Services
Merger assessments & clearances
I have advised merger parties across a broad range of industries, including in relation to the grocery supply chain, construction, software, hardware, semen for dairy cattle (no bull!), shipping, and logistics. I have also acted for the ACCC (in an inhouse and external capacity) in relation to merger investigations and litigation, including most notably the Toll/Patrick merger and the AGL/Loy Yang litigation.
I am experienced at working closely with transaction teams to ensure a clearance process aligns with the commercial objectives of the parties involved, including in relation to timing. Typically (but not always), transactions which are likely to attract any regulatory interest result in an application for informal merger clearance. I have written a substantial number of submission for such applications, and subsequently guided the merging party (and their advisors) through the clearance process.
While a Senior Fellow at the University of Melbourne (Master of Laws program), I also devised and taught Australia’s first competition law course focused on merger law and practice.
As a brief explanation of the general process for assessing a given transaction: I begin with a preliminary analysis to assess whether it is likely to be permitted; and then, where a transaction looks set to proceed, undertake a detailed competition assessment to ensure it will be fully compliant with Australian law. This assessment then forms the backbone of all future engagement with the ACCC.
While a purchaser typically has carriage of any merger clearance process, vendors too need to understand the options for merger clearance, the relevant timeframes and attendant risks and benefits.
ACCC processes
As a former senior enforcement lawyer for the ACCC, I am extremely familiar with its practices and procedures. These range from investigations by and complaints to the ACCC, as well as pro-active compliance measures.
From dealing with the early stages of a “please explain” letter, to managing a detailed investigation, I have been involved in matters as straightforward as misleading and deceptive claims, to concerns arising under the Horticulture Code, to the most complicated allegations regarding misuse of market power. I have prepared responses to statutory information requests (s155 notices) and readied witnesses for formal examinations. I have guided clients through the complexities of Australia’s leniency and immunity system and, where necessary, negotiated outcomes with the ACCC via ”administrative resolutions” or court-enforceable undertakings.
In the case of complaints, I have assembled and pressed numerous complaints for industry participants on issues ranging from misleading or deceptive conduct, anticompetitive conduct, and the potential impact of mergers on third parties. Knowing that complaints can take an uncertain (and long-winded) path, I also work with clients to assess their commercial options in addressing issues in a more timely fashion.
Finally, I have assisted parties through a range of pro-active compliance measures, such notifications and authorisations. Such measures can form a vital plank of a company’s overall risk management strategy.
Structuring & general advisory
I have assisted clients with a range of different issues, always bearing in mind their ultimate commercial objectives. This helps ensure the structure they use for a given venture is best suited to their needs. As an example, I have worked with numerous clients (manufacturers, importers or wholesale suppliers) to ensure their distribution system fully complies with the law, whilst delivering the control they require over the reputation of their brand.
I also frequently undertake advisory work, whether from a perspective of ensuring compliance or understanding a business’s rights vis-à-vis its commercial partners or competitors. Such work runs the full gamut of competition issues, from competitive neutrality, to access, to general compliance with Australia’s competition and consumer laws.
More recently, I have assisted clients adjust to the needs imposed by COVID-19. At times this has meant ensuring co-operative arrangements fall within Australia’s legal requirements; other times, it has involved safeguarding a company’s reputation by making sure it complies with its obligations under consumer protection laws.
Compliance & risk management
With more than a decade of experience teaching post-graduate students, I am an engaging and enthusiastic speaker. I regularly conduct compliance workshops for large organisations and law firms. Such workshops may have a specific focus (addressing resale price maintenance concerns is a popular topic recently!), or address the law more generally. Given the significant changes to the Competition & Consumer Act over recent years, many lawyers and business-people have found that their knowledge of the law is not as up-to-date as they would usually expect.
Compliance, however, is much more than conducting an annual workshop. I am experienced at whole-of-organisation risk assessments, designed to identify and isolate weak points and then to implement appropriate risk mitigation strategies. This can include creating decision trees, identifying points where legal sign-off is required, upskilling the internal legal resources of a given company, and providing an inhouse legal team with its own “safe harbours”, such that they themselves are able to minimise the need for external input whilst ensuring a culture of compliance is entrenched.
In addition to undertaking these sorts of audits across large organisations, I have also provided independent confirmation as to whether parties have complied with their court-enforceable undertakings (as is required from time to time by the ACCC).
