GCR 100 - 17th Edition

Australia

10 January 2017

Australia

The firms at the top of Australia’s dense competition bar continue to fight for work – predominantly in mergers – much of which is dictated by the country’s active enforcer.

Elite

The team at ALLENS remains one of a select few practices universally deemed to be at the top of the Australian competition bar. Practice leader Fiona Crosbie says they are laser-focused on competition issues, and has seen several junior lawyers move up in rank over the past months. The firm has added a new level to its attorney structure – “managing associate”, on par with an of counsel in the US. The practice’s two managing associates and four senior associates add depth to the six-partner group. David Brewster left the partnership last year to go in-house at Coles, a major Allens client.

Competition work at Allens blends a variety of industries and legal issues, from the Australia-specific energy and natural resource sectors, to media and healthcare companies in need of antitrust advice. The team’s behavioural track record is second to none. It boasts a so-far successful defence of Pfizer against the Australian Competition and Consumer Commission’s (ACCC) claims that the drug maker misused market power related to its supply of cholesterol drug Lipitor to pharmacies. The ACCC has appealed a lower court’s dismissal of the case, and Allens’ representation continues. The team also helped mega-supermarket chain Coles settle a conduct case against its suppliers, and represents PZ Cussons in a landmark hub-and-spoke cartel case in the laundry powder market.

Merger work at Allens is just as high-profile. It is acting for Shell on its blockbuster A$91 billion acquisition of BG, still under review at the ACCC. DuPont turned to Allens to handle Australian clearance for its US$130 billion tie-up with rival Dow Chemical, and the firm is acting for News Corp in its purchase of a stake of APN News & Media. The team is also acting for Recall Holdings in its takeover by Iron Mountain – a deal worth A$3.4 billion. As with many Australian practices, regulatory work is also a major slice of the practice’s core business. The state-run National Broadband Network (NBN), Rio Tinto, Wesfarmers and the government of New South Wales all turn to Allens for advice at the crossroads of competition and regulatory structure.

GILBERT + TOBIN remains one of the strongest groups in the country, solidified by an enviable collection of talent at the top of the practice, including Sydney-based Elizabeth Avery, Gina Cass-Gottlieb and Luke Woodward. Overall, nine partners make up the core competition group, spread between Sydney and Melbourne, while 27 additional lawyers fill out one of the deepest benches in the bar. The firm promoted Charles Coorey to partner in July.

Deal work is heavy here, with a mix of local work and international tie-ups that need competition law guidance in Australia. Simon Muys in Melbourne helped guide Aquis Reef Holdings’ purchase of Reef Hotel Casino, which the ACCC cleared without conditions even after issuing a statement of issues over the deal’s suspected effect on future competition. The team helped Wesfarmers win approval for its takeover of Pacific Brands. In international deals, Gilbert + Tobin acted as Australian and New Zealand counsel to Mylan in its purchase of Abbott’s generic drug business; the deal was cleared in both jurisdictions. It also advised AB InBev in its mega-merger with SABMiller, which the ACCC cleared after five months in Phase I.

Behavioural matters are just as prominent, if not more so. The team is acting for Coles Express, a petrol retailer, in the ACCC’s investigation of potential information exchanges in the industry – a case that will push the boundaries of the law’s prohibition of such exchanges outside of price-fixing cases. It represents Informed Sources and other petrol retailers in the ACCC’s landmark information exchange case, and has taken on work for NSK in a now-resolved price-fixing investigation in which the auto parts maker agreed to pay a A$3 million fine. The firm also handled air cargo charges and court cases for Malaysia Airlines, Thai Airways and Garuda. Other clients of the practice include Samsung, Alstom and Virgin Australia.

The already sizeable Australian competition team at HERBERT SMITH FREEHILLS has expanded significantly over the past two years. In late 2014, the firm poached top competition and antitrust lawyer Liza Carver from rival Ashurst, gaining a handful of new clients and associates in the process. The team, led by Paul Hughes, counts eight partners and 15 associates who spend at least half their time on competition matters, putting it on a strong footing to compete with other major competition firms for work. Daniel Preston left the partnership last year to become a consultant.

The practice remains involved in some of the most complex and significant matters in the country. It defends Visa against ACCC allegations of misuse of market power during currency exchanges, which the company eventually settled, avoiding a five-week trial in federal court. The Herbert Smith team is also advising Cement Australia in the longest-running abuse of dominance case in the country’s history, dating back to 2008. The Federal Court in August 2016 ordered the company to pay A$18.6 million – a fraction of what the ACCC sought – and both sides have appealed the decision. The firm has also advised electrical cable makers Olex and Rexel in an ACCC civil cartel case in Melbourne court.

Meanwhile, Herbert Smith Freehills is advising Caltex in the ACCC’s petrol station price exchange investigation and court proceedings. The firm also helped joint venture iHail win approval to bring multiple taxi networks together for the ride booking app, despite the ACCC’s initial concerns. Other clients include Metcash, Tabcorp, BHP Billiton and Wesfarmers.

The competition team at KING & WOOD MALLESONS has emerged as perhaps the best in the country. Practice leader Sharon Henrick and her team blend top-flight merger work with major competition litigations and investigations at the ACCC, and offer one of the largest and most balanced groups in the country. Over the past year, they brought novel tactics before the ACCC that allowed global deals to close; headline work on cases that could break legal ground in Australia, and advice for leniency applicants in potential cartel investigations.

Merger work at KWM has been particularly active over the past year, and Henrick has taken the lead on several major matters. She is acting for Dometic Group in its purchase of Atwood Investment, for which Henrick struck a hold-separate deal with the ACCC that allowed the merger to close globally while the agency carried out a 131-day investigation, which eventually closed without conditions. Partners Stephen Ridgeway and Wayne Leach also handle deal work, including two major tie-ups for client Expedia – the Orbitz acquisition among them – while partner Andrew Monotti obtained Australian clearance for Halliburton in its now-abandoned blockbuster buy of Baker Hughes.

The firm’s track record of novel work includes behavioural matters as well. Flight Centre turned to KWM to guide its defence against ACCC allegations of price fixing based on agent agreements. The Federal Court exonerated Flight Centre last year, and the ACCC has appealed to the High Court in what will be the first competition case before the court since 2003. Ridgeway this year has led the way for Informed Sources, which the ACCC accused of acting as a conduit for information-sharing among major retail petrol companies. It’s the first test of whether such information-sharing violates competition law as a general substantial lessening of competition, rather than a cartel violation. A hearing is scheduled for February. Meanwhile, the firm advised Colgate-Palmolive in the ACCC’s laundry detergent cartel investigation, which the company recently settled, and auto parts maker Yazaki in a case that will test whether the commission can go after conduct by foreign companies that took place outside of Australia.

Partner Paul Schoff continues to lead the competition team at market leader MINTER ELLISON, with former practice head Russell Miller continuing to serve in a senior statesman role. Of the firm’s 10 partners, Katrina Groshinski and Geoff Carter are considered top talent, and the practice at Minter overall is well respected among its peers in the bar. Matthew Knox joined as a partner in 2015, based in Perth, and he adds to the remarkable geographic reach of the firm within the country, with teams in five cities. Miranda Noble was appointed special counsel in July this year.

At the top of the Minter Ellison docket at the moment is the firm’s representation of TPG Telecom, which got its A$1.56 billion takeover of iiNet past the commission last year. The deal reduced the number of broadband providers in Australia from five to four, and the ACCC had released a preliminary statement suggesting the deal could harm competition. Elsewhere, the team won Competition Tribunal approval for Toll in the merger of its marine logistics business with Sea Swift despite the opposition by the ACCC – one of only two such tribunal approvals over the past decade. The firm is also advising on several international deals, including Iron Mountain/Recall, Dell/EMC and Exxon/World Fuel Services.

Significant behavioural matters dot the team’s docket as well. Minter Ellison has done extensive port regulatory work, some on behalf of the New South Wales government. The team also advised the International Air Transport Association when it intervened in the appeal against the ACCC’s price fixing prosecution of Flight Centre. The ACCC’s foreign exchange investigation is consuming the team’s time, as is a probe of possible collusion among Japanese shipping liners.

The competition team at ASHURST has reorganised itself after former practice head Liza Carver left last year for Herbert Smith Freehills. With Carver gone, Bill Reid has taken over as the head of the group, while partner Peter Armitage continues to be singled out for his work and sterling reputation. Two other partners round out the top of the group. There’s no recruiting going on at the moment, Reid says, as the firm focuses on its own crop of young lawyers; indeed, Alyssa Phillips, now counsel in Brisbane, is considered a rising star within the firm. Reid says the practice has remained busy and continues to advise top clients.

The work at Ashurst is divided more or less evenly between mergers and conduct. The team advised Allergan in its tie-up with Pfizer before that deal fell apart due to changes to US tax rules. Staples/Office Depot was another top international merger on which the firm worked until US opposition caused it to collapse. Ashurst worked for AGL Energy in its groundbreaking merger with Macquarie Generation, which the Competition Tribunal approved. On the behavioural side, the firm is acting for Loyal Coal in an ACCC bid- rigging case over coal mining licences. The firm is also working on a considerable number of confidential matters in the financial services and steel industries.

The competition team at BAKER & MCKENZIE, led by partner Georgina Foster, boasts significant capacity. With four full-time partners concentrating on competition work, the group says it focuses on merger control – both on the local level and alongside its unmatched global network – and infrastructure access and other regulatory issues.

On the regulatory side, the firm is currently acting for Adani Mining in third-party access issues surrounding its Carmichael Project in the Galilee Basin in Queensland, which is potentially the last undeveloped coal mining resource in the state. In deals, the team advised FedEx in its acquisition of TNT Express on ACCC approval of the deal, which it secured in Phase I, and JB Hi-Fi in winning clearance for its purchase of appliance retailer The Good Guys. Baker & McKenzie helped the ACCC review Iron Mountain/Recall.

It’s been steady as she goes at CLAYTON UTZ, among the largest and most prestigious of Australia’s “Big Six” law firms. There appear to have been some changes at the firm since the last GCR 100. Partner Kirsten Webb now leads the group, which has grown from five partners to seven with the inclusion of dispute resolution partner Richard Hoad and government service lawyer Barry Dunphy. Michael Corrigan, Linda Evans and Bruce Lloyd remain the major names at the practice.

Work continues apace for Woolworths, one of the country’s largest retailers and a major recipient of competition advice at the moment. The company was targeted in the ACCC’s laundry detergent price-fixing investigation, which the company settled this year. Clayton Utz is also advising Woolworths in the commission’s petrol stations investigation. The team is also advising Boehringer Ingelheim in its deal with Sanofi, involving animal healthcare and consumer healthcare swaps. NBN, which is acquiring assets belonging to Optus in a complex deal, is another client. The firm also acts for Macquarie Bank in its acquisition of the Esanda dealer finance portfolio, and on regulatory issues for the Northern Territory government.

Practice head Dave Poddar has helped to build a considerable practice at CLIFFORD CHANCE. This year, the firm reports just four partners – down from six last year – along with one counsel and five associates. Still, the team at Clifford has grown its client base and workload considerably over the past few years, and now seems to have fully taken advantage of its prominent position as a robust global practice active in many of the world’s most prominent and, for clients, crucial competition law jurisdictions.

The firm’s docket remains a mix of local and international matters, both deal-related and behavioural. Merger cases include the firm’s representation of General Electric in its multibillion-dollar transaction with Alstom, which the ACCC cleared unconditionally in 2015. The firm advised ICAP in its merger with Tullett Prebon, handling filings in Australia and Singapore, which both cleared the broker deal without conditions. Glencore remains a major client, particularly in access matters. Other clients include Parmalat Lactalis and the shareholders of Menulog Group.

JOHNSON WINTER & SLATTERY boasts a team that, by size alone, appears capable of handling any competition matter that might come to pass. Seven partners, including firm chairman Aldo Nicotra, specialise in competition law, although it is unclear whether all of those lawyers spend at least half of their time on competition law matters. Regardless, the team is busy. It is acting for Unilever, the immunity applicant, in the commission’s laundry detergent investigation, and the firm continues to advise the company as it assists the ACCC. Prysmian Group is being counselled by the firm in civil proceedings against the ACCC in relation to the cable maker’s alleged involvement in a global cable cartel that ultimately affected the Australian market. The firm also helped Supabarn sell five supermarkets to Coles after the ACCC required the companies to amend the deal.

NORTON ROSE FULBRIGHT continues to feature a robust and active practice. Former ACCC official Nick McHugh leads a team of five other partners who dedicate most of their time to competition matters, and their recent docket includes an impressive array of cases across industries. The firm has had a central role in contentious matters, both at the ACCC and in private litigation. In deal work, the firm acted for Alstom in its tie-up with GE, and helped GlaxoSmithKline secure a three-party asset swap and a related joint venture with Novartis. The firm also acts on behalf of public enforcers, advising the Queensland Competition Authority in its review of rail access undertakings, and the ACCC in its laundry detergent cartel investigation and prosecution.

Firm

Head(s) of competition

Size

Who's Who Nominees

Clients

Elite

Allens

Fiona Crosbie

6 partners

22 lawyers

Fiona Crosbie

Jacqueline Downes

Carolyn Oddie

News Corp, Rio Tinto, Pfizer, Uber, Samsung, Coles/Wesfarmers, Vodafone Hutchison Australia, PZ Cussons

Gilbert + Tobin

Luke Woodward

9 partners

1 special counsel

26 lawyers

Luke Woodward

Simon Snow

Gina Cass-Gottlieb

Elizabeth Avery

Wesfarmers, Jemena, Westpac Bank, CSR Limited, Rio Tinto Coal, Virgin Australia, Telstra, Pact Group

Herbert Smith Freehills

Paul Hughes

8 partners

15 lawyers

Chris Jose

Paul Hughes

Patrick Gay

Liza Carver

BHP Billiton, Wesfarmers, Visa, ANZ, Allianz, Santos, AGL Energy, Santos, Rexel, Olex

King & Wood Mallesons

Sharon Henrick

9 partners

36 lawyers

Caroline Coops

Sharon Henrick

Trish Henry

Wayne Leach

Stephen Ridgeway

Expedia, Colgate, British Gas, Halliburton, Flight Centre, GE, Asciano, Cabcharge, ChemChina

Minter Ellison

Paul Schoff

10 partners

40 lawyers

Geoff Carter

Katrina Groshinski

Russel Miller AM

Paul Schoff

American Express, Heinz, Ergon Energy, Commonwealth Bank of Australia, Allianz, IATA, Singapore Airlines

Highly Recommended

Ashurst

Bill Reid

4 partners

2 counsel

Bill Reid

Peter Armitage

Woolworths, BHP Billiton, Samsung Electronics, Allergan, Cleanaway, Coca-Cola Amatil, Australia and New Zealand Banking Group

Baker & McKenzie

Georgina Foster

4 partners

None

FedEx, MasterCard, ACCC, Anglo American, Myer, Origin Energy, Mars, NSW Government

Clayton Utz

Kristen Webb

7 partners

32 lawyers

Michael Corrigan

Linda Evans

Bruce Lloyd

Woolworths, Apple, Boehringer Ingelheim, Fletcher Building, Optus, Asciano, Macquarie Bank, Seven Group

Clifford Chance

Dave Poddar

4 partners

1 counsel

5 associates

Dave Poddar

Glencore, Allied Mills, Just Eat, Bunnings/Wesfarmers, NBC International, Shell, General Electric

Recommended

Corrs Chambers Westgarth

N/A

N/A

None

N/A

Johnson Winter & Slattery

Aldo Nicotra

7 partners

1 counsel

10 lawyers

Wolfgang Hellmann

Aldo Nicotra

Unilever, Disney, Qantas, Brookfield, Origin Energy, Yahoo!, Uber, Ramsay Healthcare

Norton Rose Fulbright

Nick McHugh

6 partners

20 lawyers

None

Alstom, ACCC, GlaxoSmithKline, Queensland Competition Authority

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