The Government, instead of an Ordinance by the President as perceived earlier, is now contemplating to move a Competition (Amendment) Bill in the ensuing session of Parliament inter-alia to address concerns relating to timelines of clearance of the notifiable transactions and also to provide additional filter of local nexus (total value of turnover or assets of parties to combination in India on standalone basis) for a transaction to be subject to applicability of the combination provisions.

Further, though the merger provisions are yet to be enforced, Government, as per media report, seems to have conceded to grant exemption to banking and shipping sector from the applicability of the provisions of the Act. The reported justification, as per media reports, in case of banking sector in India is that it is in a consolidation phase. Though, the CCI is resisting any such exemption but the Government is empowered to grant exemptions from all or any provision of the Act to a class of enterprises subject to limits and conditions as may be prescribed.

The media has reported that the CCI would be finalizing 6 cases very soon as they are in their final stages. At present, there are around 57 matters with the CCI and more than half are at the stage of investigation by the Director General of the Competition Commission. The matters that would be reaching their final verdict could be especially effective in sectors like real estate, pharma, tourism and hospitality and media industry.

The CCI commenced enquiries into anti competitive agreements and abuse of dominance in May, 2009 and it is yet to pass its order under Section 27 of the Act.

Companies under the scrutiny of the CCI for anti-competitive practices or abuse of dominant position would now get a period of 30 days to respond to the notices sent out by the Regulator as opposed to the present regime which gives a period of 15 days. Thus, there is a realization in the CCI that a period of 7 or 10 days is short and insufficient for the addressee to furnish the relevant and required information. This would not, however, require a change in law or the Regulations as it is a mere administrative practice.

The CCI has instituted an enquiry against several banks and housing finance companies, including HDFC, ICICI Bank, Deutsche bank and LICHF, for alleged abuse of dominance by imposition of penalties on borrowers for pre-payment of home loans. The Commission, after examining a report of the Director General, found evidences against banks for misusing their dominant position and entering into anti-competitive agreements. The lending banks contention is that prepayment penalty is to off set the cost of mismatch in asset –liability and if penalty clause is frowned upon then banks will be compelled to enhance the lending rates.

The CCI is believed to be in the last lap of hearing parties charging prepayment penalties and its order is expected shortly. Home loan borrowers, however, are keenly looking forward to the order as it would mean that borrowers can shift their credit to lenders offering lower interest.

In January 2010, the Competition Appellate Tribunal upturned an order regarding an enquiry being instituted by the CCI and reference made to the Director General for investigation. The matter concerned a supply agreement between steel firm SAIL and the Indian Railways, issued on a complaint filed by Jindal Steel and Power Ltd. On February 15th 2010, the CAT disposed off the appeal which had been filed by SAIL, remanding the matter to the CCI to issue orders after considering the submissions of SAIL. In its order, the CAT held that firstly, an appeal is maintainable against the prima facie decision of the CCI, secondly, the orders passed by the CCI should be speaking and reasoned orders and thirdly, that the CCI cannot be a party to an appeal. The CCI has recently moved to the Supreme Court against the CAT for having entertained such an appeal against its prima facie decision. The CCI, however, believes that CAT can only hear cases after they have been settled as do other sectoral government regulators. At present, the matter in question is being argued before the Supreme Court of India.

In October 2008, an alliance was announced between Jet Airways and Kingfisher (KF), which includes code-sharing on domestic and international flights and cost-cutting measures including joint fuel management and cross-utilization of crew. Information had been filed before the CCI by a frequent flier alleging that the alliance leads to the formation of a cartel and that it reduces competition amongst competitors. The CCI ‘on examination of information’ found a prima facie case and instituted an Inquiry against the alliance between Kingfisher Airlines Limited (KF) and Jet Airways (India) Ltd.

KF moved to the Bombay High Court, questioning the jurisdiction of the Commission inter alia contending that the alliance was entered into before the day the relevant provisions of the Act came into force and that no study was undertaken before institution of enquiry. The High Court dismissed the writ and held that the law is well settled that the Court should not stifle investigation at all, except for compelling reasons and that the CCI has a power to enquire and investigate into every complaint received under the Act. The Order is significant as it makes clear that trade agreements entered prior to the date the law came into force are subject to the scrutiny of CCI.

As per latest report, the KF which knocked at the Supreme Court has declined any grant stay against the inquiry instituted by the CCI.

The Explosives Manufacturers Association of India (EMAI) has reportedly complained to the CCI that Coal India Limited (CIL) is procuring ‘mining explosives’ from a particular supplier without inviting bids from other suppliers. CIL is believed to have market share of 85% of the coal produced in the country and needs ‘explosives’ to remove the soil layer covering coal deposits in mines. The Association contends that CIL has not given other suppliers a fair chance to compete through bids. The CCI after examining the information found a prima facie case of anti-competitive agreement and has referred the matter for investigation to its Director General. Section 3 of the Act empowers the CCI to prohibit an agreement which has or is likely to cause appreciable adverse effect on competition within India, as anti-competitive and ‘void’.

The CCI while instituting an enquiry for imposing restraints on screening and exhibition of non kannada films in Karnataka by the KFCC also passed an interim order against the a ban imposed by the Karnataka Film Chamber of Commerce (KFCC) on the screening of the movie Ravana.

KFCC, a lobby comprising of local film makers, had banned the screening of the movie in its Hindi and Tamil versions in theatres across the state. The order was issued in response to a petition filed by Reliance Big Entertainment (RBEL) complaining that while KFCC had initially allowed the movie to be screened in 21 theatres in Bangalore and 4 theatres outside the capital, it subsequently reduced it to be screened only in four multiplexes. It was also alleged that KFCC had sought an undertaking from RBEL that the restricted release was being done voluntarily. The matter is reportedly being investigated by the DG to examine whether KFCC abused its dominant position under the Competition Act, 2002.

The Travel Agents Association of India (TAAI) has filed an information with the CCI after many airlines such as Lufthansa, British Airways, Singapore Airlines etc. stopped paying commission to travel agents for booking air tickets. The CCI before forming its prima facie view in the matter, asked the DGCA to give its opinion on the matter. It has been reported that the DGCA in its reply/opinion to the CCI stated that the adoption of the zero commission system by the airlines is illegal. The CCI has instituted an enquiry into the allegations and referred the matter to its Director General to carry out investigations against all the charged airlines and submit its report before proceeding further in the matter.

The Chinese National Development and Reform Commission (NDRC), the authority responsible for price-related violations under the Chinese Anti-Monopoly Law (AML) on April 30th 2010 published its first decision against a price cartel, the cartel of domestic rice noodle producers for involvement in a joint action to increase prices in the region.

According to NDRC, beginning November 2009, 18 rice-noodle manufacturers in Nanning operated an organized cartel which jointly raised prices which was then matched by other noodle producers. Subsequently, noodle producers from another region, Liuzhou, also agreed to increase prices in January 2010 and a profit sharing agreement was signed between these producers. This led to a 26% increase in wholesale rice noodle price and a 14% increase in the retail price. The NDRC imposed financial penalties on 21 members for the offence of price fixing. This decision also demonstrates the application of leniency provisions under the AML as 12 members of the cartel were issued warnings only owing to the co-operation they extended with the investigation.

A fine amounting to US$62 million was levied on nine Indonesian airlines for forming a cartel to fix fuel surcharges. The Commissions for the Supervision of Business Competition (KPPU) found the airlines passed fuel surcharge costs onto passengers. The Indonesian Aviation Company Association (INACA) and nine aviation companies signed an agreement to charge their customers a fixed fuel surcharge on all national flights. Customers of the airlines were found to have lost around US$1.5 billion through the scam. National flag carrier Garuda Indonesia (one of the nine airlines) has denied allegations of its participation in the scandal, and has lodged an appeal. The competition watchdog fined Garuda 187 billion rupiah for its part in the fraud.

In the recent Asian Competition Policy workshop held in Hong Kong, there was one major change that was outlined regarding mergers. The competition bill would not include merger control provisions except for the licenses granted by the telecommunications authority sector but mergers would not be exempted from the general conduct rules. The merger control will be modernized in light of the development of the merger rule in other competition jurisdiction and adjusted to cater for possible extension to a cross-sector regulation after a review of the effect of the Bill to be conducted in a few years.

Japan's Fair Trade Commission (JFTC) has fined Mitsubishi Rayon and Kaneka a total of yen (Y) 1.15bn ($12.4m) for fixing the prices of polyvinyl chloride (PVC) modifiers. The commission has ordered Mitsubishi Rayon to pay Y544m and Kaneka to pay Y605m.

According to the commission, Mitsubishi Rayon, Kaneka and fellow chemical producer Kureha agreed to raise the prices of PVC modifiers between 1999 and 2000, which violated Japan's anti-monopoly act. Mitsubishi Rayon will decide within 30 days whether to request hearings to be held or pay the fine. Kureha, which the commission ordered to pay a fine of Y268m in November 2009, had already agreed to comply with the order.

Recently, the Korea’s Fair Trade Commission (KFTC) busted a price-fixing cartel and imposed a record-breaking fine of KRW 120 billion (around USD 98 million) on nineteen airlines. The nineteen airlines, which included major airlines such as Japan Airlines, Nippon Cargo, British Airways, Air France, Lufthansa, Qantas, Malaysia Airline, Singapore Airlines and Cathay Pacific as well as Korean carriers Asiana Airlines and Korean Air, were involved in a conspiracy to fix the price of fuel surcharges on freight cargo. Scandinavian Airlines and Air India were issued with corrective orders. Although flag carrier Korean Air was fined the largest amount of KRW 48 billion, though the actual fine paid will be around KRW 22 billion as it was granted leniency for providing crucial information during the investigation.

Oracle, the leading proprietary database vendor, is a supplier of business software, including middleware (i.e. software that connects software components applications), database software, enterprise application software and related services while Sun Microsystems provides network computing infrastructure solutions that include computer systems, software, storage and services. In 2008, Sun acquired the open source database, MySQL. The Commission began an in-depth investigation to determine whether Oracle’s acquisition of Sun Microsystems would distort the competition in the market. The investigation showed that although MySQL and Oracle compete in certain parts of the database market, they are not close competitors in others, such as the high-end segment. Oracle, in order to facilitate approval, made a commitment to boost investment in MySQL and undertook to maintain the open-source licensing platform. After assessing factors such as impact of competition, the market access of other competitors, etc. the EC gave approval for the $7.4 billion transaction.

The EC cleared the proposed joint venture (JV) between four German online marketing firms after assessing its effect on competition in the relevant market. The firms in question are SevenOne Media, subsidiary of ProSiebenSat1, G+J Electronic Media Service and IP Deutschland, both subsidiaries of the Bertelsmann group and Tomorrow Focus Portal, a subsidiary of Hubert Burda Media. All the agencies indulge in mainly online marketing for the websites owned by their parent companies. The basic aim of the JV would be to develop and sell a new product to allow advertisers to reach better defined target groups of Internet users based on the anonymous data collected through various sites that allow participation. The permitted activity under the JV would be restricted to standard online display advertising.

Six recruitment agencies have been fined £39.27M by the Office of Fair Trading (OFT) for price-fixing and the collective boycott of another company in the supply of candidates to the construction industry. To start with, the cartel actually consisted of eight agencies, but two out of the eight became whistleblowers and were granted immunity from fines. The recruitment agencies forming the cartel were A Warwick Associates, Beresford Blake Thomas, CDI AndersElite, Eden Brown, Fusion People, Hays Specialist Recruitment, Henry Recruitment and Hill McGlynn & Associates.

The price fixing started out in 2003 when the recruitment agency Parc started out with a new business model. Instead of treating Parc as a competitor, the parties formed a cartel and named it the ‘Construction Recruitment Forum’ which had five meetings during the time period of 2004-2006 in which the forum was found to have discussed strategies in these meetings such as boycotting Parc, fixing the rate to be charged to intermediaries and other construction companies. This has been found to be a serious breach of the law and the fines levied on the charged parties reflect the gravity of the offence.

A fine totaling to 61 million Euros was imposed on nine companies for forming a calcium carbide cartel. The breach of the EU anti-trust laws took place between 2004-2007 and the companies indulged in price fixing, customer allocation and market sharing for calcium carbide powder and granules and magnesium granules used in the steel industry. The companies forming the cartel were Almamet, Donau Chemie, Ecka Granulate, Holding Slovenske elektrarne (for its former subsidiary TDR Metalurgija), Novácke chemické závody and its former parent garantovaná, SKW Stahl-Metallurgie and its former parent companies Evonik Degussa and Arques industries. Another company that was a part of the cartel but immune from fines for whistle blowing was Akzo Nobel. Any person or firm affected by this anti-competitive behavior has been given the liberty to file the matter before the courts for damages which would be in addition to the fines imposed. Under the Indian Competition Act, 2002, any person or government aggrieved of a ‘Cartel’ can file an application with the Competition Appellate Tribunal for award of compensation to offset the loss caused as a result of the ‘Cartel’.

The Commission approved the Hewlett-Packard’s US$2.7billion takeover of 3Com without attaching conditions. Both the companies, prior to the takeover were engaged in the manufacturing of network hardware. The effects of the proposed acquisition were scrutinized as both are reportedly active in the supply of switches and routers. However, during the scrutiny, it was noted that the merged company would still face a number of global and effective competitors, competition would not be affected and no concerns would be raised. The EC also found that although HP is present in IT markets related to computer networking equipment, such as IT services, the proposed transaction would not give rise to any vertical or conglomerate effects. The EC, in particular, found that the merged entity will have a relatively limited position in networking equipment or IT services, where there are numerous alternative suppliers.

The EC has approved the acquisition of Yahoo by Microsoft. The search account for 17% and 11% of worldwide internet searches respectively. Though, in Europe, the combined searches for both is 10% as compared to 90% for Google. The Commission concluded that the concentration would not significantly impede effective competition in the European Economic Area (EEA) or any substantial part of it. Pursuant to the agreements concluded by Microsoft and Yahoo, Microsoft will acquire a 10-year exclusive license to Yahoo's search technologies

A similar deal between Google and Yahoo was questioned by the DOJ in the US following which Google withdrew from the deal. It is believed that the merger between Google and Yahoo would reduce the competitive rivalry between the two giants. However, the regulators felt that a merger between Yahoo and Microsoft would provide a stronger and better competition since it would become an entity with the ability to challenge Google which enjoys undisputed leadership in this field. Google, in turn, said that it has no problem with such a merger. Advertisers have also favoured such a merger because they feel that this would provide them with better and more solutions as compared to Google. Same is the case with consumers who would be provided a better service by this merger. There will be no visible change though the Yahoo search engine will be supported by the Bing search engine.

The merger of Orange Telecom and T Mobile was delayed as the Competition Commission felt that such a merger would harm the welfare of consumers and also harm the existence of smaller service providers such as Hutchinson 3G (3). The merger was given a go ahead by the European Commission, only after certain conditions were set on both entities. These conditions were imposed as the tie-up between the two would create the biggest mobile network provider in the UK with 28 million customers. The condition that imposed was that they would enter into a joint network sharing arrangement with 3 relating to the 1800MHz level spectrum, which has a contract with TMobile and is also the smallest service provider in the UK. The Indian Competition Act also empowers the Competition Commission of India to allow mergers subsequent to compliance of conditions attached to approval.

The OFT fined The Royal Bank of Scotland $ 43 million, when it was found that it had disclosed confidential information regarding pricing of loan products to large professional service firms such as solicitors, accountancy firms etc. to Barclays Bank between October 2007 and February or March 2008. It was found that this information was used by Barclays to determine its own price. However, Barclays was not made liable for any penalty as it had brought these disclosures to the notice of OFT and it would not have to pay any fines till the time it co-operated with the OFT.

The OFT has fined two tobacco manufacturers and ten retailers one of its largest fines ever in one case totaling to £225m for the offence of fixing retail prices for tobacco products in the UK. Imperial Tobacco and Gallaher, tobacco manufacturers and Asda, The Co-operative Group, First Quench, Morrisons, One Stop Stores (formerly T&S Stores), Safeway, Sainsbury's, Shell, Somerfield and TM Retail were the retailers involved. Each manufacturer made individual arrangements with each retailer whereby the retail price of a tobacco brand was linked to that of a competing manufacturer's brand. The retailers did not determine their selling prices independently and breached the Competition Act 1998. The infringements span different periods between 2001 and 2003 for different parties, and related variously to the markets for UK duty paid cigarettes, hand rolling tobacco, pipe tobacco, and cigars and cigarillos. The current value of these markets is estimated at around £13 billion.

The world’s largest cement maker, Lafarge SA, lost its challenge at the European Union’s highest court to a 249.6 million-euro antitrust fine levied by EU regulators almost eight years ago for colluding on plasterboard prices. The European Court of Justice in Luxembourg rejected Lafarge’s appeal in its entirety and confirmed the penalty. Lafarge’s fine was upheld by a lower EU court in 2008 as well. The EU plasterboard market was worth about 1.2 billion euros at the time of the violations. The Brussels-based commission, the EU’s antitrust regulator, fined four companies for fixing prices of plasterboard for at least four years until 1998 and now after eight years the fine has been upheld against Lafarge.

The European Commission has re-adopted a fine of €21,262,500 on Bolloré for its participation in a cartel in the market for carbonless paper also known as self copying paper intended for the duplication of documents. The appeals against the Commission decision, of December 2001, were rejected by the EU Courts on 3 September 2009, except for a reduction of the fine on two companies. The ECJ considered that Bolloré's rights of defense were infringed because it could not have foreseen from the wording of the original Statement of Objections that the Commission intended to hold it liable not only as a parent company of the cartel participant Copigraph, but also on account of its own involvement in the cartel. After sending a new Statement of Objections on 15 December 2009, which addressed both the parental liability and the direct involvement of Bolloré, the Commission has re-adopted the decision correcting the procedural error which led to the annulment of the 2001 decision. As during the re-adoption procedure Bolloré no longer contested the participation of its former subsidiary Copigraph in the early stage of the cartel, the reduction for cooperation under the 1996 Leniency Notice was increased from 20% to 25%. Bolloré’s fine is thereby reduced from €22.68 million to €21.26 million.

The combination of ticketing giant Ticketmaster with the world's largest concert promoter, Live Nation, had attracted criticism from artists, fans and some lawmakers, who alleged that the new company could dictate terms for major events. The two companies emerged victorious after anti-trust proceedings were initiated against them in the US. However, they would have to comply with some conditions imposed on them by the US DOJ. These conditions are (i) Ticketmaster to license its primary ticketing software to two competitors (to Anschutz Entertainment Group (AEG) and either Comcast-Spectacor or another suitable company), (ii) sell off the Paciola ticketing unit (to either Comcast-Spectacor or another suitable company), and agree to terms that bar it from retaliating against venue owners who decide to use a competing ticketing/promotional service, including restrictions on anti-competitive bundling.

The DOJ questioned the merger on the ground that it would lead to less amount of competition in the ticketing market. This would lead to increase in prices and a lack of innovation for the consumers. The steps which the companies have been asked to take are expected to promote strong and efficient competition which in turn would lead to reduction of ticket prices and benefit of consumers. The competitors, however, expressed their apprehensions about a concert promoter owning a ticketing company.

An announcement was made by FTC that it would be lowering the threshold on pre-merger notifications. These thresholds are adjusted annually depending on the gross national product. However, this year the threshold was reduced from $65.2 million to $63.4 million due to reduced GNP because of recession. The Hart-Scott-Rodino Act requires notification of certain mergers or acquisitions to be given to the FTC and the Justice Department's Antitrust Division. The parties to the transaction must then wait a designated period of time before consummating the transaction. Also, the thresholds have changed but the filing fees for the same is still constant.

The new thresholds have been effective since February 2010. The thresholds include a Size of Transaction test and a Size of Person test. The Size of Transaction test states that a notification would be required if the acquiring person will obatin and hold certain assets, voting securities, and/or interests in non-corporate entities valued at more than $63.4 million. The Size of Person test states that generally one "person" to the transaction must have at least $126.9 million in total assets or annual net sales, and the other must have at least $12.7 million in total assets or annual net sales. The transactions that are valued at more than $253.7 million are not subject to the Size of Person Test and are therefore reportable.

The Competition Act, 2002 in terms of Section 20 (3) also provides that the Central Government will conduct two-yearly reviews, in consultation with the Commission which by notification, would enhance or reduce the value of assets or the value of turnover. This would be on the basis of wholesale price index or fluctuations in exchange rates of rupee or foreign currencies.

After an unsuccessful attempt of the Google book deal, the second attempt too which is the revised Google digital book agreement has been criticized again. There have been several rivals who have filed last-minute complaints and publishers and authors who have refused to sign the agreement, claiming that the plan to digitize and sell millions of books online violated antitrust laws. Post the complaints, a hearing took place wherein, Judge Chin overseeing the Books settlement, did not take the final decision on whether the US $125 million settlement agreement should stand or not as there were many complicated issues that needed to be dealt with such as the potential antitrust issues and copyright infringement issues. In the premises, Google awaits the final results.

The American Society of Media Photographers and related trade groups such as, Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, Professional Photographers of America, photographers Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi and illustrators John Schmelzer and Simms Taback have filed a class action copyright infringement suit over the images that appear in the books that Google has been scanning.

Nokia, the world's largest phone maker, sued Apple in October 2009 claiming infringement of 10 patents and seeking back royalties on the 33.7 million iPhones sold since the device's introduction in 2007. Espoo, Finland-based Nokia had said that all Apple iPhone models use Nokia's technology for wireless data, speech coding, security and encryption. Nokia claims that apple has had to charge less for these developments since they don’t have to pay developer’s costs. In the recent past, Apple Inc. maker of the iPod and iTunes music software said it filed a countersuit claiming that Nokia Oyj is infringing its technology. Apple has claimed that Nokia is wrongfully using 13 of its patents which has helped it in gaining excessive royalties.

The Federal Trade Commission has cleared the $7.8 billion PepsiCo. Deal to purchase two companies, Pepsi Bottling Group Inc. and Pepsi Americas Inc. that bottle its drinks. This is taking place pursuant to the condition that it seals off the confidential information about its competitors to which the bottlers have access. The bottlers will also handle the work of the rival, Dr. Pepper Snapple Group. To clear this condition, Pepsi is ready to set up firewalls which would block access to sensitive information of Dr. Pepper.

Dell has filed a lawsuit against five LCD makers alleging a cartel wherein they have colluded to control the supply and price of products. The five LCD makers against whom this claim has been made are Epson, Hitachi, Sharp, Toshiba and HannStar. Several LCD vendors have already pleaded guilty to price fixing in the start-up investigation by the US DoJ. These admissions itself have resulted in a fine totaling up to $860 million.

A settlement of $9 million linked to claims that AIG conspired with Marsh & McLennan and other insurers to eliminate competition in the state’s commercial casualty insurance industry was announced which would in turn benefit twenty-six public entities in Ohio, including several public schools and colleges. One such suit filed in Cuyahoga County alleges that during the period of 2001 to 2004, the insurers agreed to provide customers with fictitious quotes to create the false impression that competitive bidding had resulted in the best possible price. However, through the settlement agreement, AIG denied the allegations and did not admit liability. $3 million of the settlement will be distributed to the 26 entities represented in the case and $4 million will be put aside in a fund to be distributed by the court once the anti-trust case has been completely resolved.

United Airlines and Continental Airlines have finally agreed to a merger of equals and would together have a 35% market share. The combination of Continental and United brings together the most complementary networks of any two U.S. carriers, with minimal domestic and no international overlap. This joins two of the world’s premier airlines, creating a combined company well-positioned to succeed in an increasingly competitive global and domestic aviation industry. Together, Continental and United would serve more than 144 million passengers per year. The United and Continental merger is worth $3.17 billion and the two airlines said they hope to achieve synergies of $1 billion to $1.2 billion, largely from the new business. The merger would create the world's largest airline by revenue and traffic, surpassing Delta Air Lines. If the deal is approved by antitrust officials at the Justice Department, United/Continental -- operating as new United -- would join Delta and American Airlines, a unit of AMR Corp as the three largest domestic U.S. carriers.

Four subsidiaries of the German drug maker have agreed to pay a sum of $7.75 million to settle allegations regarding overcharging the Wisconsin state Medicaid program by reporting inflated average wholesale drug prices. The four units - Ben Venue Laboratories, Boerhinger Ingelheim Roxane, Roxane Laboratories and Boehringer Ingelheim Pharmaceuticals have been allegedly reporting inflated prices to the agencies whose data are used to determine Medicaid reimbursements .The settlement was part of a larger lawsuit charging 36 drugmakers with defrauding the Wisconsin Medicaid program However, the settlement states the companies do not admit to any wrongdoing or violation.

The FTC has voted 5-0 to approve Google's $750 million acquisition of mobile advertising firm AdMob. Google;s intention is to repurchase (from the available working capital) in the open market a number of shares equal to the number of shares issued in the transaction and issuable upon exercise of outstanding options to purchase common stock issued by AdMob. The repurchase program is expected to commence shortly after the completion of the acquisition. Initially, the FTC was leaning towards opposing the deal on the grounds that the combination of Google and AdMob would create too powerful a company in the mobile ad space. Two extra weeks were taken for review by FTC regarding this deal as it sought more information on Apple's purchase of competing mobile ad agency Quattro Wireless. One report alleged that AdMob had agreed to a 45-day "no-shop" provision with Apple, to prevent the sale to another company. But as soon as that provision expired, Google took advantage of the opportunity and paid $750 million -- a premium price that the search giant was reportedly willing to pay to keep the company away from Apple. Apple then settled for Quattro Wireless for $275 million.

Notifiable Transactions Regulations made under the Canadian Competition Act came into force on 2nd February, 2010. Their main aim is to make merger conditions and regulations similar to that in the USA. It has created a single 30 day waiting period for any kind of merger transactions unlike the previous choice of 14 and 42 day period. By this notification, some new information also has to be provided such as, a copy of each legal document, or the most recent draft of that document if it is not yet executed, that is to be used to implement the proposed transaction; and all studies, surveys, analyses and reports that were prepared or received by a senior officer for the purpose of evaluating or analysing the proposed transaction with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into new products or geographic regions and, if not otherwise set out in that document, the names and titles of the individuals who prepared the document and the date on which it was prepared. (In the United States, for the equivalent Hart-Scott-Rodino filing, these types of documents are normally referred to as the "4(c) documents" - the Canadian language has also been changed to conform with that in the Hart-Scott-Rodino Act, such that a single search will now suffice.)

Canada’s new competition law regime which came into force on 12th March, 2010. It replaces the existing Section 45 of the Competition Act. It criminally prohibited persons from conspiring or agreeing to "unduly" harm competition. The "undue" standard effectively imposed a competitive-effects test that had to be established for there to be a criminal offence. Post the introduction of the new regime, the competitive-effects test has been made inapplicable and in that manner its application has been broadened. On the other hand, it has also become narrower than the previous Section 45 as the new provision applies only to agreements with competitors (i.e. it does not apply to agreements between customers and suppliers) and it is intended to apply only to so-called "hardcore" cartel-type activity. The new Section 45 contains an “ancillary restraints defence”, which provides that there will be no offence if the anticompetitive restraint is ancillary to a broader or separate agreement, and directly related to and reasonably necessary for giving effect to the objective of the broader or separate agreement, and the broader or separate agreement on its own would not violate s. 45.

Agreements among competitors that are not hardcore cartels may be, on application by the Commissioner of Competition (but not by private parties), are subject to civil administrative review by Competition Tribunal. If the Tribunal finds that an agreement between competitors substantially lessens or prevents competition (applying similar assessment criteria as that applicable to mergers), it can issue a prohibition order or order a party, with such party's consent, to take any other action. The Tribunal cannot award damages or impose fines.

The Canadian Competition Commission has accused CREA (Canadian Real Estate Association), which represents around 98,000 real estate brokers, of fixing barriers to entry of small scale businesses through its rule making and rule enforcing powers. As a result of this, it has created a monopoly and adversely affected the competitive nature of the business. Initially, CREA contended that these allegations are unfounded and based out of misinformation.

However, later on, the CREA issued amendments which say that realtors would be allowed to provide a multitude of different services to consumers, including just providing a MLS listing for a fee. Consumers would even be able to show their own homes.

The Commissioner of Competition and the Director of Public Prosecutions, entered into a Memorandum of Understanding (MoU) with respect to the investigation and prosecution of offences under the Competition Act, the Consumer Packaging and Labelling Act, the Textile Labelling Act, and the Precious Metals Marking Act. The MOU was developed in response, in part, to requests from stakeholders for transparency and predictability in the working relationship between the Competition Bureau and the Public Prosecution Service of Canada (PPSC). The MOU will provide increased transparency, predictability and clear understanding of the Bureau’s investigations. This is especially important within the context of the Bureau’s Immunity and Leniency programs, as investigators and prosecutors have distinct responsibilities but need to work together in tandem. In addition, the MOU allows for the implementation of strategies to enhance the quality of investigations and cases presented at trial.

After receiving more information and consequent to the new anti-competitive concerns raised by Bluescope Steel, the Australian Competition and Consumer Commission (ACCC) plans to investigate the $116 billion iron ore joint venture between BHP Billiton and Rio Tinto. This deal is also being investigated by Competition Commissions in Europe as the alliance which was finalized last June will give producers added pricing power for the ore. Although the BHP/Rio deal does not need prior regulatory approval because it falls short of a full-blown merger, the Commission opened an anti-trust investigation in January following its concerns over the effect of the tie-up. However, it is believed that the deal will get ACCC’s approval.

The Federal Court in Australia has fined DRS C3 systems, a US based defence contractor, a sum of $ 1 million for indulging in cartel-like behavior. This penalty has been discounted and is one third the actual penalty on account of the cooperative behavior of the entity. DRS entered into an agreement with another company that it would withdraw from a proposed procurement of an air combat maneuvering instrumentation system by the Commonwealth of Australia for use as part of a joint training exercise between Australian military forces and the US Air Force in the Pacific.

DRS admitted its activities were in violation of the Trade Practices Act, 1974, and agreed to: (i) pay the aforementioned penalty; (ii) restrain from engaging in similar conduct; (iii) to strengthen its existing corporate compliance program; and (iv) to pay an agreed contribution of $100,000 to the costs of the ACCC proceedings.

Two companies have been ordered to pay $4 million in fines over a price-fixing act involving copy paper and uncoated woodfree folio paper available in Australia. APRIL Fine Paper Trading, based in Singapore, and a sister company in Australia admitted to holding 18 meetings with competitors to discuss their sale prices. APRIL and some other competitors formed the ‘AAA Club', to fix prices in the period ranging from December 2000 to January 2004.

The penalty has been majorly discounted as a result of cooperation of the companies involved in the proceedings. Apart from the penalty, the company has been served with injunctions to prevent further collusion over pricing.

Proceedings have been instituted in the Federal Court against Malaysian Airline System Berhad and its wholly-owned cargo subsidiary Malaysia Airlines Cargo Sdn Bhd for alleged price fixing in the air cargo industry. The ACCC alleges that between 2001 and 2006, Malaysian Airline System Berhad and Malaysia Airlines Cargo Sdn Bhd entered into arrangements or understandings with other international air cargo carriers (in Indonesia, Hong Kong and Singapore) that had the purpose or effect of fixing the price of a fuel surcharge and a security surcharge that were applied to air cargo carried by them and other airlines. The ACCC is seeking declarations, injunctive relief, pecuniary penalties, and costs. Proceedings against other airlines have also been concluded resulting in penalties totalling $41 million.

Melbourne's Federal Court ordered four foreign-based suppliers of marine hose (Dunlop Oil & Marine, Bridgestone Corporation, Trelleborg Industrie SAS and Parker ITR) to pay penalties of more than $8.24 million. The ACCC alleged that from the period of 2001 to 2006 the companies' international cartel arrangement saw them offer "rigged" marine hose supply bids to Australian customers such as Woodside Energy, BHP Billiton Petroleum and ConocoPhillips. It also put declarations and injunctions in place to stop the companies engaging in cartel conduct again, and made them pay the ACCC's costs.

The Federal Government for the second time introduced into Parliament the Competition and Consumer Legislation Amendment Bill (Bill), which proposes to amend the merger control provisions of the Trade Practices Act to address the issue of “creeping acquisitions” and to clarify that more than one market may be relevant when reviewing a merger. The Bill proposes to amend the merger control provisions of the Trade Practices Act 1974 (Cth) (TPA) so that they apply to any merger that affects any market, or markets, in Australia (including a state, territory or region of Australia), regardless of whether the market(s) is substantial. Specifically, the Bill proposes to:

• amend the definition of “market” in s 50(6) of the TPA to remove the requirement that the market affected by a merger must be “substantial”; and
• amend s 50(1) and (2) of the TPA to replace the words “a market” with “any market”.

The Competition Commission of South Africa has successfully conducted a search-and-seize operation at the offices of South African Airways (SAA), Mango Airlines and the Airlines Association of Southern Africa (AASA). The Commission said that the searches, conducted form a part of its investigation into collusion in the airlines industry around the Soccer World Cup period, and were prompted by its suspicion that SAA and Mango might have withheld information having a bearing on the investigation. The commission said that it had seized documents and electronic data "which will now be analysed together with other information gathered to determine whether a contravention of the Competition Act has taken place.”

The Indian Competition Act also empowers its investigation arm, the Director General to conduct an unannounced search and seizure of documents and records etc. with the approval of Chief Metropolitan Magistrate, Delhi.

Namibia has finally launched its Competition Commission, six years after its Competition Act was passed in 2003. The competition law in Namibia, like most others, covers three major competition concerns of anti-competitive agreements, abuse of dominance and anti-competitive mergers. The Act further takes cognizance of the special requirements of the Namibian economy such as the protection and promotion of small undertakings. At present, the agency is currently in the process of employing a management team to effect the implementation of the Act. The Commission recognizes the same problem that has been persisting in many other jurisdictions including India which deals with the overlap with sectoral regulators and the attaching responsibility of promoting competition in the particular sectors. Most importantly, the Agency has taken upon itself the role of accountability to the public at large explaining in detail what it is doing and creating transparency in its functioning.

Pioneer Foods was fined a landmark sum of 195 million rand as a penalty for being involved in a price fixing cartel for breads. While the other agencies such as Tiger (Albany), Premier (Blue Ribbon), Foodcorp (Sunbake), reached settlements with the Competition Commission, Pioneer foods fought as the sole respondent. The tribunal found that the bread division of Pioneer was involved in a conspiracy to fix the increase of the price of a standard loaf of bread in the Western Cape and the timing of this increase was similar to others. Pioneer had earlier, in 1999, contravened the same sections of the Act in 1999. The Commission asked for a penalty equal to 10% of the company’s annual turnover.

The Indian Competition Act also provides that in case of cartel, the penalty may be up to 3 times of its profits or ten percent of turnover for each year of the continuance of such agreement, whichever is higher.

Allegations were made against South African Airways (SAA) for following anti-competitive practices and thus hurting the businesses of their rivals. SAA was found guilty of providing override incentive and trust agreements to travel agents, which denied competitors access to that market, contravening section 8 (d) (i) of the Competition Act. In 2005, a complaint was made by Nationwide in which the Tribunal found that SAA's agreements with Travel Agents in the marketplace from 1999 to May 31, 2001 were illegal. It imposed an administrative penalty of R45m.This ruling is the result of a complaint brought jointly by Comair and Nationwide and referred to the Tribunal by the Competition Commission. This included a Comair complaint, which followed a settlement agreement between the Competition Commission and SAA in terms of which SAA paid a penalty of R15m.

The Matrix Vehicle Tracking, and Tracker Network -- representing over 90% of the industry --and the Vehicle Security Association of SA (Vesa) have been found to have contravened the Competition Act by setting standards which created barriers to entry. This practice has prevented competitors from entering or expanding in the market and denied consumers the benefit of lower prices, greater choice, and technological development. The tribunal found the standards had an exclusionary effect and were self-serving and irrational. The tribunal also noted that the South African Insurance Industry Association (SAIA) -- representing all the large insurers and a large part of the rest of the industry – the organisers of Vesa setting standards for the industry, did so only for its own business interests. This declaration would ideally enable a rival firm to institute civil action for damages against the respondents but no administrative penalty could be charged since the case was brought under a section of the act for which a fine could not be imposed for a first time contravention.

Masana Petroleum Solutions, an economic empowerment company - a joint venture between BP SA, the Mineworkers Investment Company and the Women's Development Business Investment Holdings is paying a R13m penalty to the Competition Commission for price-fixing. Masana was accused of intentionally forming a cartel and fixing the buying and selling of bitumen and bituminous products in SA. The company, which markets, produces and supplies petroleum products, has admitted the allegations against it. Masana divulged that it indulged in sharing competitively sensitive information relating to the pricing of bitumen and associated products and made use of a common platform to share and exchange pricing information.