The Competition Law Guide for Trade Associations in Canada – we thought we would post a few of the more interesting competition/antitrust association cases from 1905 to 2012.
Our small tiptoe through the history of associations and competition law will include cases involving ambulance operators, banks, building contractors, business forms suppliers, coal dealers, corrugated box manufacturers, corrugated metal pipe manufacturers, electrical contractors, fruit growers, gypsum dealers and manufacturers, insurance salespersons, lawyers, mandarin orange importers, notaries, pharmacists, paper mills, plumbing contractors and suppliers, real estate agents, softwood lumber dealers, surveyors and wholesale grocers, among others.
We’ll wrap up with the ongoing TREB case, the CREA case (settled in the fall of 2010) and a few of the more interesting recent international association cases over the past 10 years or so. To kick things off, the following are a couple of good old ones from the silent film era.
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The King v. Elliott (1905)
In The King v. Elliott, the president of an Ontario coal association was accused of conspiracy under section 520 of the Criminal Code. This case involved association rules that sought to restrict the sale of coal from operators and shippers directly to consumers or non-members. Members of the association were also given rights to certain areas, with the association dictating coal prices and issuing a “look out list” for suppliers of non-members that were not entitled to buy coal directly from suppliers. The Ontario Court of Appeal, in the first successful combines prosecution in Canada, confirmed the lower court’s judgment convicting the accused.
Wampole & Co. v. F.E. Karn Co. Ltd. (1906)
In Wampole & Co. v. F.E. Karn Co. Ltd., plaintiff manufacturing chemists sought damages and an injunction restraining defendant druggists from alleged breaches of a contract, which fixed the wholesale and retail prices of drugs. The defendants argued that the agreements constituted an unlawful conspiracy. The Court agreed, finding that the agreements, which were in the form adopted by two associations (the Association of Retail Merchants and Association of Wholesale Merchants) “entirely destroyed” competition and contravened the Criminal Code.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
