Competition, Advertising & White Collar Crime Law Quotes
“The realistic alternative to a class action is not 17m individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”
(Justice Posner, Carnegie v. Household International Inc.,
376 F 3d 656, 661 (7th Cir. 2004))
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“The heart of our national economy long has been faith in the value of competition”
(Standard Oil v. FTC)
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“Today’s charges should send a message to companies who believe they don’t need to follow the rules,” said Ronald Hosko, Assistant Director of the FBI’s Criminal Division. “If you violate the laws of this country, the FBI will investigate and put a stop to the threat you pose to our commercial system. The integrity of our markets is a part of the foundation of a free society.”
(U.S. DoJ on announcing 11 guilty pleas, $740 million fines in auto parts price-fixing cartel, 2013)
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“Screw the competition – focus on good customer service”
(Virgin founder Richard Branson)
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“Every violation of the antitrust laws is a blow to the free-enterprise system envisaged by Congress. This system depends on strong competition for its health and vigor, and strong competition depends, in turn, on compliance with antitrust legislation. In enacting these laws, Congress had many means at its disposal to penalize violators. It could have, for example, required violators to compensate federal, state, and local governments for the estimated damage to their respective economies caused by the violations. But, this remedy was not selected. Instead, Congress chose to permit all persons to sue to recover three times their actual damages every time they were injured in their business or property by an antitrust violation.”
(Hawaii v. Standard Oil Co.)
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“There is no law, no system, no set of regulations which can more effectively hold governments to account than the conscience of man. Opposition parties, the public and the press rely on individuals, not systems, to tell us what those who rule over us would like us not to know. We call them ‘whistleblowers’ because, like referees, they seek to keep the players in our political system in check.”
Editorial in The Independent of London, on the arrest of Tory M.P. Damian Green
for suspicion of leaking documents (November 29, 2008)
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“[Criminal antitrust offences are] “the supreme evil of antitrust”
(Verizon v. Trinko, 540 U.S. 398, 408 (2004)
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“The [Competition Act] I have no doubt was passed for the protection of the specific public interest in free competition. That, in effect, is the view expressed in Weidman v. Shragge … as well as by myself. This protection is afforded by stamping with illegality, agreements which, when carried into effect, prevent or lessen competition unduly and making such agreements punishable offences; and, as the enactment is aimed at protecting the public interest in free competition, it is from that point of view that the question must be considered whether or not the prevention or lessening agreed upon will be undue. Speaking broadly, the legislation is not aimed at protecting one party to the agreement against stipulations which may be oppressive and unfair as between him and others; it is aimed at protecting the public interest in free competition.”
(R. v. Electrical Contractors Association)
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“Every successful competitive practice has victims. The more successful a new method of making and distributing a product, the more victims, the deeper the victims’ injury”
(Judge Frank Easterbrook, “The Limits of Antitrust”, 63 Tex. L. Rev. 1, 5 (1984))
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“There is nothing wrong with the aggressive promotion of one’s own goods and services so long as there is no untruthful disparagement of a competitor’s goods or services. In the circumstances, it could not be said that this advertisement had that effect. What this advertisement did was raise awareness that could lead business purchasers to make enquiries to determine whether their shipment requirements would attract the discount set out in the advertisement. Advertising is unfair where claims are made which lack a reasonable basis. That was not the case here. Courts should be reluctant to intervene in the competitive marketplace unless the advertisements are clearly unfair.”
(Purolator Courier Ltd. v. United Parcel Service Canada Ltd.)
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“Price fixing is a type of theft from customers. It’s a form of fraud. It seriously undermines our market-based economy and gives rise to substantial losses for the economy as a whole. It is in the public interest that such conduct be strongly deterred. … as is increasingly recognized around the world, price-fixing and other hard-core cartel conduct cannot be effectively deterred unless individuals who may be tempted to engage in such conduct face serious prospect of at least imprisonment for their behaviour… the court may be catching up more quickly than you think in the stricter approach to sentencing in the competition law area that is increasingly being adopted in other jurisdictions and that has been advocated in the literature.“
(Chief Justice Crampton, Maxzone Auto Parts (Canada))
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“Concerted activity inherently is fraught with anti-competitive risk. It deprives the marketplace of the independent centers of decision-making that competition assumes and demands”
(Copperweld Corp. v. Independent Tube Corp.)
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“In the absence of any purpose to create or maintain a monopoly, the [Sherman Act] does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell.”
(United States v. Colgate & Co.)
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“Price fixing is a type of theft from customers. It’s a form of fraud. It seriously undermines our market-based economy and gives rise to substantial losses for the economy as a whole. It is in the public interest that such conduct be strongly deterred. … as is increasingly recognized around the world, price-fixing and other hard-core cartel conduct cannot be effectively deterred unless individuals who may be tempted to engage in such conduct face serious prospect of at least imprisonment for their behavior … the courts may be catching up more quickly than you think in the stricter approach to sentencing in the competition law area that is increasingly being adopted in other jurisdictions and that has been advocated in the literature.”
(Maxzone Auto Parts (Canada))
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“On the other hand, every step taken in the past to enlarge the bounds of human freedom of thought and action has stimulated discovery and invention, and as a product thereof, increased competition, which may have left by the way here and there financial wrecks as the result thereof. This has made men cry aloud in denunciation of the waste of human energy, and loss of human comfort resulting from competition. The cry is often a thoughtless one. People raising it seldom reckon with the absolute necessary waste there is and must ever be incidental to growth, though all nature attests it on every hand. Destroy competition and you remove the force by which humanity has reached so far. The altruism some people would substitute for it may, when it has arrived, bring with it a higher sense of justice but it has not arrived. To apply the standard of profit that might enable the stupid, the slothful, the ignorant, the over-capitalized man working with antiquated machinery, and a mill or warehouse over-manned, to compete with the standard that may be fairly reached by the men of brains, of energy, of sleepless vigilance, with only adequate capital to earn dividends for, and all the advantages that the latest improvements, invention or discovery can furnish, would be a sorry one indeed for society. The fate of the former class must not be considered. But the latter must not resort to unfair devices. They do not need them. They are without them the best kind of commercial asset the world can have, and must never be depressed or suppressed by the law.”
(Weidman v. Shragge, Supreme Court)
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“Competition matters. It brings dynamism to our economy. It means good jobs for our citizens. It is not merely an economic concept. Being open to competition serves Canada’s national interest. This is the principle that anchors our report and informs our recommendations to the government.”
(Competition Policy Review Panel, Compete to Win: Final Report (2008))
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“Rivalry in the market and striving for custom between those who have the same commodities to dispose of is essential for the benefit of all members of the public interested in such commodities in any manner described in the section. There is no absolute right of unlimited freedom to carry on business without competition.”
(R. v. Electrical Contractors)
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“A report that someone is under investigation or that they have been arrested for, or charged with, a criminal offence is not considered the ‘equivalent of saying that the person has committed the crime unless there is something in the language of the report that suggests the plaintiff’s guilt’ … However, reports of arrest or charges will be capable of conveying a defamatory meaning, ‘where it is stated, either directly or by clear implication, that an offence has been committed, and the qualifications contained in any of the surrounding statements are not sufficient to outweigh or nullify the effect of what appears to be a plain statement of fact’”.
(TPG Technology Consulting Ltd. v. Canada (Industry Canada))
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“Accordingly, it is not plain and obvious that the plaintiffs’ claim fails to disclose a reasonable cause of action regarding the tort of conspiracy. Indeed, in my view the plaintiffs have alleged that the defendants engaged in a classic type of conspiracy, namely, combining together to drive a business competitor and their novel business model out of the marketplace.
While the plaintiffs candidly admit a lack of detailed knowledge as to all of the factual nuances of the conspiracy, this is hardly surprising given the nature of the allegation. As Cumming J. aptly stated, when faced with similar circumstances in North York Branson Hospital v. Praxair Canada Inc., [1998] O.J. No. 5993 (S.C.J.), at para. 22:
‘In truth, the very nature of a claim of conspiracy is that the tort resists detailed particularization at early stages. The relevant evidence will likely be in the hands and minds of the alleged conspirators. Part of the character of a conspiracy is the secrecy and the withholding of information from alleged victims. The existence of an underlying agreement bringing the conspirators together, proof of which is a requirement borne by a plaintiff, often must be proven by indirect or circumstantial evidence. A conspiracy is more likely to be proven by evidence of overt acts and statement by the conspirators from which the prior agreement can be logically inferred. Such details would not usually be available to a plaintiff until discoveries. These considerations and the general theme of Hunt, instructing courts not to shy away from difficult litigation, also militate against holding pleadings in civil conspiracy cases to an extraordinary standard.’”
(Dale v. The Toronto Real Estate Board)
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“The successful competitor, having been urged to compete, must not be turned on when he wins.”
(Judge Learned Hand)
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“A [compliance] program also plays a crucial role for trade associations because trade associations face unique compliance issues. Given that an association provides a forum where competitors collaborate on association activities, trade associations are exposed to greater risks of anti-competitive conduct. A number of past Bureau cases have involved trade associations that were engaged in agreements to harm competition. It is therefore critical that trade associations implement credible and effective programs with strict codes of ethics and conduct. Such programs may allow trade associations and [their] members to avoid improper actions and to protect themselves from being used as a conduit for illegal activities. They may also allow trade association members to fully benefit from the association’s activities while reducing the potential for inadvertent contraventions of the Acts.”
(Competition Bureau, Corporate Compliance Programs Information Bulletin)
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“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”
(Adam Smith)
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“Why does this problem keep recurring? What is it about trade associations that lends itself to antitrust violations? For those of you who have practiced in this area for any length of time, the answer is obvious. A trade association is by definition a group of competitors who get together to share common interests and seek common solutions to common problems. The members of a trade association, singly and as a group, are sitting on an antitrust powder keg! And the job you have signed up for as their antitrust counsel is to help make sure they don’t play with matches.”
(Anne K. Bingaman, Assistant Attorney General, Antirust Division, U.S. Department of Justice)
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“The statute proceeds upon the footing that the preventing or lessening of competition is in itself an injury to the public. It is not concerned with public injury or public benefit from any other standpoint.”
(Howard Smith Paper Mills Ltd. v. The Queen)
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“Competition is good for consumers for the simple reason that it compels producers to offer better deals – lower prices, better quality, new products, and more choice.”
(Sir John Vickers, former Chairman of the Office of Fair Trading, U.K.)
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“Antitrust laws … are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms.”
(United States v. Topco Associates Inc.)
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“From this overview of the Combines Investigation Act I have no difficulty in concluding that the Act as a whole embodies a complex scheme of economic regulation. The Purpose of the Act is to eliminate activities that reduce competition in the market-place. The entire Act is geared to achieving this objective. The Act identifies and defines anti-competitive conduct. It establishes an investigatory mechanism for revealing prohibited activities and provides and extensive range of criminal and administrative redress against companies engaging in behaviour that tends to reduce competition.”
(General Motors of Canada Ltd. v. City National Leasing)
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“The importance of preparing a well articulated argument in support of one’s view of the ‘relevant market’ in the context of a competition law case cannot be overstated. Put succinctly, the party who manages to convince the court of his view of this matter generally wins the case, because as the purported market is enlarged, the relative significance of the merging parties within the market usually decreases. Conversely, as a market is defined progressively more narrowly, the competitive significance of challenged conduct typically increases.”
(Paul Crampton, Mergers and the Competition Act)
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“After the Commissioner announced that she was proceeding against Rogers Communications Inc. and Chatr Wireless Inc., Wind Mobile issued a press release claiming credit for the Commissioner’s decision to institute proceedings and Mobilicity sent a dance troupe, known as the Mobilicity Magenta Militia dance troupe, to Rogers Communications Inc. headquarters to engage in what might be termed a victory dance or demonstration of joy. A video of a portion of this victory dance or demonstration of joy was embedded in the affidavit of Arnold Abramowitz, filed by the respondents on this application.”
(Commissioner of Competition v. Chatr Wireless Inc. and Rogers Communications Inc.)
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“[The conspiracy section] of the Act moreover is its oldest provision. Even today, it remains at the core of the criminal part of the Act. The prohibition of conspiracies in restraint of trade is the epitome of competition law, finding its place in every competition law, from Section 1 of the Sherman Act to Article 85 of the Treaty establishing the European Economic Community … [The conspiracy section] of the Act is not just another regulatory provision. It definitely rests on a substratum of values, a finding which must be kept in mind in the course of the vagueness analysis [in this case].”
(R. v. Nova Scotia Pharmaceutical Society)
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“The public is entitled to the benefit of free competition, and the prohibitions of the [Combines Investigation Act] cannot be evaded by good motives.”
(R. v. Howard Smith Paper Mills Ltd.)
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“The legislation is not aimed at protecting one party to the agreement against stipulations which may be oppressive and unfair as between him and the others; it is aimed at protecting the public interest in free competition.”
(R. v. Container Materials Ltd.)
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“There are few branches of trade in this or any country which are not represented by associations which seek to prevent unprofitable competition.”
(Montreal Journal of Commerce, 1887)
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“Experience has shown, however, that a word of caution is needful. Trade associations have in the past been the vehicle for unlawful activities that have led to inquiries under the anti-combines legislation. We must all recognize at once the valuable contribution that an association can make to the industry it serves. But it can also provide opportunities for agreement, or collusion, tacit or express, of a kind made unlawful by the Combines Investigation Act”
(D.H.W. Henry, Q.C., former Director of Investigation and Research)
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“To me it is inconceivable that Parliament in enacting the Combines Investigation Act should have intended to make a person, sometimes conveniently referred to as the ‘principal’, guilty of an offence thereby created and not bring within the scope of that offence a person who aids and abets that ‘principal’, and, without whose aid and assistance, conceivably, the offence could not be committed. The rule that makes a person who aids and abets another in the commission of an offence a party thereto is so deeply engrained in our criminal law that, in my opinion, language much more compelling than anything contained in the Combines Investigation Act would be required to displace it.”
(R. v. Campbell)
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“Cases to which this Court has applied the per se approach have generally involved joint efforts by a firm or firms to disadvantage competitors by ‘either directly denying or persuading or coercing suppliers or customers to deny relationships the competitors need in the competitive struggle’ … In these cases, the boycott often cut off access to a supply, facility, or market necessary to enable the boycotted firm to compete … and frequently the boycotting firm possessed a dominant position in the relevant market. … In addition, the practices were generally not justified by plausible arguments that they were intended to enhance overall efficiency and make markets more competitive. Under such circumstances, the likelihood of anticompetitive effects is clear and the possibility of countervailing precompetitive effects is remote.”
(Northwest Wholesale Stationers, Inc. v. Pacific Stationary & Printing Co.)
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“The truth is that our categories of analysis of anticompetitive effect are less fixed than terms like ‘per se’, ‘quick look’ and ‘rule of reason’ tend to make them appear. We have recognized, for example, ‘that there is often no bright line separating per se from Rule of Reason analysis, since ‘considerable inquiry into market conditions’ may be required before the application of any so-called ‘per se’ condemnation is justified.”
(California Dental Association v. Federal Trade Commission)
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“The common law is the will of Mankind issuing from the life of the People.”
(U.S. Department of Justice quoting Sir William Blackstone or, according to some, British lawyer D. Wilfred Jenks)
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“While the Nation has forbidden monopoly by one set of laws it has been creating them by another. Patent laws, valuable as they may be in some respects, often father monopoly.”
(Robert H. Jackson, The Struggle Against Monopoly)
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“Now, patents are not monopolies, as the counsel have all said, because a monopoly is that which segregates that which was common before, and gives it to one person or to a class, for use or profit; a patent is that which brings out from the realm of mind something that never existed before, and gives it to the country. And when we consider the priceless blessings which have accrued to our land, by the intellect and ingenuity of the country in this department, we feel almost lost in wonder at the vastness of the interests which have been created by the ingenuity of the country, and the immense amount now invested, in this department of property.”
(Singer v. Walmsley)
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“The final cause of law is the welfare of society.”
(Benjamin Cardozo, The Nature of the Judicial Process)
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“Competition law treats agreements among rival firms to set the terms on which they trade as extremely serious offenses. Most of the world’s approximately 120 systems of competition law assign the prosecution of cartels a high priority. The consequences of detection can be severe. The annual global sum of civil fines and treble damages for cartel participants today routinely exceeds hundreds of millions—indeed, even billions—of dollars, and individuals in a growing number of countries face potent criminal sanctions.
Central to the operation of laws that aggressively punish collusion are the definition and proof of concerted action. Powerful consequences flow from whether price increases observed in the marketplace emerge from individual or collective initiative. A firm acting alone ordinarily can set its prices as high as it likes. If the same firm cooperates with its competitors to achieve price increases, however, its executives may go to prison. Despite the crucial role of the concept of concerted action to this framework, few elements of modern antitrust analysis in the United States and in other jurisdictions are more perplexing than the design of evidentiary standards to determine whether parallel conduct stems from collective or from unilateral decision-making.”
(William E. Kovacic, et al., “Plus Factors and Agreement in Antitrust Law” (2012))
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“Anti-competitive behaviour on the part of the dominant firms imposes artificial restraints on the competitive process, impeding the market from efficiently allocating resources. In a healthy, dynamic economy, goods and services are supplied by the firms, which can produce them most efficiently and adapt to the ever-changing demands of the marketplace. The proposed abuse of dominance provision will ensure that dominant firms compete with other firms on merit, not through the abuse of their market power. The provision is of particular importance for the protection of consumers, new entrants and, in particular, the small business community.”
(Consumer and Corporate Affairs Canada, Competition Law Amendments: A Guide (Supply and Services Canada, December 1985)
“The Rule of Reason may not require a detailed analysis; it can sometimes be applied in the twinkling of an eye.”
(American Needle, Inc. v. Nat’l Football League)
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“Under the decision in the Stinson-Reeb case, the public is entitled to the benefit of free competition except in so far as it may be interfered with by valid legislation, and any party to an arrangement, the direct object of which is to impose improper, inordinate, excessive or oppressive restrictions upon that competition, is guilty of an offence.”
(Kerwin J. Container Materials Ltd. et al. v. The King)
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[On competition in a new country, trade associations and cartels]: “If there is anything important in connection with the affairs of a new country, anything important in connection with the affairs of a business community, it is that men should have the right – and I have no doubt that that was the intenion of parliament so far as this section is concerned – that men should have the absolute right, so long as they did not interfere with the rights of the public, to conduct their own business in the manner in which they see fit. If this firm did not desire to make profits in seling lumber to the city of Edmonton or in selling lumber to the city of Calgary, that was a matter of their own concern, and it was not in the interests of the public that the members of this association assumed to bulldoze this particular individual in regard to the manner in which he should conduct his business. Various other instances were brought forward in which practically the same class of thing was done.”
(R. v. Clarke)
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“It is generally agreed that the increasing influence of cartels in modern economic life has, in substituting the security of the monopolized market for the risk-taking involved by competition, slowed down technical progress and preserved out-of-date methods and equipment in the high-cost enterprises. Prices are fixed to cover the costs of the less-efficient firms; they enjoy a secure profit, and have little incentive to increase their efficiency. At the same time, that price allows a proportionately higher return to the more efficient firms. The only result is a tendency for the general efficiency in cartelized branches of industry to stagnate or even to deteriorate. And, insofar as cartelization spreads, the volume of production is restricted and the standard-of-living is prevented from rising. The disturbances and dislocations of employment caused by trade cycles are themselves aggravated by cartelization. In a period of declining demand, the rigid and relatively high prices of cartel products are prevented from falling. The real purchasing power of consumers is not increased, and a further overall decline in production and growing unemployment results. The ‘security’ of the cartelized producers is bought at the expense of production and the increase sufferings of the unemployed. From the viewpoint of social justice, there are evidently grave defaults in a system which gives security to those who should bear the risk (carrying the losses in return for reaping the profits), while the insecurity is shifted to those who are least able to shoulder it.”
(Cartel (London England) Vol. I, No. 1, July 1950)
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“Why should antitrust laws be used to block mergers that the market, by the existence of willing buyers and sellers, shows to be desirable?”
(Henry G. Manne, “In Defense of the Corporate Coup”)
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“… we have ordained and established, that no merchant or other shall make Confederacy, Conspiracy, Coin, Imagination, or Murmur, or Evil Device in any point that may turn to the Impeachment, Disturbance, Defeating or Decay of the said Staples, or of anything that to them pertaineth, or may pertain.”
(Statutory provision passed under Edward III outlawing trade combination)
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“A monopoly granted either to an individual or to a trading company has the same effect as a secret in trade or manufactures. The monopolists, by keeping the market constantly under-stocked, by never fully supplying the effectual demand, sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate.”
(Adam Smith, The Wealth of Nations (1776), Book I, Chapter 7)
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“Again, trade is a social act. Whoever undertakes to sell any description of goods to the public, does what affects the interest of other persons, and of society in general; and thus his conduct, in principle, comes within the jurisdiction of society… both the cheapness and the good quality of commodities are most effectually provided for by leaving the producers and sellers perfectly free, under the sole check of equal freedom to the buyers for supplying themselves elsewhere. This is the so-called doctrine of Free Trade, which rests on grounds different from, though equally solid with, the principle of individual liberty asserted in this Essay. Restrictions on trade, or on production for purposes of trade, are indeed restraints; and all restraint, qua restraint, is an evil…”
(John Stuart Mill, On Liberty (1859))
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