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April 2019

Criminal investigation cooperation - crime scene tape

15 April 2019 - Interagency cooperation agreement between ACCC and FBI

The ACCC and US FBI have signed a new memorandum of cooperation (MOC) to 'strengthen the agencies' joint efforts in combating cartels and other anti-competitive behaviour'.

The MOC 'provides for the exchange of expertise and staff between the two agencies to enhance work in the detection, investigation and prosecution of criminal competition offences'.

See ACCC, 'ACCC and FBI sign inter-agency cooperation agreement' (15 April 2019)

 

Exchange rates

11 April 2019 - Charges laid in relation to alleged forex price fixing cartel

Criminal cartel charges have been laid 'against a money tranfer business and five individuals for allegedly fixing the Australian dollar / Vietnamese dong exchange rate and fees they charge their customers'. This relates to exchange rates and fees charged between 2011 to 2016.

Charges were filed in the Magistrates' Court of Victoria. The committal mention has been set for July 18.

See ACCC, 'Charges laid against alleged forex price fixing cartel' (Media Release, 11 April 2019).

See also:

 

Brain thinking

9 April 2019 - ACCC preparing guidelines following removal of IP exemption

The ACCC has advised that it is drafting guidelines on the application of Part IV of the CCA to intellectual property following the removal of the exemption in s 51(3) that will commence on 13 September 2019.

See ACCC update.

 

Microphone

5 April 2019 - Caron Beaton-Wells appointed to Australian Competition Tribunal

Treasurer, Josh Frydenberg MP, today announced the appointment of Professor Caron Beaton-Wells as a lay member of the Australian Competition Tribunal for a period of five years.

Professor Beaton-Wells is Director of the Competition Law and Economics Network and the Global Competition and Consumer Law Program at the University of Melbourne. She will join Mr RF Shogren, Mr R Steinwell, Dr D Abraham and Prof K Davis as the other lay members of the Tribunal which is presided over by Justice John Middleton.

See Josh Frydenberg MP, 'Appointment to the Australian Competition Tribunal' (Media Release, 5 April 2019)

See Australian Competition Tribunal website.

 

Spreadsheet and calculator representing budget

4 April 2019 - ACCC's budget

The Treasury Portfolio budget statement on the ACCC is available here (PDF).

The papers show total departmental resourcing up from $250.7 million to $285.5 million and average staffing numbers up from 964 to 1,022 (total new departmental appropriations up from $210m to $235.1m).

Expenditure in relation to outcomes and planned performance is set out from page 83 of the document (the document itself is 24 pages, with numbering forming part of a broader portfolio document).

Outcome 1: Lawful competition, consumer protection, and regulated national infrastructure markets and services through regulation, including enforcement, education, price monitoring and determining the terms of access to infrastructure services.

Performance criteria for outcome 1 is set out in Table 2.2 and includes:

Target of 6 competition enforcement interventions (court proceeding commenced, s 87B undertaking accepted, admin resolutions)

Target of 80% of merger matters considered finalised by pre-assessment

Target of 100% of authorisation applications assessed within statutory timeframes

Target of 40 Australian Consumer Law enforcement interventions

[various other consumer, regulatory and monitoring targets]

Target of 3 completed market studies and inquiries.

 

Hand  pointing at binary code

3 April 2019 - ACCC ends probe into anti-competitive behaviour by 'big four'

The ACCC has 'not found sufficient evidence' to proceed with an investigation into Deloitte, EY, KPMG and PwC over allegations of "cartel-like behaviour".

In a letter this week ACCC Chairman, Rod Sims, wrote: 'On the information before it, the ACCC has not found evidence that provides a basis to take further investigative action with respect to the allegations at this time'.

See Edmund Tadros 'ACCC ends Labor-backed cartel probe against Deloitte, EY, KPMG, PwC' (AFR, 3 April 2019) and Danny McCance, 'ACCC drops Big Four "cartel" probe' (economia, 3 April 2019).

See also Edmund Tadros and Tom McIlroy, 'The ACCC's cartel probe into Deloitte, EY, KPMG, PwC 'difficult to prove'' (AFR, 13 February 2019), Sally Whyte, 'Labor asks ACCC to investigate big four accounting firms' (SMH, 4 September 2018) and Edmund Tadros, Thom McIlroy, 'Deloitte, EY, KPMG, PwC should be probed for cartel conduct: Labor' (AFR, 3 September 2018).

 

March 2019

30 March 2019 - Labor announces it will raise maximum penalties under the CCA if elected

Labor has announced it will raise penalties for competition and consumer law breaches if elected. In a joint press release issued by Chris Bowen MP (Shadow Treasurer), Madeleine King MP (Shadow Minister for Consumer Affairs) and Andrew Leigh MP (Shadow Assistant Treasurer and Shadow Minister for Competition and Productivity), Labor referred to last year's OECD report highlighting lower penalties in Australia compared with comparator jurisdictions and announced it would address this by raising the maximum penalties available for both competition and consumer law breaches. In particular, it will:

  • 'raise the maximum dollar penalty for companies that break competition laws and rip of consumers from $10 million to $50 million' and
  • 'adopt a higher standard for competition law breaches, being 30 per cent of the annual sales of the produce or service relating to the infringement, multiplied by the number of years the infringement took place', following the EU approach (this replaces the 'three times the value of the benefit received or 10% of annual turnover in preceding 12 months ...' maximum for competition law breaches)

See Chris Bowen MP, Madeleine King MP, Andrew Leigh MP, 'Tougher penalties for competition rip offs' (30March 2019)

 

Data watching

29 March 2019 - Consumer Data Right draft rules out

The ACCC has published draft rules fo rthe Consumer Data Rights.

'The CDR will allow consumers to easily obtain access to their banking data and have it transferred to service providers who they trust.'

See ACCC, Consumer Data Right draft rules out (Media release, 29 March 2019)

Draft rules can be found here: CDR draft rules (banking)

Submissions on the draft may be made until 10 May 2019: visit consultation hub.

 

Plasterboard

28 March 2019 - ACCC approves Knauf's acquisitions of USG and AWI subject to conditions

The ACCC has announced that it 'will not oppose Knauf’s proposed acquisitions of USG and Armstrong World Industries after accepting a court-enforceable undertaking from Knauf to divest assets'.

See ACCC media release, 'Knauf's acquisitions of USG and AWI conditionally approved' (28 March 2019)

See merger register: Gebr. Knauf KG - proposed acquisition of USG Corporation and Armstrong World Industries Pty Ltd

 

Motorcycle patent

28 March 2019 - ACCC will not oppose proposed IPH-Xenith acquisition

The ACCC has announced it will not oppose the proposed acquisition of Xenith IP Group Ltd by IPH Ltd, both holding companies of IP businesses.

Last week the ACCC announced it would not oppose the prosed merger of QANTM and Xenith. It made clear it considered these as alternative mergers; no approval is given for all three to merge.

See ACCC media release, 'ACCC will not oppose proposed IPH - Xenith acquisition' (28 March 2019)

See merger register: IPH Limited - proposed acquisition of Xenith IP Group Limited

 

Celebrating victory

27 March 2019 - ACCC Global Competition Agency of the Year

The ACCC has been awarded the 2019 Government Agency of the Year at the Global Competition Review 9th Annual Awards in Washington DC.

See ACCC, 'ACCC Global Competition Agency Of The Year' (Media Release, 27 March 2019)

 

Corporate handshake

27 March 2019 - Stephen Ridgeway set to be new mergers commissioner

The Australian's John Durie reports that Stephen Ridgeway is set to replace Roger Featherston as the ACCC's merger commissioner when his term ends in June (subject to approval of the appointment from state and federal governments).

See John Durie, 'Stephen Ridgeway set to be appointed ACCC mergers commissioner' (27 March 2019)

 

Motorcycle patent

21 March 2019 - ACCC will not oppose QANTM-Xenith merger

The ACCC has announced it will not oppose the proposed merger between QANTM Intellectual Property Limited and Xenith IP Group Limited.

The merger will combine the second and third largest suppliers of IP services in Australia.

See ACCC's QANTM-Xenith media release.

See QANTM-Xenith merger register.

 

Lady Justice holding scales of justice

19 March 2019 - Country Care cartel case before Federal Court

The Country Care Group Pty Ltd, its Managing Director and a former employee were committed to stand trial last week an all of the cartel charges laid against them by the CDPP.

The first case management hearing was heard this morning before Justice Wigney. The Prosecutor was ordered to file and serve an Indictment by 14 May 2019. The matter was listed for a further Case Management Hearing at 9:30am on 2 July 2019.

A trial is to be listed for hearing to commence on 14 October 2019 with an estimated duration of 6 weeks.

For case details see my Country Care case page.

 

Lady Justice holding scales of justice

14 March 2019 - Country Care cartel case committed for trial

The Country Care Group Pty Ltd, its Managing Director and a former employee have been committed to stand trial in the Federal Court an all of the cartel charges laid against them by the CDPP.

The committal order was filed in the Federal Court today. The matter is listed for the first case management hearing before Justice Wigney next Tuesday 19 March. Justice Wigney also presided over the first criminal cartel case (CDPP v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 (involved a guilty plea))

See Podcast with James Panichi and Laurel Henning: 'Country Care cartel case resonates in Australia; New Zealand's draft privacy laws move forward' (mlex, 14 March 2019).

See also ACCC, 'Country Care cartel case committed for trial in Federal Court' (13 March 2019).

See also Christine Caulfield, 'Country Care faces trial in first criminal cartel case against Australian Company' (Lawyerly, 13 March 2019) and Michael DiFabriziio, 'Country Care to face cartel conduct charges' (Sunraysia Daily, 14 March 2019) and mlex's James Panichi on twitter..

 

Taxi

13 March 2019 - Black & White Cabs fails in bid of interlocutory mandatory injunction

Black & White Cabs made application for an interlocutory mandatory injunction requiring Regent Taxis to continue to provide it with booking and dispatch services. Questions arose as to whether there was a prima facie case of breach of contract, contravention of s 46 or contravention of s 47 of the CCA.

Justice Jackson considered that the applicant's proof to this point was not sufficient to grant the injunction; 'the balance of convenience favours not granting an interlocutory injunction until trial'.

See Black & White Cabs Pty Ltd & Ors v Regent Taxis Limited [2019] QSC 50.

See further Miklos Bolza, 'Black & White Cabs loses injunction bid in misuse of market power case' (Lawyerly, 12 March 2019) (subscription)

 

Digital advertising

12 March 2019 - Second tranche of submissions to ACCC's Digital Platforms Inquiry published and date for Final Report extended

The second tranche of submissions in response to the ACCC’s Digital Platforms Inquiry Preliminary Report are now available on the ACCC’s website. There are 27 new submissions available (on my count ...)

The Treasurer has also agreed to extend the due date for submission of the Final Report from 3 June to 30 June in response to an ACCC request.

 

Hotel room

12 March 2019 - Labor takes aim at price parity clauses for hotels

The ALP has announced that, if elected, it would ensure Australia's accommodation providers can set their own prices on personal websites, regardless of price parity clauses with online booking platforms, including Expedia and Booking.com.

See Andrew Leigh MP's media release (12 March 2019).

See also Shane Wright, 'Labor plan to boost hotels by helping them stand up to online booking giants' (The Canberra Times, 12 March 2019).

 

Surgery

8 March 2019 - Ramsay Health Care case - surgeon taped meetings

The hearing in the ACCC's misuse of market power and exclusive dealing case against Ramsay Health Care commenced on 25 February. On 8 March the Court heard that a surgeon recorded one of the meetings central to the ACCC's case:

For details see: Cat Fredenburgh, 'Doctor taped meeting where Ramsay Health unit CEO made alleged threats, trial hears' (Laywerly, 8 March 2019).

See also ACCC media release following institution of proceedings.

View case page.

 

 

Digital platform icons

4 March 2019 - Submissions to Digital Platforms Inquiry available

The ACCC has published the submissions made on the Digital Platforms Inquiry Preliminary Report.

A total of 86 submissions are available on the website.

View submissions.

 

Petrol pump

1 March 2019 - ACCC accepts variation of Woolworths fuel discount scheme

The ACCC has accepted a variation to a 2013 undertaking provided by Woolworths in relation to shopper docket fuel discount offers. The variation has been brought about by the proposed sale of Woolworths' service stations to EG Group and the variation allows Woolworths to fund fuel discounts from outside its petrol division.

There is no change to the cap on 4 cents per litre for fuel discounts linked to supermarket purchases.

See ACCC, 'Woolworths fuel discount undertaking varied' (1 March 2019).

See Woolworths Limited - variation - s.87B undertaking.

 

February 2019

Railwaytracks

28 February 2019 - Interstate rail network access undertaking revised to operate for 12 more months

The ACCC has announced that the' Australian Rail Track Corporation's 2008 interstate rail network access undertaking has been revised to operate for another 12 months'.

View ACCC, 'Interstate rail network access undertaking to continue' (28 February 2019).

View January 2019 variation of Interstate Access Undertaking.

 

Rubbish bins

28 February 2019 - ACCC does not oppose Bingo's proposed acquisition of Dial-a-Dump

The ACCC has announced it will not oppose Bingo's 'proposed acquisition of Dial-a-Dump after accepting enforceable undertakings from Bingo to divest its Banksmeadow processing facility.

See ACCC, 'Bingo’s acquisition of Dial-a-Dump not opposed, subject to divestiture undertaking' (28 February 2019)

See merger register.

 

Digital advertising

27 February 2019 - ACCC seeks further input on digital advertising

The ACCC has called for further input from the advertising industry on the digital platforms inquiry preliminary recommendations. In a speech delivered at SIms stated:

... publishers are arguing that because of the lack of transparency, advertisers don’t often know where their advertising appears online, and if they did they would be more likely to spend money with them.

We have not yet reached a view on these issues and we are continuing to examine the ad-tech supply chain with a view to understand better how it works and how this impacts advertisers.

In this we would like your help. ...

View Sims, 'Examining the impact of digital platforms on competition in media and advertising markets' (Speech at ThinkTV & ANAA Top 50 CMO Event, 27 February 2019)

See also ACCC, 'More input needed on digital advertising' (27 February 2019)

 

Rod Sims

27 February 2019 - ACCC releases 2019 priorities

In his annual address to the Committee for Economic Development Australia (CEDA), ACCC Chair, Rod Sims, launched the ACCC's 2019 Compliance and Enforcement Policy.

In relation to competition policy SIms noted the following:

  • The ACCC aims to have 2-3 criminal cartel investigations to conclude and prosecutions to commence this year. At least three significant cartel investigations are expected to be referred to the CDPP.
  • The SLC unit is aiming to take 2-3 cases to court this year (in addition to cases being pursued by other ACCC enforcement teams)
  • Misuse of market power and concerted practices will be a particular focus, with Sims expressing confidence that proceedings will be instituted under these provisions this year
  • The Financial Services Competition Branch has been established to complement the market studies team; this will include supporting the CDPP in its cartel prosecution of certain banks and bank officers commenced in 2018
  • The commercial construction sector will be a focus area, with a dedicated Commercial Construction Unit (including support for CDPP prosecution of CFMMEU)

In relation to market studies Sims referred to a number of areas, including the Digital Platforms Inquiry, and further noted that a key focus will be advancing the ACCC's work on the Consume Data Right (not actually a market study).

In relation to advocacy Sims noted key priorities included reform to unfair contract laws, prohibition on the sale of unsafe goods and continued debate about the adequacy of 'laws against companies engaging in "harsh and unfair conduct" towards consumers'. He also noted advocacy in relation to privatisation, airports and road reform, amongst other things.

Sims also expressed concern that the 'bar for establishing a likely substantial lessening of competition' may be becoming too high and that the weight given to self-interested business testimony might be trumping 'clear commercial logic'. He further suggested that there seems to be a 'current bias to excessive consolidation' and that we as 'a community ... need to question whether this is the outcome we want'.

View ACCC 2019 Compliance and Enforcement Policy (see also summary version).

View Rod Sims, '2019 Compliance and Enforcement Policy' (speech to Committee for Economic Development Australia (CEDA), 26 February 2019.

View ACCC, 'ACCC 2019 focus on consumer guarantees and anti-competitive practices' (Media Release, 26 February 2019).

 

Google

22 February 2019 - Google's turn to criticise ACCC's algorithm proposal

On Monday Facebook's Vice President of APAC Policy, Simon Milner, published a blog piece criticising the preliminary recommendation (rec 3) in the ACCC's Digital Platforms Inquiry. The recommendation is that there be a regulatory authority tasked with, among other things, assessing the impact of ranking news with the aim of identifying the effects of algorithms on production of news and journalistic content.

Now it's Google's turn - and Google agrees with Facebook that an algorithm regulator is not the way to go, but it's also keen to distinguish itself from 'social media sites': Google Australia, Our response to the ACCC Digital Platforms Inquiry Preliminary Report' (21 February 2019).

Submissions on the Preliminary Report were due last Friday (15 Feb). They are not yet available on the Inquiry website.

See Vanessa Mitchell, 'Google hits back at ACCC, says algorithm regulator risks poor outcomes' (CMO, 21 February 2019), Orlaith Costello, 'Google hits back at ACCC' (Channel news, 22 Feb 2019), Charles McConnell, 'ACCC should reconsider competitive landscape, Google says' (GCR, 21 February 2019).

 

Dollar signs

22 February 2019 - No adverse cost orders for Part IV litigation

On Monday the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 passed the House. This included repealing s 51(3) (effective 6 months after Royal Assent).

In addition, during the course of its passage several amendments were proposed by the Senate, including opposition amendment 8552 which added small business access to justice provisions. The amendment provides for assistance by the Ombudsman in relation to Part IV actions involving small business or family enterprises (via amendments to the Australian Small Business and Family Enterprise Ombudsman Act 2015) and provides for 'no adverse costs orders' in relation to Part IV actions affecting small business or family enterprises.

To facilitate the no adverse costs orders change, s 82 will be amended to allow the court to order that an applicant is not liable for the costs of the respondent, regardless of the outcome. Certain criteria must be satisfied before the court can make such an order (including that the action raises a reasonable issue for trial). The change will apply to actions brought on or after 1 July 2019.

See Hansard extract of Andrew Leigh MP discussing this amendment, including the following:

Labor's small business access to justice policy allows a small business to request a no adverse cost order when bringing on a court action for a breach of competition law. If the judge decides the case is in the public interest, the small business won't risk paying the big business's costs if they lose. As the Harper competition review concluded, 'there are significant barriers to small business taking private action to enforce competition laws.' Many commentators have noted that small business isn't scared so much of their own legal costs, but of being bankrupted by the legal costs of the other side.

 

NZ Australia map - source from Pixabay

20 February 2019 - Updates from across the ditch: NZ proposes misuse of market power effects test

The NZ government is proposing to amend the Commerce Act to introduce an effects test for misuse of market power (and to repeal certain IP exemptions). A review is open for submissions until April Fools Day ... really ...

Nick Crang (Duncan Cotterill) discusses the proposed changes here: Nick Crang, 'Changes to Commerce Act would restrict actions of firms with substantial market power' (Mondaq, 20 February 2019).

See also:

 

Pacific National train
Image: By Tjbulic (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

20 February 2019 - ACCC v Pacific National and Aurizon in court

In July last year the ACCC instituted proceedings against Pacific National and Aurizon: See ACCC's original media release (19 July 2019).

The hearing has continued before Justice Beach this week; mlex reporter, James Panichi has been following the action and reports 'grumpiness' in the Federal Court ...

See also: Christine Caulfield, 'ACCC cuts collusion claims as trial against Pacific National, Aurizon comes to an end' (Lawyerly, 15 Feb 2019).

 

IP protection

18 February 2019 - Bill to repeal s 51(3) CCA passes both houses

The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 passed the House today; it has now passed both houses. The change is scheduled to commence six months after the Act receives Royal Assent.

The House considered Senate amendments unrelated to the s 51(3) change.

View bill as passed by both houses (relevantly schedule 4).

See also 'Where to now? Longstanding IP exemption repealed in Australian competition laws' (Gilbert+Tobin, 19 February 2019)

 

18 February 2019 - ACCC newsletter: misuse of market power

The ACCC has released its second 'Competition Law Newsletter', this time focussing on Misuse of market power: the law and the ACCC's enforcement focus.

Read newsletter.

 

Facebook

18 February 2019 - Facebook not impressed with proposal for algorithm regulator

Facebook's Vice President of APAC Policy, Simon Milner, has published a blog piece criticising the preliminary recommendation (rec 3) in the ACCC's Digital Platforms Inquiry that there be a regulatory authority tasked with:

'... monitoring, investigating and reporting on the criteria, commercial arrangements or other factors used by relevant digital platforms (identified according to objective criteria reflective of influence and size) to impact:

(a) the ranking and display of advertisements (or other content when displayed alongside advertisements) with the aim of identifying whether the platforms may be discriminating in favour of their own related businesses or a business with which they have a specific commercial relationship as well as the potential competitive effect

(b) the ranking and display of news and journalistic content with the aim of identifying the effects of algorithms or other policies on the production of news and journalistic content or competition in media markets.

The regulatory authority could also refer matters to other government agencies for investigation where relevant.

...'

See Simon Milner, 'How can Facebook best support sustainable journalism in Australia?' (Facebook, 18 February 2019).

See also: Jennifer Duke, ''People not regulators should decide': Facebook slams calls for crackdown' (The Age, 18 February 2019) and Competition Lore podcast, 'What's the 'right' regulation for Facebook?' with Sam Knox, Facebook's Associate General Counsel.

 

Digital image

16 February 2019 - Sims on Digital Platforms Inquiry

ACCC Chairman, Rod Sims, delivered a presentation to the IIC Australian Chapter's Digital Platforms Inquiries Event in Sydney on Monday. A video of that presentation is now available here.

A copy of the speech is also available from the ACCC website: Sims, 'Insights and impacts of the ACCC Digital Platforms Inquiry' (11 February 2019)

See also Angela Flannery, 'ACCC Chair's insights: The Digital Platforms Inquiry' (Holding Redlich, 18 February 2019).

 

IP protection

15 February 2019 - Bill to repeal s 51(3) CCA passes the Senate after all, but with amendments

After suggesting the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 had missed out on Senate debate yet again, it magically appeared before the Senate and passed soon after 8pm last night (thanks for the heads up Brent Fisse) with amendment.

The amendments do not relate to the IP changes.

The Bill is expected to appear before the House next week.

 

Cows

14 February 2019 - ACCC does not oppose DLF Seeds' acquisition of PGG Wrightson Seeds

The ACCC will not oppose DLF Seeds’ proposed acquisition of PGG Wrightson Seeds.

See ACCC media release.

View merger register.

 

IP protection

14 February 2019 - No debate yet on bill to repeal s 51(3) CCA

The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 which will, among other things, 'remove the exemption for conditional licensing or assignment of IP rights such as patents, registered designs, copyright or eligible circuit layout rights from prohibitions on restrictive trade practices' by repealing subsection 51(3) was last scheduled for debate in the Senate on 27 November last year. It passed the House of Representatives on 17 October and was introduced to the Senate the following day.

It contains a number of measures in addition to the IP change which have been the subject or proposed amendments. The bill was listed under general business for discussion by Senator Collins today, but was later withdrawn.

Plenty of 'Treasury Laws Amendment' bills were up for debate in the Senate this week, but this one missed out, with the result that there's a fair chance it may lapse.

In the meantime, Brent Fisse has offered a helpful critique of the Bill:

Brent FIsse, 'Proposed Repeal of Section 51(3) of Competition and Consumer Act 2010 (Cth) and lack of proposed supply/acquisition agreement cartel exception' (14 February 2019)'

 

Blood

13 February 2019 - Cryosite ordered to pay more than $1m for 'gun jumping' cartel conduct

The Federal Court has ordered Cryosite to pay $1.05m in penalties for cartel conduct relating to its asset sale agreement with Cell Care. Cryosite admitted the contravention.

Following the decision, ACCC Commissioner, Sarah Court, said:

When companies jump the gun and coordinate or integrate competing businesses before finalising an acquisition between them, this can lead to permanent structural change in the market

Such cartel behaviour, which had the effect of ‘gun jumping’, undermines the effective functioning of the ACCC and the merger process

We want to be clear that parties to a transaction must remain independent and continue to act as competitors, even after they have signed a business or share sale agreement, until the deal is completed.

On this issue of penalty Justice Beach observed:

[49] ... the penalty to be imposed for cartel conduct of the kind I am considering ahead of a proposed sale or its completion needs to be sufficiently high to deter businesses who may otherwise be able to circumvent the proper application of s 50 and its associated divestiture remedy or at the least render less effective or nugatory such a remedy.

[50] Further, any penalty must be sufficient to overcome the broader incentives to businesses to prematurely coordinate or integrate their businesses ahead of the completion of a sale in a manner which has an anti-competitive purpose or effect. ...

 

In this case, although the penalty imposed was just over 10% of the maximum available for the contravention, Justice Beach observed that, in light of the size and financial position of cryosite, the penalty 'could not reasonably be regarded as an acceptable cost of doing business, and could be expected to render any risk/benefit analysis materially less palatable to other potential wrongdoers.' (para 88).

See ACCC, 'Cryosite to pay $1.05m for 'gun jumping' cartel conduct (13 Feb 2019).

See ACCC v Cryosite Ltd [2019] FCA 116 (13 February 2019).

See also Annalisa Heger, 'ACCC succeeds in first merger 'gun-jumping' cartel prosecution' (HSF, 18 February 2019)

 

Digital platform icons

13 February 2019 - Katharine Kemp discusses digital platform advertising in latest Competition Lore podcast

Dr Katharine Kemp discusses the key findings and recommendations contained in the ACCC's preliminary report for the Digial platforms inquiry in Episode 20 of the Competition Lare podcast ('Platforms, ads and the media?').

 

Hand  pointing at binary code

13 February 2019 - ACCC requests information from accounting firms over 'cartel-like' behaviour

The AFR is reporting that the ACCC has requested information from the big four accounting firms (Deloitte, EY, EPMG and PwC) regarding 'the way they sell audit and consulting services'.

See Edmund Tadros and Tom McIlry, 'Deloitte, EY, KPMG, PwC probed by ACCC over cartel conduct' (AFR, 13 February 2019).

See also Edmund Tadros and Tom McIlroy, 'The ACCC's cartel probe into Deloitte, EY, KPMG, PwC 'difficult to prove'' (AFR, 13 February 2019)

See further Sally Whyte, 'Labor asks ACCC to investigate big four accounting firms' (SMH, 4 September 2018) and Edmund Tadros, Thom McIlroy, 'Deloitte, EY, KPMG, PwC should be probed for cartel conduct: Labor' (AFR, 3 September 2018).

 

Digital platform icons

11 February 2019 - Sims on the Digital Platforms Inquiry

ACCC Chair, Rod Sims, has delivered a speech to the International Institute of Communications this morning entitled 'Insights and impacts of the ACCC Digital Platforms Inquiry'. Sims discusses some of the issues being explored in the Digital Platforms Inquiry, particularly in relation to news and journalism.

View speech.

See also John McDuling, 'ACCCs Rod Sims to maintain pressure on Google and Facebook' (SMH, 11 February 2019), Max Mason, 'Google and Facebook need to take more responsibility for future of journalism, ACCC boss Rod Sims says' (AFR, 11 February 2019) and Amanda Meade, 'Regulation needed to save Australian journalism from Facebook and Google, watchdog says' (The Guardian, 11 February 2019).

 

Garmin on bike

7 February 2019 - Court dismisses application for summary judgment by Garmin

Justice Derrington in the Federal Court has given leave to B&K Holdings (Qld) Pty Ltd to amend its statement of claim and has dismissed Garmin's application for summary judgment.

B&K Holdings allege contraventions by Garmin Australasia Pty Ltd of s 46 (post-Harper, in the form of predatory pricing), s 45, 47 and also allege misleading or deceptive conduct.

In the course of his judgment Justice Derrington spent some time discussing principles around predatory pricing in section 46, including whether or not it is necessary that products be sold below 'avoidable cost'.

A case management hearing is listed for 26 February.

See B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64

 

Qantas plane

7 February 2019 - ACCC investigating Qantas' completed acquisition of an interest in Alliance Airlines

The ACCC has commenced an informal review of Qantas' completed acquisition of a 19.9% interest in Alliance Aviation Services Ltd to assess whether there has been a breach of section 50 (merger provision). The issues will be contained in a market inquiry letter (not yet published on the merger register). Submissions are due by 4 March 2019.

View merger register.

 

Shipping containers

7 February 2019 - ACCC, NCC and Port of Newcastle regulation

Matthew Stevens has an opinion piece in today's AFR discussing what he describes as the 'NCC's staggeringly wrong-headed draft conclusion that the [ACCC's] oversight of the world's biggest coal port should be revoked' and the ACCC's response (published Wednesday) to that conclusion.

See Matthew Stevens, 'The ACCC and NCC slug it out over Port of Newcastle regulation' (AFR, 7 February 2019). See also Matthew Stevens, 'Competition tsars go to war over Newcastle port regulation' (AFR, 19 December 2018)

For more detail see:

  • Submissions to NCC (including ACCC submission dated 6 Feb 2019)
  • The NCC's 'Statement of Preliminary Views' on Port of Newcastle's application to the NCC to recommend revocation of the declaration of the shipping channel service at the Port of Newcastle (published on 19 December 2018).

 

Wheat

7 February 2019 - ACCC seeks views on regulation at GrainCorp's Portland bulk grain terminal

The ACCC has 'released an issues paper seeking views on whether to exempt GrainCorp Operations Limited (GrainCorp) from certain parts of the [mandatory Port Terminal Access (Bulk Wheat) Code of Conduct] at its port terminal facility at Portland.'

Submissions are due by 28 February 2019.

View media release.

View issues paper and GrainCorp's submission.

 

Train and signals

7 February 2019 - ACCC discontinues Siemens Alstom merger review

The ACCC has discontinued its review of the proposed Siemens Alstom merger in light of the European Commission's (EC) decision to block the transaction and the statements by the merger parties that the deal is off.'

The ACCC had previously expressed concerns about the merger and issued a statement of issues on 6 September 2018.

See media release.

See merger register.

 

Candle

1 February 2019 - Vale Professor Maureen Brunt AO

I was saddened to learn of the passing this week of former Competition Tribunal Member and economist, Professor Maureen Brunt AO.

The ACCC has issued a media release acknowledging Professor Brunt's role as 'one of Australia's most influential competition economists and academics ... instrumental to the development of our competition policy and law framework.'

View media release.

 

January 2019

Mobile phone

22 January 2019 - ACCC suspends review timeline for proposed TPG-Vodafone merger

The ACCC today suspended its merger review timeline for the proposed merger between TPG Telecom Limited and Vodafone Hutchison Australia Pty Ltd, citing a delay in receiving information from the parties. The previous provision decision date of 28 March 2019 has been replaced with an expected new provisional date of 11 April 2019.

Last year the ACCC published a Statement of Issues outlining preliminary concerns about the proposed merger.

See merger register.

See also James Fernyhough, 'ACCC pushes back decision on Vodafone-TPG merger' (AFR, 22 January 2019).

 

Rubbish bins

8 January 2019 - ACCC raises concerns over Bingo's proposed acquisition of Dial-a-Dump

On 29 November the ACCC issued a Statement of Issues outlining preliminary competition concerns relating to Bingo's proposed acquisition of Dial-a Dump. Today the ACCC launched a consultation process seeking market views about whether a proposed divestment by Bingo would address potential competition concerns.

See ACCC media release.

See merger register.

 

Money - notes

6 January 2019 - Sims warns business of higher fines

In today's AFR James thomson reports on ACCC Chairman, Rod Sims', warning to the corporate sector over higher fines for misleading consumers and increased scrutiny of merger benefit claims.

See: James Thomson, 'ACCC warns 'arrogant' business sector of huge fines' (AFR, 6 January 2019)

 

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