ABA International Antitrust Committee – March 2012 Newsletter
The International Antitrust Law Committee of the American Bar Association has published its March 2012 Newsletter, which includes articles on trends in antitrust enforcement in CEE countries, investigation of cartels in Russia, a note on Ecuador’s Antitrust Act and competition compliance in the EU.
ABA Section of Antitrust Law – Market Definition in Antitrust (March 2012)
The ABA Section of Antitrust Law has published Market Definition in Antitrust: Issues and Case Studies.
From the ABA:
“Market Definition in Antitrust: Issues and Case Studies provides a comprehensive analysis of the issues involved in defining markets in antitrust cases. Market definition is central to most antitrust cases, because determining the existence of market power typically requires the definition of a relevant market. This book will prove a valuable guide to antitrust practitioners and consulting economists who are dealing with market definition.
This book is a thorough and accessible single volume practical guide to the definition of relevant markets and to empirical techniques that have been used in a variety of industries. The first chapter provides an overview of the theoretical concept of a relevant market. The remaining chapters provide industry-specific illustrations of how markets are defined in different contexts. The economic and legal analysis of product market definition has advanced significantly past the simple tests that were put forth in the Supreme Court’s 1962 decision in Brown Shoe Co. v. United States. Similarly, the analysis of geographic markets has come to recognize the limitations of the tests that focus exclusively on shipment patterns.
Data limitations and institutional considerations mean that there is no cookie-cutter approach to market definition that can be applied in all contexts. This book describes modern methods of market definition and analyzes their application in actual cases.”
For more information see:
On March 23, 2012, the CRTC announced that it had imposed a $24,000 administrative monetary penalty against Quebec telemarketing company Les Aliments S.R.C. Inc. for calling consumers registered on the National Do Not Call List (DNCL) and failure to pay registration fees to the National DNCL operator.
Under the Unsolicited Telecommunications Rules, telemarketers are prohibited from calling consumers registered on the DNCL (unless express consent has been obtained). The Rules also require telemarketers to be registered on the National DNCL and pay registration fees to the National DNCL operator.
Les Aliments took the position that the Rules had not been violated regarding calls to one complainant because it had an existing business relationship (the Rules do not apply to telemarketing where there is an existing business relationship, as defined) and should be acquitted of other violations because it acted in good faith and exercised due diligence (a due diligence defence exists under the Telecommunications Act).
Anti-corruption: Anti-Corruption Regulation 2012 (including Canada) – GCR (March 2012)
From GCR:
“Getting the Deal Through is delighted to publish the fully revised and updated sixth edition of Anti-Corruption Regulation, a 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 business people.
Following the format adopted throughout the series, the same key questions are answered by leading practitioners in each of the 54 jurisdictions featured. New jurisdictions this year include Argentina, Croatia, Cyprus, Ireland and Turkey.”
For more information see:
Anti-Corruption Regulation 2012
Competition: Cartel Regulation 2012 (including Canada) – GCR (February 2012)
From GCR:
“Global Competition Review is delighted to publish the fully revised and updated twelfth edition of Cartel Regulation, a volume in the Getting the Deal Through series of annual special reports providing international analysis in key areas of law and policy for corporate counsel, cross-border legal practitioners and business people.
The globalisation of the world’s economy means that cartel investigations are increasingly likely to be faced simultaneously in multiple jurisdictions. In the format adopted throughout the series, the same key questions are answered by leading practitioners in 46 jurisdictions worldwide. New jurisdictions this year include Belgium, Ecuador, Hungary, Indonesia, Slovakia and Zambia.”
For more information see:
On March 23, 2012, the Competition Bureau issued two new draft merger interpretation guidelines for public consultation:
These new interpretation guidelines provide additional guidance to merging parties as to whether a new pre-merger notification filing (or Advance Ruling Certificate application) is required where a transaction has been amended and calculation of revenues for the pre-merger notification thresholds to account for transactions between affiliates.
On March 22, 2012, the Competition Bureau issued revised draft Abuse of Dominance Guidelines for public comment. The Bureau had previously issued updated draft Abuse Guidelines in January, 2009 (the Bureau’s Abuse of Dominance Guidelines have not been updated since 2001).
Generally speaking, under section 79 of the federal Competition Act, abuse of dominance occurs when a dominant firm (or firms) engages in a practice of anti-competitive acts that results in a prevention or substantial lessening of competition. Canada’s modern abuse of dominance provisions were added to the Act following significant amendments in 1986.
Like other major jurisdictions, in Canada it is not dominance per se that is prohibited, but rather the abuse of a dominant position (Canada does not, unlike the United States, recognize attempted monopolization).
To establish abuse of dominance, the Commissioner of Competition must establish the following elements on an application to the federal Competition Tribunal:
1. A firm (or firms) is dominant in a relevant market (dominance);
2. The firm has engaged in a practice of anti-competitive acts; and
3. The firm’s conduct has resulted in (or is or is likely to result in) a prevention or substantial lessening of competition.
Some of the highlights of the Bureau’s revised draft Abuse Guidelines, which are markedly shorter and more concise that than its previous guidelines, include:
Affirming that market power alone (or high prices) is insufficient to warrant intervention under the abuse of dominance provisions of the Act.
Confirming existing Competition Tribunal jurisprudence in relation to the elements of abuse of dominance (market power, a practice of anti-competitive acts and prevention or substantial lessening of competition). The Bureau also emphasizes that market power is a necessary prerequisite to abuse of dominance inquiries.
Taking the position that, during abuse of dominance inquiries, the Bureau will “generally afford parties the opportunity to respond to [its] concerns regarding alleged contraventions of section 79 and propose an appropriate resolution to address them.”
Indicating a general preference by the Bureau for settlements by way of registered consent agreements (consistent generally with the Bureau’s departure in recent years away from more informal resolutions, such as undertakings).
Articulating the Bureau’s general use of the hypothetical monopolist test for product and geographic market definition.
Setting out more clearly and concisely than previous guidelines the Bureau’s approach to quantitative and qualitative factors for product and geographic market definition. This is one of the most appealing refinements in the Bureau’s new draft Abuse Guidelines.
Increasing the previous “bright line” share thresholds for single firm dominance, with the Bureau now taking the position that a market share of less than 35% will generally not prompt further examination (unchanged), that a market share between 35% and 50% may be examined by the Bureau (a stricter standard for complainants than in the previous guidelines, where a market share of 35% or more would have “generally [prompted] further examination”) and that a market share of 50% or more will generally prompt further examination (increased from the previous 35%).
The Canadian Law and Economics Association has announced a call for papers for its next Annual Meeting on September 28 and 29, 2012. The deadline for submission of papers is July 1, 2012.
From the Canadian Law and Economics Association:
“You are invited to submit a paper for presentation at the next Annual Meeting of the Canadian Law and Economics Association to be held on Friday and Saturday, September 28 and 29, at the Faculty of Law, University of Toronto. Professor Richard A. Epstein, the Laurence A. Tisch Professor of Law at NYU School of Law and the James Parker Hall Distinguished Service Professor Emeritus of Law at the University of Chicago Law School, will deliver the Jim Tory Law and Economics Public Lecture on, “Rate Regulation and Network Industries,” as well a keynote address at dinner on the same topic. As in past years, we are soliciting papers in all areas of law and economics.”
On March 22, 2012, the Competition Bureau announced that as part of its March Fraud Prevention Month efforts, it was joining forces with Citizenship and Immigration Canada (“CIC”) to “warn potential immigrants to be wary of websites claiming to be, or to be affiliated with, official Government of Canada websites.”
In making the announcement, the Bureau said:
“These websites, which sometimes use the Canada wordmark or CIC logo without permission to target individuals wishing to live in Canada, purport to offer special immigration deals or guaranteed high-paying jobs for a fee. Unfortunately, these claims are fraudulent and the victim loses his or her money with no tangible results.
The only people who may charge a fee to represent or advise people in connection with a Canadian immigration proceeding or application are authorized immigration consultants, lawyers, Quebec notaries, and paralegals regulated by a law society. Under Canada’s immigration programs, all people are treated equally, whether they hire someone to represent them or not.”
As part of this new joint effort, the Bureau and CIC are offering tips to potential new citizens to avoid falling victim to fraud – see: here.
The National Competition Law Section of the Canadian Bar Association has announced a call for submissions for its annual James H. Bocking Memorial Award.
From the CBA:
“The CBA National Competition Law Section James H. Bocking Award was established by the National Competition Law Section of the Canadian Bar Association to honour annually the best scholarly paper submitted to the Section on a subject relating directly to Canadian competition law or policy.”
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
