CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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April 15, 2012
The Federal Office of the Privacy Commissioner has launched a new and enhanced website that includes new anti-spam legislation information relating to the role of the Privacy Commissioner (see: Online Privacy: Fighting Electronic Spam and Other Online Threats).
On April 13, 2012, the Competition Bureau announced that Suncor Energy Products Inc. (Sunoco) pleaded guilty to fixing gasoline prices from May to November, 2007 in Belleville, Ontario and that the Ontario Superior Court sentenced it to pay a $500,000 fine (see: Suncor (Sunoco) Energy Pleads Guilty to Price-Fixing in Belleville, Ontario).
In making the announcement, the Commissioner of Competition said:
“We are committed to pursuing those who engage in anti-competitive behaviour that harms Canadian businesses and consumers … Illegal agreements between competitors to fix prices deny consumers the benefits of competitive prices and choice.”
Last month, Pioneer Energy LP, Canadian Tire Corporation and Mr. Gas also pleaded guilty to price-fixing during the same period (in Kingston and Brockville) and were fined $2 million (see: Competition Bureau Announces $2 Million in Ontario Gas Price-fixing Case).
Under section 45 of the Competition Act, three types of agreements between competitors are “per se” illegal (i.e., with no adverse competitive impacts required to be proven): (i) price-fixing agreements (agreements to fix, maintain, increase or control the price for the supply of a product or service), (ii) market allocation/division agreements (agreements to allocate sales, territories, customers or markets for the production or supply of a product), (iii) output/supply restriction agreements (agreements to fix, maintain, control, prevent, lessen or eliminate the production or supply of a product).
Other types of agreements between competitors are potentially subject to review under a second and separate non-criminal reviewable matters agreement provision (section 90.1).
According to the Bureau, it became aware of the price-fixing activities in this case using its Immunity and Leniency Programs (see: Backgrounder – Gasoline Companies Plead Guilty to Price-Fixing in Kingston and Brockville, Ontario). Under the Competition Bureau’s Immunity and Leniency Programs, applicants may receive full immunity from prosecution or reductions in penalties for cooperating with a Bureau investigation.
Under the Bureau’s Immunity Program, a party or company implicated in criminal conduct under the Act may offer to cooperate with the Bureau in its investigation and request immunity (i.e., full immunity from prosecution for criminal offences under the Act). Under the Bureau’s Leniency Program, parties that have contravened criminal provisions of the Act that are not entitled to full immunity (e.g., are not “first in”) may nevertheless be eligible for leniency in sentencing. Importantly, the Bureau’s Immunity Program is a “race” in that only the first eligible applicant is entitled to full immunity. As such, evaluating whether the Bureau’s Immunity and Leniency Programs are available is an important and time-sensitive step for parties to potentially reduce liability.
According to the Bureau, it also used wiretaps and search warrants in its investigation in this case, searching five corporate locations, nine residences and two residential offices, seizing thousands of paper and electronic records and interviewing witnesses (for more about the Bureau’s enforcement powers see: Bureau Enforcement).
On April 12, 2012, the Competition Bureau published a new Merger Review Performance Report. The Bureau’s new Report contains a summary of updated and newly issued merger-related guidelines, statistics relating to its review of mergers in the past two years (since its last merger performance report was issued in 2010) and discussions of recent initiatives and policy changes.
Some of the highlights of the Bureau’s new Report include:
Merger-review related policy objectives. The Bureau describes its new and updated merger guidelines as part of its “ongoing initiative to realign its processes, and to develop and revise its guidance documents to ensure the successful implementation of the 2009 amendments to the merger provisions of the Act and the Notifiable Transactions Regulations.” The Bureau’s new or recently updated merger-related guidelines include its Fees and Service Standards Policy for Mergers and Merger-Related Matters, Fees and Service Standards Handbook for Mergers and Merger-Related Matters, Procedures Guide for Notifiable Transactions and Advance Ruling Certificates under the Competition Act, several new Merger Interpretation Guidelines (including in relation to hostile transactions), updated Merger Enforcement Guidelines (which govern the Bureau’s substantive review of mergers), Merger Review Process Guidelines (which address the Bureau’s approach to Canada’s new two-stage merger review regime, include second phase reviews and the use of supplementary information requests (“SIRs”)).
New standard language for “no action” letters. The Bureau discusses its new standard language for “no action” letters to align its clearance language to section 123(2) of the Competition Act and “more accurately reflect the distinction between the discretionary issuance of an ARC and [a no action letter]”.
New merger remedies bulletin. The Bureau has announced, consistent with recent public remarks by the Commissioner, that it intends to update its 2007 Merger Remedies Bulletin “in the coming months” based on its August, 2011 Merger Remedies Study.
Merger position statements. The Bureau discusses its recent initiative to begin issuing position statements for certain merger reviews to “enhance its communication and transparency with stakeholders”. The Bureau also discusses some of the factors it will consider in deciding whether to issue a position statement, including the complexity and importance of issues, involvement of novel analytical tools and level of interest in the case.
Merger registry. The Bureau discusses its recently launched (in February of this year) merger register.
Merger review statistics. The Bureau’s Report includes merger review statistics, including a significant drop in reviews (a decrease of about 100 reviewed mergers between FY2007-2008 and FY2008-2009, the “biggest decline in a single fiscal year since the introduction of filing fees in 1997), the impact of filings following the increase in the size of transaction threshold in 2009 (from C $50 to $70 million at the time – the size-of-transaction threshold is currently C $77 million), a “steady influx of highly complex transactions raising serious competition concerns” (including the BHP/Potash, LSE/TMX, TMX/Maple Group and Google/Motorola transactions) and the issuance of 18 SIRs since the introduction of Canada’s two-stage merger review regime in 2009.
Review of non-notifiable mergers. The Bureau discusses its relatively recent initiative to increase its monitoring and review of non-notifiable transactions (in Canada, all mergers as defined under the Competition Act are potentially reviewable regardless of whether they require pre-merger notification). In this regard, the Bureau states that it “recently implemented a new initiative to actively monitor transactions in the Canadian marketplace”. According to the Bureau, this shift in its policy was largely driven by the reduced timeframe to challenge mergers post-closing as a result of the 2009 amendments (reduced to one year from the previous three). The Bureau states that its monitoring of non-notifiable deals includes “regular scanning of various media sources and mergers and acquisition databases, as well as the review of relevant marketplace complaints received by the Bureau.”
Andrew D. Gay
On April 11, 2012, the British Columbia Government moved to modernize liquor laws in BC by allowing movie theatres to apply for liquor licences. In addition, licensed multi-purpose venues, sometimes known as “live event theatres”, have been given greater flexibility to use their facilities as movie theatres without running afoul of a previous rule which prohibited licensed establishments from showing anything more than “occasional” films.
Changes to the rules were first attempted by the Province in February, 2012, when the government sought to provide greater flexibility to live event theatres to show films. However, the changes to the law at that time were ill-conceived such that live event theatres could only show films outside their hours of liquor service, meaning they could not show films in the evening even if they did not serve liquor. Negative reaction to that kind of continuing red tape was swift, leading to the further changes on April 11.
The recent changes were effected through an amendment to section 8 of the Liquor Control and Licensing Regulation which previously provided that an establishment operating as a movie theatre would be operating in a manner inconsistent with the “primary purpose” of the liquor licence.
The changes have been warmly received by industry, particularly by those who have struggled to keep small local theatres operating, as it is anticipated that sustainable revenues are now achievable. The large multiplex theatres which lobbied for the changes were predictably pleased as well.
Andrew Gay is a partner at the Vancouver litigation firm Gudmundseth Mickelson LLP. In addition to his work as a commercial litigator, Andrew is an expert in liquor law and routinely represents clients in disputes with the Liquor Control and Licensing Branch. You can find Andrew at http://www.lawgm.com.
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Our friends at the Canadian Council on International Law have announced a call for papers for the CCIL 41st Annual Conference: Ronald St. John Macdonald Young Scholars Award.
From the CCIL:
“The Canadian Council on International Law is inviting international law papers from students who are studying at the graduate or undergraduate level in any discipline. Articling students are also eligible: papers from articling students will be considered under the graduate student category. Successful applicants will give a presentation based on their papers at the 2012 CCIL Annual Conference to be held in Ottawa from November 8-10, 2012. One award will be given for the best graduate paper and one for the best undergraduate paper. Winners will receive the fourth annual Ronald St. John Macdonald Young Scholars Award. (Subsidies for travel to the annual conference are available.)
This year’s CCIL conference theme is “SOS International Law: International Law and Disasters and Emergencies”. Crises and emergencies come in many forms. They may be financial, environmental or purely political, as states break apart, governments are ousted or armed conflicts occur. From the financial turmoil in the United States and Europe, to the surge for democracy in the Arab world and resulting civil conflicts, to natural disasters in Haiti and Japan, and to the predicament of nuclear proliferation in Iran and elsewhere, international relations have been preoccupied by these crises and emergencies. And behind these newspaper headlines are countless crises averted or emergencies abated, where early intervention forestalls disasters before they emerge.
International reactions to emergencies and crises are the stuff of high politics. In some instances, international law may prove a useful tool in the decision-making of states confronting such calamities. In other cases, it seems woefully inadequate and plays at best a supporting role. What part is there for international law in dealing with crises and emergencies? Is international law capable of providing useful guidance during catastrophes? Or is it instead burdened with feet of clay?
Papers that reflect the conference theme will be given strong consideration by the CCIL Ronald St. John Macdonald Award Selection Committee. Papers must be no more than 35 pages in length.”
On April 13, 2012, the Competition Bureau announced that it had obtained six more guilty pleas in connection with its ongoing Quebec gasoline price-fixing investigation (five individuals and one company), with additional fines of $155,000. According to the Bureau, 27 individuals and 7 companies have pleaded guilty to date in this case with total fines of over $3 million.
This investigation is the largest criminal investigation in the Bureau’s history and has been active for about four years (charges were first laid in June 2008).
Under section 45 of the Competition Act, three types of agreements between competitors are “per se” illegal (i.e., with no adverse competitive impacts required to be proven): (i) price-fixing agreements (agreements to fix, maintain, increase or control the price for the supply of a product or service), (ii) market allocation/division agreements (agreements to allocate sales, territories, customers or markets for the production or supply of a product), (iii) output/supply restriction agreements (agreements to fix, maintain, control, prevent, lessen or eliminate the production or supply of a product).
Other types of agreements between competitors are potentially subject to review under a second and separate non-criminal reviewable matters agreement provision (section 90.1).
The Competition Bureau also has formal Immunity and Leniency Programs under which applicants may receive full immunity from prosecution (or reductions in penalties) for cooperating with an investigation, and which the Bureau increasingly relies on to detect cartels.
Under the Bureau’s Immunity Program, a party or company implicated in criminal conduct under the Act may offer to cooperate with the Bureau in its investigation and request immunity (i.e., full immunity from prosecution for criminal offences under the Act). Under the Bureau’s Leniency Program, parties that have contravened criminal provisions of the Act that are not entitled to full immunity (e.g., are not “first in”) may nevertheless be eligible for leniency in sentencing. Importantly, the Bureau’s Immunity Program is a “race” in that only the first eligible applicant is entitled to full immunity. As such, evaluating whether the Bureau’s Immunity and Leniency Programs are available is an important and time-sensitive step for parties to potentially reduce liability.
Earlier today, the U.S. Department of Justice (“DoJ”) announced in a press release that it had reached a settlement with three of the parties in its e-book price fixing investigation (Hachette Book Group (USA), HarperCollins Publishers L.L.C. and Simon & Schuster Inc.) and would continue its litigation against Apple Inc., Holtzbrinck Publishers LLC (operating as Macmillan) and Penguin Group (USA), filing a civil antitrust lawsuit in New York.
The DoJ alleges that Apple and the publishers in this case conspired to “end e-book retailers’ freedom to compete on price, take control of pricing from e-book retailers (such as Amazon and Barnes & Noble) and substantially increase the prices that consumers pay for e-books.”
In making the announcement, U.S. Attorney General Eric Holder said:
“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.”
According to the DoJ, it cooperated closely with the European Commission, as well as state authorities in Connecticut and Texas to “uncover the publishers’ illegal conspiracy”.
The core of the DoJ’s allegations is that Apple and the five publishers involved sought to eliminate price competition among retailers selling e-books by entering into agreements that eliminated price competition between competing booksellers. In particular, the DoJ alleges that the publishers introduced a new model, agreed upon by them, under which they took control of pricing authority from retailers and raised e-book prices (rather than, as previously, selling wholesale to retailers allowing them to set prices).
Also interesting are allegations by the DoJ that the parties periodically met in “private dining rooms of upscale Manhattan restaurants used to discuss confidential business and competitive matters” including Amazon’s e-book’s retailing policies.
The Competition Bureau has published its March Report of Concluded Merger Reviews.
Launched in February amid some controversy from the competition bar (see: Competition Bureau to Issue Monthly Merger Review Reports), the Bureau’s second monthly report includes fourteen transactions in which Advance Ruling Certificates were issued in two and No Action Letters issued in the remainder.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
