Competition Chronicle

Competition Chronicle

Competition & Antitrust | Foreign Investment

Cartels and Joint Ventures

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 of decisions were handed down in 2018. This post answers a number of questions in light of these decisions, and highlights the implications of these decisions on future conduct by competitors looking to establish, or operate in, a joint venture.

Are joint ventures between competitors illegal under South African competition law?

No, joint ventures between competitors are not illegal in South Africa, and the Competition Commission does not automatically view joint ventures between competitors as cartel activity.

In the recent Wasteman Holdings[1] case, the Commission recognized that the joint venture created a new investment that the competitors might not have invested in on their own or in competition with one another. What the Commission sought to impugn were the downstream activities of the competitors, which were coordinated through the joint venture.

Should joint ventures between competitors be formalized for purposes of competition law compliance?

Whilst not strictly required, formalization of joint venture agreements is encouraged. In Geometry Global[2] the Competition Tribunal warned that “to those claiming to operate as a joint venture, we would caution that whispered agreements at side meetings are poor substitutes for formalized memorandums of understanding or joint venture agreements”.

When incorporating a joint venture with a competitor, may a non-compete clause be imposed?

In Dawn Consolidated Holdings, the Competition Appeal Court set out a three-step test to determine, objectively, whether a restraint (such as a non-compete clause) could be ‘characterized’ as falling outside of the scope of section 4(1)(b). These steps were:

  • Is the main agreement (in this instance, the shareholders agreement or joint venture agreement) unobjectionable from a competition law perspective?
  • If so, is a restraint of the kind in question (i.e. a non-compete clause) reasonably required for the conclusion and implementation of the main agreement?
  • If so, is the particular restraint reasonably proportionate to the requirement served?

If a firm can answer all three steps in the affirmative, the restraint may be imposed in the joint venture agreement without contravening section 4(1)(b).

When might activities in joint venture contravene the cartel provisions in section 4(1)(b) of the South African Competition Act?

In the recent Wasteman Holdings[3] decision, the Competition Tribunal found that competitors could not hide behind the notion of a separate legal entity to protect themselves from competition law contravention – even where a separate legal entity is involved, the true economic relationship will have to be considered for purposes of a section 4 complaint.  The Competition Tribunal held that “It is not difficult to imagine how liability for collusion could be avoided if competitors could sanitize what would otherwise be a collusive arrangement by changing hats…. The real economic relationship remains one of two competitors reaching an agreement”.

Key take away points

There are at least three points arising from the cases referred to above which, if taken aboard, help mitigate the competition law risks arising from joint ventures between competitors:

  •  Geometry Global – Joint venture agreements between competitors should be in writing and formalized.
  • Dawn Consolidated Holdings – Restraints in joint venture agreements between competitors should be assessed with regard to the Competition Appeal Court’s three step test, essentially requiring a reasonable relationship between any non-compete provision and the objective of the joint venture.
  • Wasteman Holdings – Even though acting as a separate entity, such as a joint venture, firms will likely continue to wear the hat of “competitors” unless it can be shown that the entity is sufficiently independent. Actions and conduct by the separate entity, or joint venture, may be imputed on the competitors, who are shareholders or partners. Further, competitors, when exchanging information in the joint venture, should identify in advance and record the limits of the required information and the reason for the exchange – this would help explain the purpose of the exchange if ever questioned by the competition authorities.

The South African competition authorities have taken a balanced approach between preserving the efficiency gains arising from joint ventures and intervening when competitors use joint ventures for anti-competitive purposes. These recent cases provide welcome clarity on a range of issues which often confront joint venture parties.

[1] 155/CAC/Oct2017.

[2] CR182Dec16.

[3] CR210Feb17.

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

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 biggest tech companies,” including Google, Amazon, and Facebook.

There is little question that the Internet has been the foundation for a number of tremendously successful companies. Consumer demand for innovative products and services has allowed these “tech giants” to realize rapid growth and also market preeminence.

There’s been a recent populist backlash against the power of these data monopolies, concern over harmful online content or behavior, cybercrime, and political misinformation. But the approach advocated by Sen. Warren and others to break up large tech companies is flawed because it overstates the consequences of being “big,” politicizes the role of competition regulators and ultimately will hinder innovation and harm consumers.

Internationally, too, there is a growing call for government action to curb the strength of the tech giants. Most advanced economies are studying the adequacy of competition law over concerns about increasing market concentration in digital network sectors.

In the United States, the Federal Trade Commission has begun public hearings to examine the need for new antitrust approaches. The FTC recently launched a task force to monitor technology markets designed to investigate potential anti-competitive conduct in the digital sector.

The United Kingdom is also examining the role of competition in the digital economy, including two recent reports, first by an expert panel entitled “Unlocking digital competition” which recommended, among other things, a code of conduct for tech firms to include mandating interoperability and the second report by the House of Lords Committee on Communications recommending a public interest test for data mergers.

The European Commission began its study of competition in tech markets by releasing an expert report calling for stricter antitrust enforcement.

In Canada, there have calls for the modernization of Canada’s competition laws by the Senior Deputy Governor of the Bank of Canada, Carolyn Wilkins, and by the Commons Committee on Access to Information, Privacy and Ethics report following last year’s Facebook/Cambridge Analytica scandal. In response, the government notes that the current competition legislation provides important protections while it studies the results of its National Digital and Data Consultations.

In 2018, during my tenure as Canada’s Competition Commissioner, the Competition Bureau published an international, award-winning report entitled, “Big Data and Innovation: Key Themes for Competition Policy in Canada.” The study recognized that the emergence of companies that control and exploit data can raise new challenges for competition law enforcement but confirmed the sufficiency of the current antitrust framework in this space. The report clarified that the Competition Bureau will not condemn companies merely because they are “big” or possess valuable big data. A fundamental principle of antitrust is that business success ought not be condemned or punished, even if that leads to dominant firms and concentrated markets. To do otherwise would harm incentives to innovate and deprive markets of important efficiencies like economies of scale and scope. These insights also apply to big data, where efficiencies may relate to network effects.

Competition enforcement agencies need to apply an evidence-based approach and demonstrate actual economic harm before taking action. Big data holds considerable promise to increase economic efficiency and innovate business practices. It’s important for antitrust regulators to maintain a degree of humility and recognize that far-reaching, populist proposals are ill-advised.

Antitrust law has limits; it should not be expected to address all social problems. There are other laws and policies to address these. For instance, tax laws are better suited to correct wealth inequality, and privacy laws are better suited to safeguard personal data.

The proposal to dismantle large tech companies by unwinding already completed mergers and to prohibit platform owners from participating on their own platforms is flawed. A respect for property rights and the freedom of contract are fundamental tenets of a free-market economy, along with competition policy which enables long-term economic growth that benefits businesses and consumers alike.

Expropriating the property rights of a successful company is akin to the nuclear option in antitrust law, especially when less intrusive remedies exist. This dramatic approach would cause significant damage to the economy if it were to use antitrust law to break up large companies in an effort to remedy broad public-interest concerns.

Restricting successful companies reduces incentives to innovate, invest and compete. Competition enforcement agencies must be empowered to make evidence-based decisions using economic analysis to deal with antitrust issues. Theories and the quest for political wins should not drive policymakers to take hasty actions in the shaping of our markets. Let’s exercise care in wielding our regulatory hammers.

John Pecman is a Senior Business Advisor in the Antitrust/Competition & Marketing group at Canadian law firm Fasken. He formerly served as Commissioner of Competition of the Canadian Competition Bureau.

5 Takeaways from the 2019 ABA Antitrust Spring Meeting

The 67th Annual American Bar Association Spring Antitrust Meeting was held in Washington, D.C. from March 26-29, 2019. Over 3,300 competition and consumer protection professionals from more than 68 jurisdictions attended the Spring Meeting, including lawyers, economists, enforcers, academics and members of the judiciary. Seven members of Fasken’s  Antitrust/Competition & Marketing Group represented the firm at the Spring Meeting.

The Spring Meeting is an excellent opportunity for competition professionals from various jurisdictions to meet and share knowledge about competition and consumer protection law. For Canadian lawyers, it is especially important to remain current on developments in the U.S. antitrust space. When it comes to civil enforcement in the U.S., the following trends were discussed at the Fundamentals –Antitrust session of the Spring Meeting:

  1. Focus on pharma: There have been several case law developments in the U.S. in the area of pharmaceutical antitrust. For example, in 2018, the FTC ordered the largest online retailer of contact lenses in the U.S., to stop enforcing provisions of certain settlement agreements with rival online contact lens competitors. The purpose of the settlement agreements was to avoid litigation after the online retailer complained that its competitors purchased search terms that gave them advertising space whenever a potential customer searched it by name. The important takeaway is that pharmaceutical companies should expect competition enforcers to keep a close eye on settlement agreements for potential antitrust violations.
  1. Uncertainty surrounding remedies for vertical mergers: A horizontal merger is one between firms that could compete with one another whereas a vertical merger is one in which a company on one level of the supply chain buys a company on another level of the supply chain. In the U.S., there has been some uncertainty surrounding the type of remedies – structural (such as divestitures) vs. behavioural  –  that will be accepted by U.S. antitrust authorities to address vertical merger concerns. Historically, the FTC and the DOJ Antitrust division have preferred structural remedies to resolve competition concerns; however, in 2018, the FTC accepted behavioural remedies to address concerns stemming from the Northrop Grumman-Orbital ATK merger. Whether behavioural remedies will be accepted in the future remains to be seen.
  1. Enforcement of failures to file: Under the Hart-Scott-Rodino Antitrust Improvements Act, companies and individuals must notify the FTC of acquisitions that cause the value of their voting securities in a company to increase above certain dollar thresholds. Further, once a notification has been submitted, a waiting period must be observed prior to closing. Over the past two years, there are at least three examples of U.S. antitrust regulators pursuing individuals who failed to file and observe the requisite waiting period prior to closing the acquisition of shares. For more information, see the FTC’s press release here.
  1. Information exchanges may be subject to civil liability: Agreements among competitors to share information are not per se illegal in the U.S.; however, they may be subject to civil antitrust liability when they have, or are likely to have, an anti-competitive effect. In November 2018, the DOJ reached a settlement with six broadcast television companies to resolve a lawsuit alleging that the companies engaged in unlawful agreements to share non-public competitively-sensitive information with their broadcast television competitors. According to the DOJ, by “exchanging pacing information, the broadcasters were better able to anticipate whether their competitors were likely to raise, maintain, or lower spot advertising prices, which in turn helped inform the stations’ own pricing strategies and negotiations with advertisers.  As a result, the information exchanges harmed the competitive price–setting process.” What is of significance is that the DOJ’s review of the information exchanges arose from information produced in an unrelated review of a proposed merger between two of the six broadcast television companies. This case demonstrates how merger reviews can lead to other investigations with significant consequences.
  1. “No poach” agreements: Under U.S. antitrust laws, the same rules apply to employers competing for talent in labour markets as when they compete to sells goods and services. The DOJ has been active in investigating and challenging no-poach and wage-fixing agreements. For example, with respect to an alleged agreement between Duke University and the University of North Carolina not to poach each other’s medical school faculty, the DOJ filed a statement in February 2019, urging the court to apply the per se rule if it finds the parties entered into a no-poach agreement. For further information about this case, see the Statement of Interest. For best practices for human resources professionals to ensure compliance with U.S. antitrust laws, see the joint Guidance on behalf of the DOJ and FTC.

Competition Act and Investment Canada Act Thresholds Announced for 2019

The Competition Bureau announced the 2019 transaction-size pre-merger notification threshold under the Competition Act increased to C$96 million from C$92 million, effective February 2, 2019. Innovation, Science and Economic Development Canada also announced new foreign investment review thresholds under the Investment Canada Act, effective January 1, 2019.

Competition Act

In general terms, certain transactions that exceed prescribed thresholds under the Competition Act trigger a pre-merger notification filing requirement; such transactions cannot close until notice has been provided to the Commissioner of Competition and the statutory waiting period under the Competition Act has expired or has been terminated or waived by the Commissioner. Where both the “transaction-size” and “party-size” thresholds are exceeded, a transaction is considered “notifiable”.

Transaction-Size Threshold: the 2019 transaction-size threshold requires that the book value of assets in Canada of the target, (or in the case of an asset purchase, the book value of assets in Canada being acquired), or the gross revenues from sales in or from Canada generated by those assets exceeds C$96 million (up from C$92 million in 2018). Under the Competition Act, the “transaction-size” threshold is subject to annual adjustment.

Party-Size Threshold: the party-size threshold requires that the parties to a transaction, together with their affiliates (as defined in subsection 2(2) of the Competition Act), have assets in Canada or annual gross revenues from sales in, from or into Canada, exceeding C$400 million. The party-size threshold remains unchanged from 2018.

The Competition Bureau’s news release is found here.

It is important to note that regardless of whether a transaction is notifiable (i.e., the applicable thresholds discussed above are exceeded) the Commissioner can review and challenge all mergers prior to or within one year of closing.

Investment Canada Act

Under the Investment Canada Act (the “ICA”), the direct acquisition of control of a Canadian business by a non-Canadian is subject to a pre-closing review and approval process (an “ICA Review”) where a specified threshold is exceeded. The following thresholds for ICA Reviews have increased, effective January 1, 2019:

  • For a direct acquisition of control of a Canadian (non-cultural) business involving either a purchaser or a controlling vendor that qualifies as a World Trade Organization (WTO) member investor (“WTO Investor”), the threshold has increased from C$1 billion to C$1.045 billion in enterprise value, provided that the purchaser is not a foreign state-owned enterprise.
  • For a direct acquisition of control of a Canadian (non-cultural) business involving either a purchaser or a controlling vendor from Australia, Chile, Colombia, the European Union, Honduras, Japan, Mexico, New Zealand, Panama, Peru, Singapore, South Korea, the United States or Vietnam, the threshold has increased from C$1.5 billion to C$1.568 billion in enterprise value, provided that the purchaser is not a foreign state-owned enterprise.
  • For a direct acquisition of control of a Canadian (non-cultural) business involving a purchaser that is a foreign state-owned enterprise controlled by a WTO member state, the threshold has increased from C$398 million to C$416 million in asset book value.

If the applicable threshold for a pre-merger review under the ICA is not met or exceeded, the acquisition of control of any Canadian business by a non-Canadian entity is subject to a relatively straightforward notification. In most cases, indirect acquisitions of non-cultural businesses involving WTO Investors, including state-owned enterprises, are not reviewable but are subject to a notification that may be filed before or within 30 days of closing.

All transactions have the potential to be reviewed under the national security review provisions of the ICA.

Read more about the thresholds for review under the Investment Canada Act here.

ASC Advertiser Dispute Resolution Procedure Revamped

Ad Standards announces new process for handling competitor advertising complaints.

Effective Monday, February 11, 2019, Ad Standards (ASC) will implement a new process for handling complaints between competitor advertisers.  While ASC has offered a confidential procedure to deal with such disputes since 1976, it recently conducted a review to determine if the dispute resolution service could be provided in a more efficient, cost-effective and practical manner.  ASC believes that its new competitor Advertising Dispute Procedure satisfies all of those objectives.

The new procedure will consist of the following elements:

  1. As a pre-condition to filing a complaint with ASC, the parties must have engaged in a good faith attempt to resolve the complaint. As part of this resolution process, the parties may request that ASC facilitate a voluntary resolution meeting.
  2. Assuming that the parties are not able to come to a mutually agreeable solution to their dispute, the parties may then make written submissions to a 3-person ASC panel composed of a chair who will be a lawyer with advertising/marketing law experience and two other panellists drawn from the advertiser, advertising agency or media sectors. There will no longer be live hearings.
  3. There will still be fees payable to participate in this process. However, given the new simplified procedure, the fees for this service are significantly less than those previously charged by ASC.

Panel decisions will continue to be confidential although ASC may publish brief case summaries, without identifying the parties.  No appeal will be allowed from a panel’s decision.  ASC expects that the new process will result in a complaint being processed within thirty-two to thirty-seven working days.

ASC is a not-for-profit Canadian advertising industry self-regulatory body founded by the Canadian advertising industry to foster ethical advertising practices.  Its Canadian Code of Advertising Standards (Code) sets out ASC’s criteria for what ASC believes constitutes acceptable advertising in Canada.  The Code coupled with the revamped Advertising Dispute Procedure is expected to provide Canadian advertisers with an improved confidential dispute resolution mechanism as an alternative to using Canada’s judicial system.

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

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 Africa in competition law’s global village, the key is not to be found in that language, but rather in the continuing development and application of South Africa’s competition policy.

Now in its 19th year, the South African authorities (that includes the Competition Commission, Tribunal and Appeal Court) have enjoyed a leading status amongst developing competition law jurisdictions. The authorities have been recognized by peers in other jurisdictions, global bodies and practitioners for their pioneering role in development of a comprehensive body of competition law and policy, often punching above their weight category, particularly in relation to the role of competition law in socio- and development economics. Some have taken fright at the suggestions advanced which appear to promote the well-being of local businesses and the public interest above consumer welfare as the true-north of anti-trust.

This development of law and policy as well as the well-earned status does not come about simply by practicing in one’s back garden. Far from that, South Africa has gone out in the international arena participating and joining allegiance with others, perhaps sometimes as a more junior partner and in other cases as a more experienced adopter of the competition global wave. There are MOU’s enshrining cooperation with the EC, Brazil, Russia, India, China, Mauritius, Kenya and Namibia. In addition, South Africa has membership of the SADC, African Competition and BRICS fora. The authorities have also benefitted greatly from their active participation in ICN and UNCTAD networks and their staff continue to receive extensive training from leading world authorities and experts. The authorities learn from others and take an active lead in passing on their experience and challenging orthodox views.

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South Africa: Unpacking the Competition Amendment Bill – Market Inquiries

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 Policy Conference in September 2017, the Minister of Economic Development, Ebrahim Patel, made the following comment when explaining how economic concentration might be tackled:

It seems to me to be better that it be done through the trusted and predictable processes of competition regulation and its sound institutions than that it be left to laws that simply mandate the breakup of companies irrespective of the economic logic…”.

Market inquiries are seen as one of the five priorities in addressing this objective.  The Background Note published with the Amendment Bill states –

The package of amendments… envisage that market inquiries will become the chief mechanism for analysing and tackling the structural problems in a market, thereby advancing the purposes of the Act. The proposed amendments to the chapter relating to market inquiries will enhance the market inquiry process and will ensure that its outcomes include measures to address concentration and the transformation of ownership.

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

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 below, has led to comments and concerns from, among others, the CBA National Competition Law Section and the ABA Section of Antitrust Law. These comments and concerns are discussed below.

According to the press release, the program is being updated to increase transparency and predictability in light of legal and policy developments.

The Bureau has advised that the changes are prompted partly by the outcome of recent unsuccessful prosecutions and include the following:

  • Interim Grant of Immunity: Documentary and testimonial evidence will be provided under an interim grant of immunity (IGI). Final immunity will be provided when the applicant’s cooperation and assistance is no longer required.
  • End of Automatic Corporate Immunity for Directors, Officers and Employees: Automatic coverage under a corporate immunity agreement for all directors, officers and employees will no longer be provided. Instead, individuals that require immunity will need to demonstrate their knowledge of the conduct in question and their willingness to cooperate with the Bureau’s investigation.
  • Greater Use of Recordings: Witness interviews may be conducted under oath and may be video or audio recorded. Proffers, statements made by an applicant (usually through counsel) to the Bureau where the applicant is expected to reveal its identity and describe in detail the anti-competitive activity, may also be audio recorded.
  • Privileged Documents: Non-privileged records from companies’ internal investigations will be treated as presumptively disclosable facts in the possession of cooperating parties. And while privileged records will continue to be protected from disclosure, applicants will now be required to justify their claims of privilege.

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What Constitutes a Separate Product?

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 anti-competitive effect.

A fundamental requirement of tying is the existence of two products, the tying product and the tied product (the “separate products criterion”).  The separate products criterion is not always straight-forward because all value-adding activity involves a degree of bundling of separate components, however no economic test exists to determine where one product should end and another begin.

One can easily imagine situations where the existence of a stand-alone market for the tied product can coexist with a bundled product.  For example, it is possible to buy shoelaces (tied product) as a stand-alone product in shoe stores, but sellers of new shoes sell their shoes bundled with laces (tying product).  Other examples include cars and GPS systems, cars and satellite radio services, and computers and browsers.  This distinction has led to debate and varying approaches across jurisdictions.

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Joining Bid Rigging and Conspiracy – A Problem?

The joining of bid rigging and conspiracy charges has questionable utility.

Offences Defined

The definitions of the offence of bid rigging in s. 47(1)(b) of the Competition Act is defined in part as the submission of a bid or tender which is arrived at by arrangement or agreement. A criminal conspiracy in s. 465(3) of the Criminal Code consists of an agreement to commit an indictable offence.

Coupling Charges

The Competition Bureau routinely joins a charge of bid rigging with a charge of conspiracy to commit the same  offence of bid rigging on the same indictment. The reason for this is not clear beyond the usual tendency of prosecutorial authorities to load up as many charges as the facts will bear. The res judicata principle prevents convictions on both charges. There is, however, one utilitarian explanation – where both corporations and individuals are charged. Once one of several co-accuseds  elects trial by judge and jury, the Criminal Code requires a jury trial for all. That could necessitate two separate trials. The bid rigging charges against the corporations would have to be severed from the indictment since the Competition Act s. 67(4) prohibits jury trials for corporations. Leaving aside the issue of the constitutionality of that provision (which does not appear to have been challenged), charging both offences gives the Crown options. In the event of a jury election they can continue with one trial by dropping the bid rigging charge against the corporations and proceeding against them on the conspiracy charge based on the same facts.

Problem with Conspiracy

As noted, the essence of criminal conspiracy is the agreement to commit the alleged offence. Where the allegation of bid rigging is as defined in s. 47(1)(b), an essential element of the offence is the agreement to rig bids. Criminal conspiracy is an inchoate offence in that it does not require the actual commission of any particular act beyond the agreement itself. Another inchoate offence is criminal attempt. The Supreme Court has held in R v Dery that inchoate offences cannot be combined such that there cannot be a conspiracy to attempt to commit an offence. The charge of conspiracy to commit s. 47(1)(b) bid rigging alleges an agreement to submit a bid arrived at by agreement. It is at least open to argument that a charge of conspiracy to commit that form of bid rigging constitutes the combination of two inchoate offences (a conspiracy to commit a conspiracy) and is therefore illegal. If that is so, the joining of bid rigging and conspiracy to bid rig against individuals and corporations on the same indictment will not solve the problem of duplicate trials. However, a counter argument could be made that the offence of bid rigging is not an inchoate offence since the actus reus of the offence is the submission of the bid. Not the agreement. In this argument, the conspiracy would simply be an included offence in the bid rigging charge.