December 8, 2012
The American Antitrust Institute (aai) has posted the materials from its recent 6th Annual Private Antitrust Enforcement Conference in Washington. The materials include podcasts and downloadable PDF versions of papers presented on the following topics: the AAI Jury Instruction Project, Employment Antitrust Litigation, Trends in Use of Truncated or “Quick Look” Analysis, Litigation in Regulated Industries and Class Action Developments.
For more information and copies of the materials see: 6th Annual Private Anitrust Enforcement Conference.
December 7, 2012
Earlier today, the Federal Government announced that it was granting Investment Canada Act approval for China National Offshore Oil Company’s (CNOOC) acquisition of Nexen Inc. and PETRONAS’ acquisition of Progress Energy (see: here and here).
With respect to CNOOC/Nexen, the Minister of Industry emphasized CNOOC commitments relating to governance, commercial orientation and free market principles as factors for approving the transaction:
“To demonstrate that the transaction is likely to be of net benefit, CNOOC has made significant commitments to Canada in the areas of: governance, including commitments on transparency and disclosure; commercial orientation, including an adherence to Canadian laws and practices as well as free market principles; and employment and capital investments, which demonstrate a long-term commitment to the development of the Canadian economy. A compliance report related to the undertakings will be provided to Industry Canada annually.”
As anticipated, at the same time the Government also released a new Policy Statement and revised State-Owned-Enterprise Guidelines (Investment by state-owned enterprises – Net benefit assessment) for net benefit to Canada reviews of investments by SOEs that amend Guidelines first issued in 2007.
Some of the key changes (and shifts in policy) that struck me on my review of the new SOE Guidelines and Policy Statement include:
1. The Federal Government sending a clear signal that acquisitions of control by SOEs in Canada’s oil sands will be found to be of net benefit to Canada only on an “exceptional basis”. When questioned in an interview following the announcements, the Prime Minister did not amplify on what circumstances may satisfy this test.
2. More formal monitoring of SOE transactions (which is consistent with an increased desire by the Government generally to ensure that Investment Canada Act undertakings are fulfilled).
3. Increasing the scrutiny on the level of control by a foreign state (to include the control or influence of the SOE over the business and relevant industry, as well as the control/influence of the foreign state over the SOE). In this regard, the definition of SOE in the Guidelines has been expanded to include “influence” in addition to ownership and control (the Investment Canada Act does not define SOE).
4. Distinguishing between reviews for acquisitions of control from minority investments including joint ventures (the latter “continuing to be welcome”, while the former will be cleared only on an “exceptional basis”).
December 7, 2012
The Corporate Counsel and Unilateral Conduct/Reviewable Matters Committees of the Canadian Bar Association will be co-hosting the following upcoming teleconference on December 13th: Advising Amongst Uncertainty: Abuse of Dominance in Canada and the New Guidelines:
“Globally, enforcement of unilateral conduct laws has led to some of the most high profile matters in antitrust history, including Microsoft and Google in the US and EU. By comparison, unilateral conduct has seen much less enforcement in Canada in the last decade, which has arguably impacted the amount of attention it receives by businesses and their legal advisers. However, the Competition Bureau’s approach to enforcement appears to have changed since 2009 and has produced recent high profile cases including the Canadian Real Estate Association and Toronto Real Estate Board abuse of dominance cases. With the new Abuse of Dominance Guidelines released on September 20, 2012, both in-house counsel and private practitioners are revisiting this area with interest. But how helpful are the shortened Guidelines in providing meaningful guidance, and where else can counsel turn for information? Join us for lively discussion on the state of Abuse of Dominance in Canada, including hypothetical fact scenarios and practical insights on advising in this complex and evolving area.”
December 7, 2012
Ever interested in all things web and competition, this very spiffy new competition law blog launched by King & Wood Mallesons caught my eye: In Competition. From KWM
“Conveying recent developments within the competition space – covering access, authorizations, cartels, consumer protection, enforcement, litigation mergers, reform, antitrust – across a range of jurisdictions.”
I wish KWM all the best with their new site!
December 7, 2012
Earlier today, the Competition Bureau announced that five individuals have been charged under the Criminal Code and Competition Act for allegedly misleading and deceptive telemarketing (see: Five Individuals Facing Charges for Fraudulent and Misleading Telemarketing Calls).
In making the announcement, the Bureau said:
“In August 2006, a Bureau investigation revealed two telemarketing operations in Montréal using questionable tactics. One, using names such as ‘Advance Financial’, ‘Consumer Benefit’, and others, promoted government grants to American citizens. The other, using names including ‘Global Electronic Solutions/Solutions Électroniques Global’ and ‘Federal Emergency Medical Supply/Agence Federal des Produits Medicales (sic)’, promoted the sale of office supplies and medical kits to Canadian and American businesses. The operations were shut down following a search in December 2006. The combined revenue of the two operations is estimated to be as much as $840,000.
The Bureau’s investigation determined that some of the alleged tactics used during the telemarketing calls included implying that the caller represented a business that had an existing relationship with the victim’s company, indicating that certain products or services were required under government rules, or implying that the call was being made on behalf of a government agency.”
In Canada, the Competition Act makes it a criminal offence to engage in deceptive telemarketing and also requires certain disclosure to be made during telemarketing calls.
In particular, under the Competition Act’s deceptive telemarketing provisions, it is a criminal offence to: (i) make materially false or misleading representations; (ii) operate a contest where the delivery of a prize is conditional on prior payment or certain disclosure is not made (regarding the number and value of prizes, area or areas to which they relate and odds of winning); (iii) offer free or below cost products, as consideration for supplying another product, unless disclosure is made of the fair market value of the first product (and any restrictions, terms or conditions relating to its supply); or (iv) offer products for sale grossly in excess of their fair market value where their delivery is conditional on prior payment by buyers.
December 6, 2012
I am always interested in innovation and trends, both in marketing generally and in relation to my own practice. Lawyers can, well, be rather slow to embrace change. In this regard, I’ve been seeing a continued trend toward video, both on the web generally – for example in this interesting Globe note this morning: Need more proof of the power of video on the web? Here it is – as well as with my own clients, colleagues (well some of them at least) and more recently enforcement agencies in Canada and Internationally.
Following this trend, several enforcement agencies using video have caught my eye including this short (but good) Consumer Protection BC video on expiry dates and gift cards this morning: A Consumer Question About Gift Cards and a video contest being used by the RCMP to promote drug prevention awareness.
These Canadian examples of enforcers using video also reminded me of the recent excellent cartel compliance video by the Australian ACCC – The Marker – a short film produced by the ACC to illustrate the potentially significant effects that involvement in a cartel can have on individuals and businesses (see: ACCC gets on the front foot with cartels film ‘The Marker’) and this series of price-fixing videos uploaded to YouTube by the Singapore Competition Commission – see: here.
It seems to me this is a good trend for lawyers and enforcers and that we’ll probably see a lot more like them down the road.
For more on gift card, contest and cartel laws in Canada see: Gift Cards, Contests and Cartels.
December 6, 2012
The American Bar Association’s Section of Antitrust has published its Fall 2012 edition of Antitrust Magazine, which includes articles on:
Antitrust Litigation: What’s Changed in Twenty-Five Years (W. Kolasky), Merger Policy Twenty-Five Years Later: Unilateral Effects Move to the Forefront (A.R. Dick), Reflections on Cartel Enforcement (I. Simmons, K.R. O’Rourke), Time for a Global ‘One-Stop-Shop’ for Leniency Markers (J.M. Taladay), The ISO Litigation Legacy of Eastman Kodak Co. v. Image Technical Services (J.I. Gleklen), Crossing the Streams of Price and Promotion Under the Robinson-Patman Act (R.M. Steuer), The More Things Change, the More they Stay the Same: Applying Section 5 to Emerging Marketing Practices (L.J. Fales, E.T. Berge), Antitrust in No One’s World (E.M. Fox), From Activity to Accomplishment: Competition Law and Performance Measure (W.E. Kovacic), Economics and Competition Law: A Two-Sided Market? (J. Jayaratne, J.A. Ordover), Thinking Fast, Free, and Fashionable: Competition and Consumer Protection in a Mobile Internet World (H.C. Su) and When Does Buyer Power Become Monopsony Pricing? (J.D. Shively).
December 5, 2012
In interesting and wide ranging comments given earlier today in Vancouver, as a prelude to published remarks, the Interim Commissioner of Competition John Pecman discussed current Bureau priorities, some key enforcement trends and gave some indication of future policy direction at the Bureau.
Perhaps appropriately, the Interim Commissioner began his remarks by noting that today, December 5th, has been designated by the Indian based NGO CUTS International as “world competition day” (with this year’s topic being designated by CUTS as the impact of cartels on the world’s poor).
Some highlights from the Interim Commissioner’s remarks included:
Enforcement. An overarching theme of today’s discussion in Vancouver was a continued focus on enforcement and an unwavering willingness by the Bureau to commence litigation (though underscored throughout the talk by a message that the Bureau continues to be interested in collaboration and dialogue). While the Interim Commissioner said that the Bureau’s default is generally to work collaboratively, the Bureau will continue not to hesitate to litigate. The Interim Commissioner also spoke about a desire to return to some of the “bread and butter” priorities of the Bureau in both the criminal and deceptive marketing areas. Interestingly, the Interim Commissioner indicated that despite recent Federal budgetary cuts, the Bureau was working toward enhancing its internal litigation capabilities.
Consultations & New Guidelines. The Interim Commissioner indicated that the Bureau would be commencing consultations with the competition bar in Canada in the new-year, as well as stakeholders, business groups and procurement groups to amplify and clarify several key areas, including the Bureau’s Immunity and Leniency Programs and electronic document production. The Interim Commissioner also indicated that the Bureau would be working towards issuing new price maintenance guidelines, FAQs for unilateral conduct and new general guidelines on Bureau enforcement. The Interim Commissioner also suggested a desire by the Bureau to move away from issuing advisory opinions in individual cases toward a focus on published materials (i.e., guidelines).
Maxzone. With respect to the recent decision by Chief Justice Crampton in the Maxzone case, the Interim Commissioner indicated that the decision both sends a strong message that serious white-collar crime conduct akin to fraud should be appropriately punished (including by increasing recommendations for prison sentences) while other aspects of the decision were less workable practically, for example Chief Justice Crampton’s suggestion that defendants should work to achieve restitution with plaintiffs prior to plea agreements (which can delay criminal investigations). In this regard, the Interim Commissioner commented on the existing partition between private actions and criminal enforcement, saying there already existed a mechanism for restitution (section 36 of the Competition Act – the provision under which private civil actions in Canada are commenced). Overall, however, Mr. Pecman described the ongoing shift of Canadian courts toward sterner sentencing and recent Criminal Code sentencing amendments eliminating conditional sentences for cartel and bid-rigging offences as a “sea change” to how competition law offences are treated in Canada.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
