Canada is attempting to get a handle on the bewildering explosion in new payment technologies with a task force.

Canada’s Minister of Finance, Jim Flaherty, has announced the launch of a new Task Force for the Payments System Review.  As Flaherty commented, consumers today can make payments in “a bewildering number of ways, even by tapping a cell phone against a scanner.”

One of the Task Force’s main goals will be to figure out how to introduce these new payment technologies without compromising Canadian safety and efficiency or consumer protection.  The Task Force is gearing up to provide recommendations to the Minister by the end of 2011. 

The Task Force’s mandate includes: (1)”[i]dentify[ing] public policy objectives to be pursued in the operation and regulation of the payments system;” (2) “[i]dentify[ing] and assess[ing] the regulatory and institutional structures best suited to achieving those public policy objectives;” (3) “[a]ssess[ing] and report[ing] on the safety and soundness of the Canadian payments system;” (4) “[a]ssess[ing] the competitive landscape for current participants by identifying any potential barriers for new entrants and mechanisms to improve the competitive landscape of the domestic payments system;” (5) “[a]ssess[ing] the degree of innovation in the domestic payments system and report[ing] on the challenges and opportunities to bring new and innovative products to market in Canada;” and (6) “[a]ssess[ing] and report[ing] on whether consumers and merchants are well served by the domestic payments system.”

The Task Force is chaired by Patricia Meredith, a Professional Associate and Senior Adviser to financial services and technology companies with the consulting firm Monitor Group, an Adjunct Professor at York University’s Schulich School of Business, and former Executive Vice President of corporate strategy and member of the Senior Executive at Canadian Imperial Bank of Commerce.

While no one may be predicting China will be the antitrust powerhouse of the 21st Century, its days as an antitrust neophyte appear to be ending.

China’s National Development and Reform Commission (“NDRC”) of China has levied fines and administrative penalties against more than 20 producers of rice noodles.  This enforcement action represents the first application of Article 13 of China’s Anti-Monopoly Law against a price-fixing cartel.  According to media reports, the local Guangxi counterpart of the NRDC led the enforcement efforts.

The cartel involved competing rice noodle producers in the cities of Nanning and Liuzhou.  The first cartel began in November of 2009 in the city of Nanning and continued until January 2010.  During that time, competitors held a series of meetings that led 18 noodle producers to agree to increase prices of rice noodles. Soon thereafter, a second cartel formed in the nearby city of Liuzhou that lead 15 noodle producers to reach agreement to raise prices.  After consumer protests, the NRDC began its investigation, which eventually resulted in publication of China’s first public infringement decision under the Chinese Anti-Monopoly Law on March 30, 2010. 

The fines ranged from 100,000 RMB (approximately $14,700 U.S. dollars) to 800,000 RMB (approximately $117,800 U.S. dollars).  Reports have also indicated that some producers took advantage of China’s leniency program and only received warnings.  China’s Price Law also played a role as local enforcement agencies restored rice noodle prices to pre-cartel levels.

The House-Senate Conference Committee considering financial services reform legislation is on the verge of adopting provisions that could shake up the world of debit cards. 

After much controversy and intense lobbying by merchants and banks, key conferees have announced an agreement that preserves most of the Durbin Amendment and, remarkably, adds a critical and potentially groundbreaking new prohibition aimed at the networks and debit issuing banks.

While the situation remains fluid and things could change, if this agreement holds the merchants have won a huge victory.

In discussing where things currently stand, let’s start with the key provisions regarding debit interchange.

While the Federal Reserve still will be given the power to pass rules regarding debit interchange, those rules will not apply to federal, state and local government program prepaid debit cards.  Reloadable prepaid cards, such as the cards increasingly used by the unbanked, are also exempted.

In another change the definition of “interchange transaction fee” has been changed to prevent the Fed from regulating the fees that banks pay to Visa and other debit networks for membership except to the extent that such fees are used to undermine the interchange regulations.

Lastly, in a potentially significant change,  the Fed can now take fraud prevention costs into account in configuring rules  aimed at capping the amount that merchants will pay  for debit interchange but such costs can only be considered if a bank demonstrates that they are complying with standards established by the Fed to reduce fraud. 

That brings us to the most significant change that came out of the conference.  The initial legislation included a provision that prohibited the card networks from passing rules against merchants from offering discounts to favor one card network over another.  That provision has been removed.

Instead, the agreement includes a provision that directs the Fed to adopt rules that preclude debit network exclusivity that comes about by “contract, requirement, condition, penalty, or otherwise.”  This provision could effectively nullify the partnership agreements between numerous banks – particularly some of the largest banks in the country – and Visa, as those agreements have resulted in an increasing number of debit cards bearing on the Visa and Interlink. click here for more »

Recognizing that “credit card companies” and “Wall Street banks” may not have the most sympathetic political image these days, the payment card industry has enlisted small financial institutions as proxies to undercut support for Senator Dick Durbin’s (D.-IL) amendment giving the Federal Reserve the power to scrutinize fees imposed on merchants accepting debit cards.

Durbin’s amendment was incorporated into the Senate version of the pending financial reform package by a surprisingly large, bipartisan 64-33 vote last month – thus the vociferous opposition campaign as House and Senate conferees got to work to reconcile the Senate’s version with a House bill that has no provision addressing interchange fees.  The conferees are expected to continue debating the potential curb on fees this week.

Durbin’s amendment requires the Federal Reserve to establish rules requiring that debit card “interchange fees” are “reasonable and proportional” to the costs incurred by an issuer or payment network “with respect to” a transaction.  The Federal Reserve’s rules are to set such levels taking into consideration the fact that the debit cards are an electronic replacement for checks, which clear at par, and the incremental costs of a card transaction.  In contrast, debit card interchange fees currently can amount to 1 percent or more of a card transaction.  Merchants would like these fees reduced to reflect no more than actual processing costs, to ensure, for example, that merchants are not forced to pay for the costs associated with airline frequent flyer points awarded when a customer swipes a “rewards” debit card. 

In response to concerns raised by community banks and credit unions during the drafting of the amendment, Durbin’s amendment expressly carved out from the sections coverage fees paid to card issuers that have assets of $10 billion or less.  According to Senator Durbin, the result is that only 85 financial institutions are covered by the debit interchange fee provision, including just the three largest of America’s over seven thousand credit unions.

 Nevertheless, credit unions and community banks have been at the forefront of the card industry’s efforts to ensure that the Durbin amendment is not included in the final financial reform legislation that emerges from the House-Senate conference process.  As the Washington Post put it, “credit unions and community banks say that [the exemption] isn’t enough in this case, arguing that they will be indirectly affected by any government efforts to curtail the lucrative fees. And they have not been shy in letting lawmakers know,” with a credit union trade association staffer announcing, “[w]e’re really trying to ramp up the noise this week.” click here for more »

Cooperation among competitors is usually the kind of activity that raises antitrust concerns.  However, with thousands of barrels of dirty crude oil spilling into the Gulf of Mexico on a daily basis, the head of Federal Trade Commission is seeking to ease concerns that cooperation among competing energy companies to help the federal government solve the crisis in the Gulf would face scrutiny under federal antitrust laws.

In response to a letter from Senate Judiciary Committee Chairman Patrick Leahy seeking the FTC’s position on such collaboration, FTC Chairman Jon Leibowitz wrote that “[a]lthough we must always be watchful when competitors collaborate, industry efforts to work with Federal officials and provide expertise to combat this ecological disaster are unlikely to raise concerns under the antitrust laws, and we would be unlikely to challenge such an effort.”  Chairman Leibowitz added that the “impact of the oil spill appears likely to be an enormous tragedy for the people and economy of the Gulf and we would like to help any way that we can.”

The issue of collaboration among energy companies was raised because BP officials have acknowledged that they were not technologically prepared to deal with a disaster such as the one now unfolding in the Gulf of Mexico.  A number of BP’s competitors, including ExxonMobile, Royal Dutch Shell and Chevron, have provided support to BP and government officials to help get the oil leak under control.

The Supreme Court of Canada has denied defendants leave to appeal from the British Columbia Court of Appeal’s certification decision in Pro-Sys Consultants Ltd. v Infineon Technologies AG – the DRAM price-fixing class action.

The B.C. Court of Appeal’s earlier decision certifying a class of direct and indirect purchasers of DRAMs (semiconductor memory chips also known as “dynamic random access memory”) remains therefore the definitive pronouncement on the law on class certifications in competition cases in Canada.  As previously discussed, the B.C. Court of Appeal’s decision lowered somewhat the threshold for class certification –allowing plaintiffs at the certification stage to show a “credible and plausible methodology” for addressing damages on a class-wide basis and finding that the certification judge had erred when he subjected plaintiff’s expert to “rigorous scrutiny.”

The B.C. Court of Appeal had found that it could be possible for plaintiffs to prove that the manufacturers benefitted from their wrongful conduct, and thus prove liability on a class-wide basis as a common issue.  The Court of Appeal had noted that guilty pleas to the conspiracy charges in the United States and manufacturers’ agreements to pay fines calculated as a function of the gross pecuniary gain they derived from the crime amounted to “admissions that they engaged in the wrongful conduct alleged by the appellant and that they obtained an unlawful benefit from that conduct.”

Time will tell whether the decision will result in more competition class action proceedings in Canada – a country where there have been very few contested competition class action certification hearings to date.

The Bundeskartellamt, Germany’s version of the U.S. Department of Justice Antitrust Division, has announced it is fining eight coffee roasters 30 million euros ($35.9 million) for illegally fixing the price of wholesale coffee sold to bulk customers such as restaurants and hotels.

Bundeskartellamt President Andreas Mundt spoke strongly about the need for antitrust regulation, saying that “cartels … are highly damaging to society and therefore have to be rigorously prosecuted” and noting that “coordinated price increases for consumer goods such as coffee have a direct impact on consumers’ wallets,”

The Bundeskartellamt is  assessing a fine for the German Coffee Association (GCA) and 10 employees.  The eight coffee roasters (Tchibo GmbH, Kraft Foods Außer Haus Service GmbH, J.J. Darboven GmbH & Co. KG, Melitta SystemService GmbH & Co. Kommanditgesellschaft, Luigi Lavazza Deutschland GmbH, Seeberger KG, Segafredo Zanetti Deutschland GmbH and Gebr. Westhoff GmbH & Co. KG) include local units of two U.S. companies, Kraft Foods Inc. and Luigi Lavazza SpA. 

According to the Bundeskartellamt’s investigation, from at least 1997 through mid-2008, a group of directors and sales managers at the roasters within the GCA coordinated price hikes and cuts – but mostly hikes – for roasted coffee supplied to restaurants, caterers, hotels, vending machine companies and other bulk consumers.

The Bundeskartellamt has a Leniency Programme, which allows for fines to be waived or reduced for cartel members who report price-fixing or cooperate.  It was a leniency filing from cartel member Alois Dallmayr Kaffee OHG that triggered the Bundeskartellamt’s investigation in the first place, and it has escaped a fine as a result.  Two other coffee makers – Melitta and Darboven – cooperated with the investigation and have apparently received reduced penalties as a result, though the amount of the fines for each cartel member have not been released.  The GCA has admitted liability and said it regretted the infringement in a separate statement.

German law allows the Bundeskartellamt  to fine member companies up to 10 percent of their revenues from the previous fiscal year if they uncover a cartel in the course of an investigation.  With the potential for such a mammoth fine, it is not surprising that six of the companies and their employees have already agreed to settle the regulator’s claims instead of fighting. 

This week’s activity is part of increased scrutiny the Bundeskartellamt has placed on the coffee industry in Germany in recent years.  Though this investigation has only been underway since 2009, the Bundeskartellamt already fined three of the coffee roasters (Tchibo, Melitta and Alois Dallmayr) and six of their employees approximately 159.5 million euros in December based on a similar price-fixing cartel in the retail sector that allegedly ran from early 2000 until July 2008.  A separate investigation into cappuccino makers based on similar price-fixing suspicions remains underway, and is expected to be completed soon.

While it may not really be always sunny in Philadelphia, it’s certainly a bright day for plaintiffs in the In re Processed Eggs Antitrust Litigation, who have announced that Land O’Lakes Inc. and two of its subsidiaries, Moark and Norco Ranch Inc., have agreed to settle the egg price-fixing case in the Eastern District of Pennsylvania for $25 million and a promise to cooperate in litigation against the remaining defendants.

Direct purchasers of shell eggs and egg products filed this class action in 2008 against several egg producers alleging that they participated in an industry wide price-fixing conspiracy.  They also allege that several egg trade associations, including United Egg Producers and United States Egg Marketers, coordinated the conspiracy.  The plaintiffs claim that the defendants conspired to restrict the egg supply through hen reductions, cage space requirements and exporting eggs at a loss which allegedly raised the price of eggs and egg products.

The plaintiffs previously settled with Sparboe Farms.  Remaining defendants include other egg producers such as Cal-Maine Foods Inc., Michael Foods Inc., and Rose Acre Farms.

The current settlement covers all direct purchasers of eggs and egg products since 2000 and is awaiting approval by the court.

On Wednesday afternoon, the Senate Antitrust Subcommittee will hold a general oversight hearing on the two federal antitrust enforcement agencies, the Department of Justice’s Antitrust Division and the Federal Trade Commission’s Bureau of Competition.

The heads of these agencies, Assistant Attorney General for Antitrust Christine Varney and Federal Trade Commission Chair Jon Leibowitz will testify.  The hearing is scheduled for June 9, 2010, at 2 p.m. in room 226 of the Dirksen Senate Office Building.    

A general oversight hearing allows the Subcommittee to consider the overall performance of the agencies without reference to a particular topic or piece of legislation.  Members of the Subcommittee are free to ask the witnesses questions about any matter within the purview of their respective agencies.  The House and Senate Judiciary Committees usually hold such a hearing about once a year.         

More information on the hearing can be found on the Senate Judiciary Committee website.

Maybe comedian Jon Stewart had a point about Apple.  Last month, he chastised the chic technology company, saying: “You guys were the rebels, man, the underdogs – people believed in you!  But now, are you becoming … The Man?”

It seems that the U.S. Department of Justice might agree.  According to the New York Times, the DOJ is investigating Apple for using its successful iTunes online music store to muscle Amazon out of the way.

According to the Times, Amazon annoyed Apple by offering promotions to music labels in exchange for an exclusive window to sell those labels’ new songs.  In response, Apple withdrew its own marketing support for the songs that Amazon highlighted.  According to Billboard magazine, which broke word of Apple’s practices in March, one music executive described Apple’s response as: “They are . . . diverting their energy from ‘let’s make this machine better’ to ‘let’s protect what we got.’” 

That’s precisely the sort of attitude that attracts antitrust enforcers, especially when it comes from an industry leader.  And in the world of music sales, no other company is even close to Apple.  According to the Times, Apple has 69 percent of the market for online music sales, compared to 8 percent for Amazon, which is the number two in the market.  Indeed, Apple is also the largest music distributer over any platform, surpassing WalMart two years ago.   According to the Times, Apple now has over 25 percent of the entire music sales market.

As Apple has grown, it has triggered an increasing amount of antitrust scrutiny.  Earlier this month, reports emerged that DOJ or the Federal Trade Commission may investigate Apple for prohibiting writers of programs for its iPhone, iPod, and iPad line from using third-party software to create their applications.  It is also possible that DOJ is investigating Apple and other companies (including Google) for agreeing not to poach each others’ employees.  And last year, the FTC criticized Apple for having Google CEO Eric Schmidt serve on its board, which led soon after to Schmidt’s departure from Apple.

This is not the first time that the government has taken a hard look at online music prices.  In 2006, DOJ started a similar probe of record labels, for trying to raise the change the price of music sales on Apple’s iTunes.  Ultimately, Apple last year introduced more flexible pricing for iTunes music than it initially offered.

The timing for the antitrust story about Apple seems right on the money: on May 26, 2010, Apple became the largest technology company in the world, surpassing Microsoft.  And we all know what happened between DOJ and Microsoft.