News

Only the second time pecuniary penalties have been imposed for an anti-competitive merger

Matthews Law and its lawyers have been ranked as leaders in competition law in New Zealand in the 2019 Legal 500. Notably, Andy Matthews has been recognised as a “Leading Individual”, while Gus Stewart is listed as a “Next Generation Lawyer.”

Matthews Law and its lawyers have again been ranked as leaders in competition/antitrust in the Chambers Asia-Pacific 2019 Guide. Notably, the firm has been elevated to a “Band 2” position (just 5 years after being established), with Principal Andy Matthews retaining his “Band 1” ranking and Special Counsel Gus Stewart entering the Guide as an “Associate to Watch”.

Matthews Law is delighted to welcome Millie Goldwater, who joined the team in November 2018. Millie works on competition (antitrust) and consumer law, technology and commercial matters, as well as general compliance issues and training. Her competition work covers merger control, cartels & investigations, and regulation & access.

Specialist competition and regulatory law firm Matthews Law has promoted Gus Stewart to Special Counsel.

Gus is a senior commercial lawyer specialising in competition, regulatory, and consumer law.

The Commerce Amendment Bill (Bill) passed its first reading on 1 May 2018 and has now been referred to the Select Committee. If enacted, the Bill would lead to significant changes to the Commerce Act (Act), including giving the Commerce Commission (CC) the ability to undertake market studies and accept enforceable undertakings. Other features include changes to how the CC regulates airports and an end to the “cease and desist” regime.

Andrew Matthews has again been selected by his peers for inclusion in the 10th Edition of The Best Lawyers in New Zealand in the practice areas of Competition and Consumer Law and Regulatory Practice. Andrew has been listed as a top lawyer in the area of Competition and Consumer Law since 2014, and as a top lawyer in the area of Regulatory Practice since 2016.

The full rankings can be found here. 

We are delighted to have been ranked again as a “Highly Recommended” competition law practice in the 18th edition of the GCR 100, listed only behind the three largest firms in New Zealand. Our firm profile reads:

“Andy Matthews continues to lead New Zealand’s only competition law boutique, Matthews Law…. The boutique has represented major multinational companies, local concerns and associations that often run into antitrust issues. Gus Stewart was promoted last year to senior associate, and lawyer Elsie Stone joined the firm from the Takeovers Panel, New Zealand’s transaction regulator.”

On 15 February 2018, Commerce and Consumer Affairs Minister, Kris Faafoi, tabled the Commerce (Criminalisation of Cartels) Amendment Bill (Bill) in the House. The Bill introduces a new criminal offence for cartel conduct, which includes a penalty for individuals of imprisonment of up to seven years. If enacted, there would be a two-year transitional period before the offence comes into effect.

We are pleased to announce that Matthews Law has again been ranked as a leading firm in competition/antitrust in the Chambers Asia-Pacific 2018 Guide.

The Guide describes our firm, established in 2013, as a “specialist competition law practice offering comprehensive advice on regulatory investigations, merger clearance and advisory matters, and consumer law for high-end clients. Established as a popular choice to assist in domestic and international cartel investigations.”

On 19 December the High Court essentially confirmed that the New Zealand Commerce Commission (NZCC) was right to decline clearance & authorisation for the proposed NZME and Fairfax merger. The proposed merger would have brought New Zealand’s two biggest newspaper networks and online news sites under common ownership, with a combined monthly reach of 3.7 million New Zealanders, with a news media business that would have included nearly 90% of the daily newspaper circulation in the country as well as a majority of the traffic to online news. Our November 2017 IBA article summarises the NZCC’s decision to block the proposed merger.

Elsie Stone has joined Matthews Law from the Takeovers Panel. Elsie works on competition (antitrust), technology and commercial matters. Her competition work covers merger control, cartels & investigations, and regulation & access. She is a key contact for compliance matters. Elsie’s contact details are here and her LinkedIn profile is here.

We have moved to new premises on Level 17, 55 Shortland Street – opposite the Vero Centre. More information about how to contact us can be found here.

There has been a spotlight on merger activity in New Zealand’s telecommunications and media space over recent months. Two high-profile mergers were proposed, with the applicants in each case citing a need to keep up with challenging and rapidly commercial environments. However, in both cases the New Zealand Commerce Commission declined to approve the proposed mergers. The respective parties of both proposed mergers lodged legal appeals against the Commission’s decision – one of these appeals has since been withdrawn, while the other is to be heard in October.

Matthews Law is proud to announce its involvement in a new life-saving system, which provides emergency services with the probable location of a caller when they dial 111 from a mobile phone.

We are proud to announce that Matthews Law has been named Regulations & Access Law Firm of the Year in LawyerIssue Awards, 2017.

About LawyerIssue Awards:
LawyerIssue provides a valued insight into the legal sector and shine a spotlight on many of the trending issues.
The global awards honour the firms and individuals which have displayed excellence in a multitude of fields throughout the year. The dedicated research team look to single out some of the most active and influential individuals to feature in the annual publication. Extensive sources are used to identify nominees that deserve recognition and look to provide an insight into their accomplishments over the past 12 months.

The Commission has sent a Letter of Unresolved Issues to Vodafone New Zealand Limited (Vodafone NZ) and Sky Network Television Limited (SKY) in relation to their proposed New Zealand merger.

Commission brings 7 high profile fair trading cases in as many weeks

The Commerce Commission (Commission) has brought proceedings against 7 (mostly) well-known companies – peer-to-peer lender Harmoney, Youi, Trustpower, 123 Mart, Budge, Godfreys and Bike Barn – since 1 August this year, alleging various breaches of the Fair Trading Act 1986 (FTA). A number of the defendants have pleaded (or are expected to plead) guilty to their respective charges.

Further consolidation in the media sector

Two high profile mergers have been announced in the last few months, representing further consolidation in the media, telecommunications and content space in New Zealand. Both mergers are conditional on Commerce Commission (Commission) approval.

The Food Act 2014 (FA) comes into force today, replacing the Food Act 1981. The aim of the FA is to promote food safety by focusing on food production processes rather than the premises where food is prepared. The FA introduces higher penalties (up to $500,000 for companies and $100,000 for individuals) for breaches and a range of other enforcement tools including improvement notices and compliance orders.

Andrew Matthews has been selected by his peers for inclusion in the Eighth Edition of The Best Lawyers in New Zealand in the practice areas of Competition and Consumer Law and Regulatory Practice. Andrew has been recognised as a top lawyer in the area of Competition and Consumer Law since 2014, and the firm is delighted that he has been recognised as an expert in the area of Regulatory Practice in the most recent edition of Best Lawyers®. 

Best Lawyers® has been publishing guides to the legal profession for over 30 years and operates in more than 70 countries worldwide.  It recognises the top lawyers in each jurisdiction, determined by peer review.

Matthews Law has been ranked as a leading firm in competition/antitrust in the Chambers Asia-Pacific 2016 Guide. The Guide describes our firm, established in 2013, as a “Notable competition law boutique that is sought out for its depth of expertise on merger clearances, cartel investigations and regulatory and consumer protection law. Its sector expertise spans areas such as telecommunications, dairy, aviation and health.”

Andrew Matthews has been ranked as a leading individual (Band 1) in the Guide since 2006.

Targeted review of the Commerce Act 1986

In one of our last newsletters for 2015 we discussed the publication of the Ministry of Business, Innovation and Employment’s (MBIE) Targeted Review of the Commerce Act 1986 – Issues Paper (Issues Paper). The Issues Paper essentially focuses on whether NZ’s misuse of market power test (section 36) and alternative enforcement mechanisms work, and whether NZ needs formal powers to conduct competition “market studies”.

In a surprise announcement, Minister of Commerce and Consumer Affairs Paul Goldsmith has confirmed that criminal sanctions for cartel conduct will be dropped from the Commerce (Cartels and Other Matters) Amendment Bill (Cartels Bill), which has been making its way through the parliamentary process for over 4 years.

The Commerce Commission (NZCC) has had another busy year, particularly in the areas of consumer protection (including advocacy), cartels and regulated industries. NZCC Chair, Dr Mark Berry, recently spoke at stakeholder briefings in Auckland and Wellington about the NZCC’s activities and achievements during the last financial year, and the NZCC’s plans for the future.

This week the Ministry of Business, Innovation and Employment (MBIE) published an issues paper, “Targeted Review of the Commerce Act 1986” (Issues Paper). The Issues Paper essentially focuses on whether NZ’s misuse of market power test and alternative enforcement mechanisms work, and whether NZ needs formal powers specifically aimed at analysing competition across markets.

Legal tests intended to determine whether or not firms with substantial market power are misusing that market power or competing aggressively have caused more debate and contention in most jurisdictions than any other competition law prohibition. NZ is no exception.

Submissions on the Issues Paper are due by 5:00pm on 9 February 2016.

Last month the Commerce Commission (Commission) issued a formal warning to Consolidated Alloys (N.Z.) Limited (Consolidated Alloys) for including an “anti-competitive clause” in a negotiated settlement with its competitor Edging Systems (NZ) Limited (Edging Systems). The clause was included in a settlement agreement to resolve a commercial dispute involving Edging Systems’ alleged breach of Consolidated Alloys’ registered patent. 

There has been considerable attention paid to the intersection of IP and competition laws internationally, but IP related issues have not generally featured in NZ competition law cases.

Harvey Norman – when is a price the right price?

Australasian retailer Harvey Norman launched its “New Zealand’s Biggest Retail Sale” promotion last week. However due to a technical computer glitch some goods, including lounge suites, were mistakenly advertised online for less than $100 when their intended price was significantly more. According to media reports, around 330 people “purchased” those goods from Harvey Norman’s online shop only to later receive an email stating that the prices were the result of a “genuine error” and they would not be receiving their goods at the advertised price. In the meantime customers’ credit and debit cards had been charged the intended selling price, leading to complaints that customers might have been misled.

We raise this question due to a provocative observation of Dr Kaj Storbacka during a presentation by Dr Storbacka and Dr Suvi Nenonen* “The Importance of Market Innovations for New Zealand” at a Law and Economics Association of New Zealand seminar on 27 August. Dr Storbacka noted that during his extensive management consulting and academic career, which has included working in a number jurisdictions, NZ businesses are the most competitive he has seen.

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On 6 August the Commerce Commission published its Statement of Preliminary Issues (SOPI) for Z Energy Limited’s application to acquire Chevron New Zealand. SOPIs are published for the vast majority of clearance applications and are intended to “outline the key competition issues [that the Commission] currently consider[s] to be important in deciding whether or not to grant clearance.” Z, originally Greenstone Energy before being re-branded, was formed in 2010 following its purchase of Shell’s NZ distribution and retail business.

The ACCC has today announced that it has been unsuccessful in two high profile appeals relating to Flight Centre & ANZ – both of which deal with issues of “agency” in the competition/antitrust context.  The end result of these two appeals goes some way to reconciling what were two seemingly conflicting judgments.

Read more about this, and the DOJ’s investigation into whether four airlines colluded to restrict capacity to maintain higher airfares, in our newsletter.

Nicko Waymouth, Senior Associate at Matthews Law, has been nominated by in-house counsel and his peers to appear in the inaugural edition of the Legal Media Group (LMG) Rising Stars 2015 guide – an international publication that identifies the brightest young talent in 28 practice areas of law. LMG also publishes other well-known international legal guides such as the Euromoney Expert Guides.

We are proud to announce that Matthews Law has been named Competition Law Firm of the Year – New Zealand in the Corporate LiveWire M&A Awards, 2015. This adds to a growing list of awards that have been won by Matthews Law and our lawyers since the firm was established in 2013.

The 2015 M&A Awards guide is available here. (Matthews Law features on page 121)

This weekend marks major changes to NZ consumer credit laws. The Credit Contracts and Consumer Finance Amendment Act 2014 makes significant changes to the Credit Contracts and Consumer Finance Act 2003. Most of the changes come into force this Saturday 6 June 2015. While the changes are aimed at protecting vulnerable consumers, they will undoubtedly increase compliance costs for lenders.

The new regime applies to all lenders who provide consumer credit, take security over consumer goods, or enter into buy-back transactions.  Lenders include banks, car dealers, and pawnbrokers.

Read more in our newsletter.

In our most recent newsletter, we discuss the ACCC’s announcement this week that it has commenced civil proceedings against eleven parties for alleged bid rigging conduct involving mining exploration licences in NSW. In the wake of this week’s allegations of corruption at FIFA, we also pose the question of whether sporting body monopolies lead to executives collecting monopoly rents. Finally, we report on a 27 May LEANZ seminar where Richard Meade discussed the interesting issue of whether customer-owned monopolies face different regulation than investor-owned firms.

Read more in our newsletter.

Andy Matthews & Gus Stewart recently contributed an article in the April 2015 edition of Antitrust News, the newsletter of the International Bar Association Legal Practice Division. The article covers:
– New Zealand’s new ‘unfair contract terms’ regime comes into force
– NZCC’s investigation into Air NZ’s ‘opt-out’ insurance results in a win for consumers
– NZCC settles for over NZD25m with three major banks in relation to interest rate swaps

On Thursday 30 April the Australian Competition and Consumer Commission (ACCC) announced that it will take no further action in respect of comments made by Andrew Forrest, Chairman of Fortescue Metals Group Ltd, about iron ore production.  The ACCC commenced a review of Mr Forrest’s comments following an article in the Australian Financial Review on 25 March 2015 which reported Mr Forrest called for a cap on iron ore production at a business dinner in Shanghai on 24 March 2015.

The Commerce Commission (NZCC) has today declined an application from Reckitt Benckiser Group (RB), owners of the “Durex” brand, to purchase Johnson & Johnson’s “K-Y” brand and product assets. The acquisition had been approved by regulators in Australia, USA, Brazil, and Colombia, and a decision is scheduled to be made by the UK’s Competition and Market Authority in June.

The NZCC had been considering the proposed merger for almost a year – the longest merger investigation in recent memory.

Read more in our newsletter.

Andy Matthews has again been selected by his peers for inclusion in this year’s edition of The Best Lawyers in New Zealand®, in the practice area of Competition & Consumer Law. Andy was also named the Best Lawyers® 2016 Competition & Consumer Law “Lawyer of the Year” in Auckland.

Only a single lawyer in each practice area, in each community is honored as a “Lawyer of the Year.”

The New Zealand Commerce Commission can now seek a declaration from the courts that particular terms in standard form consumer contracts are unfair. If a business continues to use a term that the courts have declared unfair it may be convicted and fined up to $600,000 per offence under the Fair Trading Act, and ordered to pay damages or to refund money.

Read more in our newsletter. Click on the button at the top of this page to join our mailing list.

Andy Matthews & Nicko Waymouth presented on New Zealand’s consumer law reform to an audience of legal practitioners at a LegalWise seminar this morning. The presentation primarily focused on the new “unfair contract terms” regime that comes into force on 17 March 2015, but also covered other recent amendments to the Fair Trading Act and Consumer Guarantees Act.

Andy Matthews and Nicko Waymouth, Principal and Senior Associate at Matthews Law, have again been recognised as leading individuals (Competition/Antitrust – New Zealand) in Chambers Asia-Pacific’s 2015 Guide.

Andy maintains his “Band 1” ranking, which he has held since 2006. Nicko is among a select few ranked in “Associates to Watch”, a ranking he has held since 2012. Chambers notes:

p +64 9 972 3753 | m +64 22 100 1000 | e nicko.waymouth@matthewslaw.co.nz

We are delighted to announce that Nicko Waymouth has joined Matthews Law as a Senior Associate. Nicko is one of New Zealand’s most experienced competition (antitrust) lawyers, with particular expertise in mergers, cartel work and consumer protection/marketing law. He has been ranked as an “Associate to watch” in leading lawyers directory Chambers Asia-Pacific since 2012.

A recent article written by Gus Stewart and Andrew Matthews for the CPI Antitrust Chronicle.

Article written by Andrew Matthews and Gus Stewart of Matthews Law. Coverage includes; Countdown  investigation, packaging cartel, timber cartel and modernisation of Fair Trading laws.

p +64 9 972 3755 | m +64 21 161 8111 | e gus.stewart@matthewslaw.co.nz

Matthews Law is delighted to announce the arrival of Gus Stewart as an associate, advising on competition, regulatory, telecommunications, TMT and consumer protection law. He previously worked as an in-house counsel at 2degrees and solicitor at Minter Ellison Rudd Watts.