August 2019

Anticompetitive practices

The Australian Competition Authority starts a proceedings in the Federal Court against a steel manufacturer and a general manager for alleged cartel conduct (BlueScope)
Bird & Bird (Sydney)
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Bird & Bird (Sydney)
In August 2019, Australia’s competition regulator, the Australian Competition and Consumer Commission ("ACCC") commenced proceedings in the Federal Court of Australia against BlueScope Steel Limited ("BlueScope") and its former General Manager of Sales and Marketing, Mr Jason Ellis, for alleged (...)

The Danish Competition Authority informs that demolition companies and its management members payed fines after they entered into settlement agreements with the Danish State Prosecutor for Serious Economic and International Crime (G. Tscherning / Villy C. Petersen / Brandis)
Danish Competition and Consumer Authority (Copenhagen)
Denmark: Demolitions companies and management members pay fines in settlement agreements for bid rigging* Three demolition companies and three management members have entered into settlement agreements with the Danish State Prosecutor for Serious Economic and International Crime for infringing (...)

The Finnish Supreme Administrative Court rules on the scope of legally privileged material and finds that a memorandum found during a dawn raid contained a clear reference to external legal advice in the subject matter under investigation (Matkahuolto)
Bird & Bird (Helsinki)
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Bird & Bird (Helsinki)
The Finnish Competition and Consumer Authority ("FCCA") had, during a dawn raid at a company’s premises, seized a memorandum drafted by this company which, among other things, referred to the legal advice provided to the company by an external attorney. The FCCA argued that as the internal (...)

The Swiss Competition Commission fines a manufacturer of sport products for vertical price fixing with dealers (Stöckli)
Lenz & Staehelin (Zurich)
Introduction The Swiss Competition Commission (“ComCo”) fined Stöckli Swiss Sports (“Stöckli”), a Swiss manufacturer of Skis and other sport products, for vertical price fixing with its dealers with CHF 140’000. The fine was rather low, as Stöckli had filed a leniency application, albeit after ComCo (...)

The Spanish Competition Authority carries out dawn raids and decides to extend the proceedings against 11 other companies and two individuals in the consulting services market (KPMG / Everis / inter alia / Deloitte / PwC...)
Bird & Bird (Madrid)
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Bird & Bird (Madrid)
On 6 February 2019, the Spanish Competition Authority ("CNMC") opened formal proceedings against 25 consultancy companies — including, inter alia, Deloitte, PwC, and Indra — and eight individuals. This investigation was initiated in January 2017 by the Regional Competition Authority in the Basque (...)

The Australian Federal Court imposes a record fine on a shipping company guilty of cartel conduct due to the length, serious nature, and economic importance of the market (Kawasaki Kisen Kaisha)
Herbert Smith Freehills (Melbourne)
Kawasaki Kisen Kaisha Ltd (K-Line) has received the largest criminal fine imposed under the Competition and Consumer Act, after pleading guilty to criminal cartel conduct in 2018. Justice Wigney of the Federal Court stated that the penalty “should send a powerful message to multinational (...)

The Indian Competition Authority fines 51 LPG manufacturers for cartelization in withdrawing bids but does not rise the judgment to bid rigging (Hindustan Petroleum Corporation) New
Vaish Associates (New Delhi)
CCI Imposes Penalty on LPG Gas manufacturers for Cartelization in Bidding Process in tenders floated by HPCL IN 2011* By way of order dated 09.08.2019, the Competition Commission of India (“CCI/Commission”) has imposed penalty on 51 LPG manufacturers for collectively withdrawing their bids from (...)

The Australian Competition Authority starts an inquiry focusing on the practices and roles of investments funds in the water trading market (Murray-Darling Basin)
Herbert Smith Freehills (Melbourne)
The Australian Competition and Consumer Commission (ACCC) has recently commenced an inquiry into the water trading market in the Murray-Darling Basin. IN BRIEF The ACCC has commenced an inquiry into the tradeable water rights market in the Murray-Darling Basin at the direction of the Federal (...)

The EU Commission sends a statement of objection to operators of mobile telephony regarding their network sharing agreement in the Czech market (O2 / CETIN / T-Mobile)
DG COMP (Brussels)
Antitrust: Commission sends Statement of Objections to O2 CZ, CETIN and T-Mobile CZ for their network sharing agreement* The European Commission has informed Czech operators of mobile telephony O2 CZ and T-Mobile CZ, as well as the Czech telecom infrastructure provider CETIN of its preliminary (...)

The Danish Competition Authority informs that an association of camera distributors accepts fine for price coordination and information exchange (Team DS)
Danish Competition and Consumer Authority (Copenhagen)
Denmark: ”Team DS a.m.b.a., Denmark, accepts fine for price coordination and information exchange”* On 6 August 2019, the Danish association of camera distributors Team DS a.m.b.a. accepted to pay a fine of DKK 1,300,000 (€ 174,300) for coordination of prices and information exchange between the (...)

The Danish Competition Authority fines an association for photo dealers for illegal price coordination and exchange of information (Team DS)
Bird & Bird (Copenhagen)
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Bird & Bird (Copenhagen)
The Danish purchasing association for photo dealers, Team DS, has accepted a fine consisting of DKK 1.3 million for infringing the Danish Competition Act by coordinating prices and illegal information exchange. In addition to the imposition of a fine on the association itself, a fine of DKK (...)

The Australian Federal Court imposes a large fine on a Japanese shipping company for engaging in price fixing (Kawasaki Kisen Kaisha)
Bird & Bird (Sydney)
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Bird & Bird (Sydney)
On 2 August 2019, the Federal Court of Australia imposed its largest ever fine on Japanese shipping company, Kawasaki Kisen Kaisha Ltd (K-Line), for engaging in price fixing as part of an illegal criminal cartel with a number of other shipping companies between 2009 and 2012. The fine of (...)

The Indian Competition Authority fines 3 vendors bid rigging in the market for geo-enabled census of trees and concludes that the tender organizer failed to detect cartelization (SAAR IT / CADD / Pentacle / Pune Municipal Corporation) New
Vaish Associates (New Delhi)
CCI imposes penalty for collusive bidding in tender floated by Pune Municipal Corporation* By way of order dated 02.08.2019, CCI has fined SAAR IT Resources Pvt. Ltd (“SAAR”), CADD Systems and Services Pvt. Ltd(“CADD”) and Pentacle Consultants (I) Pvt. Ltd (“Pentacle”) for collusive bidding in a (...)

The Portuguese Competition Authority imposes the highest fines ever applied for a cartel in the financial sector (Lusitania / Zurich)
Portuguese Competition Authority (Lisbon)
The first cartel sanctioned by the AdC in the Portuguese financial sector has the highest fines ever applied* The AdC applied a fine totalling more than €54 million on insurance companies, board members and directors involved in the “insurer cartel”. The proceedings is now concluded with the (...)

The Portuguese Competition Authority imposes record fine of € 54 million for a cartel in the markets for insuring workplace accidents, health, and cars (Lusitania / Zürich)
Van Bael & Bellis (Brussels)
On 1 August 2019, the Portuguese competition authority (Autoridade da Concorrência, “AdC”) published a press release in which it announced that it had imposed total fines of € 42 million on two insurance companies (Lusitania and Zürich), two board members and two directors for, inter alia, (...)

The UK Competition Authority imposes a record-breaking £3.7 million fine for online resale price maintenance (Casio)
Van Bael & Bellis (Brussels)
According to a press release issued on 1 August 2019, the Competition and Markets Authority (“CMA”) imposed a fine of £ 3.7 million (approximately € 4.1 million) on piano supplier Casio Electronics (“Casio”) for online resale price maintenance (RPM). Between the years 2013 and 2018, Casio reportedly (...)

The Australian Parliament passes a repeal of subsection 51(3) of the Competition and Consumer Act 2010
Jones Day (Sydney)
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Jones Day (Sydney)
Both houses of the Australian Parliament have passed a repeal of subsection 51(3) of the Competition and Consumer Act 2010 (Cth) ("CCA"). Following the repeal, owners of intellectual property rights in Australia must comply with certain competition rules from which they previously enjoyed an (...)

Unilateral Practices

The Cyprus Competition Authority fines an undertaking for abusing its dominant position in the market of producing and presenting theatrical performances (CPC / THOC)
Trojan Economics (Nicosia)
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Introduction On 27th August 2019 the Cyprus Commission for the Protection of Competition (“CPC”) issued a decision imposing a fine of €342,221.35 to the Cyprus Theatre Organisation (“THOC”) for a violation of Section 6(1) of the Protection of Competition Law (Law 13(I)/2008), as amended (“Law”). (...)

The Mexican Competition Authority fines an airport for refusal to deal in the market for federal land transportation (Cancun Airport)
Mexican Competition Authority (Mexico City)
COFECE sanctions the Cancun Airport for refusal to deal in the market for federal land transportation* The Cancun International Airport conducted a set of actions to prevent new participants from providing services, as the only agent that can rent and grant spaces for taxi access. • The harm (...)

The UK Competition Authority invites interested parties to comment on its intention to accept commitments over an agreement that allegedly prevented the entry of a competing version in the drug fludrocortisone market (Aspen)
Bird & Bird (Amsterdam)
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Bird & Bird (London)
On 14 August 2019 the Competition & Market Authority ("CMA") invited interested parties to comment on its intention to accept commitments from Aspen over an agreement that allegedly prevented the entry of a competing version of the drug fludrocortisone in the UK. The CMA suspected Aspen (...)

The Mauritian Competition Authority orders two multinational financial companies to reduce their banking interchange fees in order to promote competition (Visa / MasterCard)
Nortons (Sandton)
Mauritius: Competition Commission orders VISA and MasterCard to lower interchange fees* On 13 August 2019, the Competition Commission of Mauritius (CCM) has, following a lengthy investigation, ordered VISA and MasterCard (Respondents) to reduce their banking interchange fees from 1% to 0,5%. (...)

The Indian Competition Authority orders investigation into multinational technology company with the aim of protecting Micro-processors importers from the company’s discriminatory practices (Intel)
Gujarat National Law University (Gandhinagar)
On 9th August 2019, the Competition Commission of India directed the Director General to carry out investigations against Intel Corporation for allegedly violating Section 3 and 4 of the Indian Competition Act, 2002 (the ‘Act’). The case in hand was filed by Matrix Info Systems Pvt. Ltd. (the (...)

The Indian Competition Authority opens investigation into abuse of dominance by microprocessor manufacturer for having a more restrictive warranty policy in India than in the rest of the world (Intel India) New
Vaish Associates (New Delhi)
CCI directs investigation into India specific warranty policy of Intel finding it potentially abusive of dominance* By way of order dated 09.08.2019, CCI has directed the Director General (DG) to undertake investigation with respect to Intel’s India specific warranty policy in regard to its (...)

The Indian Competition Authority dismisses abuse of dominance allegations because a "termination of convenience" clause meets either the "good faith" or "change in circumstances" test (Oil and Natural Gas Corporation) New
Vaish Associates (New Delhi)
By way of order dated 02.08.2019, CCI dismissed allegations of abuse of dominant position by Oil and Natural Gas Corporation Limited (“ONGC”) in the market for charter hire of Offshore Support Vehicles (OSVs) in the Indian Exclusive Economic Zone (EEZ), after a thorough investigation by the (...)

Mergers

Clearance: The French Competition Authority authorises the sale by a mobile telephone operator of exclusive control over its mobile phone equipment hosting infrastructure sites to an operator of telecommunications and broadcasting infrastructure (Iliad 7 / Cellnex)
Hogan Lovells (Paris)
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Hogan Lovells (Paris)
On 30 August 2019, the French Competition Authority (’FCA’) approved Cellnex’s acquisition of a 70% stake in Iliad 7, a subsidiary of Iliad (controlled by Mr. Xavier Niel). Iliad 7 owns all the mobile telecommunication hosting sites previously controlled by Free Mobile, a French mobile network (...)

The French Competition Authority clears a merger in the men’s clothing and footwear retail markets (SMCP / De Fursac)
Autorité de la concurrence (Paris)
Clothing and shoes* The Autorité de la concurrence clears the acquisition of the group De Fursac by the group SMCP (Sandro, Maje, Claudie Pierlot) On 24 July 2019, the group SMCP (Sandro, Maje, Claudie Pierlot brands) notified the Autorité de la concurrence of its plan to take over the group De (...)

The French Competition Authority clears a merger on the market for the transfer of professional players, which had never been defined before by decision-making practice (OGC Nice / Ineos)
Autorité de la concurrence (Paris)
Professional football* The Autorité de la concurrence clears the acquisition of OGC Nice by Ineos On 22 July 2019, Ineos notified the Autorité de la concurrence of its plan to acquire control of SASP Olympique Gymnaste Club de Nice Côte d’Azur, which manages the OGC Nice football club. By a (...)

The Indian Competition Commission clears merger of health insurer (Apollo Munich / HDFC ERGO)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
The CCI cleared the proposed merger of health insurer Apollo Munich Health Insurance Company (Apollo Munich) into HDFC ERGO General Insurance Company (HDFC ERGO). HDFC ERGO is a joint venture between HDFC and ERGO International AG. The CCI found that Apollo Munich and the HDFC Group overlapped (...)

The UK Competition Authority raises competition concerns regarding a merger in the markets of supply of IT systems used by airlines and travel agents to sell airline tickets (Sabre / Farelogix)
British Competition Authority - CMA (London)
Sabre’s takeover of Farelogix raises competition concerns* Sabre’s proposed takeover of Farelogix raises competition concerns in the supply of IT systems used by airlines and travel agents to sell airline tickets. The Competition and Markets Authority (CMA) has been investigating the proposed (...)

The Indian Government proposes to introduce an additional threshold test based on the deal size or transaction value of a transaction
Khaitan & Co (Mumbai)
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Khaitan & Co (Mumbai)
Introduction “We are all now connected by the internet like neurons in a giant brain,” these were the words of renowned theoretical physicist, Stephen Hawking, and he couldn’t have said it better. In today’s digital age, internet and technology have permeated every sphere of one’s life. Be it (...)

The Competition Commission of India issues regulatory changes to the merger notification procedure
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
In a welcome move, on 13 August 2019, amendments to the Combination Regulations were published in The Gazette of India. With effect from 15 August 2019 (India’s Independence Day), parties to notifiable acquisitions, mergers and amalgamations (collectively referred to as “combinations”) will, if (...)

The Competition Commission of India releases amendments to its regulations, introducing a green channel mechanism for mergers and acquisitions
Gujarat National Law University (Gandhinagar)
As part of the scheme of the Ease of Doing Business in India, CCI was finally able to mature its 7th set of amendment (amendment regulations 2019) to the Competition Commission of India (procedure in regard to the transaction of business relating to combinations) regulations, 2011. The new set (...)

The French Competition Authority clears, subject to remedies, the creation of a TV platform by three television channels (Salto)
Autorité de la concurrence (Paris)
Pay Television Sector* The Autorité de la concurrence clears, subject to conditions, the creation of the Salto platform by TF1, France Télévisions and Métropole Télévision (M6) Background Following a referral decision by the European Commission, TF1, France Télévisions and Métropole Télévision (...)

The EU Commission opens an in-depth investigation regarding a merger in the supply of fuels market (PKN Orlen / Lotos)
DG COMP (Brussels)
Mergers: Commission opens in-depth investigation into PKN Orlen’s proposed acquisition of Lotos* The European Commission has opened an in-depth investigation to assess the proposed acquisition of Lotos by PKN Orlen, under the EU Merger Regulation. The Commission is concerned that the merger may (...)

State Aid

The EU Commission finds that the marketing agreements concluded between a local Association for the Promotion of Touristic and Economic Flows and an airline company are illegal under EU State aid rules (Ryanair / Montpellier airport)
DG COMP (Brussels)
State aid: France to recover €8.5 million of illegal aid to Ryanair at Montpellier airport* The European Commission has found that the marketing agreements concluded between the local Association for the Promotion of Touristic and Economic Flows (APFTE) and Ryanair at the airport of Montpellier (...)

Procedures

The Higher Regional Court of Düsseldorf suspends the decision of the German Competition Authority which prevented data gathering practices from a social network company (Facebook)
Ashurst (Frankfurt)
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Ashurst (London)
On 26 August 2019, the Higher Regional Court in Düsseldorf suspended the German Federal Cartel Office’s (’FCO’ or Bundeskartellamt) decision to prevent Facebook from combining user data from various sources such as Facebook, Instagram, WhatsApp and unrelated sites that use Facebook analytics and (...)

The Higher Regional Court of Düsseldorf suspends the effect of the Competition Authority’s decision after receiving a complaint questioning the finding of an abuse of dominance in the social network market (Facebook)
Bird & Bird (Dusseldorf)
On 26 August 2019, the Higher Regional Court of Düsseldorf (“Court”) suspended the effect of the Facebook decision of the German Federal Cartel Office (“FCO”) after a complaint by Facebook questioning in particular the FCO’s finding of an abuse of a dominant market position by Facebook. Facebook had (...)

The Higher Regional Court of Düsseldorf grants a social network company the suspensive effect to an appeal in an interim decision (Facebook)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Frankfurt)
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Cleary Gottlieb Steen & Hamilton (Cologne)
In February of this year the German antitrust agency, the Federal Cartel Office, issued a decision against Facebook regarding their handling of user data. Facebook appealed and on August 26, 2019, the Düsseldorf Court of Appeal in an interim decision granted suspensive effect to Facebook’s (...)

The Higher Regional Court of Düsseldorf orders suspensive effect of an appeal against FCO decision concerning a social network company (Facebook)
Van Bael & Bellis (Brussels)
On 26 August 2019, the Higher Regional Court of Düsseldorf (the “Court”) granted Facebook’s request for an injunction against the immediate application of measures imposed by the German Federal Cartel Office (the “FCO”) arising from the FCO’s finding in February 2019 that Facebook abused its dominant (...)

The Higher Regional Court of Düsseldorf suspends an order of the German Competition Authority on an alleged abuse of dominance in the social networks (Facebook)
Baker Botts (London)
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Baker Botts (Washington)
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Baker Botts (Brussels)
On 26 August 2019, a German appeal court suspended an order of the German competition authority (the “FCO”) which had found that Facebook’s data processing practices in Germany constituted an abuse of dominance in breach of German antitrust rules (the “decision”). Expressing serious doubts as to the (...)

The US Court of Appeals for the Seventh Circuit clarifies the means by which the FTC can exercice its enforcement authority without being able to seek any restitution thereafter (Credit Bureau)
Morgan Lewis (Boston)
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Morgan Lewis (Philadelphia)
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Morgan Lewis (Boston)
Background In the Credit Bureau Center case, the FTC sued a company and its owner for advertising “free” credit reports without adequately disclosing that consumers would be enrolled in an expensive credit monitoring service on an ongoing basis. The FTC brought its lawsuit under Section 13(b), (...)

The US Court of Appeals for the Seventh Circuit denies the FTC’s authority to seek restitution (Credit Bureau)
Jones Day (Washington DC)
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Jones Day (Chicago)
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Jones Day (Chicago)
In Short The Situation: Overruling its precedent, the United States Court of Appeals for the Seventh Circuit held that the Federal Trade Commission ("FTC") may not seek restitution under FTC Act Section 13(b) because the statute, which permits the FTC to obtain injunctions, does not explicitly (...)

The Supreme People’s Court of China clears its stance on arbitration clauses and states that the jurisdiction of Chinese courts over antitrust civil disputes cannot be excluded
AnJie Law (Beijing)
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AnJie Law (Beijing)
CHINA’S SUPREME COURT ENUNCIATED THE NON-ARBITRABILITY OF ANTITRUST CIVIL DISPUTES* For a few years, the topic of whether antitrust civil disputes could be arbitrable had been hotly debated in China. There were few precedents in connection with this issue for people to better understand what (...)

The US Court of Appeals of the Eleventh Circuit rejects an undertaking’s attempt to assert state-action immunity from antitrust liability in the water services and natural gas distribution sector (City of LaGrange)
Bona Law (San Diego)
ANTITRUST NEWS: THE ELEVENTH CIRCUIT AGREES THAT THE SUPREME COURT’S PHOEBE PUTNEY DECISION REALLY DID CHANGE THE STATE-ACTION-IMMUNITY TEST FROM THE EARLIER HALLIE AND OMNI DECISIONS* The Eleventh Circuit recently rejected the City of LaGrange’s attempt to assert state-action immunity from (...)

The US DoJ holds a workshop addressing labour competition issues including "no-poach" agreements between companies New
Baker Botts (Houston)
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Baker Botts (Houston)
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Baker Botts (Houston)
A senior Department of Justice (DOJ) official recently remarked that the number of "no-poach" agreements between companies — which can include agreements not to solicit or hire a competitor’s employees — in apparent contradiction of DOJ and Federal Trade Commission (FTC) guidance was "shocking" (...)

Regulatory

The Australian Federal Parliament removes the exception in the national Competition Law Act in relation to intellectual property rights
Ashurst (Melbourne)
The federal Parliament has removed the exception in the Competition and Consumer Act 2010 (Cth) (CCA) in relation to intellectual property rights. These dealings are now subject to the prohibitions against cartel conduct and anti-competitive conduct. The repeal applies to dealings entered into (...)

The Dutch Competition Authority publishes a discussion paper suggesting ex-ante enforcement tools to deal with competition issues in the digital economy
Bird & Bird (The Hague)
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Bird & Bird (Amsterdam)
In May 2019 the Dutch State Secretary of Economic Affairs & Climate (’Ministry’) stated that she will plead in Europe for a new competence in European competition enforcement to keep digital markets accessible. One of her suggestions is to enable the competition authority to intervene in (...)

Public sector

The Competition Commission of India fines companies for bid rigging regarding a tender for the selection of an agency to carry-out tree census (Nagrik Chetna Manch / SAAR / CADD / Pentacle / Pune)
Trilegal (Mumbai)
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Trilegal (Bengalore)
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Trilegal (Mumbai)
The Competition Commission of India (CCI) recently found that SAAR IT Resources Private Limited (OP 1), CADD Systems and Services Private Limited (OP 2) and Pentacle Consultants (I) Private Limited (OP 3), collusively manipulated the process of bidding, by rigging the bids for the tender (...)

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