ACCC always get their man!

ACCC has had a win against Domain Name Corp and Domain Name Agency in relation to blowing - ie sending unsolicited renewal notices. However, the most interesting aspect of the case is arguably the following order made earlier in the proceedings by Justice McKerracher in relation to Steven Bell, the third respondent and owner of the businesses: Pursuant to Rule 30.33 of the Federal Court Rules 2011 (Cth), the Third Respondent (Steven Bell), a prisoner detained in custody at Hakea Prison, be produced to the Federal Court of Australia in order to attend and participate in mediation in this proceeding on Thursday 21 December 2017 at 10.00 am at Level 4, Commonwealth Law Courts Building, 1 Victoria Avenue, Perth, Western Australia.  It just shows the lengths the ACCC will go to get their man.

https://www.accc.gov.au/media-release/domain-name-corp-and-domain-name-agency-to-pay-195-million-in-penalties

Austrac v CBA - opportunity lost

Austrac's $700 million fine against CBA in the money laundering case may sound impressive but in reality it's an opportunity lost.  Austrac should have hung in there for a $1 billion plus penalty. After all, CBA failed to report 53,500 illegal transactions through its IDMs (Immediate Deposit Machines) of $10,000 or more, totalling $625 million, plus a further $77 million of suspicious transactions.  

In other words, CBA is paying approximately $13,000 per breach in relation to conduct which is subject to a maximum penalty of $21 million per breach. By my calculations that means the fine is actually only 0.06% of the maximum fine which could have been imposed. I also reckon Tabcorp must be feeling a bit hard done by at the moment after agreeing to pay a fine of $45 million back in March 2017 for a "measly" 108 breaches of the same legislation, which equates to $416,000 per breach!

https://www.smh.com.au/business/banking-and-finance/cba-reaches-700m-settlement-over-austrac-allegations-20180604-p4zj9p.html

Alleged Banking Cartel Case Commenced

Some major news on the ACCC front - the ACCC has foreshadowed that criminal charges are to be laid against ANZ and others in relation to an alleged cartel concerning an institutional share placement.

https://www.accc.gov.au/media-release/correction-criminal-cartel-charges-to-be-laid-against-anz

Wow! The ACCC has also foreshadowed criminal proceedings against Deutsche Bank for the alleged cartel concerning the institutional placement.  The other two underwriters were Citigroup and JP Morgan so it will be interesting to see if they both get charged as well.  If one of them doesn't get charged that may suggest that they were the whistleblower. Hope the ACCC has deep pockets as this case is going to be a very expensive fight for them to win!

https://www.accc.gov.au/media-release/update-criminal-cartel-charges-to-be-laid-against-deutsche-bank

Further ACCC announcement - charges are to be laid against Citigroup. Therefore, it looks like JP Morgan as the third underwriter may have been the whistleblower.

https://www.accc.gov.au/media-release/update-criminal-cartel-charges-to-be-laid-against-citigroup

A number of senior executives have also been charged as part of the ACCC's case against ANZ, Deutsche Bank and Citi Group. One thing that should be noted is how the criminal prosecution process works. It is the Commonwealth Director of Public Prosecutions (CDPP) who has to make the final decision whether to commence a criminal prosecution. The CDPP's decision also has to be made independently of the referring agency. In other words, the ACCC doesn't make the final decision on whether to commence a prosecution or who to charge. The CDPP under its Prosecution Policy has a two-stage test that must be satisfied before a prosecution is commenced: (1) there must be sufficient evidence to prosecute the case; and (2) it must be evident from the facts of the case, and all the surrounding circumstances, that the prosecution would be in the public interest. I worked with the CDPP on a couple of criminal prosecutions during my time at the ACCC and I found them to be very exacting in terms of the evidence they required before they would decide to commence a prosecution. Indeed, it seemed to me at the time that the standard was way higher than merely "sufficient evidence".

https://www.accc.gov.au/media-release/criminal-cartel-charges-laid-against-anz-citigroup-and-deutsche-bank

ACCC v Pfizer - time to move on?

The ACCC has lost the Pfizer s46  misuse of market power appeal.

It may be time for the ACCC to drop this one given they lost at the first instance before Justice Yates and have now lost before Justices Greenwood, Foster and Middleton on appeal, who are all very smart competition law judges

https://www.accc.gov.au/media-release/accc-unsuccessful-in-appeal-against-pfizer

ASIC v Westpac [2018] FCA 571 - the quick version

The Federal Court handed down its decision in the Westpac BBSW rate rigging case today.  Given the judgment is 667 pages long I thought a summary of what the court decided would be helpful. ASIC failed to make out its allegations against Westpac:  * under ss1041A and 1041B of the Corporations Act concerning market manipulation and market rigging or * under s 1041H of the Corporations Act or ss 12DA, 12DB and 12DF of the ASIC Act, for misleading or deceptive conduct and misrepresentation ASIC was successful in proving that Westpac: * engaged in unconscionable conduct under s 12CC of the ASIC Act on four occasions by trading Prime Bank Bills in the Bank Bill Market with the dominant purpose of influencing yields and where BBSW set; and * contravened ss 912A(1)(a), (c), (ca) and (f) of the Corporations Act by breaching its financial services licensee obligations. I suspect that ASIC will be very disappointed losing on the big ticket items namely the market market manipulation and market rigging claims.

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA//2018/751.html

Grocery Code of Conduct Review Disappoints

Graeme Samuel, the reviewer of the Grocery Code of Conduct, has foreshadowed that he will be recommending a range of significant changes to the Code. However, it seems to me he has fallen short of recommending that the Code be made mandatory. 

I can't see why he isn't recommending that the Code become mandatory given that he has found that there are still examples of egregious behaviour occurring in the market and Metcash hasn't even signed up to the Code.

https://www.afr.com/business/manufacturing/exaccc-boss-graeme-samuel-recommends-major-changes-to-grocery-code-of-conduct-20180523-h10fms

CFMEU case collapses

I was pretty surprised at these reported comment by the lawyer for the defendants about the Victorian DPP's decision to withdraw charges against Mr Setka and Mr Reardon: "Crucially it's been exposed that neither of the Boral men viewed the coffee shop conversation as any kind of threat at the time and did not think of it as any kind of threat for over a year," Mr Gordon said. "And after a year, their view of that coffee shop conversation, their recollection of it got changed. "It got changed only after various lawyers got involved, internal lawyers for Boral, external lawyers for Boral, lawyers for the ACCC, and crucially lawyers for Dyson Heydon's Trade Union Royal Commission." He said multiple drafts were made of witness statements that changed an "entirely innocent" coffee shop conversation into a blackmail threat. I wonder how the lawyers referred to above will respond to those claims? I know what I'd be doing.

https://www.afr.com/news/policy/industrial-relations/cfmmeu-boss-john-setka-has-blackmail-charges-dropped-over-alleged-boral-ban-20180516-h104d5