THE BIG CHILL - COMPETITION / ANTITRUST LAW CONSIDERATIONS IN THE INSURANCE INDUSTRY

Transcription

1 THE BIG CHILL - COMPETITION / ANTITRUST LAW CONSIDERATIONS IN THE INSURANCE INDUSTRY Jordan Solway Munich Canada Chris Hersh Cassels Brock & Blackwell LLP Matthew Boswell Competition Bureau Legal Disclaimer The views, information and content expressed herein are those of the presenters and do not necessarily represent the views of the organizations for whom the presenters work or are otherwise affiliated with. Those organizations did not participate in and take no position on the nature, quality or accuracy of such content. The information provided should not be relied on as legal or risk management advice, a definitive statement of the law in any jurisdiction or advice in respect of compliance with the Competition Act. For such advice, a listener or reader should consult their own legal counsel. 1

2 Introduction 3 Introduction Why Is This Important? The Competition Act applies with limited exceptions to all persons in Canada including businesses in the insurance industry The Competition Act prohibits a wide variety of anti-competitive conduct including collusion among competitors Where competitors collude, the legal risks are signficant and the consequences can be severe: Fines and reputational damage for the company Fines and imprisonment for the individuals involved 4 2

3 Introduction Why Is This Important? It is the allegations that the public tends to remember not the outcomes Attorney General for New York State At a time when the regulatory focus is on risk management, managing the risk of non-compliance with the Competition Act is good practice and good business The failure to effectively manage this risk can prove fatal to the organization This risk can be minimized through the use of a competition law compliance program 5 Introduction Recent Examples Re Insurance Antitrust Litigation, 938 F.2d 919 (9th Cir. 1991), aff d in part and rev d in part, 509 U.S. 764 (1993) 19 states and various private parties brought antitrust suits against domestic insurers, domestic and foreign reinsurers and insurance brokers who had agreed to boycott general liability insurers using non-conforming forms: Hartford and other primary insurers exerted pressure on the ISO to withdraw its occurrence-based CGL form; they later enlisted a number of domestic and foreign reinsurers who refused to provide reinsurance to any primary carrier who continued to use the ISO form 6 3

4 Introduction Recent Examples (con t) The reinsurers also agreed to boycott reinsurance and insurance policies for the US property seepage and pollution exposures This was memorialized in the Non-Marine London Market Agreement 1987 The RAA created a committee to force revisions of the ISO forms of CGL insurance and ultimately agreed to boycott the form and not provide reinsurance for coverage written on the specific form 7 Introduction Recent Examples (con t) Class action was settled for US$36M, along with an agreement to implement 3 major industry changes: Restructuring the ISO to increase control and involvement by those outside of the industry; Creating a public risk service institute to provide risk management services to state and local governments; and Developing a database to provide insurance risk information to government bodies. 8 4

5 Introduction Recent Examples (con t) November National Competition Commission (CNC Comisión Nacional de la Competencia) in Spain imposed its highest fine ever (US$180M) against 6 European insurance/reinsurance companies for fixing prices on building defect coverage: Under a Spanish law passed in 2002, builders of residential properties were required to take out a 10-year insurance policy for repair costs of any structural defect (new home warranty) It was alleged that 5 of the companies set minimum premium rates they would charge builders and also fixed the rates that the insurers would pay reinsurers accepting a portion of the risk 9 The Panel Matthew Boswell, Acting Senior Deputy Commission of Competition, Criminal Matters Branch, Competition Bureau Matthew joined the Bureau in January 2011 as the Associate Deputy Commissioner in the Criminal Matters Branch. Prior to joining the Bureau, Matthew was Senior Litigation Counsel for the Enforcement Branch of the Ontario Securities Commission ( OSC ). At the OSC, he represented staff of the Commission before various levels of courts in Ontario, as well as before the Securities Commission. Prior to joining the OSC, Matthew was a Crown Attorney with the Ministry of the Attorney General of Ontario for seven years and he conducted criminal prosecutions of all types. Chris Hersh, Partner, Cassels, Brock LLP Chris Hersh is a partner in the Competition, Antitrust & Foreign Investment Group and has considerable experience advising clients on all aspects of competition law, including mergers and acquisitions, criminal matters, abuse of dominance, misleading advertising, as well as pricing and distribution issues. Additionally, Chris advises clients regarding foreign and cultural investment review.. Additionally, Chris is the co-chair of the International Bar Association s Antittrust Litigation Working Group. Chris has been adjunct professor at the University of Western Ontario Law School and a guest lecturer at the Osgoode Hall Law School LL.M. program.chris is recognized internationally as a leading Canadian competition lawyer by Chambers Global and Global Competition Review He was also selected as one of Lexpert's Rising Stars: Leading Lawyers Under 40 in

6 Background What is the Competition Act? A federal law of general application that applies to virtually all businesses in Canada Administered and enforced by the Competition Bureau An independent law enforcement agency which ensures that Canadian businesses prosper in a competitive and innovative marketplace Headed by the Commissioner of Competition 11 Background What is the Competition Act? (Con t) The purpose of the Competition Act is to maintain and encourage competition in Canada to: Promote the efficiency and adaptability of the Canadian economy; Expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada; Ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy; and Provide consumers with competitive prices and product choices 12 6

7 Background What is the Competition Act? (Con t) The Competition Act protects competition not competitors The Competition Act does not prevent or limit aggressive competition among competitors provided that it is not abusive Better products and services Better pricing 13 Background Regulatory Framework The Competition Act achieves its objectives through 3 mechanisms : 1. Establishes criminal offences that can be investigated through broad investigatory powers (search warrants, production orders and wiretaps) and can result in significant penalties 2. Establishes a range of civil reviewable practices that provide for remedial orders and, in some cases, administrative monetary penalties Conduct is presumptively lawful only prohibited if it results in a substantial lessening of or an adverse effect on competition Private parties can initiate proceeding under certain provisions 3. Establishes a private right of action so that victims of certain anticompetitive conduct can recover damages Conduct contrary to criminal provisions Failure to comply with a Competition Tribunal or court order 14 7

8 Background Addresses 3 main threats to fair and efficient competition: 1. Anti-Competitive Business Practices Price maintenance Abuse of dominance Refusal to deal Exclusive dealing/tied selling/market restriction 2. Anti-Competitive Mergers Pre-merger notification required if certain thresholds are exceeded Bureau can review all mergers to determine if they are likely to prevent or lessen competition substantially Tribunal cannot make an order in respect of a merger under the Insurance Companies Act if the merger is certified by the Minister of Finance as being in the public interest 15 Background Addresses 3 main threats to fair and efficient competition (con t): 3. Anti-Competitive Agreements Between Competitors Criminal provisions prohibit agreements to fix prices, allocate markets, restrict output and rig bids These agreements constitute naked restraints No requirement that they affect competition per se illegal Civil provision applies to other forms of competitor collaborations that prevent or lessen competition substantially Competition Bureau s approach to these provisions described in Competitor Collaboration Guidelines Intended to improve transparency and predictability Do not replace guidance from legal counsel 16 8

9 Conspiracy Offences Section 45 of the Competition Act Section 45 is the primary cartel/conspiracy provision of the Competition Act. Section 45 was amended in March 2010 to remove the element of undueness It is now a per se criminal offence for two or more competitors or potential competitors conspire, agree or arrange to fix prices, allocate markets, or restrict output. Per se means that the conduct need not result in a negative impact on competition This offence is known as a conspiracy, and is punishable by a fine of up to $25 million, imprisonment for up to 14 years, or both. 17 Conspiracy Offences Limited Statutory Defences and Exceptions Ancillary Restraints Defence Regulated Conduct Doctrine Agreements between Affiliates Certain Agreements between Federal Financial Institutions Export Agreements Specialization Agreements 18 9

10 Conspiracy Offences Ancillary Restraints Defence The criminal provision is reserved for agreements between competitors to fix prices, allocate markets, or restrict output that have no redeeming/legitimate aspects (often referred to as naked restraints) The Bureau recognizes that some desirable/legitimate business transactions require explicit restraints on competition to make them efficient or even possible. To qualify for this defence: The restraint must be ancillary" to a broader or separate agreement that includes the same parties; The restraint must be directly related to and reasonably necessary for giving effect to the objective of the broader or separate agreement; and The broader or separate agreement must itself be legal. When the ancillary restraints defence applies, the conduct is more appropriately reviewed under the civil provision, which considers the competitive impact 19 Conspiracy Offences Regulated Conduct Doctrine Applies to conduct which may be regulated by another federal, provincial or municipal law or legislative regime It is the Bureau's view that a cautious application of the RCD is warranted The Bureau will not necessarily approach conduct regulated by provincial laws in the same manner as conduct regulated by federal laws The Bureau s approach is described in its Information Bulletin on Regulated Conduct 20 10

11 Conspiracy Offences Trade Associations Important for trade associations to be aware of the Competition Act and the potential risks arising from their activities Activities of trade associations can be pro-competitive in nature and contribute to efficient markets Need to ensure that trade associations do not become a conduit for competitors to agree on competitively-sensitive matters or inappropriately share competitively-sensitive information 21 Conspiracy Offences Trade Associations Sharing of non-public information between competitors through a trade association may facilitate collusion if: It includes information on actual prices charged to a particular customer, future pricing, business plans or other competitively-sensitive topics; The information facilitates the division of the market between competitors; The information is not available on fair and non-discriminatory terms to all competitors; or The sharing of information through the trade association is used as a mechanism to facilitate problematic agreements

12 Federal Financial Institutions Federal financial institutions include companies or societies to which the Insurance Companies Act applies Certain agreements between federal financial institutions are subject to section 49 of the Act rather than section 45 Rate of interest on a deposit Rate of interest on charges on a loan Amount or kind of any charge for service provided to a customer Kind of service to be provided to a customer Person or classes of persons to whom loans or services will be provided or withheld Punishable by a fine of up to $10 million, imprisonment for up to 5 years or both Other agreements between federal financial institutions are subject to section 45 of the Act The purpose of section 49 is to protect the broad public interest in preserving a competitive environment for basic financial instruments and services 23 Bid Rigging Offences Criminal offence for two or more bidders to: Agree on the bids submitted Agree that one party will refrain from bidding Agree that one party will withdraw a submitted bid Does not apply where the agreement is made known to the party calling for bids at or before time bids are submitted But can still be subject to general conspiracy provisions No requirement to show an effect on competition per se illegal Punishable by a fine at the discretion of the court, imprisonment for up to 14 years, or both In April 2013, a $30 million fine was imposed under the bid-rigging provisions 24 12

13 Investigation and Enforcement Procedures Once the Bureau has reason to believe that an offence has been committed, it has many powers to compel information: Section 11 orders requirement to produce documents, attend examinations or provide narrative responses Search warrants Wire taps (used specifically with respect to cartels) Failure to comply can result in significant penalties Fines in the discretion of court Imprisonment for up to 10 years 25 Bureau Letters Sent to potential targets of investigations requesting voluntary compliance Purpose of letter is put the party on notice of the investigation and encourage the party to stop the anti-competitive conduct Letters have no legal effect but are often triggered by: Complaint by third party in the industry; Investigation in a foreign jurisdiction; or Immunity application in Canada

14 Immunity and Leniency Programs Cartel conduct is, by its very nature, very difficult to detect The Bureau s Immunity and Leniency programs are its most important tools for detecting, investigating and prosecuting cartel offences Provide significant incentives for parties to self-report cartel conduct and cooperate with the Bureau Most investigations begin as a result of an immunity request. Declining benefits create a race to the door (really the phone) the earlier in the better Bureau makes recommendations to the Public Prosecution Service of Canada 27 Immunity and Leniency Programs Requirements for Immunity Person is first to disclose offence to the Bureau Person has terminated anti-competitive conduct Person has not coerced others Person provides complete, timely and ongoing cooperation at own expense Requirements for Leniency Person discloses an offence to the Bureau Person has terminated anti-competitive conduct Person provides complete, timely and ongoing cooperation at own expense Person agrees to plead guilty 28 14

15 Competition Law Compliance Programs Compliance programs can minimize the risk of issues arising under the Competition Act Compliance programs should be credible and effective Credible - demonstrate a company s commitment to conducting business in conformity with the law Effective - informs employees about legal duties, the need for compliance with internal policies and procedures, and the potential costs of noncompliance with the law Should provide practical guidance so employees have a sense of what they can or can t do 29 Competition Compliance Programs Basic requirements of credible and effective compliance programs: Senior management involvement and support Corporate compliance policies and procedures Training and education Monitoring, auditing and reporting mechanisms Consistent disciplinary procedures and incentives The Bureau s Information Bulletin on Corporate Compliance Programs includes relevant tools, including a compliance program framework A company s failure to enforce its own compliance program will be viewed as an aggravating factor if it engages in problematic conduct 30 15

16 Class Actions Section 36 provides a right to claims damages in respect of violations of the criminal provisions or breach of Tribunal or court order Typically follows a guilty plea or finding of liability Can use evidence of a guilty plea/finding of liability For both proof of conduct and possibly damages BC, Quebec and Ontario are the most common jurisdictions Very costly and time-consuming to defend Extremely active plaintiff bar 31 U.S. Regime Federal Sherman Act has been subject to statutory pre-emption under McCarran-Ferguson Act Enacted in response to United States v. South-Eastern Underwriters Ass n, a 1944 US Supreme Court decision which sustained a criminal antitrust indictment of a rating organization. The Court rejected the argument that insurance was not interstate commerce As a result, the insurance industry has not been subject to the same antitrust or competition regulatory oversight in the US as other industries 32 16

17 Questions?? 17