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Maddocks releases annual review of ACCC cases

Thursday 6 February 2020

Maddocks has today launched its 2019 in Review – Australian Competition and Consumer Commission.

The publication examines the ACCC’s leading cases in 2019 and considers how well the ACCC performed against its 2019 enforcement priorities. It also provides insights into what the ACCC may focus on in 2020 across a range of sectors and areas.

This year’s edition has an expanded focus of the ACCC’s activities beyond litigation to examine major developments in the areas of energy, healthcare, retail and franchising, and telecommunications and information technology. It also covers enforcement activity and developments in the areas of cartels, misuse of market power, consumer protection (including scams), unfair contract terms and product safety.

Maddocks partner and lead author Shaun Temby said the publication draws on the expertise of Maddocks lawyers who practice in the area of competition law, regulated industries and consumer protection.

He said 2019 saw the ACCC deliver on its goal of pushing the upper limits of penalties, with new record penalties for breaches of the Australian Consumer Law and the Competition and Consumer Act.

‘Right at the end of 2019 the ACCC secured a $125 million penalty against Volkswagen AG for breaches of the Australian Consumer Law over its claims relating to the emissions of its diesel engines and a $34.5 million penalty against Kawasaki Kisen Kaisha Ltd for breaches of the Competition and Consumer Act,’ Shaun said.

‘These were significant penalties and represent a significant shift towards OECD penalty levels and away from the “merely cost of doing business”, one of the ACCC’s key priorities.’

Shaun said 2019 saw the ACCC score many firsts, including the first prosecution in Australia of ‘gun jumping’ – where parties to a transaction that are otherwise competitors unlawfully ‘jump the gun’ by prematurely ceasing to compete in anticipation of a pending transaction.

The ACCC also used its new ‘bulked up’ prohibition on misuse of market power for the first time in proceedings which commenced late last year against Tasmanian Ports Corporation Ltd and enjoyed its first enforcement success under the ‘concerted practices’ prohibition.

However, the ACCC also suffered some losses.

‘The most high-profile losses suffered by the ACCC in 2019 was in its cases against Woolworths and Kimberly Clark, in two cases that raise interesting legal questions about the Court’s approach to implied representations about the future performance of a product,’ Shaun said.

‘This is one area of the law that we are looking forward to the Full Court resolving this year when it separately hears appeals by the ACCC against both judgements.’

Download the publication from the Maddocks website.

Editor note:

Maddocks is a proudly independent Australian law firm that works closely with corporations, businesses and governments throughout Australia and internationally. We advise national and international clients across the built environment, education, government, healthcare and technology sectors, from our Canberra, Melbourne and Sydney offices. Our specialist expertise includes dispute resolution and litigation, employment and safety, financial services, franchising and insolvency.

For more information:

Jason Silverii
Communications Manager
Tel: 3 9258 3509
Mobile: 0407 618 058
jason.silverii@maddocks.com.au

Thursday 6 February 2020

Maddocks has today launched its 2019 in Review – Australian Competition and Consumer Commission.

The publication examines the ACCC’s leading cases in 2019 and considers how well the ACCC performed against its 2019 enforcement priorities. It also provides insights into what the ACCC may focus on in 2020 across a range of sectors and areas.

This year’s edition has an expanded focus of the ACCC’s activities beyond litigation to examine major developments in the areas of energy, healthcare, retail and franchising, and telecommunications and information technology. It also covers enforcement activity and developments in the areas of cartels, misuse of market power, consumer protection (including scams), unfair contract terms and product safety.

Maddocks partner and lead author Shaun Temby said the publication draws on the expertise of Maddocks lawyers who practice in the area of competition law, regulated industries and consumer protection.

He said 2019 saw the ACCC deliver on its goal of pushing the upper limits of penalties, with new record penalties for breaches of the Australian Consumer Law and the Competition and Consumer Act.

‘Right at the end of 2019 the ACCC secured a $125 million penalty against Volkswagen AG for breaches of the Australian Consumer Law over its claims relating to the emissions of its diesel engines and a $34.5 million penalty against Kawasaki Kisen Kaisha Ltd for breaches of the Competition and Consumer Act,’ Shaun said.

‘These were significant penalties and represent a significant shift towards OECD penalty levels and away from the “merely cost of doing business”, one of the ACCC’s key priorities.’

Shaun said 2019 saw the ACCC score many firsts, including the first prosecution in Australia of ‘gun jumping’ – where parties to a transaction that are otherwise competitors unlawfully ‘jump the gun’ by prematurely ceasing to compete in anticipation of a pending transaction.

The ACCC also used its new ‘bulked up’ prohibition on misuse of market power for the first time in proceedings which commenced late last year against Tasmanian Ports Corporation Ltd and enjoyed its first enforcement success under the ‘concerted practices’ prohibition.

However, the ACCC also suffered some losses.

‘The most high-profile losses suffered by the ACCC in 2019 was in its cases against Woolworths and Kimberly Clark, in two cases that raise interesting legal questions about the Court’s approach to implied representations about the future performance of a product,’ Shaun said.

‘This is one area of the law that we are looking forward to the Full Court resolving this year when it separately hears appeals by the ACCC against both judgements.’

Download the publication from the Maddocks website.

Editor note:

Maddocks is a proudly independent Australian law firm that works closely with corporations, businesses and governments throughout Australia and internationally. We advise national and international clients across the built environment, education, government, healthcare and technology sectors, from our Canberra, Melbourne and Sydney offices. Our specialist expertise includes dispute resolution and litigation, employment and safety, financial services, franchising and insolvency.

For more information:

Jason Silverii
Communications Manager
Tel: 3 9258 3509
Mobile: 0407 618 058
jason.silverii@maddocks.com.au