There’s something to be said about the effectiveness of poachers who turn gamekeeper, and it seems the same could be said of competition lawyers who turn regulators.
Sims – who has a background in economics – was scathing of judges being insufficiently sceptical of “self-serving testimony by the merger parties”, while Fels felt judges were too focused on the law and not on economics.Armies of lawyers and consultants paint “fanciful pictures of the evolution of competition in a market,” Fels says, which muddies the water and makes meeting the evidentiary burden too difficult.
“At the time you would have said they don’t have a current competitive overlap,” she says, adding that today we know the importance of those products in terms of the users and data that create value. “You would analyse it on a basis it would strengthen and entrench market power.
Lawyers say this greatly diminishes transparency and will force parties to throw the kitchen sink at the ACCC to ensure every possible argument is available on appeal., Cass-Gotlieb described that as a feature not a bug, while Samuels said the practice of withholding information from the ACCC until later in the process was “not appropriate”.
When you look at the combined effect of the package, it is certainly hard not to think Cass-Gottlieb’s experience beating the ACCC was informative.King & Wood Mallesons partner Simon Cooke also cited Qantas’ proposed acquisition of Alliance Airlines in 2023 and Transurban’s EastLink purchase in the same year as examples of cases where the ACCC’s decision to block the transaction would have been strengthened under the new test.
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