Thursday, 12 September 2019
Volume 47, Part 3 of the ABLR has just come out. Four excellent articles and a timely section note: * Utmost Good Faith and Accountability in the Spotlight of the Banking Royal Commission – Time to Revisit the Scope, Applicability and Enforcement of the Duty by Julie-Anne Tarr, Jeanette Van Akkeren, Amanda-Jane George and Sue Taylor * Blowing the Whistle: A Critical Analysis of the Treasury Laws Amendment (Enhancing Whistleblowing Protections) Act (Cth) 2019 by David A Chaikin * A Game-changer or a Routine Drill? Cooperation in the Indo-Pacific Securities Markets by Sonia Khosa * The “National Interest” and Australian Agriculture by Leopold Oscar Bailey * Australian Competition and Consumer Commission v Pacific National Pty Ltd (No 2)  FCA 669: Access Undertaking Derails ACCC Case Under S 50 by Brent Fisse
I think the ACCC may have missed the boat on this one. A few years ago, the banks started effectively closing down most of the small ethnically based FX dealers. It was common in many ethnic communities for there to have been between 10 - 20 FX brokers running their businesses at very low margins. They saw the provision of FX services as more of a community service rather than a money making venture.
The banks started closing down these operations under the guise of anti-money laundering and anti-terrorism laws. I recall that virtually all Nepalese FX dealers in Australia had to close down because the banks refused to deal with them. It was particularly problematic as Nepal was at that time trying to rebuild after the Gorkha earthquake. I was also puzzled by this as I have never associated Nepal with global terrorism! Having said that, maybe it isn't too late for the ACCC to go back and investigate the conduct of the big banks under section 46 the misuse of market power provisions.
I've been thinking about the legal position of the former franchisee if a prospective franchisee approaches them to ask for what could be considered business and financial advice about a franchise system. Could the former franchisee be liable for their advice, even if given gratuitously? I think that is a definite possibility, which then raises the question of whether former franchisees should refuse to provide any assistance unless they get some form of waiver from the prospective franchisee. I am also wondering whether the ACCC is effectively encouraging franchisors to transfer risk from themselves to former franchisees. The ACCC needs to think through these legal issues before encouraging prospective franchisees to approach former franchisees for business advice.
Another shipping company has been charged over the alleged ro-ro cartel - Wallenius Wilhelmsen. Interesting to see if they decide to fight the case or settle. The main thing to avoid is that bizarre half way house between an immediate guilty plea and a fight to the end which inevitably results in a low cooperation discount and a very high criminal fine. Given that two companies have already tapped the mat on this cartel , you would think that a guilty plea is likely.
Big changes ahead for the franchising sector, including potentially a new "single body to manage franchising disputes through mediation or mandatory arbitration which could be funded through a levy paid by the franchisors". I think that is a good idea, particularly as I suggested that idea in my own submission to the Franchising Enquiry (although admittedly I was not the only one to make that suggestion!)
I recently had a look at the penalty decision in the Birubi Art case. While Birubi Art Pty Ltd was in liquidation and will not pay one cent of the $2.3 million penalty, the penalty figure arrived at was an absolute nonsense. Birubi's turnover in the 2018 financial year was measly $223,976 (para 95). That means the penalty imposed in the case was 10 times Birubi's annual turnover! Cases like this do not help anybody, particularly legal practitioners, in trying to make sense of the appropriate penalties which should be imposed in Australian Consumer Law matters.
This has to go down as one of the most embarrassing court losses by an Australian regulator. ASIC and Westpac go to the Federal Court with a done deal - Westpac admits to breaches of the responsible lending laws and agrees to pay a penalty of $35 million. Justice Perram throws out the settlement because the agreed facts were not specific enough. He asks two fairly pertinent questions - (1) How did Westpac break the law? and (2) How many times did Westpac break the law? It appears that ASIC could not answer either of these questions to Justice Perram's satisfaction. ASIC is then forced to run the case and loses the case. Not too sure who should be more embarrassed - ASIC or the lawyers who advised Westpac to settle the case in the first place. Regardless of the above, ASIC should appeal. Not too sure Federal Court judges should be rejecting settlements and appointing an amicus curiae to act as a contradictor.
The penalty judgment in the K-Line criminal cartel case has come down. K-Line was fined $34.5 million after receiving a discount of 28%. It seems that the discount would have been substantially higher had K-Line provided a higher level of cooperation and not fought the matter through the committal stage . Given that NYK received a 50% discount for cooperating at the earliest opportunity, it looks like K-Line's decision not to provide a high level of cooperation and to fight the committal may have cost it an additional $10.5 million in penalties.
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Samsung has been taken to court by the ACCC for allegedly falsely claiming that their Galaxy phones were water resistant. There is little doubt that if the ACCC are successful in establishing liability in this case they will be going for a huge penalty. Most likely the ACCC will make a play for the 10% of turnover penalty which could be a very big number, given that Samsung Australia generated an annual turnover of $2.67 billion in 2018. Could this be the first multi-million dollar penalty under the Australian Consumer Law?
Volume 47, Part 2 of the ABLR has just come out. A bunch of excellent articles and section notes: • Selling Printed Goods or Facilitating Printing Gigs: The Redbubble Puzzle – David J Brennan • The 2018 Review of the Franchising Code of Conduct: Epicentre of a Year of Scrutiny for Australian Franchising – Jenny Buchan • Confessions of an Earnest Regulator – Michael T Schaper • Harper Report Implementation Breakdown: Repeal of Section 51(3) of Competition and Consumer Act 2010 (Cth) and Lack of Proposed Supply/Acquisition Agreement Cartel Exception – Brent Fisse • The Privileges against Self-incrimination and Self-exposure to Penalties in Commercial Litigation: Sadie Ville v Deloitte – Michael Legg and Stephanie Crosbie I suspect folk at the ACCC will be particularly interested in and entertained by the third article "Confessions of an Earnest Regulator" by the former Deputy Chair and Small Business Commissioner of the ACCC, Dr Michael Schaper.
While the alleged conduct of the three CFMMEU officials is very serious, of further concern is the Commonwealth Attorney General weighing in with sub judice comments about a pending criminal case for the purpose of scoring some political points. This conduct is entirely inappropriate and ill befitting the role of the Commonwealth's First Law Officer.
Friday, 31 May 2019
Appeal in laundry detergent cartel case unsuccessful No surprises here - the ACCC's evidence was very weak to begin with and compounded by their very strange decision not to cross-examine Professor George Hay, the other side's economic expert, at trial:
401. The Commission submitted, in effect, that the Court should prefer the opinions of Professor Williams. It expressly or implicitly criticised aspects of Professor Hay’s analysis and his opinions. In those circumstances it was somewhat unusual, if not unhelpful, that the Commission elected not to cross-examine Professor Hay.
Time for the ACCC to walk away from this one and forget about an appeal to the High Court.
Kogan in Court for alleged false or misleading discount advertisements If the ACCC's allegations about Kogan, as set out in the ACCC's Media Release, are made out in Court, Kogan could be up for a sizeable penalty. I see the spectre of either a three times the benefit or 10% of annual turnover penalty being imposed.
Court dismisses ACCC proceedings opposing rail freight consolidation I think the Court overstepped the mark in this case. A Court should not simply accept behavioural undertakings from a party in order to allow a merger through, particularly one which the Court acknowledged was going to substantially lessen competition. There is a process of putting the specific details of any undertaking, behavioural or structural, to the market for comment to determine whether the undertaking will work in practice. That didn't happen here. On this point alone, I think the ACCC's prospects on appeal are mighty strong.
Deckers Lands $450,000 Victory Against "Tiny" Rival in "Ugg" Boots Case Good article but not entirely correct - another outstanding issue is whether the original owner of the ugg "trademark" (Brian Smith) improperly used the registered trademark symbol on his products for almost 10 years prior to obtaining the trademark registration. If we succeed on that issue, Deckers may lose the ability to enforce its trademark.
Australian ugg boots lose trademark fight against US giant We went down in the jury part of our trial in the US. The jury ordered statutory damages of $US450,000 for $US2000 worth of ugg boots sold in the US! Still waiting for the judge's decision in relation to our application to have Decker's US Ugg trademark declared unenforceable.
Competition regulator blocks Vodafone and TPG Telecom merger
Gutsy call by the ACCC - let's see if they are prepared for the inevitable litigation!
I can't see that the ACCC are going to have many industry witnesses to put before the court to say that the TPG - Vodafone merger is going to substantially lessen competition. Neither Telstra or Optus are likely to be fronting up as the ACCC's star witnesses.
Maybe the ACCC is relying on some smoking gun documents from TPG and Vodafone which proves that the merger parties believed that the merger will substantially lessen competition. Having said that, it would be pretty unusual for companies to write that sort of stuff down, but you never know.
Our trial in the ugg boot case started on 5 May 2019 in the US District Court in Chicago.
ABC story about the case
Australian Ugg boot manufacturer in legal fight with American footwear company
Current work - Independent Auditor for the divestment of the Bingo waste processing plant in Banksmeadow
Appointed as the Independent Auditor for the divestment of the Bingo waste processing plant in Banksmeadow
Volume 47, Part 1 of the ABLR has just come out. Very exciting for me as it is my first edition as the new General Editor of the ABLR. There are three excellent articles and an excellent Section Note: Cartel Conduct or Permissible Joint Venture? by Ian Wylie The Origins and Evolution of the Statutory Duties of Trade Union Officers by Ian Ramsay and Miranda Webster Chains, Coins and Contract Law: The Validity and Enforceability of Smart Contracts by Buwaneka Arachchi Should Penalties Under the Competition and Consumer Act Be Increased? by Luke Woodward All well worth a read!
APRA releases new Enforcement Approach
I'm a bit surprised that APRA asked Deputy Chair John Lonsdale to do an Enforcement Review of APRA. Looking at his CV, it is pretty clear that he has absolutely no prior enforcement experience. "Prior to joining APRA, John worked for the Australian Treasury. He was a member of Treasury’s Executive Committee and held the position of Deputy Secretary, Markets Group at Treasury. In this role John had responsibility for financial system, consumer and foreign investment policy. In 2014 he led the Secretariat to the Financial System Inquiry, based in Sydney. John had been with the Treasury since 1986 and worked across key areas in the Department including Budget policy, tax policy, retirement incomes and the financial system. In 2008 and 2009 he worked as the Chief Advisor in the Secretariat supporting Australia’s Future Tax System Review, a major review of Australia’s tax and transfer systems."
Excellent to hear that the ACCC will be seeking to learn from the best when it comes to criminal cartel investigations.
The FBI has been doing these types of investigations for the Antitrust Division of the US Department of Justice many years and very few of their cases fall over due to mistakes in the investigatory process.
Charges laid against alleged forex price fixing cartel Very disappointing that the ACCC decided to put out such an opinionated media release in relation to this criminal prosecution. It is simply inappropriate for a regulator to make the following comments about a pending criminal matter: “This alleged behaviour is extremely serious and relates to over two thirds of all the number of money transfer transactions, and almost a quarter of the amount of money transferred, from Australia to Vietnam during the relevant period,” ACCC Chair Rod Sims said. “Price fixing involves competitors agreeing on a price rather than competing fairly against one another. Such cartel behaviour cheats consumers, and does damage to other businesses and the economy as a whole,” Mr Sims said. “Most businesses in Australia compete fairly and earn their profits honestly, as they are required to do under the Competition and Consumer Act. If businesses behave anti-competitively, others, including consumers, have to bear the cost of their illegal profits.” Looks like sub judice contempt to me!
Corporate regulator ASIC prosecuted more than 200 small businesses in second half of 2018 This is probably a number I wouldn't be bragging about if I was the head of ASIC. What annoys me about these type of cases is when regulators like ASIC complain that they are out-resourced in litigation against large companies, such as major banks, and need more money whilst at the same time throwing hundreds of thousands of dollars at small businesses who in most cases don't have the resources to fight back. The small business is usually forced to give up due to these financial pressures even in circumstances where they may have had a valid defence. In addition, it seems to me that 50 of these "small business cases" would be worth one big business case against a major bank in terms of achieving what should be the goal of every regulator - achieving general deterrence.
Australia budget lifts funding for financial regulators What incentive do ASIC and APRA have to do a better job when they keep getting more money precisely because they are doing a poor job - $400 million more for ASIC and $150 million more for APRA. ...and what incentive does the ACCC have to keep doing such a great job when it ends up with absolutely no funding increase in the budget!
Allan Fels lends his skills to fighting the exploitation of workers Great article about a great man.
ACCC Global Competition Agency Of The Year Pretty impressive achievement by the ACCC. These types of awards are generally dominated by US and European competition agencies. I think the ACCC would have probably also won the Global Consumer Law Agency Of The Year if there was such an award, as they have been very strong in that area as well.
Stephen Ridgeway set to become new ACCC Mergers Commissioner I saw a news article in The Australian speculating that Stephen Ridgeway is likely to be appointed as the next ACCC Mergers Commissioner with Roger Featherston's retirement. If that speculation is right, it will be a great appointment! He knows his stuff and will be good to deal with - firm but fair. The article also described Stephen as a veteran lawyer, which sounds particularly harsh - he's not that old!
Samuel: Cultural change must come from the top Definitely a candidate for most ironic article of the year!
Excellent article focusing in the competitive detriments of banning mortgage broker commissions - ie they will hinder the ability of smaller lenders to sell their loans. NB I am not entirely impartial on this issue as I sit on the MFAA's Disciplinary Tribunal.
Thursday, 30 May 2019
ABLR Volume 46 Part 6 has just come out featuring three excellent articles: "Commercial Imperatives and Public Benefit: Recognising Commercial Purposes as Charitable Purposes" by Derwent Coshott "Moving Beyond Murry – From Attraction of Custom to Everything that Adds Value" by Tyrone M Carlin '“Knowledge” and Pre-contract Disclosure under the Insurance Contracts Act' by Julie-Anne Tarr Well worth a read!
Mergers slowed by regulation hurdles Not too sure if we should be blaming the regulators entirely for blocking more mergers. I think a share of the blame has to fall on the lawyers who advise their clients that they can get mergers through which are simply no-brainers. I advised a former client a few years back that they would have no chancein getting a particular merger through the ACCC. They decided to pursue the merger anyway with a different law firm. The deal was ultimately rejected by the regulator after a prolonged and no doubt very expensive merger investigation. Lawyers have to learn to say "no" to their clients...at least some of the time!
ACCC 2019 focus on consumer guarantees and anti-competitive practices ACCC has released its 2019 enforcement priorities. Some interesting additions including: • opaque and complex pricing of essential services, in particular those in energy and telecommunications • collection and use of consumer data by digital platforms • customer loyalty schemes and • advertising and subscription service practices on social media platforms
Retail Food Group breached consumer law in $400,000-plus franchise bungle, Court finds Important case in relation to the obligations of franchisors to franchisees, particularly the representations about likely future financial performance. Still scratching my head at RFG's claim that its pre-contractual representations, including those about likely future financial performance, were mere puffery. It's almost likely saying no reasonable person could believe anything which RFG says about the likely performance of its stores, particularly Michel's Patisserie stores!