February 28, 2013
As part of the kick-off of Fraud Prevention Month it seems, the Competition Bureau has issued an updated pamphlet for businesses on bid-rigging. The Bureau’s new Bid-rigging pamphlet discusses the criminal bid-rigging offences under the Competition Act (section 47), provides some tips to detect and prevent common types of bid-rigging offences (e.g., cover bidding, bid suppression, bid rotation and market division), gives a brief overview of the Bureau’s Immunity and Leniency Programs and bid-rigging penalties. The Bureau’s new pamphlet also includes other bid-rigging related resources, including its multi-media presentation: Bid-Rigging: Awareness and Prevention.
February 28, 2013
The Continuing Legal Education Society of British Columbia (CLE BC) has published its annual Review of Law & Practice – 2013, including my joint Competition Law chapter (see: Annual Review of Law & Practice – 2013). Overview (from CLE BC):
“Discover the most efficient way to stay informed, with key developments in 33 practice areas. Each year, lawyers and other readers around the province turn to CLEBC’s Annual Review of Law & Practice to learn about the key developments and trends in British Columbia law. Thriving in its 22nd annual edition, Annual Review provides an easy, affordable, and reliable way to keep its readers on top of the pivotal issues and trends. This year’s edition is bigger and better than before, and introduces a new chapter on “Competition Law”. The book now contains 34 chapters packed with accessible commentary about the main legislative, case law, and practice changes in British Columbia. Chapters are written by BC lawyers who have recognized interests and knowledge in particular areas of law. All good reasons why, in British Columbia, Annual Review is the essential updating tool for the busy practitioner.”
My joint Competition Law chapter includes a summary of the 2012 developments in the major areas of Canadian competition law including: misleading advertising, mergers, the Investment Canada Act, abuse of dominance, criminal matters, private actions and new Competition Bureau guidelines.
February 27, 2013
Earlier this week, the Federal Court of Appeal released the public version of its reasons in a decision upholding the Competition Tribunal’s decision ordering divestiture in the contested BC Tervita hazardous landfill merger.
The decision is noteworthy on a number of counts, including for being the first fully contested merger proceeding in over ten years, being a relatively rare example of a “prevent” merger case (the Commissioner may challenge mergers in Canada under the Competition Act where they may either prevent or substantially lessen competition in a relevant market) and for the Federal Court’s views on the application of the Competition Act’s efficiencies defence.
In the midst of sledding through this rather blanching FCA judgment – some 60 plus pages (see: here) – I somewhat fortunately received this quite good, short Davies note on the case and its implications in my inbox. So, I’m cheating slightly here (albeit with permission). Overview:
“On February 25, 2013, the Federal Court of Appeal (“FCA”) released the public version of its decision upholding the Competition Tribunal’s order requiring Tervita (formerly known as CCS Corporation) to divest the Babkirk hazardous waste landfill site following its acquisition of Complete Environmental Inc. The case is the first fully contested proceeding under the merger provisions of the Competition Act in over a decade.
The FCA considered whether the Tribunal was justified in finding that the merger resulted in a substantial prevention of competition and that the efficiencies claimed by Tervita were not greater than and would not offset the anticompetitive effects of the transaction.
Among other things, the decision: endorses the Tribunal’s approach to determining whether the merger resulted in a substantial prevention of competition; states that the proper timeframe to consider in determining whether a merger results in a substantial prevention of competition will generally be assessed in relation to the period of time required for a new entrant to enter into the market; and clarifies that the proper methodology for applying the Act’s efficiencies defense involves as objective an analysis as is reasonably possible, although this approach may still consider qualitative factors that cannot be quantified.”
February 27, 2013
This new global text on unfair competition caught my eye on my sweep of the web today: International Handbook on Unfair Competition, which includes chapters on major jurisdictions including Canada, the U.S., Australia, U.K., Brazil, China and a number of others. Abstract:
“Written by a worldwide team of experts, this new work surveys and comments on the unfair competition laws of the world’s leading economic powers. Following a standard pattern, each chapter introduces the reader to the latest developments in each jurisdiction, highlighting the ways in which the basic legislation and case law relates to enforcement issues, and how unfair competition laws fit with wider considerations of consumer protection and within prevailing intellectual property and competition law frameworks.
Each of the country reports follows the same standard structure: Background and General Approach to Unfair Competition Law; Legal Basis of Unfair Competition Law and Relations to Neighbouring Areas of Law; General Considerations; General Clause Against Unfair Competition; Marketing; Protection of Competitors Against Unfair Trade Practices; Specific Protection of Consumers Against Unfair Trade Practices; Enforcement.”
February 26, 2013
My practice principally relates to offering business and individual clients efficient and strategic advice in relation to a range of regulatory law matters including competition/antitrust law, advertising, white-collar crime, Internet and new media law, as well as consulting and advisory services for mergers and Canadian foreign investment laws. I also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
Over the past few years, my practice has grown, and has included clients from the U.K., Europe, the U.S. (including New York, New Jersey, Florida, the mid-west and California), the Pacific Rim and across Canada. Thank you to my great clients.
In connection with my practice, I have built and launched several of the largest and most comprehensive sources for competition/antitrust, advertising/marketing and regulatory law information: Canadian Competition & Regulatory Law, Canadian Advertising & Marketing Law and Canadian Contest & Promotions Law.
Based on growth in my practice, I am now looking to hire 1-2 people on a part-time contract to assist me with managing, updating and researching legal and policy developments in my core areas of practice: competition/antitrust law, advertising/marketing law and other related regulatory law areas.
Key responsibilities will include reviewing and updating websites and blogs, assisting with the management of my social media platforms (LinkedIn and Twitter), legal and web research and ongoing updates in my core areas of practice and assisting me with research, writing and other academic and billable projects including books, articles, conferences and the maintenance and expansion of my core web platforms.
No formal legal training is required. An interest in research, the web, innovation and ideas would be an asset. If you are interested in this opportunity, please send me a copy of your cv and hourly pay expectations to: steve@szentesilaw.com.
February 18, 2013
Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
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Canadian contest law can, to say the least, be perplexing to some. It’s a mix, at least usually, of competition law, the Criminal Code and contract law. As such, key Canadian contest legal requirements include mandatory Competition Act disclosure (“short rules”), avoiding the illegal lottery offences of the Criminal Code and taking common sense steps to make sure contest rules accurately reflect the promotion, are enforceable and give the maximum amount of latitude to promoters to deal with potential contingencies that may arise.
February 17, 2013
Surveys can be a great way to collect member information and are commonly used by trade and professional associations. Indeed, one of the most important functions that an association can perform for members is the collection and dissemination of information, which may include statistical information, industry trends, production levels and industry laws and regulations.
Surveys and information exchanges can have many legitimate and pro-competitive effects – for example, facilitating research initiatives and benchmarking exercises, increasing market transparency and customer knowledge, promoting improved products and services and supporting lobbying and advocacy efforts.
Associations may also, however, from time-to-time want to collect and distribute information about members’ business practices or competitors’ activities. This may include information about product or service pricing, markets (or customers and suppliers) or new and contentious business models that may be perceived as a risk or threat to the association, the industry or both.
Information relating to these areas is often referred to as “competitively sensitive information”, which can include information relating to current or future pricing, market shares, costs, customers, markets, market shares or current or future marketing or business plans.
In this regard, surveys and information exchanges can also constitute one of the most significant risks for trade associations and their members.
While the mere exchange of competitively sensitive information is not a competition law offence in Canada (though may in some cases raise concerns under other sections of the Competition Act), there are generally two potential issues with surveys or information exchanges involving competitively sensitive information where appropriate precautions/procedures have not been adopted.
First, the survey or exchange could lead to an agreement that contravenes the Competition Act (e.g., an agreement between competing members to fix-prices, divide/allocate markets or restrict/limit output). Second, a mere exchange of competitively sensitive information could be used by the Competition Bureau, a court or a private plaintiff to infer the existence of an agreement that violates the Act.
In addition to the fact that evidence of improper information exchanges has been used by the Bureau and Canadian courts for over a century to prove illegal agreements between competing members of associations, associations have also been the subject of heightened competition enforcement in Canada over the past few years. The Interim Commissioner of Competition has also recently highlighted inappropriate information exchanges through associations as a concern saying:
“… we are concerned with conduct that reduces incentives to compete vigorously. Information sharing agreements are an example of this. Competitively sensitive information exchanged among competitors who can have serious negative effects on competition, especially if they are in highly concentrated markets with relatively homogenous product offerings.”
As such, when association business turns to surveys, information exchanges or “benchmarking” that may raise competition issues or involve the exchange of the types of information above, the competition law radar of association leadership should go up. A few important initial questions to ask include:
February 16, 2013
Earlier this month, the Ontario Court of Appeal dismissed an appeal in the Yellow Pages Marketing misleading advertising case (see: Competition Bureau v. Yellow Pages Marketing).
In this case, an individual found liable last year by the Ontario Superior Court to pay a $500,000 “administrative monetary penalty” or “AMP” for misleading advertising appealed the lower court’s judgment (see: here). The Ontario Superior Court had found a group of companies and individuals liable under the civil misleading advertising provisions of the Competition Act for sending deceptive faxes designed to lead recipients to believe that they were merely confirming online directory information for the legitimate Yellow Pages Group (“YPG”) when, in fact, the companies, that were unrelated to YPG, used fine print disclaimers to sign-up recipients to new two-year online directory contracts with significant fees.
In finding the companies and individuals liable, the Superior Court reviewed the relevant law under the civil misleading advertising provisions of the Competition Act, finding that the faxes were misleading, material and that fine print disclaimers used failed to cure otherwise misleading claims. The Court ordered penalties that included a ten-year prohibition order, compensation for consumers and more than $9 million in AMPs, including more than $1 million against individuals – the highest award to date in contested proceedings for a Canadian misleading advertising case.
On appeal, one individual appellant argued that he had been deprived of a fair hearing and opportunity to adduce evidence relevant to his defense, in particular evidence of a lack of involvement in the marketing practices and relevant to the Competition Act’s factors for determining the size of AMP to be imposed. The appellant also argued that the lower court hearing should have been adjourned to allow him to adequately protect himself.
In a short but interesting decision, the Court of Appeal rejected all of these arguments. With respect to evidence, the Court of Appeal found that the appellant chose not to file his own affidavit, affidavit evidence that had been filed addressed the appellant’s involvement in the misleading conduct and financial status and that it was, in any event, open to the lower court judge to decide what weight to give to the available evidence.
As to the fairness of the proceeding, the Court of Appeal found that there was no evidence that any concerns were raised about the evidence in the prior proceedings (or an adjournment requested) and that the lower court judge had no independent obligation to become involved in the presentation of the appellant’s case or evidence called. The Court of Appeal referred to these matters as the “exclusive domain of client and counsel”. The Court held that “other than in extraordinary circumstances such as when it is apparent that a conflict has arisen between a client and his or her counsel, the court should not, on its own accord, become involved in the actual presentation of the case.”
On liability, the Court of Appeal found that the lower court’s finding was “unassailable”, based on evidence the appellant knew the companies were making false and misleading representations, was aware of prior efforts to obtain compliance – for example, in the U.S. – and a 2010 Competition Bureau warning that had specifically been brought to his attention. In upholding the liability finding, the Court of Appeal also pointed to the appellant’s responsibility for complaints and key aspects of the companies’ deceptive marketing activities.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
