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Category Archives: Competition Litigation

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Mixed Reaction to Grocery Retail Market Inquiry’s Preliminary Findings

Posted in Competition Litigation
The South African Grocery Retail Market Inquiry (“Inquiry”) published its preliminary report on May 29, 2019 (“Preliminary Report”). The broad finding of the Inquiry is that there is a combination of features in the South African grocery retail sector that may prevent, distort or restrict competition. For an overview of the key preliminary findings of… Continue Reading

SUMMER HAS ARRIVED: FASKEN’S 2019 MID-YEAR REVIEW OF TOP ANTITRUST/COMPETITION AND MARKETING TRENDS

Posted in Competition Litigation, Marketing & Advertising
The front half of 2019 has seen a number of important competition law developments in Canada. In addition to a new Commissioner, a different procedural approach to the efficiencies defence in merger review and an increased focus on the digital economy, there have also been a number of consent agreements in the deceptive marketing space… Continue Reading

Recent Comments Regarding Big Tech Companies and the Digital Economy

Posted in Competition Litigation, Merger Notification & Review
Over the past week, the Commissioner of Competition has made a number of comments relevant to big tech companies and the digital economy. These comments were made on a panel at the Data Forum Discussing Competition Policy in the Digital Era in Ottawa on May 30th, at a conference hosted by the Organisation for Economic… Continue Reading

Cartels and Joint Ventures

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
Joint ventures are generally only of interest to competition authorities when they trigger merger notification obligations, or are otherwise used as a platform for collusive or anticompetitive behavior. Recently, the South African competition authorities’ interest has been peeked in joint ventures that have purportedly been used as a platform for cartel activity, and a number… Continue Reading

Don’t Break-up Tech Giants Based on Populist Grandstanding

Posted in Competition Litigation, Monopolization
Antitrust exaggerated backlash against Big Tech is an attack on principles of free markets “The nail that sticks out gets hammered down.” That Japanese proverb – typically used to teach conformity – seems to be the approach advocated by U.S. Senator and Democratic presidential hopeful Elizabeth Warren in her recent call to “break up our… Continue Reading

South Africa: a citizen in the global village of competition law

Posted in Competition Compliance Programs, Competition Litigation
The Competition Act (‘Act’) is first and foremost national in its focus. This is clear from its objects set out in the Act’s Preamble and Purpose. Although the Act makes reference to international law obligations, participation in world markets and the role of foreign competition in the Republic, to look at the role of South… Continue Reading

South Africa: Unpacking the Competition Amendment Bill – Market Inquiries

Posted in Competition Compliance Programs, Competition Litigation
This post was originally published as a bulletin on Fasken.com under the title “Unpacking the Competition Amendment Bill: Market Inquiries“. The Competition Amendment Bill seeks to address two key structural challenges in the South African economy: concentration, and the racially-skewed spread of ownership of firms in the economy. At the 11th Annual Competition Law, Economics and… Continue Reading

Proposed Revisions to the CCB’s Immunity Program: Minor Recalibration or Significant Shift?

Posted in Cartels & Other Competition Criminal Matters, Competition Compliance Programs, Competition Litigation
On October 26, 2017, the Canadian Competition Bureau (“Bureau”) released for public comment a revised version of its Immunity Program, under which a party may receive immunity from criminal prosecution if the party is the first to disclose an offence and agrees to cooperate with the Bureau’s investigation and prosecution of others. The revisions, discussed… Continue Reading

What Constitutes a Separate Product?

Posted in Competition Litigation
Tying occurs when a consumer buys one product (the “tying product”) and is required to either purchase an additional product that exists in a separate market (the “tied product”), or agrees not to purchase the additional tied product from any other seller.  Tied selling is only problematic where the practice is likely to have an… Continue Reading

A significant increase in the prohibition of mergers in South Africa

Posted in Competition Litigation, Merger Notification & Review
The South African Competition Commission has since the beginning of 2017 prohibited eleven intermediate mergers and has recommended that four large mergers be prohibited.  This number is substantially higher than 2016, when the Commission prohibited three intermediate mergers and recommended that one large merger be prohibited.  For the period end of September to October 2017,… Continue Reading

Sixth Guilty Plea in Montreal Condo Development Bid Rigging Scheme

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
On October 27, 2017, Cardinal Ventilation Inc. was fined $375,000.00 after pleading guilty to one count of bid rigging related to three condominium development projects in Montreal. The contracts in question related to the supply and installation of ventilation and/or air conditioning systems in residential high-rise construction projects in the greater Montreal region. Cardinal Ventilation… Continue Reading

South Africa: When a competitive bid is not enough

Posted in Competition Compliance Programs, Competition Litigation
One might think that competition law would applaud a firm that submits an independent and competitive bid, in response to a tender aimed at lowering prices.  Recent experience in South Africa suggests that this is not always the case, and that such a firm may face investigation by the competition authorities precisely because it won… Continue Reading

South Africa: The Competition Commission’s Market Inquiry into Data Services

Posted in Competition Compliance Programs, Competition Litigation
(The full version of this bulletin was originally published on Fasken.com – “The Competition Commission’s Market Inquiry into Data Services” – September 12th, 2017.) On 18 September 2017, the Competition Commission is expected to commence a market inquiry into data services in South Africa. This is the sixth market inquiry to be initiated by the… Continue Reading

The Canadian Competition Tribunal’s Jurisdiction: Broader Than You May Think

Posted in Competition Compliance Programs, Competition Litigation
The Canadian Competition Tribunal recently dismissed a jurisdictional challenge by HarperCollins to the Commissioner of Competition’s application for an order prohibiting the implementation of an alleged agreement between HarperCollins and other e-book publishers.  The Commissioner’s application is under section 90.1 of the Competition Act (“non-criminal agreements between competitors”).  It alleges, broadly speaking, that in 2010, HarperCollins… Continue Reading

CASL Private Right of Action Delayed Indefinitely

Posted in Competition Litigation, Marketing & Advertising
Citing the desire for a balanced approach to the needs of individuals and organizations under Canada’s anti-spam law, the Minister of Innovation, Science and Economic Development announced today that he is delaying indefinitely the coming into force of the private right of action provisions (section 51) in Canada’s anti-spam law (CASL). This important decision is welcome news… Continue Reading

Understanding the Competition Commission South Africa’s Public Passenger Transport Market Inquiry

Posted in Competition Litigation
On 7 June 2017 the Competition Commission South Africa will commence a market inquiry into the public passenger transport sector. This is the fifth market inquiry to be initiated by the Commission, following inquiries into the LPG, healthcare, grocery retail and banking sectors. What does the Commission intend to investigate? In terms of the Terms… Continue Reading

More penalties for digital “drip pricing”

Posted in Competition Litigation, Marketing & Advertising
Hertz and Dollar Thrifty agree to pay $1.25 million The Competition Bureau announced this week that Hertz and Dollar Thrifty have agreed to pay an administrative monetary penalty of $1.25 million and to implement compliance procedures to resolve the Bureau’s investigation of “drip pricing” by the companies.  “Drip pricing” refers to advertised prices that are… Continue Reading

Kobo’s Quest for Status Quo in the E-books Market: A Never Ending Story

Posted in Competition Litigation, Pricing and Distribution
On February 17, 2017, Toronto-based e-books retailer Rakuten Kobo Inc. (“Kobo”) sought judicial review of the consent agreements reached between the Commissioner of Competition (“Commissioner”) and three e-books publishers earlier this year. The consent agreements reached between the Commissioner and each of Hachette, Macmillan, and Simon & Schuster are aimed at resolving the Commissioner’s concerns… Continue Reading

CASL, the Competition Act and Class Actions:  A Primer for Forthcoming Private Enforcement

Posted in Competition Litigation, Marketing & Advertising
Now that 2017 has arrived, we are less than seven months away from private enforcement (particularly through class actions) for false or misleading electronic messages. CASL’s  amendments to the Competition Act sought to address deceptive marketing practices in the electronic marketplace. Three reviewable practices were created – all within section 74.011 of the Competition Act –… Continue Reading

The Bicycles case: Silent tandem riders beware

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
  The passive attendee in meetings at which potentially collusive conduct takes place has recently been considered further and developed by the South African Competition Appeal Court in the ‘bicycles case’. Previously addressed by the South African Competition Tribunal in DPI Plastics Pipes (2012), the Tribunal concluded that an attendee simply cannot stay silent nor… Continue Reading

Competition Bureau Releases Updated Consent Agreement Template for Merger Remedy Negotiations

Posted in Competition Litigation, Merger Notification & Review
On September 29, 2016, the Competition Bureau (the “Bureau”) released a revised consent agreement template for merger remedy negotiations. The release of the Bureau’s updated template is timely, as the number of consent agreements registered with the Competition Tribunal (the “Tribunal”) have risen significantly since the last template was published in 2007. This year alone,… Continue Reading

New Trial Ordered: Application of Co-Conspirators’ Exception to the Hearsay Rule at Issue in Price-Fixing Conspiracy Case

Posted in Cartels & Other Competition Criminal Matters, Competition Litigation
On September 9, 2016, the Quebec Court of Appeal (“QCCA”) issued its judgment in two gasoline price-fixing conspiracy cases. The cases were the product of the Competition Bureau’s (the “Bureau”) year-long investigation into the fixing of retail gasoline prices in the province of Quebec from April 2005 to May 2006. The three accused individuals in… Continue Reading

Competition Bureau Issues “No Action” Letter Despite Likely Anti-Competitive Effects of Proposed Merger

Posted in Competition Litigation, Merger Notification & Review, Pricing and Distribution
Despite the fact that Canada’s Competition Bureau had concluded that the proposed acquisition of Canexus Corporation by Superior Plus Corp. would likely result in a substantial lessening of competition for the supply of various industrial chemical products in Canada, the Bureau issued a “no action” letter clearing the transaction under the Competition Act because of… Continue Reading