2018 Litigation Forecast - Competition and antitrust Summary

A significant year for competition and antitrust litigation, 2017 saw:

  • Three appeals of unsuccessful merger clearance and authorisation applications and a competitor commence a private proceeding to block a merger.  It had been 10 years since an unsuccessful applicant last challenged a merger clearance decision and 2 years since an unsuccessful applicant last challenged a merger authorisation decision.  It was also the first time a competitor had commenced a private proceeding to block a merger in the history of the Commerce Act;
  • the Commerce Commission (NZCC) actively pursue investigations into several concluded deals where clearance was not sought;
  • an increase in effective and, in some instances, highly influential third party participation in the NZCC’s merger clearance and authorisation processes – a trend we expect to continue into 2018;
  • the High Court dismiss proceedings brought by the NZCC against two real estate companies and two individuals for alleged price fixing in relation to TradeMe listing fees; and
  • the NZCC commence High Court proceedings against a herd management and milk testing company for alleged cartel conduct.

Greater efficiency and transparency expected from the Commerce Commission in 2018.

It was also a year of legislative changes. The long awaited Cartels Bill came into force in August, replacing the old price fixing prohibition in the Commerce Act with a new prohibition on ‘cartel provisions’ and introducing a raft of new exemptions.  The new Government also indicated it intends to introduce new provisions in late-2018 allowing the NZCC to undertake market studies.

2018 will see the NZCC appeal the High Court’s decision in the real estate case to the Court of Appeal and Fairfax and NZME seek leave to appeal the High Court’s decision declining their appeal of the NZCC’s decision to refuse merger clearance.  We will also see the NZCC progress its case against GEA Milfos for cartel conduct and its case against Platinum Equity to prevent its acquisition of OfficeMax New Zealand.

Looking forward, we expect there to be a bedding in period and increased compliance activity as clients and advisers adjust to the new cartel provisions before they ‘go live’ in May 2018. The NZCC has indicated that it will update its guidelines that are affected by the changes and its cartel leniency policy.  We also expect the trend of third party intervention in merger clearance and authorisation processes to continue.

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