Optus penalised $10 million for misleading customers over digital purchases

$10 million sounds like a pretty significant penalty until you read further down in the ACCC's media release where it states: "Optus earned about $65.8 million in commissions for products sold through the DCB service, which launched in 2012. Its customers were charged about $195 million for the content." Optus has also paid $8 million in refunds to consumers, so it sounds to me that Optus is still $47.8 million ahead! I'm not too sure that this penalty achieves either specific or general deterrence.

https://www.accc.gov.au/media-release/optus-penalised-10-million-for-misleading-customers-over-digital-purchases

Ultra Tune to pay $2.6 million penalty

While the full judgment is not out yet, it promises to be a very interesting read given these comments by Justice Bromwich, quoted in the ACCC Media Release: “The cover up that Ultra Tune attempted reflects a significantly heightened need for deterrence, in relation to conduct that was already a most serious and fundamental breach of the Franchising Code in taking the deposit in the first place, reflecting as it does Ultra Tune’s attitude in relation to its contravening conduct,” Justice Bromwich said. “There must be no tolerance for manufacturing evidence to deceive a regulator, and even less when the deception is maintained in this Court.” Justice Bromwich also ordered Ultra Tune to pay the ACCC's costs on an indemnity costs.

https://www.accc.gov.au/media-release/ultra-tune-to-pay-26-million-penalty

ACCC cartel investigations boosted with $35 million in new funding

I like the way Josh Frydenberg referred to the $35 million of new funding for the ACCC to fight cartels as an "investment". He clearly knows that he will be getting his $35 million "investment" back pretty quickly, if the record $46 million penalty imposed on Yakazi Corporation earlier in the year is any guide. https://lnkd.in/fYf8Xfi

https://www.afr.com/news/politics/accc-cartel-investigations-boosted-with-35-million-in-new-funding-20181214-h193z0

Competition and Consumer Protection Law Blog

Pretty happy that my "Competition and Consumer Protection Law" Blog has just hit 175,000 all-time page views at around 1500 page views a month. On the other hand, I still only have one loyal follower after running my blog for 10 years (and no, it's not my mum!)

Changes afoot in Franchise Mediation

Mediation under the Franchising, Horticulture and Oil Codes has been moved to the Department of Jobs and Small Business, with support from the Australian Small Business and Family Enterprise Ombudsman "New contact details for the franchising Mediation Adviser Dear Michael, We would like to provide you with information about changes to the Mediation Adviser under the Franchising Code (the Code). The Mediation Adviser is now the responsibility of the Department of Jobs and Small Business, with support from the Australian Small Business and Family Enterprise Ombudsman (ASBFEO). The franchising Mediation Adviser is appointed under the Code and can assist in the resolution of franchising disputes by appointing a suitable mediator including where the parties cannot agree on what mediator to use. You can contact the Mediation Adviser on 1300 650 460 or by visiting the ASBFEO website. Visit the ACCC website for more information on resolving franchising disputes. Kind regards, Small Business team Australian Competition and Consumer Commission (ACCC)" https://lnkd.in/fmFHbvD

https://www.jobs.gov.au/franchising-oil-and-horticulture-code-disputes

ACCC takes action against NSW Ports

This looks like both a fascinating and pretty gutsy case for the ACCC to be pursing. The ACCC has alleged that NSW Ports Operations Hold Co Pty Ltd and its subsidiaries Port Botany Operations Pty Ltd and Port Kembla Operations Pty Ltd entered into agreements with the State of New South Wales to prevent the Port of Newcastle from developing a container terminal. One interesting aspect of the case (in addition to likely claims of sovereign immunity), is that it was the NSW Government which had to pay the compensation if the Port of Newcastle set up a competing container terminal. The ACCC has also sought an injunction to restrain the operators of Port Botany and Port Kembla from seeking compensation from the NSW Government under these provisions. Therefore, if the Botany and Kembla Port Commitment Deeds are declared illegal three things seem likely to follow (1) the Port of Newcastle can set up a container terminal, (2) the NSW Government avoids having to pay any compensation and (3) the NSW Government gets to keep all the cash it raised from privatising the ports.

https://www.accc.gov.au/media-release/accc-takes-action-against-nsw-ports

Pet hate - "vigorously defend" the proceedings.

Why do companies always say that they are intending to vigorously defend proceedings when they get taken to court by a regulator? Firstly, what exactly is the word "vigorously" intended to add to the description of the company's intent to fight the case? Is it used to distinguish the company's defence strategy from other possible litigation strategies such as an intention to "lethargically", "feebly" or even "apathetically" defend the proceedings? Secondly, what sort of message does the statement by a company that it will be "vigorously defending the proceedings" send to its shareholders. Do shareholders interpret such as statement as meaning that the company is confident that the regulator is entirely mistaken about the alleged contravention and that by stating that they will be vigorously defending the case, the regulator will simply skulk away with its tail between its legs? Or does such a statement suggest to shareholders that management have stuffed up, exposed the company to significant regulatory penalties and are now proposing to burn hundreds of thousands of shareholder funds fighting a case which everybody knows the company will most likely be trying to settle in 12 to 18 months time anyway?

https://www.smh.com.au/business/banking-and-finance/apra-seeks-to-disqualify-five-ioof-directors-executives-20181207-p50ksf.html