Thursday, 25 November 2021

Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 5 – Indictment) [2021] FCA 1345

A lot of commentators have been focusing on Wigney J's "complete shemozzle" quote from the banking cartel case (at para 9) but for me the most instructive quote is at paragraph 246:

"Those responsible for drafting the cartel offence provisions in the C&C Act – none of whom could possibly have ever set foot in a criminal trial court before – appear to have approached the drafting task as if it were akin to producing a cryptic crossword. The offence provisions, when read with the extensive definitions of the terms used in them, are prolix, convoluted and labyrinthine. When coupled with the general principles of criminal responsibility, including the extensions of criminal responsibility in Ch 2 of the Criminal Code, the complexity of the offences is multiplied. By the time the maze of provisions is worked through, it is very easy to lose sight of exactly what conduct the offence provisions are intended to bring to account and punish."

This does not augur well for successful cartel prosecutions in Australia, particularly as a jury will have to work out these "prolix, convoluted and labyrinthine" provisions in order to convict and do so unanimously.

Tuesday, 9 November 2021

Australian Business Law Review, Vol 49, Part 3

ABLR Vol 49, Part 3 is out and features five excellent contributions:

* Regulating a Quick Fix for Debt Problems – Vivien Chen  and Candice Lemaitre

* Autonomous Vehicles: Regulatory, Insurance and Liability Issues – Julie-Anne TarrTony Tarr and Amanda-Jane George (McBratney)

*Unconscionable Conduct under the Australian Consumer Law: Clarification and Contention – Philip Clarke

* Implications of the Victorian Class Action Contingency Fee Reforms – John Emmerig and Emily Vale

* Book Review - Reinventing Bankruptcy Law: A History of the Companies’ Creditors Arrangement Act, by Virginia Torrie (Virginia T.) – Reviewed by Jason Harris

I would again like to encourage prospective authors to consider submitting their articles to the ABLR. One significant advantage of seeking to publish your article in the ABLR is our much quicker turnaround times compared to other leading legal journals. We aim to publish practical business law articles on topical issues in a timely manner, which means we have to operate on shorter time frames.

Australian Government to file amicus brief in support of US Supreme Court appeal

Some great news – the Australian Government and Attorney General Michaelia Cash have agreed to file an amicus curiae brief in support of our US Supreme Court petition.

The Government has retained high profile US attorney, Donald I Baker from Baker & Miller to prepare their brief. Donald Baker will be well known to competition lawyers as the former head of the Antitrust Division at the U.S. Department of Justice.
This is great news and will significantly improve our chances of the US Supreme Court granting our petition and hearing the case.
Thanks to all the people who assisted us in our intense lobbying efforts, particularly Senator Griff and Change.Org, and those in Government in the Attorney General’s Office and IP Australia who agreed to give us time to listen to our arguments.

Monday, 1 November 2021

US Supreme Court case

Our Change.Org petition has gone from 61,000 signatures on Wednesday last week to 73,000 signatures today.

There is also a function to send the AG Michaelia Cash an email to ask her to agree to file an amicus brief in support of our US Supreme Court appeal. I understand she has already received 2800 emails!

Time is running out!

US Supreme Court case had kindly offered their assistance in our last ditch attempt to convince AG Michaelia Cash to file an amicus brief in support of our US Supreme Court case.




In just one day, nearly 3,000 Australians have contacted the Attorney-General, Senator Michaelia Cash, asking her to intervene in a David vs Goliath battle playing out in the US Supreme Court between a humble shoemaker and a US corporate giant.

Eddie Oygur’s Sydney-based small business sold just 13 pairs of Ugg boots online to US customers between 2011 and 2016. Because of this, Eddie has been hauled through the US court system by huge multinational US multinational Deckers Brands, who owns the “UGG” trademark in the US. This is despite a long-standing argument from many Aussie and Kiwi Ugg bootmakers that ‘Ugg’ is a general term that should never have been trademarked. 

As a result of this ongoing legal battle, Eddie could end up paying $AUD 3.4 million, unless the US Supreme Court overturns recent decisions. 

The former South Australian Senator and now lawyer, Nick Xenophon is acting on behalf of Eddie Oygur. Xenophon is urging the Attorney-General to file an amicus brief to the US Supreme Court, to assist the Court to better understand the important public and national interests raised by Eddie’s case. 

On Wednesday, Eddie asked his 65,000 petition supporters to lobby the Attorney General, and thousands answered the call. By Thursday evening, more than 2,800 had personally emailed Senator Cash’s office to request she file the amicus brief and stand up for the iconic Aussie Ugg boot.

“I never dreamt so many people would care about my story,” said Eddie Oygur. “That thousands of people have contacted the Attorney-General demonstrates just how passionate Aussies are about this issue. Ugg boots belong to all Australians, and I hope the Attorney General hears us all.” 

“This US supreme court case is the last chance, not just for Eddie, but for Australia to bring Ugg back home, and in the process create thousands of Aussie jobs, “ said Nick Xenophon. “I just don’t get why the Morrison Gov won’t do the right thing and file an amicus brief - time is running out. There are only days left to turn this around. “ 

“Petition organisers often ask their supporters to directly contact Australian politicians,” said Australia’s Acting Executive Director, Nic Holas. “But it’s rare to see thousands take action in such a short amount of time. I don’t think there is any doubt that Australians are very passionate about defending Eddie and our beloved Ugg boot.”

Nick Xenophon and Eddie Oygur are available for interview. 

CONTACT: Nick Xenophon (0411 626 677) or Michael Terceiro (0417 213 226) 

Australian Leather Pty. Ltd., et al., Petitioners v. Deckers Outdoor Corporation

Below is a link to the US Supreme Court listing of our case. You can click on the links to get a full copy of our Petition and Appendices.

As the case was docketed on 6 October 2021, the Australian Government has until 5 November 2021 to file their amicus brief - only 25 days to go!

Federal government refuses Nick Xenophon’s call to join David and Goliath battle

For some inexplicable reason the Attorney General has advised us that she is not intending to file an amicus brief in support of our US Supreme Court appeal despite giving us $200,000 under the Special Circumstances Scheme to hire a specialist US Supreme Court advocate to run our appeal, namely Seth Waxman of WilmerHale.

Interestingly the Special Circumstances Scheme Guidelines state that a grant will be awarded "where no other scheme of legal financial assistance applies, but there is a moral obligation on the Commonwealth to make a grant".

So it seems the Australian Government acknowledges that there is a moral obligation to give us $200,000 to run our case but not a moral obligation to file an amicus brief to help us win.

Having said that, we are pulling out all stops to try to get the Government to change its mind.

Ugg case - Petition to US Supreme Court for a Writ of Certiorari

 We filed our Petition for a Writ of Certiorari with the US Supreme Court yesterday.

I have attached a few pages which outline the questions we are presenting to the Court as well as our Introduction.

The questions presented are:
1. Whether a term that is generic in the English speaking foreign country from which it originated is ineligible for trademark protection in the United States.

2. Whether and, if so, how the “primary significance to the relevant public” standard in 15 U.S.C. § 1064(3) for determining whether a registered trademark has “become” generic applies where a term originated as generic before registration.

We are still trying to convince the Australian Government to file an amicus brief in support of our Petition. They have until 4 November 2021 to file their amicus brief.

FY2021 National Pro Bono Target Report Released

 It is very dissapointing that a significant number of signatory law firms to the National Pro Bono Target missed their target of 35 hours per lawyer over the last year. In fact a whopping 31 of the 53 large law firms or 58.6% missed their targets.

Given all the benefits which large law firms enjoy due to being a signatory to the Target in terms of marketing their firms, winning Government work and securing work from corporates with a strong commitment to ESG, I am wondering whether the Australian Pro Bono Centre should consider introducing a name and shame strategy in the future for firms which consistently fail to meet their targets.

I should add that large law firms are defined as firms with more than 50 lawyers and that the main shortfalls occur in the 50 to 200 law firm category and not the 450 plus lawyer category (although there was one law firm in that 450 plus lawyer category which fell way short of the target only racking up 20.6 hours per FTE lawyer).