The Competition Law Group's newsletter provides timely information on business mergers and acquisitions, risk identification and compliance with key competition legislation such as the Commerce Act, Fair Trading Act and Consumer Guarantees Act. It also discusses restrictive trade practices, consumer protection issues and the function and powers of the Commerce Commission.

The Warehouse Decision in
the Court of Appeal
A Return to Basic Principles
Aug 2008
In December 2007 we published an FYI headed "The Warehouse Decision – Why the Commission Must Appeal the High Court Decision". The Commerce Commission did lodge an appeal and on 1 August the Court of Appeal set aside the clearances granted by the High Court permitting Woolworths and Foodstuffs to acquire The Warehouse.

Simpson Grierson was neither pleased nor displeased with the result. We never took sides. We were however pleased that the Court of Appeal has reaffirmed the principles of merger law that we at least had always thought were established.
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Mergers & Acquisitions - Can Vendors
in Acquisitions Be Liable For
Breaches of the Commerce Act?
Jul 2008
When the largest bus operator in Wellington, NZ Bus, looked to acquire 100% of the second largest bus operator (in which it already held 26%) the High Court, in a landmark decision, not only found NZ Bus to be in breach of the Commerce Act, but also found the Vendors liable as accessories. The Commerce Commission had also claimed accessory liability against NZ Bus' parent company Infratil, but no liability was found by the High Court. Following appeal to the Court of Appeal, the parameters of accessory liability have become even more murky. Given the critical importance of this issue to the business community the Commerce Commission has sought leave to put the matter before the Supreme Court. We outline the issues below.
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Cartel Cases - the New Wave
of Competition Law Litigation
Mar 2008
The number of cartel investigations and High Court claims in New Zealand has dramatically increased in the last couple of years. Without a doubt this is the new wave of competition law litigation. It is a wave best avoided at all costs, as it can, and invariably does, wreak havoc on those companies and individuals caught up in it.
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The Warehouse Decision
Dec 2007
Why the Commission Must Appeal The High Court Decision

On 5 December the High Court released the public version of its 29 November judgement granting clearance to both Woolworths and Foodstuffs to acquire The Warehouse.
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Keeping up with the Aussies?
Nov 2007
Why look at Australian Law?

The competition law provisions of the Australian Trade Practices Act 1974 (ATPA) have been amended a number of times in recent years with many changes coming into force on 1 January 2007, others passed on 24 September 2007 and further changes proposed, including the much publicised calls for criminalisation of so-called "cartel" behaviour. As the Australian and New Zealand governments have recognised the need for greater integration and co-ordination of competition laws between the two countries it is timely to review whether and how these changes might affect New Zealand business.
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Microsoft v European Commission -
Microsoft's battle with antitrust
authorities continue
Oct 2007
The saga of the European Commission's investigation into aspects of Microsoft Windows has reached another milestone. On 17 September 2007, the European Court of First Instance substantially upheld the European Commission's complaint against Microsoft that it had anti-competitively 'tied' Windows Media Player to the rest of Windows and had anti-competitively refused to supply interoperability information to rival providers of work group server operating systems.

While not directly relevant to New Zealand, the case will be indirectly relevant in how to consider the conduct of a monopolist, particular when in a dynamic and innovative market. The case highlights differences in antitrust enforcement in the EU and US and the difficulty in analysing and remedying competitive concerns in fast-moving markets.
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Kiwi Treatment of Cartels -
New Zealand Commerce
Commission's Approach to
Cartels
Jul 2007
In New Zealand the Commerce Commission is the competition law enforcement agency. Like its international equivalents, our Commerce Commission wants to encourage competitive markets and one of its strategic priorities is to take action against anti-competitive conduct, particularly price-fixing or market sharing arrangements by cartels.
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Resale Price Maintenance
Jun 2007
Are you a manufacturer or supplier of goods? Have you ever thought it would be commercially sensible to protect and promote your brand's image by setting the minimum price at which your distributors or retailers market your goods? Be careful if you do so; the practice of setting minimum prices for resellers is called "resale price maintenance" and is prohibited under the New Zealand Commerce Act 1986.

This article examines Resale Price Maintenance practices caught under the Commerce Act and comments on a recent Australian case where the Judge questioned the basis of the prohibition.
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Acquisitions - Vendor Liability
for Breach of the Commerce
Act
Feb 2007
Considering selling your business? Consider this. Usually the Commerce Act implications of a merger or acquisition are the responsibility of the prospective buyer, but in a recent High Court decision a vendor was found to have fallen foul of the legislation. Simpson Grierson's competition group comments on the decision and implications for vendors.
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Cease and Desist
Oct 2006
Since 2001 the Commerce Commission has had the power to make "cease and desist" orders which are like injunctions requiring a person to stop alleged anti-competitive conduct in situtations where there is an urgent need to act. It's taken until 2006 for the power to be used - Simpson Grierson's Competition Law Group reports on this latest exercise of the Commerce Commission's powers.
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Might Not Always Right
Apr 2006
April 2006: Businesses wielding significant market power need to tread carefully as recent examples show smaller companies are prepared to speak out against attempts to squeeze them out.
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FYI Competition Law
(Archives)
A collection of FYI Compeition Law articles.
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Submissions called by
MED on Commerce Act
Clearance and Authorisation
Processes
The Ministry of Economic Development (the Ministry) released a discussion document on 29 May 2007 concerning whether changes should be made to the Commerce Act 1986 (the Act) to improve the Commerce Commission's (the Commission's) clearance and authorisation systems.

The discussion document seeks answers to a series of questions to enable the Ministry to undertake a review of the Act. Submissions were due on 10 August 2007.
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Simpson Grierson
Submission to MED
Please find attached Simpson Grierson's submission to the Ministry of Economic Development in relation to this issue.
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