Rakuten Kobo Inc. (variation of CT-2014-001) - Scheduling Order and Reasons for Order regarding the reference proceeding

Rakuten Kobo Inc. (variation of CT-2014-001) - Scheduling Order and Reasons for Order regarding the reference proceeding Collection Case Documents Date Filed 2014-05-14 Neutral citation 2014 Comp Trib 6 File Number CT-2014-002 Document Type Decisions Type of Application Rescission or Variation of Consent Agreement or Order (Agreements between Competitors) Section(s) of the Competition Act ss. 106 (90.1 and 105) Proceeding Number 61 Decision Content Competition Tribunal Tribunal de la Concurrence Reference: Kobo Inc. v. The Commissioner of Competition, 2014 Comp. Trib. 6 File No.: CT-2014-02 Registry Document No.: 61 IN THE MATTER OF the Competition Act, R.S.C., 1985, c. C 34 as amended; AND IN THE MATTER OF an inquiry commenced under section 10 of the Competition Act, relating to certain alleged anti-competitive conduct in the markets for E-books in Canada; AND IN THE MATTER OF the filing and registration of a consent agreement pursuant to section 105 of the Competition Act; AND IN THE MATTER OF an application under section 106(2) of the Competition Act, by Kobo Inc. to rescind or vary the Consent Agreement between the Commissioner of Competition and Hachette Book Group Canada Ltd., Hachette Book Group, Inc., Hachette Digital, Inc.; HarperCollins Canada Limited; Holtzbrinck Publishers, LLC; and Simon & Schuster Canada, a division of CBS Canada Holdings Co. filed and registered with the Competition Tribunal on February 7, 2014, under section 105 of the Competition Act. BETWEEN: Kobo Inc. (applicant) and The Commissioner of Competition, Hachette Book Group Canada Ltd., Hachette Book Group, Inc., Hachette Digital Inc., HarperCollins Canada Limited, Holtzbrinck Publishers, LLC; and Simon & Schuster Canada, a division of CBS Canada Holdings Co. (respondents) Decided on the basis of the written record Before Judicial Member: Rennie J. (Chairperson) Date of Order and Reasons: May 14, 2014 Order and Reasons signed by: Mr. Justice Donald J. Rennie SCHEDULING ORDER AND REASONS FOR ORDER REGARDING THE REFERENCE PROCEEDINGS [1] On March 18, 2014 the registration of the consent agreement in issue in this matter was stayed pending determination of Kobo’s application under subsection 106(2) of the Competition Act (RSC, 1985, c C-34). Given the outstanding stay order, at the Case Management Conference of April 16, 2014, the Tribunal suggested a hearing date in the fall of 2014 for the application, and requested the parties provide an agreed upon schedule for the hearing of the application. [2] The Tribunal has considered the draft consent schedule submitted by the parties on April 30, 2014 and correspondence from counsel for the Commissioner of May 12, 2014, in light of subsection 9(2) of the Competition Tribunal Act, RSC 1985, c 19 (2nd Supp.) which provides that all proceedings before the Tribunal shall be dealt with as informally and expeditiously as the circumstances and considerations of fairness permit. While the proposed schedule for hearing of the application cannot be characterized as aggressive, the parties are all represented by experienced counsel who have agreed to the timetable. [3] The Tribunal notes that the nature of 106(2) proceedings will be informed by the outcome of Kobo’s Motion to Strike and the outcome of the Reference, if it proceeds. In consequence of those decisions, the deadlines set out below may be altered. The Tribunal agrees with the joint request of the parties that the Motion to Strike be disposed of in writing. IN THIS CONTEXT, THE TRIBUNAL ORDERS THAT: The Motion to Strike: Friday, May 9, 2014 The Commissioner is to serve and file responding motion materials. May 9 – 16, 2014 Cross-examinations, if any. Friday, May 16, 2014 Kobo is to serve and file its motion record. Friday, May 23, 2014 Commissioner is to serve and file responding motion record. The Reference: Tuesday, June 10, 2014 Kobo is to serve and file a response to the Reference with a responding reference record. Friday, June 20, 2014 The Commissioner is to file his final reference record. Wednesday, June 25, 2014 Hearing of the Reference, commencing at 9:30 a.m. in the hearing room of the Competition Tribunal at 90 Sparks Street, Ottawa, Ontario, for a duration of 1 day. DATED at Ottawa, this 14th day of May, 2014. SIGNED on behalf of the Tribunal by the Chairperson. (s) Donald J. Rennie COUNSEL: For the applicant: Kobo Inc. Nikiforos Iatrou Mandy L. Seidenberg Bronwyn Roe For the respondents: Commissioner of Competition Jonathan Chaplan John Syme Parul Shah Esther Rossman Hachette Book Group Canada Ltd., Hachette Book Group, Inc., Hachette Digital, Inc. James Gotowiec HarperCollins Canada Limited Katherine L. Kay Holtzbrinck Publishers, LLC Emrys Davis Simon & Schuster Canada, a division of CBS Canada Holdings Co. Peter Franklyn