Major developments and activities

Mastercard

Alleged anti-competitive conduct

In our 2022 Review, we considered proceedings that the ACCC had commenced in the Federal Court of Australia on 30 May 2022 against Mastercard Asia/Pacific Pte Ltd and Mastercard Asia/Pacific (Australia) Pty Ltd (collectively Mastercard) alleging contravention of section 46(1) of the CCA. The ACCC alleged that, from 6 November 2017 to at least 5 November 2020, Mastercard entered into agreements with more than 20 major retail businesses in response to the Reserve Bank of Australia’s (RBA) “least cost routing” initiative. Further, that this gave major retailers discounted rates for credit transactions if those retailers “committed to processing all or most of their Mastercard-eftpos debit card transactions through Mastercard rather than the eftpos network” – despite the latter being the cheaper option. Mastercard is defending the proceeding. The trial is listed to commence in March this year for six weeks, but there has already been an evidentiary ruling that was unsuccessfully appealed by Mastercard, which suggests that these proceedings will be hotly contested. The parties have been ordered to attend a mediation before the trial commences. More recently, Mastercard has told the Court that it won’t be ready for trial in March this year and the dates will need to be vacated.

MSA and Offroad Animal

Resale price maintenance

In a media release dated 17 May 2024, the ACCC announced that four-wheel drive accessory manufacturers, MSA 4x4 Accessories Pty Ltd (MSA) and Offroad Animal Pty Ltd (Offroad Animal), had each admitted to engaging in resale price maintenance by instructing resellers not to advertise or sell their products below a specified price. The ACCC alleged that:

• between January and April 2022, MSA warned one or more resellers that should they fail to comply with this direction, it would not allow any discounting from the recommended retail price; and
• between September 2020 and June 2023, Offroad Animal directed resellers and prospective resellers to not advertise its products below the recommended retail price.

ACCC Commissioner, Liza Carver, warned that:

“businesses should be aware that the ACCC takes resale price maintenance very seriously and will take appropriate enforcement action against businesses that engage in this illegal practice.”

MSA and Offroad Animal each agreed to court-enforceable undertakings under section 87B of the CCA to not engage in resale price maintenance, provide corrective notices to resellers advising that they are free to set their own prices, publishing corrective notices on each of their websites, and establishing, implementing, and maintaining a competition and consumer compliance program. The court-enforceable undertakings are in force for 3 years from 16 May 2024.

Waste management

$30 million penalty for cartel conduct

In our 2023 Review, we discussed the Bingo criminal cartel proceeding, which was awaiting a sentencing outcome. The proceeding was commenced in August 2022 by the ACCC against Bingo and its former managing director and CEO, Daniel Tartak. Bingo was part of a cartel with its competitors, Aussie Skips Bin Services and Aussie Skips Recycling (Aussie Skips) to fix and increase prices for the supply of skip bins and the provision of Sydney waste processing services for building and demolition waste.

Bingo pleaded guilty to criminal cartel offences on the day proceedings were commenced, while Mr Tartak pleaded guilty to criminal cartel offences on 20 October 2022.

On 23 February 2024, Justice Wigney delivered an extensive judgment in which Bingo was fined an aggregate of $30 million. Mr Tartak, who was managing director and CEO at the time, received an effective term of imprisonment of two years (to be served by way of intensive correction in the community with conditions including 400 hours of community service) and a total fine of $100,000. Aussie Skips was fined $3.5m, and its former CEO Emmanuel Roussakis was sentenced to 18 months’ imprisonment, to be served by way of an intensive corrections order and a $75,000 fine. Both Mr Roussakis and Mr Tartak were banned from managing corporations for a period of five years.

In his summary of the Bingo penalty judgment, Justice Wigney stated;

Looking ahead

Last year was a relatively quiet year for new proceedings in the cartel space and so we look forward to new proceedings in 2025. With the ACCC updating its immunity and cooperation policy for cartel conduct (Immunity Policy) late in 2025, we predict greater activity and prosecutions for cartel activity though most likely not until the end of 2025 or into 2026. The ACCC has said that: “Our targeted improvements to the Immunity Policy offer certainty and clarity to applicants about their obligations and the way the policy is administered”. The other key proceeding to watch is the Spotless cartel matter, given its scope and the size of the respondents.