Archive for the 'Conspiracy' Category
On December 7, 2011, the International Competition Network (ICN) published its updated ICN Work Product Catalogue, with interactive links to ICN reports and documents from 2008 to 2011 in the advocacy, cartel (conspiracy), mergers and unilateral conduct (monopoly / abuse of dominance) areas.
On December 5, 2011, a federal omnibus crime bill (Bill C-10) was passed that will, among other things, have the effect of eliminating conditional sentences of two years or less from being ordered by courts for violation of two of the core criminal offences under the Competition Act: criminal conspiracy agreements (section 45) and bid-rigging (section 47).
To quote the Legislative Summary issued with Bill C-10, “conditional sentencing … allows for sentences of imprisonment to be served in the community, rather than in a correctional facility. It is a midway point between incarceration and sanctions such as probation or fines.”
Currently, a number of criteria must be met for a sentencing judge to impose a conditional sentence under the Criminal Code as follows: (i) the offence is not a “serious personal injury offence” (as defined in the Code), (ii) the offence is not a terrorism offence, (iii) the offence is not a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more, (iv) the offence is not punishable by a minimum term of imprisonment and (v) the sentencing judge has determined that the offence should be subject to a term of imprisonment of less than two years, is satisfied that serving the sentence in the community would not endanger the safety of the community and the conditional sentence would be consistent with the fundamental purpose and principles set out in the sentencing guidelines of the Code.
Bill C-10 amends section 742.1 of the Criminal Code to remove the current reference to serious personal injury offences and to provide that a conditional sentence of two years or less may be ordered unless, among other things, the offence is an indictable offence with a maximum term of imprisonment of 14 years or life.
The European Commission announced earlier today that it was opening formal proceedings to investigate sales of e-books. In particular, the Commission has opened a cartel investigation to determine whether several international publishers, including Hachette Livre, Harper Collins, Simon & Schuster and Penguin have engaged in anti-competitive practices with respect to the sale of e-books.
In making the announcement, the Commission said in its news release:
“The European Commission has opened formal antitrust proceedings to investigate whether international publishers Hachette Livre (Lagardère Publishing, France), Harper Collins (News Corp., USA), Simon & Schuster (CBS Corp., USA), Penguin (Pearson Group, United Kingdom) and Verlagsgruppe Georg von Holzbrinck (owner of inter alia Macmillan, Germany) have, possibly with the help of Apple, engaged in anti-competitive practices affecting the sale of e-books in the European Economic Area (EEA), in breach of EU antitrust rules. The opening of proceedings means that the Commission will treat the case as a matter of priority. It does not prejudge the outcome of the investigation.
The Commission will in particular investigate whether these publishing groups and Apple have engaged in illegal agreements or practices that would have the object or the effect of restricting competition in the EU or in the EEA. The Commission is also examining the character and terms of the agency agreements entered into by the above named five publishers and retailers for the sale of e-books. The Commission has concerns, that these practices may breach EU antitrust rules that prohibit cartels and restrictive business practices (Article 101 of the Treaty on the Functioning of the European Union – TFEU).”
The Commissioner of Competition, Melanie Aitken, addressed current enforcement priorities in two engaging and wide-ranging talks in Vancouver this evening: a keynote speech at a reception hosted by the University of British Columbia, National Centre for Business Law at the Four Seasons and a Vancouver Competition Policy Roundtable meeting organized by Professor Tom Ross of the Sauder School of Business.
Earlier this month, the Quebec Court of Appeal unanimously overturned the earlier 2008 Quebec Superior Court decision in Option Consommateurs v. Infineon Technologies AG, which had denied a motion to commence class action proceedings.
The decision in this case, which follows U.S. proceedings and guilty pleas in relation to a price-fixing conspiracy for the supply of dynamic random access memory (“DRAM”), is significant in expressly allowing indirect class action plaintiffs to proceed despite two earlier British Columbia Court of Appeal decisions that created a de facto passing-on defence (see: British Columbia Court of Appeal Allows Microsoft Appeal in Pro-Sys v. Microsoft – Creates de facto Passing-on Defence). (for the earlier BC judgments in Pro-Sys and Sun-Rype see: Pro-Sys Consultants Ltd. v. Microsoft Corporation and Sun-Rype Products v. Archer Daniels Midland Company).
In these two earlier British Columbia decisions, the Court of Appeal set aside the plaintiffs’ earlier certification decisions largely based on the risk that allowing indirect purchaser plaintiffs to proceed may lead to double recovery. In this regard, Mr. Justice Lowry held:
“… in the absence of the passing-on defence, a defendant would be liable for both the whole of the charge passed on (liability to the direct purchasers) and for all or any portion of the charge passed on (liability to the indirect purchasers) … [that] would result in double recovery … which our law does not permit.”
On November 22, 2011, the Competition Bureau announced that criminal charges had been laid against six companies and five individuals accused of rigging bids for provincial and municipal contracts for sewer services in the Montreal area (see: Competition Bureau Exposes Sewer Services Cartel in Quebec and Backgrounder – Competition Bureau Exposes Sewer Services Cartel in Quebec).
In making the announcement, the Bureau said:
“The evidence gathered by the Bureau reveals that the companies secretly agreed to coordinate their bids to pre-determine the winners of municipal and provincial contracts for the cleaning and maintenance of sewers.
‘This bid-rigging scheme misled officials into believing that tendering processes were competitive,’ said Melanie Aitken, Commissioner of Competition. ‘In reality, those charged had submitted token bids designed to ensure that a pre-determined company would win the contracts. The scheme deliberately evaded requirements created to protect taxpayer dollars in the government procurement process.’”
November 10, 2011
We are pleased to announce the forthcoming publication by Carswell this fall of The Competition Law Guide for Trade Associations in Canada jointly authored by Steve Szentesi and Mark Katz.
November 1, 2011
We are pleased to announce the upcoming online webinar offered by Carswell and West in conjunction with the forthcoming publication of The Competition Law Guide for Trade Associations in Canada, jointly authored by Steve Szentesi and Mark Katz.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
