Archive for the ‘Competition’ Category

Return of RRPs to the electrical goods sector

Friday, February 3rd, 2012

The Competition Commission has revoked the Domestic Electrical Goods Order having concluded that increased competition (as well the fact that some of the affected goods are now obsolete!) removed the need for it.

The order addressed competition concerns dating back to 1997 in relation to certain types of white and brown goods and prohibited recommended resale prices (RRP) by suppliers and, except in limited circumstances, a refusal to supply goods to any retailer.

Time will tell whether there is a move back to RRPs and to more use of selective distribution. However, it seems unlikely that the revocation of the order will change the competitive nature of the sector and, of course, suppliers and retailers will continue to need to ensure that they comply with both UK and EU competition law.

Matthew Woodford

Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com

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Historic bribery case lands court clerk behind bars

Friday, November 18th, 2011

Munir Yakub Patel, an administrative clerk, made legal history today after being handed a three-year prison term for bribery and ordered to serve six years concurrently for misconduct in a public office.

Patel pled guilty on October 14 this year to requesting and receiving a bribe intending to improperly perform his functions, contrary to Section 2 of the Bribery Act. Patel was charged in relation to his employment at Redbridge Magistrates Court and was the first person charged since the Act came into force.

The imposition of a prison sentence for a relatively minor instance of bribery shows very clearly that the Act will not just be used against big corporates and sends a powerful message to individuals and smaller businesses. If businesses have not yet put in place suitable procedures to ensure compliance with the Act then this case should serve as a reminder as to why they need to so. The threat of unlimited corporate fines and prison for employees is very real.

Matthew Woodford

Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com

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Posted in Commercial contracts, Competition, In-house Lawyers, Public Sector, Regulatory | No Comments »

Google increases patent arsenal

Monday, September 19th, 2011

With its recent acquisition of 1,023 patents from IBM, Google now owns approximately 20,000 patents.

Previously, Google has lagged behind its competitors in developing a substantial patent portfolio and, as a result, has been seen in some quarters as vulnerable to patent infringement litigation. However, following its acquisition of Motorola Mobility in August, and the recent acquisition of patents from IBM, Google has put itself in a position where it could respond to infringement threats with its own ‘cold war’-like threat of mutually assured destruction. Alternatively, Google may be plotting its own infringement claim offensive.

Patents are increasingly the weapon of choice for technology companies looking to maintain a competitive edge. A potentially beneficial result of this is that the need to avoid a competitor’s patents may sometimes promote innovation and create new patentable technologies.

In the meantime, no comfort is given to smaller companies, which may struggle to afford the costs of ensuring that their innovative ideas do not infringe the patent portfolios of the technology “super-powers”.

Posted by Ryan Harrison, who specialises in intellectual property agreements and disputes, licensing, commercial contracts, and commercial and intellectual property issues arising from M & As and disposals.

Ryan Harrison

Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com

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Posted in Competition, Intellectual Property, IT Contracts, Licensing | No Comments »

Premier league football – wrong decision which undermines the beautiful game!

Thursday, February 3rd, 2011

Today Advocate General Julian Kokatt ruled that any broadcast receiving equipment could be used to receive premiership football games. The decision looks like a victory for pub landlady Karen Murphy who was convicted in 2007 for the fraudulent reception of transmissions which she had received using a Greek satellite receiver. The AJ ruled that the restriction on using “foreign” receivers breached european competition laws.

If this decision is upheld it will have serious detrimental effects on the investment in the game at every level in the UK. More fundamentally it cuts across the fundamental right of a rights holder such as the Premier League to package and licence those rights on a country by country basis. If the decision is upheld by the ECJ the result may well be higher prices for all consumers across Europe which will occur as a result in the inevitable reduction (and amalgamation) in the number of european broadcasters licensed to transmit premiership football. Ironically this is something that Brussels had originally encouraged the industry to avoid!

Posted by Declan Cushley, who specialises in intellectual property dispute resolution involving infringement and validity of patents, trade marks, designs and copyright, as well as reputation management and domain name disputes.

Declan Cushley

Declan Cushley
0121 237 3993
dcushley@brownejacobson.com

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Posted in Competition, Intellectual Property | 1 Comment »

Safeway fails to get liability shifted

Friday, January 21st, 2011

Following an investigation by the Office of Fair Trading (OFT), beginning in 2005, it was found that Safeway had been guilty of anti-competitive practices in relation to the purchase of dairy products. The OFT has indicated that the financial penalty could be in excess of £10M.

Safeway (now owned by Morrisons Plc) brought a claim (Safeway Stores Limited v Twigger) against its directors (who sat on the board at the time of the anti-competitive practices) seeking an indemnity from the directors for any financial penalties that they may have to pay.

The Court of Appeal found that the liability for any financial penalty imposed under the Competition Act 1998 was “personal” to the undertaking. The Court emphasised that penalties under the act impose liability on the undertaking itself and it was not the case that the undertaking was vicariously liable for actions of its directors and employees.

Overall, a good decision for directors and their insurers.

Posted by Gordon Monaghan , who specialises in commercial dispute resolution nd professional negligence defence work; advises on contentious corporate matters, approaches to restrictive covenants and general contractual disputes.

Gordon Monaghan

Gordon Monaghan
0115 976 6554
gmonaghan@brownejacobson.com

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Countdown to the Bribery Act

Friday, January 14th, 2011

With only three months to go before the Bribery Act 2010 comes into force in April the Government has decided that it wants the Act to be reviewed. Unfortunately for UK businesses this does not mean that they can breathe a sigh of relief as an official from the SFO has already said that the review will be ‘limited’, despite headlines in the press.

The review follows escalating fears that the Act is so burdensome it could affect UK economic growth, and that UK business chiefs could end up in court after inadvertently committing an offence with a potential maximum sentence of 10 years.

However the Government needs to be cautious. Watering down the Act now would ruin the reputation the UK has earned itself, as the least corrupt country in the world, by implementing the Act in the first place. The Government should concentrate on issuing coherent, useful guidance for companies and ensuring that authorities deal with potential breaches of the Act in a sensible and proportionate way.

Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.

Fiona Carter

Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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Posted in Advertising & Marketing, Brands, Competition, Manufacturing | No Comments »

The Bribery Act

Friday, December 3rd, 2010

The new offence, which comes into force in April 2011, of “failing to prevent bribery” is a particular concern for businesses. This week there has been a discussion as to whether EU procurement rules, which could ban convicted companies from bidding for large public contracts if the company has been convicted of a bribery offence, will be disapplied in circumstances where despite a management failure to prevent bribery, there was no intention to commit an offence.

The Law Society recently published its response to proposed guidance on ‘adequate procedures’ a company needs to take to prevent persons associated with them from engaging in bribery. They make a number of recommendations and state they are ‘concerned that, particularly for smaller firms, the lack of practical guidance will make putting in place adequate procedures difficult’.

The Bribery Act is undoubtedly a step forward in reducing corruption in business transactions, however many businesses are concerned that without clear, practical guidance UK firms will be at a competitive disadvantage.

Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.

Fiona Carter

Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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CSR challenges for public procurement

Wednesday, October 20th, 2010

Today’s CSR sets out the Government’s belief that it should not be the default provider of important services, which is indicative of the Government’s decentralisation plans.

The challenge for procuring bodies will be in:

  • getting to grips with proposed new models of contracting;
  • understanding and implementing effective tariffs;
  • navigating the joint commissioning landscape;
  • meeting targets for service delivery from various types of organisation;

Whilst all the time remaining compliant with procurement law.

Not all of these challenges are new. However, the wide ranging reforms to Government on the ground will throw the joint commissioning tendering model into the spot light, with emphasis on the legality of and robust arrangements needed to really deliver contracts which harness the Government’s buying power and deliver value for money without damaging service delivery.

Posted by Rachel Williams, who specialises commercial contracts, projects, competition law, procurement and state aid; clients include NHS bodies, local authorities, RDAs and national and international private sector clients.

Rachel Williams

Rachel Williams
0115 976 6538
rwilliams@brownejacobson.com

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Posted in Commercial contracts, Competition, Comprehensive Spending Review, Public Sector | No Comments »

Cheaper Cigarettes?

Friday, March 12th, 2010

The European Court of Justice has just handed down three rulings holding that Irish, French and Austrian laws that fixed minimum retail prices for cigarettes infringed EU law. 

Arguments by all three countries that the laws were necessary to protect public health were unsuccessful. 

The cases concerned the interpretation of a specific European Directive that harmonises national excise duties on tobacco products rather than the application of EU competition rules.  However, the Court considered that a minimum retail price for cigarettes could undermine competition between manufacturers and importers of cigarettes. 

The cases serve as a useful reminder that the EU legal system will strive to protect price competition and that other legitimate public policy concerns are unlikely to succeed in overriding this principle.  No doubt followers of the debate on minimum alcohol prices will be taking note. 

Of course the question that all smokers in Ireland, France and Austria will want to know is whether this means that their cigarettes will be cheaper.  We’ll have to wait and see but the Court made it clear that the Directive in question does not prevent the countries from protecting public health by increasing taxation on cigarettes.   It simply prevents the imposition of a minimum retail price. 

I suspect that this means that the tax man rather than the smoker will be the winner!

Matthew Woodford

Posted by Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com

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Breached competition law? Sue your employees!

Tuesday, January 19th, 2010

The High Court has cleared the way for companies in the Safeway Group to seek damages from eleven ex-employees and directors in relation to an OFT penalty (yet to be imposed) for competition law breaches.  The penalty could be as high as £16.4 million. 

Safeway is alleging that the ex-employees were in breach of their employment contracts and fiduciary duties, that they were negligent and that they conspired to procure the companies’ participation in anti-competitive practices. 

The ex-employees argued that the claim should be struck out on public policy grounds and, in particular, the rule that a person who commits an illegal act or unlawful act cannot seek an indemnity for any consequent liability (ex turpi causa non oritur action).  They argued also that the claim is fundamentally inconsistent with the UK competition law regime. 

The High Court rejected the application to strike out the claim on the basis that Safeway has a “real prospect” of defeating the defences at trial. 

The concept of companies suing employees is not new but it is new in the field of competition law.  We must now wait to see if Safeway is successful at trial once all of the evidence has been considered.  If it is then it will signal further personal risk for employees who engage in anti-competitive practices.  The result will surely be that employees demand more and more guidance on what they can and cannot do.  Compliance officers and in-house legal departments can expect their phones to be busy!

Matthew Woodford

Posted by Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com

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