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Inside track: Competition & Consumer

28 April 2021

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Mesoblast may face fresh class action claim in Australia
A law firm in Australia is preparing a fresh class action claim against Mesoblast that alleges misleading or deceptive conduct to investors and breaches of continuous disclosure in the way in which the biotech promoted the prospects of its main product candidate, Remestemce (21 April 2021).  More...

Big four banks dragged to court over consumer credit insurance 'rort'
ASIC released its first report warning the industry about the low-value products in 2011. Its criticisms included "Misleading representations being made during … sale" and now ASIC has commenced civil penalty proceedings against Westpac. Rampant mis-selling meant products such as income protection insurance were sold to people such as students and pensioners who were not working and therefore unable to claim on it (21 April 2021).  More...

Garuda drops appeal, to pay $19m price fixing penalty in instalments
The Federal Court has approved a payment plan for airline PT Garuda Indonesia Ltd (Garuda) to pay a $19 million penalty the Court previously ordered relating to a long-running ACCC action against a global price fixing cartel in the air cargo industry (20 April 2021).  More...

Google ‘partially’ misled consumers over collecting location data, Australian court finds
Google has been found to have “partially” misled Australian consumers about collecting their location data, according to a federal court ruling. The court found that Google continued to collect “Location History” on some Android and Pixel phones, even for customers who ticked “No” or “Do not collect” on their settings (16 April 2021).  More...

Practice and Regulation

ACCC feedback: Choice and competition in search and browsers
The ACCC has released an issues paper, ‘Digital Platform Services Inquiry – September 2021 Report on market dynamics and consumer choice screens in search services and web browsers’ It is seeking submissions in response to the issues paper by 15 April 2021 (March 2021).  More...

ACCC Note: Screen scraping warnings not anti-competitive
The ACCC, responding to questions on notice as part of a parliamentary inquiry by the Senate Select Committee on Financial Technology and Regulatory Technology, said that “statements or warnings regarding potential security or safety risks associated with screen scraping and sharing passwords does not appear to have the purpose or effect of substantially lessening competition.” On 24 April 2020, the reporting date was extended from the first sitting day in October 2020 to 16 April 2021.

Guidelines on Part XICA - Prohibited conduct in the energy market
These guidelines set out how the ACCC will interpret Part XICA of the Competition and Consumer Act 2010 (Cth) (CCA) and they explain the general approach the ACCC will take in investigating alleged contraventions of Part XICA (prohibiting certain conduct involving retail pricing, financial contract markets and electricity spot markets).
Part XICA will be in effect from 10 June 2020 to 1 January 2026.  More...

Cases

Australian Competition and Consumer Commission v Google LLC (No 2) [2021] FCA 367
CONSUMER LAW – alleged contraventions of ss 18, 29 and 33 or 34 of the Australian Consumer Law (ACL) – whether particular users of mobile devices were misled or likely to be misled into thinking that with the Location History setting “off” and Web & App Activity setting “on” Google LLC would not obtain, retain and use personal data about a user’s location – consideration of users setting-up a Google Account, users wanting to turn Location History “off” and users considering whether to turn Web & App Activity “off” – whether Google Australia Pty Ltd passed on the representations made by Google LLC – alleged contraventions of ss 18, 29 and 34 of the ACL by Google LLC and Google Australia Pty Ltd partially made out
Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law, ss 18, 29, 33, 34, 140, 224
Trade Practices Act 1974 (Cth) ss 52, 53, 55A, 82; Consumer Affairs Act 1972 (Vic).

Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (No 3) [2021] FCA 347
CONSUMER LAW - application for remedies under the Australian Consumer Law - respondent company in business of hiring out four wheel drive vehicles - knowing involvement of second and third respondents
CONSUMER LAW - misleading or deceptive conduct - false or misleading representations - website and certain emails represented that vehicles were fully insured - vehicles not fully insured - contract term giving discretion to first respondent not to make claim against insurer even if vehicle insured and instead claim damage from hirer - finding that respondents had engaged in misleading or deceptive conduct
CONSUMER LAW - unfair contract terms - contract term permitted first respondent to track hire vehicles by global positioning system (GPS) - GPS data used to create reports alleging that hirers had engaged in driving behaviour which caused 'excessive wear and tear' - contract term allowing first respondent to deduct $500 from hirers' bonds per incident - contract term giving discretion to first respondent not to make claim against insurer even if vehicle insured and instead claim damage from hirer - contract term providing that hirers must not denigrate first respondent in any way after hire period had expired - terms found to be unfair
CONSUMER LAW - unconscionable conduct - bonds retained after hire - aggressive emails advising customers of bond retention - emails threatened customers with litigation, referral to authorities on basis of GPS data - emails intended to intimidate customers into not challenging the retention of the bonds - conduct found to be unconscionable
CONSUMER LAW - remedies - declarations including that contract terms are unfair - penalties - unknowable number of contraventions - course of conduct - non-party consumer redress orders
Acts Interpretation Act 1901 (Cth) s 15AB
Australian Securities and Investments Commission Act 2001 (Cth) Part 2, Division 2
Bankruptcy Act 1966 (Cth) ss 58, 82
Competition and Consumer Act 2010 (Cth) ss 83, 155, 137H

Australian Securities and Investments Commission v M101 Nominees Pty Ltd (No 3) [2021] FCA 354
CORPORATIONS – financial products offered by first defendant and entities associated with second defendant – whether certain entities provided financial services or financial products without a financial services licence – whether financial products offered by entities associated with second defendant had similar features and are “inherently problematic” or “fatally flawed” – whether new investors’ funds were used to repay redemptions promised to old investors – whether offering of certain financial products entailed misleading and deceptive conduct – whether certain entities provided financial services to a “retail client” without complying with requirements in Chapter 7 of the Corporations Act 2001 (Cth) – whether certain financial products launched by second defendant to circumvent orders of this Court in proceeding VID 228 of 2020
CORPORATIONS – whether second defendant was “directing mind and will” of the relevant corporate entities – whether second defendant involved in contraventions under s 79 of the Corporations Act 2001 (Cth) and s 12GBCL of the Australian Securities and Investments Commission Act 2001 (Cth)
CORPORATIONS – final relief – whether orders should be made permanently restraining second defendant from engaging in certain activities in relation to financial products
Held: Orders made restraining second defendant from engaging in certain activities for a period of 20 years.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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