Archive for the 'Publications' Category
Paul Rubin has published an interesting paper on the “Regulation of Information and Advertising” in Competition Policy International.
Abstract:
“Deception is the manipulation of information to gain some advantage. This paper considers commercial deception through advertising. The paper first discusses the economics of information. The literature has derived four major policy conclusions. First, truthful information regarding price should not be restricted by regulatory authorities. Second, deception is most likely and most harmful for credence goods, and regulation is most useful (if it is useful at all) for these goods. Third, truthful information should never be restricted. Fourth, regulation of advertising is best done by authorities that specialize in advertising, rather than by agencies with another mission. A fifth, more tentative, conclusion is that regulation should limit itself to statements that are actually false, and ignore those that are misleading or deceptive. The paper begins with a discussion of the First Amendment issues in regulating advertising. It then considers advertising of prices and regulation and types of goods. The next section examines regulation of true information about characteristics of goods other than price, with special reference to the U.S. Food and Drug Administration. The paper also discusses measures of deception and policies of mandating disclosure of negative information and remedies.”
The ABA’s Section of Antitrust Law has published its June edition of Antitrust Source. This new issue of the ABA’s bi-monthly online antitrust journal includes articles on a Roundtable Conference with Enforcement Officials (including Jon Leibowitz (FTC), Sharis Pozen (DoJ), Joaquin Almunia (EC) and Ashok Chawla (Competition Commission of India)), the Risk of Tagbacks to Leniency Applicants in Cartel Investigations and Analyst Calls and Price Signaling Under EU Law.
For the complete issue see: Antitrust Source – June 2012
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The American Bar Association, Section of Antitrust Law has published their new edition of Antitrust Law Journal, which includes the following articles: “Dynamic Analysis and the Limits of Antitrust Institutions” (Douglas H. Ginsburg and Joshua D. Wright) and “Does Leegin Liberate the Law Governing Horizontal Conspiracies From Its Vertical Contamination” (M. Laurence Popofsky).
The new edition also includes a series of notes on Neo-Chicago Antitrust topics, including “A Neo-Chicago Perspective on Antitrust Institutions” (D.A. Crane), “Antitrust and the Costs of Movement” (Herbert Hovencamp), “Marrying Neo-Chicago with Behavioural Antitrust” (Max Huffman), “Chicago, Post-Chicago, and Beyond: Time to Let Go of the 20th Century” (B.H. Kobayashi and Timothy J. Muris), “A Neo-Chicago Approach to Concerted Action” (W.H. Page) and “Cartels, Corporate Compliance, and What Practitioners Really Think About Enforcement” (D. Daniel Sokol).
For a copy of the new edition see:
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Steve Szentesi & Mark Katz
(First published in Competition Policy International, Antitrust Chronicle)
“As a result of this alleged conspiracy, we believe that consumers paid millions of dollars more for some of the most popular titles. We allege that executives at the highest levels of these companies—concerned that e-book sellers had reduced prices—worked together to eliminate competition among stores selling e-books, ultimately increasing prices for consumers.”
(Attorney General Eric Holder, April 11, 2012)
“This was competition on the merits, with Apple providing a superior reading platform on a beautiful 10 inch iPad screen, with color, multi-media, and fixed display, and access to millions of future iPad purchasers. This is classic procompetitive behavior that should be celebrated, not condemned through litigation.”
(Apple Answer, May 22, 2012)
“Absent any direct evidence of conspiracy, the Government’s Complaint is necessarily based entirely on the little circumstantial evidence it was able to locate during its extensive investigation, on which it piles innuendo on top of innuendo, stretches facts and implies actions that did not occur and which Macmillan denies unequivocally. For the record, Macmillan did not conspire with other publishers in New York City restaurants.”
(Macmillan Answer, May 29, 2012)
INTRODUCTION
Before the U.S. Department of Justice (“DOJ”) filed its claim in the eBooks case earlier this year, Canadian class action plaintiffs commenced their own proceedings in the provinces of British Columbia, Ontario, and Quebec.[1]
As in the United States, the Canadian actions are challenging the agency eBook distribution model adopted by Apple and five of the world’s largest book publishers.[2] Specifically, the Canadian plaintiffs allege that Apple and the defendant publishers violated Canada’s price-fixing offense under section 45 of the Competition Act (the “Act”). The publishers allegedly committed the offense by collectively agreeing to discontinue their former wholesale distribution models, under which publishers sold eBooks at wholesale prices to distributors who in turn set retail prices, for a new agency model under which publishers set prices with distributors receiving sales commissions.[3]
The Canadian plaintiffs also allege that the publisher defendants illegally agreed not to set eBook prices below Apple’s iBookstore prices (a “most-favored-nation” provision). Finally, the plaintiffs plead a variety of non-statutory grounds for recovery, including certain common law torts (e.g., unlawful interference with economic relations) and—in Québec—claims under the Civil Code of Québec.[4]
As in the United States, the key substantive issue in Canada will be whether the conduct of Apple and the defendant publishers constitutes an illegal conspiracy. In addition, the case raises some uniquely Canadian issues relating to jurisdiction and certification and the interpretation of Canada’s conspiracy offense.
Before addressing these various questions, we provide a brief summary of the competition class action regime in Canada for background purposes.
I had a chance today to look through some of the responses to the Bureau’s public consultations on its Revised Draft Abuse of Dominance Enforcement Guidelines. The Bureau issued new draft Abuse Guidelines for public comment on March 22, 2012.
Comments have now been posted, including by the American Bar Association (joint comments by the ABA’s Sections of Antitrust and International Law – see my earlier post: here), the National Competition Law Section of the Canadian Bar Association, Canadian Chamber of Commerce and C.D. Howe Institute Competition Policy Council.
Some of the more interesting points made in the various submissions include:
“Minimalist approach”. Concerns have generally been expressed with the “minimalist” approach taken by the Bureau in its revised draft Guidelines, which are substantially shorter and provide conspicuously less guidance than its earlier 2009 draft.
Market power. Recommending increased guidance on the degree of market power required to meet the “substantially or completely control” test (i.e., dominance) under the first branch of section 79.
Safe harbours. Suggesting that the Bureau adopt bright-line safe harbours for single and joint-firm conduct of 50% and 75% (the Bureau’s position in the current draft is that a market share between 35% and 50% will not give rise to a presumption of dominance, but “may be examined by the Bureau depending on the circumstances”, in contrast but more pro-firm friendly, to its position in its earlier draft that a share of 35% or higher would normally prompt continued investigation). The CBA Competition Section has advocated that the Bureau adopt an “unambiguous single-firm safe harbor market share threshold of 50%”.
Joint dominance. Concerted calls for the Bureau to provide increased guidance as to what in its view will constitute joint dominance under section 79, particularly what it considers necessary to establish the requisite linkage between firms to be considered to be jointly dominant (with the CBA Competition Section suggesting that coordination or tacit agreement should be required as a minimum for a finding of joint dominance).
Anti-competitive acts, intent and business justifications. Calling for increased guidance as to what it considers will constitute anti-competitive acts and intent, justification for a departure from established case law that an anti-competitive act must be intended to have a negative effect on a competitor and to restore guidance relating to legitimate business justifications (the subject of somewhat brief and cryptic comments by the Federal Court though significantly more commentary previously by the Bureau than in the current draft). With respect to legitimate business justifications, the various comments criticize the considerably pared down discussion by the Bureau of what will constitute a legitimate business justification for conduct that may otherwise constitute an anti-competitive act (which has been held by the Federal Court to be one factor that may offset otherwise anti-competitive acts for the second branch of the test under section 79).
Exclusionary acts and raising rivals costs. Criticizing the Bureau for withdrawing its previously more detailed guidance (in its 2009 draft Guidelines) relating to exclusionary acts and raising rivals’ costs. The earlier draft Guidelines, for example, provided detailed appendices setting out conduct previously found by the Tribunal to be anti-competitive, as well as significantly more detailed discussions by the Bureau previously of anti-competitive acts.
Predatory conduct. Suggesting that increased guidance from the Bureau would be helpful relating to its position on predatory pricing, including how it will implement a price-cost screen and situations that may not warrant enforcement. There have only been a handful of predatory pricing cases in Canada in the past twenty-five years since the introduction of the modern Competition Act, and significant questions remain including the appropriate measure of cost and legitimate justifications for below cost pricing.
Anti-competitive effects (SLC). Calling for increased analysis of how the Bureau will apply the “but for” test for a substantial lessening of competition, set out by Canada’s Federal Court in Canada Pipe – in the CBA Competition Section’s words, while “… the ‘but for’ analysis is conceptually simple, the practical application of this test is complex” (and remains unclear in Canada).
A few interesting regulatory law developments caught my eye today including:
Stanford University Press has published a new book entitled The Global Limits of Competition Law, edited by Daniel Sokol and Ioannis Lianos: Stanford University Press – The Global Limits of Competition Law.
The American Antitrust Institute has published a new global handbook on private competition law enforcement entitled The International Handbook on Private Enforcement of Competition Law: Edward Elgar Publishing – The International Handbook on Private Enforcement of Competition Law.
The Federal Government has introduced a new Safe Food for Canadians Act: Harper Government Introduces Safe Food for Canadians Act.
The Federal Privacy Commissioner yesterday issued a new policy position on online behavioural advertising: Policy Position on Online Behavioural Advertising.
The New York Times published an interesting Barnes & Noble Op Ed arguing that the settlement with e-book publishers would “punish consumers”: Barnes & Noble Argues Book Settlement “Punishes Consumers”.
The Australian competition regulator (the ACCC) has approved the Glencore/Viterra transaction: Australia Competition Watchdog Approves Glencore Takeover of Viterra.
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The Global Limits of Competition Law
Stanford University press has published a new book entitled The Global Limits of Competition Law edited by Daniel Sokol and Ioannis Lianos.
From Stanford University Press:
“Over the last three decades, the field of antitrust law has grown increasingly prominent, and more than one hundred countries have enacted competition law statutes. As competition law expands to jurisdictions with very different economic, social, cultural, and institutional backgrounds, the debates over its usefulness have similarly evolved.
This book, the first in a new series on global competition law, critically assesses the importance of competition law, its development and modern practice, and the global limits that have emerged. This volume will be a key resource to both scholars and practitioners interested in antitrust, competition law, economics, business strategy, and administrative sciences.”
For more information see:
Stanford University Press – The Global Limits of Competition Law
The International Handbook on Private Enforcement of Competition Law
The American Antitrust Institute has published a new book entitled The International Handbook on Private Enforcement of Competition Law, including chapters on Canada, the United States, Europe, Australia, China, India, South Africa and Brazil, among others.
From Edward Elgar Publishing:
“This comprehensive and well written volume surveys the private enforcement provisions of virtually every country in the world that has a competition law recognizing private actions. It is a first-of-its-kind, incredibly valuable undertaking. In addition to individual country surveys this book includes valuable comparative studies of private enforcement as well as theoretical and empirical analysis of its effects. Every competition lawyer with a multinational practice will benefit from owning it.” (Herbert Hovenkamp, University of Iowa, US)
For more information see:
Edward Elgar Publishing – The International Handbook on Private Enforcement of Competition Law
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The CBA’s National Section on International Law has called for papers for its next newsletter:
“It is time again to put together a newsletter for the International Law Section. Please consider providing a submission for the next edition. We are looking for articles of interest to all Section members: (i) updates on recent/upcoming activities including substantive developments in your jurisdiction; (ii) case summaries; (iii) new legislation.
Here are a few guidelines to help with your submission: (i) articles only need to be between 300 and 1,000 words; (ii) articles over 1,000 words must be accompanied by a summary or précis (100-300 words); (iii) articles can be submitted in French or English.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
