Access to infrastructure and regulated industries
Dominance / Misuse of market power / Industry reviews
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Hunan Valin’s A$1.2bn acquisition of a stake in Fortescue Metals
Mallesons acted for Hunan Valin, a Chinese state-owned steel company in relation to its acquisition of an interest in Fortescue Metals Group, a leading global iron ore supplier based in Western Australia.
The deal was valued at A$1.5 billion and was Hunan Valin's largest off-shore investment in Australia.
Working closely with colleagues across the firm and applying our knowledge of the resources sector, Mallesons was able to engage proactively with the ACCC and manage the notification and review process effectively to obtain unconditional clearance ahead of the deadline for closing the deal in a very tight timeframe.
Lead partner: Dave Poddar.
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British Airways plc - Qantas proposed merger
Mallesons assisted British Airways plc in relation to its proposed merger with Qantas, which would have created the world’s first global airline, and would have required clearance from the ACCC. At the time, the proposed merger was the largest reported merger.
We were able to draw on our knowledge of British Airways, obtained from acting for British Airways in relation to previous applications to the ACCC for authorisation of the British Airways joint venture with Qantas, as well as in relation to investigations of cartel conduct in the air cargo and passenger industries.
Lead partner: Sharon Henrick.
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Representing Wyeth in Australia and New Zealand in relation to its proposed merger with Pfizer
Mallesons is acting for Wyeth in Australia and New Zealand on Wyeth’s proposed merger with Pfizer.
Our work involves co-ordinating with Pfizer to prepare applications for clearance for the deal from the ACCC and the New Zealand Commerce Commission.
The deal is one of the largest announced deals in recent times and involves complex antitrust issues, some of which are unique to the parties’ animal health products in Australia and New Zealand. We have been able to draw on our existing knowledge of Wyeth’s business (we have acted for Wyeth for many years) during the preparation of the applications for clearance.
Lead partner: Sharon Henrick.
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BG Group plc’s acquisition of Queensland Gas Company Limited and proposed acquisition of Origin Energy Limited
Mallesons acted for BG International Limited (BG) in relation to its successful on-market takeover offer for Queensland Gas Company Limited (QGC).
The acquisition, which valued QGC at approximately A$5.6 billion, was the largest on-market takeover in Australian history.
Prior to the QGC acquisition, Mallesons also acted for BG in its application for informal clearance from the ACCC in relation to its proposed acquisition of Origin, a deal valued at approximately A$13.8 billion.
In relation to the acquisition of Origin, Mallesons prepared the initial application to the ACCC for informal clearance, liaised closely with the ACCC in response to repeated requests for information and assisted BG in negotiating the terms of a proposed section 87B undertaking.
Lead competition partner: Dave Poddar.
Lead mergers and acquisitions partner: Tim Bednall.
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Incitec Pivot acquisition of Dyno Nobel
We acted for Incitec Pivot in its A$3.3 billion acquisition by schemes of arrangement of global explosive manufacturer Dyno Nobel. The acquisition transformed Incitec Pivot into a leading chemicals company with extensive global operations. Following the acquisition, Incitec Pivot was included in the S&P/ASX top 50 companies index.
Mallesons’ competition team undertook the various regulatory approval processes, including obtaining regulatory approvals from the ACCC. We also co-ordinated other foreign regulatory approvals, including antitrust approvals in North America and South Africa.
We worked closely with Incitec Pivot on all aspects of the transaction, bringing to bear a co-ordinated team of partners and lawyers from our mergers and acquisitions, competition, finance, and environment teams. We also co-ordinated the input of lawyers in the US, Canada, Mexico, South Africa and other jurisdictions.
Lead competition partner: Andrew Monotti.
Lead mergers and acquisitions partners: Alison Lansley and Diana Nicholson.
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Represented Lion Nathan Australia Pty Limited in its proposed acquisition of Coca Cola Amatil Limited
We assisted Lion Nathan Australia Pty Limited to prepare an application informal clearance from the ACCC for Lion Nathan’s proposed acquisition of Coca Cola Amatil Limited.
The proposed transaction was the largest transaction in Australia at that time.
Lead partner: Sharon Henrick.
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Kirin’s acquisition of Lion Nathan Pty Ltd
We advised Australian beer and wine producer Lion Nathan on its acquisition by Japanese brewer Kirin Holdings. The takeover valued Lion Nathan at A$6.5 billion on an equity basis.
The Mallesons team advising Lion Nathan consisted of partners from a number of expertise areas.
Lead competition partner: Sharon Henrick.
Lead mergers and acqusitions partner: Meredith Paynter and Greg Golding.
Lead tax partner: Judy Sullivan.
Lead banking and finance partner: Nuncio D’Angelo.
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Representing Chinalco in its acquisition of a 12% stake in Rio Tinto and subsequently in its proposal to increase its stake in Rio Tinto to 18% and to invest directly in Rio Tinto’s iron ore, aluminium and copper businesses
We assisted Chinalco obtain informal clearance from the ACCC for its initial acquisition of a 12% shareholding in Rio Tinto and advised on its subsequent proposal to increase its shareholding in Rio Tinto to 18% and to invest directly in Rio Tinto’s iron ore, aluminium and copper assets.
This work showcased our ability to obtain clearance for deals vigorously opposed by third parties, in fluid economic circumstances, under intense scrutiny from the media and closely watched by politicians. We were able to draw on the firm’s presence in Hong Kong and Beijing, including our Mandarin language skills, during our work on the transactions.
Lead partner: Sharon Henrick.
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Representing Hanson, a wholly owned subsidiary of Heidelberg, in the proposed sale of its asphalt business, Pioneer Road Services Pty Ltd, to Fulton Hogan
Mallesons acted for Hanson in obtaining informal clearance from the ACCC of the sale of its Australian asphalting business to Fulton Hogan.
The asphalt industry is relatively concentrated, with a small number of larger suppliers.
Our work is consistent with our track record of obtaining successful results for clients who wish to obtain clearance from the Commission for mergers in concentrated industries.
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Acquisition by Telstra companies of majority interests in four companies with interests in the China value added telecommunications area
In June 2008, Telstra purchased majority interests in Norstar Media, operator of a popular Chinese auto and digital device sites and in Autohome/PCPop, operator of one of the country’s leading automotive onlines sales site and digital device sites.
In February 2009, Telstra acquired controlling interests in China M and Sharp Point. China M is a leading supplier of consumer mobile content while Sharp Point provides technical services for China Mobile’s rapidly growing central mobile music platform.
Mallesons advised Telstra on antitrust/competition law issues arising from the acquisition of two regulated businesses. We were able to quickly address all issues and provide our client with comfort that the AMB would not prohibit the transactions, thereby allowing expedited completion to proceed.
Lead partner: Martyn Huckerby.
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Dow acquisition
We assisted The Dow Chemical Company in responding to queries, and ultimately securing informal clearance, from the ACCC in relation to its proposed global acquisition of Rohm and Haas. Dow's acquisition was valued at US$18.8 billion (worldwide), and has created what has been touted as the world's leading speciality chemicals and advanced materials company.
We utilised our expertise and familiarity with the ACCC and its processes to resolve the ACCC's concerns regarding this acquisition and to ultimately secure informal clearance for Dow within tight global deadlines.
Lead partner: Lisa Huett.
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Nestlé Australia Ltd and Societe des Produits Nestle S.A. acquisition of Fonterra's Peters ice cream business in Western Australia (WA)
Mallesons advised Nestlé Australia Ltd and Societe des Produits Nestle S.A. on their acquisition of Fonterra's Peters ice cream business in WA. Nestlé also acquired the gourmet ice cream brand Connoisseur together with rights to a number of other regional ice cream brands, including Memphis Meltdown. Nestlé now owns the best selling Peter’s ice cream brand Australia wide.
Lead competition partner: Sharon Henrick.
Lead mergers and acquisitions partner: Michael Barker.
Lead intellectual property partner: Katrina Rathie.
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Representing BA plc in the Asia Pacific time zone in relation to investigations into cartel conduct in the airline industry
We are advising British Airways plc in a number of jurisdictions in the Asia Pacific time zone in relation to investigations into cartel conduct in the airline industry - the largest such investigation ever conducted.
We have been able to draw on our existing experience of antitrust law and procedures in the Asia Pacific region, including our Asian languages skills, and our knowledge of competition law regimes and agencies in the region, to select, brief and co-ordinate local counsel in multiple jurisdictions in relation to multiple, concurrent investigations of our client.
Currently, we are assisting British Airways in New Zealand in relation to proceedings commenced by the New Zealand Commerce Commission against a number of airlines for alleged cartel conduct in the air cargo industry; in Korea, in relation to an investigation being conducted by the Korean Fair Trade Commission and in Australia, in relation to a class action against a number of airlines for alleged participation in an air cargo cartel.
Lead partner: Sharon Henrick.
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ACCESS TO INFRASTRUCTURE AND REGULATED INDUSTRIES:
Telstra Exemption Strategy
We have been advising Telstra on a number of applications to the ACCC for exemption from ex-ante regulation of certain fixed-line services. Recent successful outcomes include the ACCC's final decisions issued in late 2008 to exempt the supply of several fixed-line services in key CBD and metropolitan areas.
This is a large-scale matter that has demonstrated our superior project management skills. These have involved managing a number of work streams simultaneously and co-coordinating the work flow of several external parties while dealing with time pressures to meet the ACCC's and the Competition Tribunal’s timeframes, as well as Telstra's internal deadlines.
Mallesons’ broad range of competition, regulatory and litigation expertise, coupled with the knowledge gained during the exemption strategy project, allowed us to assist Telstra not only during the application process but also in subsequent review proceedings that followed on from the ACCC’s decision to exempt the various services. This allowed Telstra to benefit from the great advantages that come from having the same experienced advisor from the beginning of the process to the end.
Special Counsel: Thomas Jones.
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Port Waratah Coal Services - application for authorisation of vessel queue management system
We act for Port Waratah Coal Services Limited (PWCS), which is owned by major Australian coal operators, including Rio Tinto and Xstrata. PWCS operates the world's largest coal export terminal, located at the Port of Newcastle.
For a number of years various capacity balancing systems (CBS), have been in place at the Port of Newcastle to manage the queue of vessels waiting to load coal. These systems, which required ACCC authorisation to avoid breaching the Trade Practices Act, tended to be short term interim solutions while a longer term solution was developed. The most recent CBS in place at the Port of Newcastle to manage the queue of vessels waiting to load coal was due to expire on 31 December 2008.
Mallesons has assisted PWCS to work with the New South Wales Government and the Newcastle Coal Infrastructure Group (NCIG), a BHP led consortium, to develop a long term, whole of coal chain solution, which includes provision for the construction of a new coal export terminal.
To date, Mallesons has assisted PWCS, together with NCIG, to obtain interim authorisation for the initial stage of this long term solution.
The matter is of great significance as the end result will be a long term solution to manage access to, and expansion of, coal chain capacity in the Hunter Valley, and will deliver substantial benefits to the NSW and Australian economies.
We have put together a team of lawyers in the group with extensive experience in addressing the complex issues which arise in regard to infrastructure capacity constraints. Our team has also developed an effective working relationship with the ACCC which has assisted in progressing the authorisation applications in a timely and efficient manner.
Lead partner: Dave Poddar.
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GrainCorp Operations Limited and ABB Grain Limited - access undertakings for bulk wheat export port terminal services
We act for ABB Grain Limited (ABB) and GrainCorp Operations Limited (GrainCorp) in seeking ACCC approval of an access undertaking under Part IIIA of the Trade Practices Act for the provision of port terminal services for the export of Bulk Wheat.
GrainCorp and ABB operate the grain export terminals in Eastern Australia and South Australia. Following the removal of the AWB single wheat desk, GrainCorp and ABB, as well as Co-Operative Bulk Handling Limited (CBH), the Western Australian grain export terminal operator, and a number of large multi-national wheat exporters, also began exporting bulk wheat into the global market.
Mallesons was requested to assist GrainCorp, ABB and CBH initially in approaching the ACCC and preparing a pro-forma Access Undertaking to form the basis for them to each prepare an individual access undertaking. This was a novel approach which provided the clients with a cost effective result and minimised duplication of the ACCC’s processes.
Lead partners: Dave Poddar and Vishal Ahuja.
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Australian Rail Track Corporation Limited - Hunter Valley Access Undertaking
We acted for Australian Rail Track Corporation Limited (ARTC) in the preparation of its voluntary access undertaking to the ACCC to provide rail access to its Hunter Valley network. The Hunter Valley rail network is a crucial component of the export coal chain linking the Hunter Valley coal producers with their export markets.
The Hunter Valley rail access undertaking introduces a number of new concepts reflecting the unique situation of the Hunter Valley network, including the possibility of direct contracts between ARTC and coal producers for access rights to the network as well as a number of steps to align rail capacity with capacity at the Port of Newcastle.
We have worked closely with ARTC in developing solutions that balance the different concerns of various stakeholders in the Hunter Valley network. In addition to the access undertaking submitted to the ACCC, we have also drafted indicative arrangements that translate the commercial solutions proposed into a legal framework.
Lead partner: Vishal Ahuja.
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Telstra Corporation Limited - Access Disputes under Part XIC of the Trade Practices Act
We act for Telstra on numerous access disputes under Part XIC of the Trade Practices Act concerning the terms and conditions upon which Telstra supplies the unconditioned local loop service and the line sharing service.
By resourcing these matters with a team of lawyers with a unique breadth and depth of experience in access disputes, telecoms regulation and commercial negotiations with access seekers, we are in a position to work with Telstra to achieve the optimum regulatory and strategic outcomes. We are also able to take advantage of the experience gained across several access disputes to efficiently manage the preparation of submissions and advice within the strict and often tight timeframes imposed by the ACCC.
Lead partner: Agata Jarbin and Thomas Jones (Special Counsel).
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Request for Proposals, Implementation and Regulatory Review for a National Broadband Network
The Australian Government held a competitive tendering process for the construction and rollout of a national fibre-to-the-node next generation broadband network (NGN), the lynchpin in its strategy to grow and exploit the “digital economy”. To facilitate construction and rollout, the Australian Government committed to provide up to A$4.7 billion in funding and any necessary regulatory changes to facilitate the rollout.
We advised Telstra on its proposal to rollout and operate the NGN, giving strategic advice on all aspects of its proposal, including:
- Developing a complete regulatory framework for the construction, roll-out and life of the NGN
- Devising an optimal corporate structure to achieve Telstra’s desired objectives
- NGN network architecture and integration with Telstra’s existing network, and
- Seamlessly migrating Telstra’s wholesale and retail customers to the NGN.
Lead partners: Neil Carabine, Renae Lattey, Kristin Leece, James Forrest, Luke Waterson, Mark Weber, Roger Featherston (Legal Consultant) and Andrea Kennedy (Special Counsel).
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Telstra Corporation Limited - Part XIC Arbitration and Federal Court matter involving the ordering and provisioning of the ULLS to a MDU
We act for Telstra on numerous access disputes under Part XIC of the Trade Practices Act concerning the terms and conditions upon which Telstra supplies the unconditioned local loop service (ULLS).
Due to the extensive knowledge and experience we have gained from acting for Telstra across a broad range of access disputes under Part XIC, we are able to efficiently manage the preparation of submissions and advice within the strict and often tight timeframes imposed by the ACCC and the Federal Court. We also possess a deep understanding of the technical details involved. In addition, we have a team of lawyers with a unique breadth and depth of experience across various disciplines including the resolution and arbitration of access disputes, telecoms regulation and litigation. This puts us in a position to work with the client to achieve the optimum regulatory and strategic outcomes.
Lead competition lawyer: Thomas Jones (Special Counsel).
Lead dispute resolution partner: Roger Forbes. ______________________________________________________________________________
GM Holden - Saab Green Marketing
We acted for GM Holden in relation to Federal Court proceedings instituted by the ACCC against GM Holden in January 2008. The ACCC alleged that Saab’s “Grrrrrrreen” advertising campaign contained misleading “green” claims about Saab’s program to plant trees to offset one year’s worth of carbon emissions.
The case was the first action taken by the ACCC in relation to green marketing claims and was settled by consent orders.
Lead partner: Amanda Bodger.
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Telstra’s Next G™ network relaunch campaign
We acted for Telstra in its successful campaign re-launching the Next G™ network. The campaign was supported by various advertising pieces on television, outdoor media, press and online. The aim of the campaign was to differentiate the Telstra Next G™ network, focussing on breadth of coverage, technology capability (including the speed of the network), entertainment and depth of coverage.
Mallesons was heavily involved in the development of the marketing claims for this campaign. Through our depth of knowledge and experience with mobile networks (including the original launch of the Next G™ network in 2006), we were able to understand the key technical aspects of the network which were the core foundations for the marketing messages.
By leveraging our broad experience in advertising law and general commercial approach we were able to assist Telstra in translating the technical benefits of the Next G™ network into meaningful real life, legally acceptable marketing claims.
Lead partners: Amanda Bodger and Caroline Coops.
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DOMINANCE / MISUSE OF MARKET POWER / INDUSTRY REVIEWS:
Representing Coles Myer in the ACCC’s inquiry into the competitiveness of retail prices for standard groceries
We are assisting Coles Myer in the ACCC’s inquiry into the competitiveness of retail prices for standard groceries. In particular, we have been actively involved in assisting Coles Myer with making submissions to, and responding to information requests from, the ACCC.
The outcome of the inquiry is of particular importance because it has the potential to alter the structure of the industry. This is highly significant for Coles as a major player in the Australian groceries industry.
We have been able to draw on the breadth and depth of our competition practice and public inquiry experience across our Sydney and Melbourne offices. Our team has provided both focussed strategic input and substantial resources to Coles as required.
Lead partners: Dave Poddar and Caroline Coops.