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ACCC has settled with Palram and Ampelite for $5.5 million.
Interestingly the ACCC actually settled on the basis of exclusive dealing and not cartel conduct. This is surprising given all the hullabaloo which the ACCC made when it commenced the case stating that the companies had engaged in cartel conduct:
"The ACCC alleges that over a five year period from 2008 until 2013, these companies made and gave effect to a number of cartel arrangements which had the purpose of preventing or restricting the supply of polycarb to retailers."
So it seems to me that the ACCC took legal proceedings believing that there were a number of cartel arrangements, but then failed to obtain the evidence to prove the existence of those arrangements. Accordingly, the ACCC had to settle on the vertical agreements.
Looks like a pretty major evidentiary fail for the ACCC. The ACCC should have the evidence of the alleged horizontal agreements locked in prior to the commencement of the legal proceedings
The ACCC also noted in its media release the anti-overlap provisions of the Competition and Consumer Act 2010 which effectively state that if conduct can be characterised as both horizontal (more serious) and vertical (less serious), the ACCC has to pursue the conduct as vertical.
https://www.accc.gov.au/media-release/court-orders-penalties-of-55m-against-palram-and-ampelite-for-exclusive-dealing
Professor Allan Fels won't be making many friends at ASIC after these statements to the ABC and Channel 9. However, he is probably right.
While I specialise in the ACCC area, I do some work in Corporations Law space and it is fair to say that clients have nowhere near the same level of concern about ASIC enforcement action as they do about ACCC enforcement action.
I have found that clients genuinely fear the possibility of the ACCC taking enforcement action against them and particularly the media storm which inevitably follows. However, I think most clients consider ASIC enforcement action to be a remote possibility in all but the most egregious cases.
And even in the most egregious cases, many clients would like their chances of settling with ASIC through an enforceable undertaking rather than worrying about a litigated outcome.
http://www.abc.net.au/news/2018-08-09/former-accc-boss-alan-fels-slams-asic/10092864
https://www.9news.com.au/national/2018/08/09/08/44/strip-bank-watchdog-of-powers-economist
It seems to me that Justice North's comments about the Australian Building and Construction Commission's case against CFMEU officials may have gone too far:
"the ABCC should be publicly exposed as having wasted public money without a proper basis for doing so..."
'...it was a completely unnecessary waste of public money"
"If you want to make a case that the ABCC should not be criticised, well, you know, let’s hear – bring it on."
"I must say it's a terrible waste of everybody's time."
"...external forces that are beating up what's just a really ordinary situation that amounts to virtually nothing."
He also described the ABCC's decision to take legal action as "outrageous"
I remember Justice North making similar comments 20 years ago about the ACCC's case against the Maritime Union of Australia during the Waterfront Dispute. At that time he said that our case was a waste of public money.
This was after the MUA had taken illegal boycott action to close down half of Australia's ports and after the MUA had called on its overseas affiliated unions particularly in the US to take sympathy boycott action against vessels loaded with non-union labour.
Click in this link to see the recent article in the Sydney Morning Herald:
https://www.smh.com.au/business/workplace/judge-blasts-building-cop-for-wasting-public-money-on-tea-cup-case-20180808-p4zwb0.html
Here is a story from the Canberra Times, 12 June 1998, p4 about Justice Norths's comments about the MUA case:
Here is Part 2 of the Podcast entitled "Alphabet in the Soup: A Snapshot of EC's three investigations into Google".
In this episode I explain the Adsense investigation and make some concluding remarks.
Click on this link to hear the Podcast - https://soundcloud.com/michael-terceiro/part-2
I thought I would try my hand at some Podcasting.
While I still have some way to go in terms of professionalism and production values (and also preventing the kids from Podcast-bombing during a recording!), I hope you will find the content informative.
Here is Part 1 which provides a snapshot of the European Commission's three major investigations into Google - (1) comparison shopping (2) Android Operating System and (3) Adsense.
Hope you enjoy the content!
Click on this link to hear the Podcast -https://soundcloud.com/michael-terceiro/alphabet-in-the-soup-a-snapshot-of-the-3-ec-investigations-into-google-part-1
Came across a website which listed my Blog as one of the Top 25 Australian Law Blogs - apparently I came in at 15th place!
https://blog.feedspot.com/australia_law_blogs
Not too sure if it is on the up and up, but they did say I could use the following image on my blog, so why not!
I was reading an interesting article entitled "The Global Standards Wars: Patent and Competition Disputes in North America, Europe and Asia" by Jorge Contreras.
I was surprised to read how many actions have been taken against Qualcomm for repeated misuses of its Standard Essential Patents (SEP):
2009 - Korean Fair Trade Commission - fine $US208 million
2013 - China's National Development and Reform Commission - fine $US975 million
2016 - Korean Fair Trade Commission (again)- fine $US853 million
2017 - Taiwanese Fair Trade Commission - fine $US774 million
2018 - European Commission - fine $US1.2 billion
Total fines (so far) - $US4.01 billion!
Furthermore, in 2016 the US Federal Trade Commission commenced legal proceedings against Qualcomm for the alleged misuse of its SEP's.
So much for huge fines achieving specific deterrence!
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3106090
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