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Reasons out in Tabcorp ?>

Reasons out in Tabcorp

The reasons for judgment have been released in the Tabcorp/Tatts judicial review matter – sooner than expected. Of the ACCC’s three grounds of judicial review only the first succeeded; the Court held that the Tribunal erred in not assessing certain detriment alleged by the ACCC. The ACCC’s Grounds of Appeal The ACCC’s three grounds of appeal were that: that the Tribunal was wrong to reason that it could only conclude the acquisition would result in a detriment if it found there…

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Federal Court sends Tabcorp/Tatts deal back to the Tribunal ?>

Federal Court sends Tabcorp/Tatts deal back to the Tribunal

The Federal Court yesterday upheld the ACCC’s application for Judicial Review, setting aside the decision of the Australian Competition Tribunal on 22 June 2017 to authorise the proposed merger between Tabcorp at Tatts. The matter has now been referred back to the Tribunal. The reasons for decision have been embargoed from release (both to parties and the public) while solicitors for the parties determine whether it contains commercial in confidence material that requires redaction; the solicitors have no more than…

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ACCC to increase focus on evidence-gathering in merger cases ?>

ACCC to increase focus on evidence-gathering in merger cases

ACCC Chairman, Rod Sims, yesterday delivered a speech at the annual Law Council of Australia’s Business Law Section Competition and Consumer Committee Workshop. He addressed three broad issues: the ACCC’s compliance and enforcement mix investment in the ACCC’s criminal cartel unit merger enforcement He also made two key announcements: that the ACCC is commencing a new review of its cartel immunity and cooperation policy in light of recent experience with criminal cartel investigations; and that the ACCC will be taking…

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First criminal cartel conviction: some initial thoughts ?>

First criminal cartel conviction: some initial thoughts

In brief Yesterday (3 August 2017) the Federal Court convicted and fined Nippon Yusen Kabushiki Kaisha (NYK) for cartel conduct.  The fine is significant in that it represents the first time that a corporation has been convicted and fined under the criminal cartel laws, introduced in Australia in 2009. The cartel conduct the subject of the proceeding was said to have occurred since 1997 but, because Australia’s criminal cartel laws were only introduced in 2009, the charge related only to…

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First criminal cartel fine: $25 million ?>

First criminal cartel fine: $25 million

First criminal cartel fine The Federal Court today convicted Nippon Yusen Kabushiki Kaisha (NYK) of criminal cartel conduct and ordered it to pay a fine of $25m (Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876). This was the first successful prosecution under Australia’s criminal cartel provisions which have been in place since 2009. The fine includes a significant discount (50%) for an early guilty plea, cooperation and contrition). Quick summary and background In 2016, following…

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ACCC appeals Tribunal’s Tabcorp/Tatts merger authorisation ?>

ACCC appeals Tribunal’s Tabcorp/Tatts merger authorisation

The ACCC has applied to the Federal Court for a judicial review of the Australian Competition Tribunal’s recent Tabcorp/Tatts merger authorisation decision. Background I outlined the Tribunal’s Tabcorp decision in an earlier blog (Tribunal Clears Tabcorp/Tatts Merger (ACL Blog, 30 June 2017)) and provided some more detailed information and case extracts on my my Tabcorp case page). Briefly the Tribunal has the power to authorise a proposed merger/acquisition (s 95AT) on public benefit grounds, provided satisfied that the ‘proposed acquisition would…

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Tribunal clears Tabcorp/Tatts merger ?>

Tribunal clears Tabcorp/Tatts merger

The Australian Competition Tribunal last week granted authorisation for the proposed Tabcorp/Tatts merger. Legal framework for mergers in Australia The Competition and Consumer Act 2010 (s 50) prohibits acquisitions which would have the effect (or likely effect) of substantially lessening competition in any market (with market defined to mean a market for goods or services in Australia or in an Australian State, Territory or region).  There is no obligation for parties to seek competition approval in advance of a merger/acquisition;…

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High Court rules on meaning of ‘Market in Australia’ ?>

High Court rules on meaning of ‘Market in Australia’

The High Court has delivered its second competition law judgment this year (the first was Flight Centre), this time providing some important clarification to the meaning of ‘market in Australia’.  The case revolved around allegations of price fixing in relation to air cargo and was decided by reference to Australia’s (now repealed) price fixing provision (replaced by new cartel laws in 2009).  Despite the fact that the new cartel laws do not require that the market be ‘in Australia’, with…

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Harper Reforms: State of Play ?>

Harper Reforms: State of Play

The Harper recommendations for reform to Australia’s competition laws are being introduced in two stages, with the misuse of market power reforms being debated separately from the remaining reforms. This week the House passed the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 (after 17 second reading speeches and some significant amendment to the original bill) and introduced the Competition and Consumer Amendment (Competition Policy Review ) Bill 2017 containing the remaining key Harper reforms.  Debate on both bills has now been deferred…

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Senate Committee gives green light to effects test ?>

Senate Committee gives green light to effects test

The Senate Economics Committee today recommended passage of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 which will introduce the Harper Recommendations (frequently abbreviated as the ‘effects test’). I’ve previously posted about the content and merit of the bill and won’t repeat myself here, instead focusing on what the Committee majority and the dissenting Labor Senators, as well as Nick Xenophon (who sort of agrees but wants more to be done) had to say about it. Briefly the…

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