January 5, 2013
Industry Canada announced that it is expected that the Investment Canada Act review threshold for WTO investors or vendors will be Cdn. $344 million for 2013 (to be published in the Canada Gazette in early 2013). The threshold is indexed annually to reflect GDP growth. For more information about the Investment Canada Act and Canada’s foreign investment rules see: Investment Canada, national security, state-owned-enterprises (SOEs).
January 4, 2013
Earlier today, the U.S. Federal Trade Commission issued a new report summarizing its reviews of horizontal mergers between 1996 and 2011 (see: Horizontal Merger Investigation Data: Fiscal Years 1996-2011).
Overview:
“To promote transparency in merger enforcement, Federal Trade Commission staff1 reviewed the horizontal merger investigations that the agency conducted during fiscal years 1996 through 2011 and compiled relevant data for public release. The information presented in the attached tables has been extracted from staff memoranda written at the time of each investigation to advise the Commission regarding its enforcement decision. The staff has tabulated certain market structure information along with the Commission’s decision whether or not to seek relief in the specific markets investigated. In addition, for a subset of these investigations (those with three or fewer markets), the staff also tabulated the Commission’s enforcement decisions based on the presence or absence of ‘hot documents,’ ‘strong customer complaints,’ and ‘entry conditions’ as they were identified during the investigation.
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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January 4, 2013
On January 4, 2013, Industry Canada issued revised draft regulations (Electronic Commerce Protection Regulations) for Canada’s upcoming anti-spam legislation (“CASL”). The revised regulations will be subject to comment until February 4, 2013 and generally clarify certain key CASL definitions and exceptions and add some new exceptions. Some of the key aspects of the new draft regulations include:
January 4, 2013
On January 4, 2013, Ontario’s consumer protection agency (the Ministry of Consumer Services) announced that it is planning to regulate debt settlement companies and issued proposed regulatory changes for public comments. In making the announcement, Ontario’s Minister of Consumer Services said:
“There is evidence of harmful practices used by some debt settlement companies and that is why our government is taking steps to protect consumers. We want to put a stop to abusive practices in the marketplace. Consumers should know their rights before they sign contracts and they should not make any payments until they get results.”
The new regulations, which according to the Ministry are intended to protect Ontario consumers from “exaggerated claims and abusive practices”, may include regulations to: (i) prevent debt settlement companies from charging up-front fees, (ii) limiting the fees debt settlement companies can charge consumers, (iii) require clear and transparent contracts (clear disclosure of key contract terms including fees, services and conditions) and (iv) require a ten-day cooling-off period.
The new rules would apply to for-profit and not-for-profit operators offering to arrange debt settlements for consumers and would be subject to existing Ontario consumer protection laws (e.g., the Collection Agencies Act and Consumer Protection Act). The planned new rules would also apply to traditional debt management plans offered through credit counseling services.
January 2, 2013
In an interesting case decided just before the holidays, which I fleetingly Tweeted, the Supreme Court of British Columbia denied an attempt by TELUS to block seasonal advertising by newcomer Mobilicity (see: TELUS Communications Company v. Mobilicity). Now that I’ve had my fill of Christmas turkey, I’ve had a chance to take a look at the decision which, though brief, includes a few interesting points.
In this case, TELUS’ challenge focused on three Mobilicity television advertising claims:
1. That Mobilicity’s competitors (including TELUS) make deceptive offers to customers, including offers of “unlimited plans” (when in fact their plans are limited to “after 6 PM evenings and weekends”);
2. That Mobilicity offers customers wireless services with “no contracts” (when Mobilicity does in fact require contracts); and
3. That Mobilicity offers “unlimited data” plans (when its plans are subject to a fair use policy that can limit speed).
TELUS sought an interlocutory injunction stopping Mobilicity from continuing with its claims through the end of December, arguing that the claims violated section 52 of the Competition Act (the criminal misleading advertising provision of the Act, which allows civil damages actions).
In denying TELUS’ injunction application, the Court reviewed the availability of injunctions under the Competition Act, the test for granting interlocutory injunctions and made several interesting comments relating to the interpretation of advertising for the misleading advertising provisions of the Act (and the balance between the need for accurate advertising and free speech).
As a threshold matter, the Court reiterated the BC Court of Appeal’s holding in earlier TELUS litigation in 2009 that the private action provision of the Competition Act, which speaks only of compensatory damages (i.e., the ability for private plaintiffs to recover actual loss or damage suffered) does not prevent the Supreme Court from exercising its inherent jurisdiction to grant injunctions.
December 28, 2012
I am pleased to be a panelist for an upcoming Canadian/U.S. advertising law webinar hosted by Strafford on January 8, 2013: Key Canadian Advertising and Competition Law Compliance Strategies.
Description
The Canadian Competition Act contains civil and criminal prohibitions on misleading representations and regulates specific types of advertising and marketing practices. Violations can lead to “administrative monetary penalties” of up to $10 million and court orders to cease conduct and compensate consumers (restitution).
The Competition Bureau has ramped up enforcement efforts. Recent Bureau and private litigation challenges include price and performance claims, use of disclaimers and the application and scope of the “general impression test”. Developments include increased sectoral regulation and federal anti-spam legislation.
To effectively minimize legal risk, marketers and advertisers in Canada need to know the basic rules that apply to price and performance claims, sales and other promotions (including contests), disclaimers, electronic marketing and the enforcement agencies’ evolving approach to new technologies.
Listen as our panel of Canadian and U.S. attorneys provide a guide to important competition compliance rules for counsel to companies and associations conducting advertising and marketing operations in Canada. Panelists will review current litigation and Competition Bureau enforcement developments and provide practical compliance guidelines to avoid triggering allegations of misleading representations.
The panel will review these and other key questions: what types of representations are currently under heavy scrutiny by the Competition Bureau?; how should marketers prepare for the federal anti-spam legislation expected in 2013?; what kinds of safeguards are needed to ensure that price, performance or comparative claims or the use of disclaimers do not violate the Competition Act?
December 27, 2012
I’ve been thinking lately about writing a short note on Competition Act remedies and how the Act can be used as a strategic tool, partly from working on a few recent files with general commercial counsel who tend to ask: “what will we get and how do we get there using competition law”?
I’ve also grown to think of the Competition Act over the past few years as a collection of tools that can be used for strategic purposes (e.g., in settlement negotiations) or in an effort to achieve certain types of remedies for clients. In other words, thinking about remedies first and the best types of competition law tools to get there.
So, with that said, the following is a short overview of Competition Act penalties and remedies (and a few of the ways the Act can be used as a strategic tool, either on its own or with other proceedings or strategies):
1. As a general matter, the Competition Act contains both civil provisions and criminal offences, and so the potential penalties/remedies vary considerably depending on the particular provision and whether a criminal offence or civil reviewable matter.
2. Competition Bureau complaints are possible under all of the provisions of the Act, by consumers or competitors (and may be filed in a number of ways).
3. Under the criminal offences of the Act (e.g., criminal conspiracy agreements, bid-rigging, deceptive telemarketing, etc.), potential penalties include fines and/or imprisonment. The Bureau also sometimes seeks so-called “prohibition orders” for conduct to stop, which is one peculiar feature and remedy available to the Bureau.
December 21, 2012
The American Bar Association today published the December edition of The Antitrust Source. This edition includes articles on:
“FTC Monetary Remedies and the Limits of Antitrust”; “Deciphering the Compliance Obligations Around the EU’s Cookie Directive”; “Maximizing Efficiencies: Getting Credit Where Credit is Due”; “An Overview of the FTC’s New and Improved Green Guides”; and a book review of The Economics of Collusion – Cartels and Bidding Rings.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
