ACCC v Emirates [2012] FCA 1108

The Federal Court ordered Emirates to pay $10 million in penalties for engaging in cartel conduct relating to the alleged price fixing of fuel and other surcharges by international airlines.  Emirates is the tenth airline to settle in these proceedings, bringing the total penalties ordered in Australia against international airlines to $68 million, the highest penalties ordered in an ACCC investigation to date.

Katzmann J also ordered Emirates to restrain from engaging in similar conduct for five years and to pay $500,000 towards the ACCC’s costs.  This decision comes just a week before the ACCC’s main proceedings are due to commence against Singapore Airlines, Cathay Pacific and Air New Zealand.  The ACCC is also proceeding against Garuda Indonesia following a High Court decision last month declaring that the airline was not eligible for foreign state immunity.

ACCC v Eternal Beauty Products Pty Ltd [2012] FCA 1124 

The ACCC successfully alleged that, through a series of telephone and email communications over a 9 month period, Eternal Beauty Products Pty Ltd, a supplier of women’s beauty products, attempted to stop two online retailers from discounting its products on their websites.  The Federal Court imposed penalties of $80,000 against Eternal Beauty and $10,000 against its only Australian Director for engaging in resale price maintenance.

Proceedings against Hewlett-Packard for allegedly misrepresenting consumer rights

The ACCC instituted Federal Court proceedings against Hewlett-Packard Australia Pty Ltd for alleged contraventions of the Australian Consumer Law relating to false or misleading representations in regards to statutory warranties and consumer guarantee rights. 

Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200

In a landmark decision and one likely to be attracting significant interest in overseas jurisdictions, the Federal Court found that a ratings agency had engaged in misleading and deceptive conduct by assigning a triple AAA rating to a highly leveraged, risky, mortgage product, the Constant Proportion Debt Obligation (CPDO).

The trial judge found that Standard & Poor’s, a division of McGraw Hill International (UK) Limited, had engaged in misleading and deceptive conduct in contravention of the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) causing some 13 NSW local councils to suffer losses of approximately $30 million. The judge also held the conduct was a breach of the agency’s fiduciary duty of care.

Justice Jagot found that although assigning a rating involves an opinion, it nevertheless amounts to a representation that the opinion is based on reasonable grounds and is reached in the exercise of reasonable care or skill. The judge found that Standard & Poor’s disclaimers did not preclude a finding that its conduct was misleading and deceptive or negligent. ABN Amro, which arranged the CPDOs, and LGFS which sold them, were also held liable.

The appeal is equally expected to attract international interest.