Thursday, 12 September 2019

Australian Business Law Review Vol 47 Pt 3

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) [2019] FCA 669: Access Undertaking Derails ACCC Case Under S 50 by Brent Fisse

Medibank in court for alleged misrepresentations to members about benefits

I wonder how big a penalty the ACCC is hoping to get out of Medibank Private given they self-reported the conduct and are in the process of compensating affected members. Having said that the absence of fighting words from Medibank Private in the media may suggest that a deal has already been done and a penalty figure provisionally agreed. One concerning aspect is the significant commentary about the case by the ACCC. It all comes back to the issue of sub judice contempt - government regulators should not be holding press conferences to discuss the factual and legal issues to be determined in the case. It is frustrating to see the ACCC continually doing this. I wonder when a presiding judge is going to pull the ACCC up on this issue?

Travel sickness: Consumers overpay millions on foreign money, says ACCC

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.

'Walk away': ACCC finds franchisors failing to outline rent, wages

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.

Global shipping company Wallenius Wilhelmsen charged with criminal cartel conduct

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.

New watchdog, bigger fines floated for $182b franchise sector

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!)

'Begging for chairs': Grant competition reveals schools' funding struggle

I'm getting very tired of the SMH's cynical scare campaign against non-government schools in relation to capital funding. Their reporting is so far from the truth its not funny. The reality is that about 90% of capital funding for independent schools comes from fees, donations and loans - governments only contribute 10% of total capital funds - see In 2017, the total capital expenditure by independent schools was $1.98 billion of which $1.78 billion came from fees, donations an loans. In other words, government contributed about $200 million in capital funding to independent schools. By contrast governments paid $2 billion in capital funding to government schools in 2016-2017 financial year - There is inequity but it is the other way around - independent schools educate 35% of all students in Australia (41% of secondary school students) but receive 1/10th of the government funding for capital works!

$2.3M penalty for fake Indigenous Australian art

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.

No wagyu for you: ASIC loses landmark case against Westpac

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.

Lacoste, Converse and Lululemon: Taxpayers fund ACCC's wellness shop

What's wrong with a few perks? I remember picking up a few perks while I was at the ACCC:
* a trip on a luxury fishing cruiser with an open bar (in order to get in behind the angry mob manning the picket lines during the Waterfront dispute),
* a helicopter ride with Chris Corrigan (in order to avoid getting beaten up by the same angry mob manning the picket lines during the Waterfront dispute),
* $100 of petty cash to buy beers (in the course of an investigation into an alleged beer price fixing arrangement between a number of gay bar operators in Sydney),
* a trip to an ice cream factory (in the middle of Winter in Adelaide to learn more about the cold storage industry),
* another $50 for beers and meal at an RSL Club (as I tried to eavesdrop on an alleged cartel meeting between participants in the scrap metal industry), and
* getting to drive around in a brand new Tarago for a few days (for the purposes of taking my team out to Caltex Banksmeadow Refinery to execute a s155(2) notice (effectively a search warrant) in relation to the ACCC's ill-fated petrol price fixing case).

K-Line convicted of criminal cartel conduct and fined $34.5 million

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.

SME Committee 2019 Annual Conference

The SME Committee of the Law Council of Australia Business Law Section, in partnership with the Law Institute of Victoria, welcomes you to attend the annual SME Conference on 11 October 2019 in Melbourne.
It is promising to be a great event with lots of fantastic speakers including Professor Allan Fels and Kate Carnell. Click on this link for more information

ACCC Independent Reviews and Audits

If you are looking for a compliance professional to conduct a professional and cost effective ACCC Independent Review drop me a line. I have been conducting ACCC Independent Compliance Program Reviews for over 10 years. My clients have included Airbnb, ALDI Stores, Aveling Homes, Dell Computers, InvoCare Limited, LG Electronics, Ozsale, Thermomix and Wilson Security. I also have experience as an ACCC approved independent auditor in relation to: * the Takata Airbag Recall; and * asset divestitures under section 50 of the Competition and Consumer Act 2010 (Bingo - Dial-A-Dump merger)

Samsung in court for misleading phone water resistance advertisements

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?

Special Children's Christmas Party

Happy to be supporting the Special Children's Christmas Party again in 2019. We first started supporting this event eight years ago, in 2011.

Australian Business Law Review Vol 47 Pt 2

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.

Construction union trio snared in Sydney cocaine bust

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

Final wash up?

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.

Big penalty on the way

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.

Overstepping the mark

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 Outdoor Corporation v Australian Leather Pty Ltd

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.

Deckers Outdoor Corporation v Australian Leather Pty Ltd

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.

Gutsy call

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.

Deckers Outdoor Corporation v Australian Leather Pty Ltd

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

Bingo Industries

Recent work - Thermomix

Completed the first independent compliance program review for Thermomix

Thermomix in Australia. Creating Everyday Surprises<sup>®</sup>

Australian Business Law Review Vol 47 Pt 1

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!

Horses for courses

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."

ACCC and FBI sign inter-agency cooperation agreement

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.

Sub judice contempt

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!

Nothing to brag about

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.

Getting a bonus for underperformance?

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

Allan Fels lends his skills to fighting the exploitation of workers Great article about a great man.

Kicking goals

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.

New Mergers Commissioner

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!

Keeping a straight face

Samuel: Cultural change must come from the top Definitely a candidate for most ironic article of the year!

Why Kenneth Hayne got it wrong on loan brokers

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.

The operation and effectiveness of the Franchising Code of Conduct

The final report of the Parliamentary Joint Committee on Corporations and Financial Services had just been released. 

 While I have only flicked through the report, it is looking like the biggest ever shakeup for the franchising industry. By my count, there are 71 recommendations, with many of these recommendations proposing very substantial changes. 

 My personal submission was mentioned once in the report in relation to allegations of some franchisors seeking to set retail franchisee margins (p98).

Pay party clauses

‘They’re gouging hotel owners’: Labor to outlaw pay parity clauses to challenge Expedia, duopoly Labor has announced another competition and consumer policy - namely a commitment to "outlaw" target pay parity clauses amongst online travel agents. Labor has been very active announcing a number of proposed policies in the competition and consumer area. On the other hand, as as far as I can tell, the Coalition hasn't announced any policies in this area.

Thursday, 30 May 2019

Australian Business Law Review (ABLR)

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 least some of the time!

ACCC's 2019 Priorities

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

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Puffery pastry

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!