The Canadian Bar Association’s National Section on International Law has issued a call for articles for the next issue of its newsletter. For more information and submission information see:
Earlier today, Reuters Canada and others reported that Maple Group has accepted the Ontario Securities Commission’s (OSC) conditions for its proposed $3.8 billion bid for the TMX Group (the OSC’s conditions are subject to a 30-day comment period – see: proposed recognition orders).
In Maple Group’s news release, it said:
“These draft and final orders are the result of extensive consultation by the OSC and AMF with Maple, TMX Group, CDS, market participants, and other regulators – including the Bank of Canada and the Competition Bureau. If these orders are finalized as published, Maple will accept them.
The OSC’s proposed recognition order for Maple also confirms and clarifies the OSC’s extensive ongoing regulatory oversight of equities trading and clearing and settlement activities, including provisions with respect to equities trading fees. These provisions include prohibitions, obligations and approval requirements that are designed to ensure that the Canadian capital market remains open and competitive for all participants, and that the interests of all participants in Canada’s capital markets are respected. As well, the AMF’s recognition orders confirm and clarify the AMF’s extensive ongoing regulatory oversight of derivatives trading and clearing and settlement activities.
The draft and final orders provide important changes in areas such as: independent governance of Maple (as successor parent to TMX Group) as well as fair, meaningful and diverse representation on the Board of Maple; restrictions designed to ensure competitive equities markets; independent governance of CDS; and access to and fees for CDS clearing and depository services. Maple believes the binding commitments to the structure of the transaction and the regulatory landscape, as reflected in the orders, represent substantial changes to the initial proposal in respect of which the Competition Bureau expressed serious concerns.”
With respect to clearance by the Bureau, Maple said that the Bureau has advised it that the draft OSC orders (if finalized) may “materially change” and mitigate its previous concerns:
“As disclosed on April 27, 2012, Competition Bureau staff have provided an update to Maple and TMX Group regarding the status of the Competition Bureau’s review of the Maple transaction.
Staff advised Maple and TMX Group that, while the Competition Bureau has an independent mandate and will complete its own review, it has provided views and input to the OSC for its consideration relating to the potential impact of the Maple transaction on competition. In that context, Competition Bureau staff advised that it is possible that measures contained in the draft OSC recognition orders, if finalized and enforced, may materially change the regulatory environment such that the Competition Bureau’s previously articulated serious concerns may be substantially mitigated. Staff of the Competition Bureau have emphasized that the Bureau would consider both the published draft orders and any finalized orders, and that a final decision would not be made until it had completed its process.”
In the OSC’s news release, OSC Chair and CEO Howard Wetston said:
“The Commission has thoroughly reviewed the regulatory issues raised by Maple’s proposal and developed measures necessary to ensure that the public interest is protected. … Public consultation has been a fundamental part of our review process and we will carefully consider the further input we receive on these orders when making our final determination.”
The proposed behavioural remedy (or rather remedies) in the transaction would include access for market participants, pricing commitments and regulatory oversight of CDS.
At the Spring CBA Competition Conference earlier today in Toronto, the Commissioner of Competition, Melanie Aitken, delivered an interesting keynote luncheon speech that provided insight into the Competition Bureau’s recent experience under Canada’s amended Competition Act, current enforcement and future priorities.
Mergers
With respect to mergers, the Commissioner addressed recent efforts (including the 2009 Competition Act amendments) to align Canada’s merger control regime with those of other major jurisdictions, notably the U.S.
The Commissioner also addressed the Bureau’s increased monitoring of non-notifiable mergers, cited some recent merger review related statistics (including the fact that the Bureau has reduced the average time to review complex transactions from about 50 days pre-2009 to about 36 days currently and that the Bureau has triggered second phase reviews (“supplementary information requests” or “SIRs”) in 18 cases over the past three years).
The Commissioner also indicated that the ongoing BC waste case (an ongoing non-notifiable contested merger case) was uncommon, but at the same time made it clear that the Bureau would: (i) not hesitate to litigate appropriate merger cases and (ii) was interested in clarifying the law under the merger provisions of the Competition Act.
Perhaps the Commissioner’s most interesting merger related remarks were those relating to the possibility of collapsing the current standalone efficiencies defense into the general merger provisions of the Competition Act. In this regard, the Commissioner appeared to indicate that Canada’s standalone efficiencies defense was out of step with other major jurisdictions.
The Canadian Society of Association Executives (CSAE) will be holding its annual National Conference and Showcase on November 1-3, 2012 in Ottawa.
We are pleased to be co-presenting a seminar on Practical Competition Law and Compliance Case Studies for Trade and Professional Associations, with the co-author (Mark Katz) of our new associations book:
“Although most association activities are benign from a competition law perspective, they can raise serious issues in a variety of circumstances that occur on a regular basis. This presentation will review the key provisions of Canada’s Competition Act relevant to trade and professional associations and offer practical guidance on how to reduce risk based on a series of practical and interactive case studies derived from actual Canadian and international examples.
The focus of the case studies will be on real-life association activities that can attract liability if not conducted in an appropriate fashion. Issues to be covered include: (i) when will a purely voluntary or suggested fee tariff/schedule become problematic; (ii) ways associations can engage in joint negotiations or advocacy initiatives on behalf of members without raising competition issues; (iii) how associations can reduce the risk of engaging in information exchanges (e.g., research or benchmarking exercises); (iv) how to structure association membership restrictions and discipline procedures; and (v) what to do to distinguish pro-competitive standard-setting from conduct that can raise competition concerns.
The Global Competition Review (GCR) has announced the publication of the first edition of its (may I say long needed) Foreign Investment Review (see: Getting the Deal Through – Foreign Investment Review 2012).
From GCR:
“The first edition of Foreign Investment Review, a new 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 clients.”
This global survey of foreign investment rules includes Canada and the following other jurisdictions: Argentina, Australia, Brazil, China, the Czech Republic, France, Germany, Ghana, Hong Kong, India, Israel, Italy, Japan, Korea, Mexico, Nigeria, Poland, Russia, Saudi Arabia, Switzerland, Turkey, the UK, United States and Vietnam.
For more information see:
The National Competition Law Section of the Canadian Bar Association will be hosting a Marketing Practices Committee Roundtable with Competition Bureau officials in Toronto this Thursday.
Bureau representatives are to include Lisa Campbell (Deputy Commissioner of Fair Business Practices) and Brendan Ross (Major Case Director and Strategic Policy Advisor).
For more information see:
The American Bar Association, Section of Antitrust Law has published its April 2012 issue of The Antitrust Source, which includes an interview with (soon to be former) U.S. Acting Assistant Attorney General of the Antitrust Division Sharis Pozen, who will be stepping down at the end of this month. The interview includes a discussion of the U.S. antitrust enforcement agencies’ recently updated Horizontal Merger Guidelines, high-technology markets, remedies and recent U.S. Federal antitrust litigation (although absent is any discussion of the ongoing ebooks case). This issue also includes articles on contracts that reference rivals as an antitrust category and consumer protection enforcement efforts by the U.S. Federal Trade Commission.
On April 29, 2012, the Federal Government announced proposed amendments to the Telecommunications Act that, if passed, would allow the CRTC to recover the cost of Do Not Call List investigations and enforcement efforts directly from the telemarketing industry in the form of fees.
In making the announcement, the Government said:
“Today, the Honourable Christian Paradis, Minister of Industry and Minister of State (Agriculture), announced additional action to protect consumers through sustainable funding for the National Do Not Call List.
‘The National Do Not Call List is a successful program that many Canadians rely on to protect them from unwanted telemarketing calls,’ said Minister Paradis. ‘Today’s announcement reinforces our government’s commitment to protecting consumers.’”
This new proposed initiative to assist with the financing of Do Not Call List investigations and enforcement would be implemented through amendments to the Telecommunications Act, introduced as part of provisions in the federal Jobs, Growth and Long-term Prosperity Act, introduced late last week in the House of Commons (see: Bill C-38).
Other proposed changes as part of Bill C-38 include increasing the transparency of Canada’s Investment Canada Act review process (see: Federal Government announces Investment Canada Act changes to add transparency to Canadian foreign investment review process).
The Government also announced upcoming consultations on the proposed new fee structure for Do Not Call List investigations and enforcement, which, if passed, would come into effect in the Spring of 2013.
Canadian enforcement authorities, including the Competition Bureau and the CRTC, have recently been distinctly more aggressive in seeking penalties in a variety of advertising and marketing law cases – for example the recent sweeping enforcement steps taken by the CRTC against 85 companies for violating Canada’s telemarketing rules: 85 companies face CRTC telemarketing enforcement action.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
