In an unprecedented intervention by the European Commission (EC), the EC recently asserted jurisdiction over and challenged a United States-based merger that falls below the filing thresholds of the EC and each and every European Union Member State. This action threatens to subject future merger transactions with no material connection to European commerce to merger control by the EC. An extraordinary Statement of Concerns, signed-on by former senior competition law agency leaders and competition law experts from around the world, recently published in Concurrences highlights the harmful implications of the overreach by the EC for predictable global competition law enforcement. Also, in another first, five former Competition Commissioners from Canada are jointly waving the red flag with respect to the EC’s disregard of well-accepted norms established by the Organization for Economic Cooperation and Development (OECD) and the International Competition Network (ICN) as well as longstanding jurisprudence concerning jurisdiction for the purpose of international merger review.Continue Reading Buyer Beware! Aggressive Competition Watchdogs Trying to Block More International Deals – a cautionary tale from the Illumina-GRAIL merger challenge
On September 14, 2023, Prime Minister Justin Trudeau made a public statement relating to issues of inflation, Canada’s middle class and competition policy. The statement was focused on measures which are aimed at reducing the cost of housing across Canada, supporting small businesses and addressing the escalating cost of groceries.Continue Reading Prime Minister Announces Proposed Competition Law Changes
On July 19, 2023, the United States Federal Trade Commission and the United States Department of Justice (together, the “Agencies”) released draft Merger Guidelines (the “Draft Guidelines”) for public comment. Once finalized, the Draft Guidelines, which are designed to help the public, business community, practitioners and courts understand how the Agencies identify potentially illegal mergers, will replace the US Horizontal Merger Guidelines issued in 2010 and the US Vertical Merger Guidelines issued in 2020.Continue Reading United States Antitrust Agencies Announce New Merger Guidelines: Overview and Implications for Canada
On June 27, 2023 the United States Federal Trade Commission (“FTC”) and the United States Department of Justice (“DOJ”) announced proposed changes to the pre-merger notification process under the Hart-Scott-Rodino Act (the “HSR Act”). These proposed changes were published on June 29, 2023.
By way of background, the HSR Act is federal legislation that requires merging parties to report transactions to the FTC and DOJ (together, the “US Agencies”) if the transaction meets certain monetary thresholds. Currently, when notifying a transaction under the HSR Act, parties need to supply relatively basic information, including information about the transaction, their respective businesses (including their subsidiaries, revenues and shareholders) and the competitive overlaps between their respective businesses. Merging parties may not close a notifiable transaction until a 30-day statutory waiting period (15 days in the case of a cash tender offer or a bankruptcy) expires or is terminated.Continue Reading FTC and DOJ Propose Changes to US Merger Filing Process
On June 27, 2023, the Competition Bureau (the “Bureau”) released its “Retail Grocery Market Study Report” (the “Report”). The Report is the result of the October 24, 2022 announcement by the Bureau that it would conduct a study of grocery store competition in Canada.
The Report observes that grocery prices have been rising and suggests this is in part because Canada’s grocery industry is concentrated and has high entry barriers. The Report concludes that increased competition in the industry is part of the solution. The balance of the Report is devoted to explaining the basis for the Report’s conclusions and exploring and recommending steps for achieving increased competition.Continue Reading “Canada Needs More Competition”: Competition Bureau Releases its Retail Grocery Market Study Report
On June 23, 2022, Bill C-19, also known as the Budget Implementation Act, 2022, No.1 (“BIA”), received royal assent. As discussed in more detail in our previous blog post, the BIA included significant amendments to the Competition Act (the “Act”), including the addition of new criminal cartel provisions prohibiting so-called wage-fixing and no-poaching agreements, which will become effective as of June 23, 2023. More specifically, these provisions will prohibit agreements between unaffiliated employers to either “fix, maintain, decrease or control salaries, wages or terms and conditions of employment” or “not solicit or hire employees”.Continue Reading Competition Bureau Issues Finalized Enforcement Guidelines for Wage-Fixing and No-Poaching Offences: What You Need To Know
In the March 30, 2023 comments submitted by Fasken in response to the Government of Canada’s consultation and discussion paper on the Future of Competition Policy in Canada (the “Discussion Paper”), significant concerns are raised about any amendments that move away from identifying anti-competitive conduct through evidence-based assessment of its effects and which would establish ex ante regulation to place blanket prohibitions on certain types of conduct by certain firms. In a paper recently published by the Competition Policy International, we examine the international and Canadian debate around ex ante regulations for Big Tech platform companies. The paper explores the need for and costs associated with ex ante regulation and concludes that pursuing such regulations at this time in Canada would be ill-advised.Continue Reading Canada Should Avoid Costly <em>Ex Ante</em> Regulation of Digital Markets
The Competition Bureau (the “Bureau”) recently released a new volume of its Deceptive Marketing Practices Digest (the “Digest”). The purpose of the Digest is to provide businesses with guidance on how to comply with the Competition Act (the “Act”) when marketing their products and services, and each volume focuses on a few specific types of advertising practices. This sixth edition of the Digest discusses two main topics: (i) the use of scarcity cues in online marketing and (ii) drip pricing and other types of variable fees.Continue Reading Competition Bureau Releases Deceptive Marketing Practices Digest: Volume 6
On November 17, 2022, the Honourable François-Philippe Champagne, Minister of Innovation, Science and Industry, launched the much anticipated public consultation for potential amendments to the Competition Act (the “Act”). As discussed in our previous blog post, this consultation was intended to serve as a wide-ranging review of existing competition policy in Canada, including whether the Act is fit for purpose in a modern economy that continues to evolve quickly.Continue Reading Competition Bureau Recommends Significant Changes to <em>Competition Act</em>
On June 23, 2022, Bill C-19, also known as the Budget Implementation Act, 2022, No.1 (“BIA”), received royal assent. As discussed in more detail in our previous blog post, the BIA included significant amendments to the Competition Act (the “Act”), including the addition of new criminal cartel provisions prohibiting so-called wage-fixing and no-poaching agreements, which will become effective as of June 23, 2023. More specifically, these provisions will prohibit agreements between unaffiliated employers to either “fix, maintain, decrease or control salaries, wages or terms and conditions of employment” or “not solicit or hire employees”.Continue Reading Competition Bureau Issues Draft Guidelines on Wage-Fixing and No-Poaching Agreements: What You Need to Know