March 18, 2013
Readers of this blog will know that I often write about bid-rigging (see for example: here, here, here, here, here, here, here and here). Frequently I write about a recent case, investigation, newly announced guilty plea, key types of bid-rigging and penalties and convictions (e.g., the elimination of conditional sentencing for bid-rigging).
March 16, 2013
In a very interesting case reported by the New York Times, Wall Street Journal, Bloomberg and others, a U.S. District Court late last week ordered Chinese vitamin C manufacturers (including Hebei Welcome Pharmaceutical Co. and North China Pharmaceutical Group Corp.) to pay more than $162 million, after a New York jury found the companies liable in this civil price-fixing case. Other companies, including China Pharmaceutical Group Ltd., reached settlements before trial.
New Publications: China SOE Paper: “Evolution of China’s Energy Institutions” (UofA China Institute)
March 16, 2013
The University of Alberta’s China Institute has published a new paper on Chinese SOEs entitled: The Evolution of China’s Energy Institutions (Y. Bao & G. Houlden authors).
March 15, 2013
In February, GCR published a new edition of The Asia-Pacific Antitrust Review (2013), which includes: Australia (Cartels, mergers and telecom), Canada (mergers and the Investment Canada Act), China, India (overview and mergers), Japan (cartels and mergers) and Malaysia (which recently introduced competition law).
Overview:
“Global Competition Review is delighted to publish the ninth annual edition of The Asia-Pacific Antitrust Review, one of a series of special reports that deliver specialist intelligence and research designed to help subscribers successfully navigate the world’s increasingly complex competition regimes. Read in conjunction with The European Antitrust Review and The Antitrust Review of the Americas, it gives general counsel, government agencies and private practice lawyers unparalleled annual insights into the development of the world’s competition regimes.”
For more information see: The Asia-Pacific Antitrust Review 2013.
March 13, 2013
Earlier today, the C.D. Howe Institute published a new report on the Canadian dairy industry, dairy regulation and competition entitled: Putting the Market Back in Dairy Marketing. This new report, authored by Colin Busby and Daniel Schwanen, makes recommendations for reform of Canada’s dairy supply management system. Abstract:
“Canada’s controversial but politically untouchable dairy supply management system can be reformed, while addressing the concerns of wary politicians, consumers tired of overpaying for milk and cheese, and farmers worried about their future. In ‘Putting the Market Back in Dairy Marketing,’ authors Colin Busby and Daniel Schwanen call for better representation of consumer interests in milk marketing decisions, a cap on milk prices, and steps to measure efficiency and open new markets for dairy farmers.”
The overall conclusion of this new report is that achieving the Canadian Dairy Commission’s legislated objectives requires fewer constraints on the production and trade of milk and dairy products, which the authors argue impose significant and unnecessary costs on Canadian consumers (and also raise potential longer-term viability issues for the industry).
Based on this conclusion, the report makes the following recommendations: (i) changing the membership of the CDC board of directors to ensure consumer and industrial users’ interests are represented in decision-making, consistent with the regulatory set-up in many other industries; (ii) capping prices for milk set by the CDC, until a reasonable benchmark is reached for an “efficient farm,” using national and international comparisons; and (iii) restoring to the federal government the powers over export and interprovincial trade that it delegated to the provinces so that interprovincial trade can expand, and efficient farmers who wish to operate entirely outside of the quota system may export outside of Canada.
This report comes also as the Canadian Competition Bureau appears to also be renewing its interest in advocacy in regulated sectors (i.e., areas in which the Bureau may not have direct enforcement powers).
For example, in one recent speech by the Interim Commissioner of Competition John Pecman, the Interim Commissioner confirmed that the Bureau is interested in “incrementally increasing” its competition advocacy efforts (in addition to enforcement) in key industries including the digital economy and retail and health sectors. The Interim Commissioner also set out the following four factors the Bureau would consider in deciding whether to initiate regulatory interventions in particular sectors: (i) whether a forum exists and there is a high level of public interest, (ii) whether the Bureau would be contributing in a useful way (e.g., bringing forward unique arguments), (iii) being able to gauge the impact of advocacy efforts, and (iv) clear, tangible benefits for Canadians.
De-regulation, and increased clarity on competition law safe harbours from enforcement, such as the “regulated conduct defence”, have also been topics of increased recent debate and other reports – for example, the C.D. Howe’s November 2012 report: Closing the Back Door Route to Cartels: The Need to Clarify the Regulated Conduct Doctrine.
For a copy of this new C.D. Howe report on the dairy industry see: Putting the Market Back in Dairy Marketing.
March 12, 2013
Earlier today, the U.S. Federal Trade Commission (FTC) issued revised Dom Com Disclosure guidelines (see: FTC Staff Revises Online Advertising Disclosure Guidelines). From the FTC:
“… the new FTC staff guidance, .com Disclosures: How to Make Effective Disclosures in Digital Advertising takes into account the expanding use of smartphones with small screens and the rise of social media marketing. It also contains mock ads that illustrate the updated principles. Like the original, the updated guidance emphasizes that consumer protection laws apply equally to marketers across all mediums, whether delivered on a desktop computer, a mobile device, or more traditional media such as television, radio or print. If a disclosure is needed to prevent an online ad claim from being deceptive or unfair, it must be clear and conspicuous. Under the new guidance, this means advertisers should ensure that the disclosure is clear and conspicuous on all devices and platforms that consumers may use to view the ad. The new guidance also explains that if an advertisement without a disclosure would be deceptive or unfair, or would otherwise violate a Commission rule, and the disclosure cannot be made clearly and conspicuously on a device or platform, then that device or platform should not be used.”
Some of the specific topics addressed by the FTC’s new guidelines (the Canadian parallel of which are the Competition Bureau’s “Internet Advertising Guidelines” – i.e., Application of the Competition Act to Representations on the Internet – which have not been substantively updated in a few years) include: proximity and placement of disclosure; use of hyperlinks; effective disclosure before purchase; disclosure in new media (i.e., where there are space constraints); distracting elements and the overall context of advertising; multi-media; and understandable disclosure for consumers.
For a copy of the FTC’s new guidelines see: .com Disclosures.
March 12, 2013
Earlier today, as part of its Fraud Prevention Month efforts in March, the Competition Bureau announced its Top 2 on “2 Good 2 B True Day” scams: false online testimonials; and mobile “subscription traps”.
With respect to false testimonials, the Bureau highlighted concerns with testimonials that appear to be from unbiased individuals, but in fact are paid-for endorsements (or malicious or fraudulent).
Under the Competition Act, false testimonials can be challenged where they are either literally false or misleading (under the general civil or criminal misleading advertising provisions of the Act). The Competition Act also includes a standalone testimonials section that makes it reviewable conduct to publish a testimonial for a product unless the person publishing it can establish that: the testimonial was previously made or published; or was approved with permission to make/publish it.
The Bureau has also raised concerns in the past with false or misleading testimonials. For example, in its pamphlet False or Misleading Representations and Deceptive Marketing Practices the Bureau says: “[u]nder the civil regime, the general provision prohibits all materially false or misleading representations. [and] “other provisions specifically prohibit … untrue, misleading or unauthorized use of tests and testimonials …” These guidelines also offer the following testimonial-related guidance for advertisers: “[d]on’t use the results of product performance tests and/or testimonials in your advertising unless you are authorized to use them; or if you are authorized to use them, don’t distort test results or the scope of testimonials”.
As for “subscription traps” – which the Bureau defines as “techniques designed to make consumers register for recurring fees for goods” – the Bureau emphasizes situations where products appear to be free (when charges apply) or where there are hidden or difficult to understand conditions (or refunds subject to conditions). This particular scheme has been an issue, among others, in a number of traditional marketing fraudulent directory scams in recent years (e.g., deceptive fax spam).
The Bureau’s Backgrounder issued with its announcement also includes other tips for consumers to avoid these scams.
Both of these fraud techniques discussed by the Bureau are consistent with its recent and ongoing enforcement priorities in the advertising and deceptive marketing areas, which include a focus on the web and new technology (particularly mobile), increased pressure to clearly disclose the total price of products, heightened scrutiny of disclaimers and hidden conditions and as well consistent enforcement based not only on the literal meaning of claims but also the overall “general impression”.
For copies of the Bureau’s announcement and Backgrounder, see: here and here.
March 11, 2013
Well It’s Spring Break I’m told, I’m in Toronto (which today alas is a bit gloomy and rainy like Vancouver where I’m often sitting) and so I had some time to read a few papers and cases over the past few days. I saw this paper today on my daily sweep of the web and thought that it was rather good and an interesting and clear summary of U.S. trade-mark rules and doctrines. This new American Antitrust Institute (AAI) paper discussing the intersection of antitrust and trade-mark laws also makes a number of interesting arguments for more restrained trade-mark enforcement and registration policies (in favor of competition), as well as potential Sherman Act and other arguments to challenge overbroad attempts to enforce trade-mark rights. In all, quite an interesting and worthwhile read I thought in a daily sea of data and developments. For a copy of the paper see: here. Abstract:
“A trademark can be not only a word or logo, but also a color, sound, three-dimensional object, and many other nontraditional items. Corporations are increasingly seeking nontraditional trademark protection instead of or in addition to traditional patents and/or copyrights. They are also enforcing both traditional and nontraditional marks more aggressively and in ways that may lead to significant foreclosure effects. This working paper argues that these trends may raise serious competition policy concerns that should play an important role in the evolution of trademark law. For instance, trademark registration and enforcement should be subject to the same antitrust constraints as other “ordinary” kinds of business conduct.”
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
