The Competition Bureau has released its updated draft Intellectual Property Enforcement Guidelines for public consultation. The draft is similar to the September 2014 version, although it includes many more examples concerning patent settlements and standard-essential patents. The Competition Bureau has clarified that settlement agreements will be reviewed civilly, absent evidence of intent to fix prices, allocate markets or restrict output.
An Ontario jury recently found nine defendants not guilty of 60 charges of bid rigging and conspiracy to rig bids, following an eight-month trial and six days of deliberation. This case demonstrates that, while the Competition Bureau has been successful in using the immunity and leniency programmes and securing guilty pleas, it has been less successful in prosecuting criminal offences under the Competition Act.
The Ontario Superior Court of Justice recently held that communications between corporations and the Competition Bureau during the proffer stage of the immunity programme or the leniency programme should not be protected by settlement privilege. This case has clear implications for any parties considering cooperating with the bureau to obtain immunity or leniency for possible conduct in breach of the Competition Act.
In a recent ruling the Ontario Superior Court of Justice held that the discoverability principle applies to the limitation period imposed by Section 36(4)(a) of the Competition Act. The ruling was made in Fanshawe College v AU Optronics Corporation, a proposed class proceeding related to allegations of price fixing in the market for liquid crystal display panels and products.
The threshold for pre-closing merger notification under the Competition Act has been increased for 2015. Under the size of transaction test, the value of the assets in Canada or the annual gross revenue from sales (generated from those assets) in or from Canada of the target operating business and, if applicable, its subsidiaries must now be greater than C$86 million.
The Supreme Court recently issued its first ruling on the Competition Act merger review provisions in more than 20 years, a decision which largely validated the competition commissioner's analytical approach. Among other things, it confirms that the analysis and evaluation of potential efficiency gains will take on a greater role in strategic mergers where a reduction or prevention of competition is possible.
The recent US District Court of Maryland decision concerning Aegis Mobile, LLC signals a major development in cross-border regulatory enforcement and cooperation between Canada and the United States. The case represents a significant broadening of the scope of the Competition Bureau's investigative powers.
According to the Supreme Court of Canada, wiretap evidence obtained in a Competition Bureau criminal investigation may be disclosed for purposes of a class action alleging anti-competitive practices. The ruling reflects a liberal interpretation of the principles of civil procedure.
The Competition Bureau has released the final version of its updated Intellectual Property Enforcement Guidelines, which set out its approach to navigating the intersection of competition law and intellectual property. It also released a white paper which provides the bureau's first in-depth statement on how it may analyse so-called 'pay for delay' settlements under the Competition Act.
The Competition Bureau recently issued position statements in two cross-border merger cases that illustrate important facets of its merger review process. After an extensive review of a transaction involving two lumber companies, the bureau, together with its US antitrust counterparts, issued guidance on best practices in cooperation in cross-border merger reviews. The lumber transaction embodied these best practices.
The Competition Bureau has dropped its investigation into the lifecycle management strategy used by Alcon Canada Inc in connection with its Patanol and Pataday products. The bureau commenced an inquiry to examine whether Alcon was dominant in a relevant market and, if so, whether it had intentionally disrupted the supply of Patanol as part of a strategy to switch patients to a second-generation formula of the drug.
Two weeks after the Competition Bureau announced that a settlement agreement had been reached with four e-book publishers, a leading Canadian e-book retailer filed an application with the Competition Tribunal challenging the agreement. The tribunal has not issued its decision on the merits of the challenge, but has granted a stay of the agreement pending the outcome of the challenge.
The Federal Court of Appeal has ruled that the Competition Tribunal took too narrow an approach to the Competition Act's abuse of dominance provisions, sending the commissioner of competition's case against the Toronto Real Estate Board back to the tribunal for reconsideration. At issue is whether conduct not directed at a competitor can fall within the scope of the dominance provisions.
The Supreme Court recently ruled that legitimate oil and gas joint ventures are not anti-competitive. As a result, the Court of Appeal of Alberta's judgment in Alberta Ltd v Husky Oil stands and will provide helpful guidance on the boundaries between a legitimate joint venture between competitors and a criminal conspiracy under the Competition Act.
The threshold for a pre-closing merger notification under the Competition Act has been increased for 2014. The 2013 transaction size thresholds were C$80 million and C$160 million, respectively. The changes to the threshold became effective on January 25 2014, when they were published in the Canada Gazette, Part I.
The Competition Bureau has released its updated Information Bulletin on the Communication of Confidential Information under the Competition Act. The bulletin clarifies and revises elements of the previous bulletin on the same topic to reflect trends in competition law, such as the public disclosure of mergers and increased cooperation between foreign competition authorities.
The Supreme Court of Canada recently released its decisions in three related appeals, two from the British Columbia Court of Appeal and one from the Quebec Court of Appeal, all dealing with the certification of price-fixing claims as class actions. These decisions will have a significant impact on price-fixing class actions in Canada and can also be expected to have significant effects on manufacturers that do business in both Canada and the United States.
A court recently upheld the constitutionality of the misleading advertising and administrative monetary penalty provisions of the Competition Act, but dismissed most of the commissioner of competition's case against Chatr Wireless Inc and its parent company. Entities should take care that claims made in advertisements are not false or misleading, and that consumers' general impressions are considered before publication.
The Competition Tribunal recently announced its long-awaited decision in the commissioner of competition's case against Visa Canada Corporation and MasterCard International Incorporated. This is the tribunal's first decision interpreting the new civil price maintenance provision.
The senior deputy commissioner at the Mergers Branch of the Competition Bureau recently announced that the bureau is changing its information requirements for merger transactions involving the upstream sector of the Canadian oil and gas industry. As a result, the Competition Act approval process in upstream merger transactions should become simpler and more efficient.