In Touch: Meta cleared to acquire Kustomer; and other developments

By Jacqueline Downes
ACCC Consumer law Infrastructure Technology Telecommunications

The latest in competition and consumer law 4 min read

Mereenie gas field joint marketing proposed to be allowed under draft determination

On 19 November 2021, the ACCC issued a draft determination proposing to authorise joint venture partners Central Petroleum, Macquarie Mereenie, New Zealand Oil and Gas and Cue Energy to jointly market natural gas produced from the Mereenie gas field in the Northern Territory and enter into gas supply agreements with customers on common terms and conditions. The ACCC's draft determination highlights the reduced transaction costs and increased investment likely to result from the proposed conduct. The ACCC is seeking submissions from interested parties on its draft determination by 13 December 2021, with a view to issuing its final determination in January 2022.

ACCC will not oppose Meta's acquisition of Kustomer

On 18 November 2021, the ACCC announced it would not oppose Meta's (formerly known as Facebook Inc) acquisition of Kustomer, a small customer relationship management (CRM) software-as-a-service provider based in the United States.

Meta owns and operates digital platforms Facebook and Instagram and provides messaging services including through WhatsApp, Facebook Messenger and Instagram. Kustomer provides CRM services which include collating customer interactions through channels used by businesses, such as social media or messaging services owned by Meta.

The ACCC initially had concerns that the acquisition may incentivise Meta to restrict access to its messaging services for CRM providers that compete with Kustomer. The ACCC decided, however, that Meta was likely to have limited incentive to do this as Meta has an interest in promoting the use of its messaging services to grow the advertising revenues it derives from its social media platforms. The ACCC therefore concluded that the acquisition would be unlikely to substantially lessen competition in any market in Australia. The transaction is still under review by overseas regulators including in the US and EU.

Alkaloids of Australia pleads guilty to criminal cartel charges

On 16 November 2021, Alkaloids of Australia Pty Ltd (Alkaloids) pleaded guilty to criminal cartel conduct. Its former export manager, Christopher Kenneth Joyce, pleaded guilty to criminal cartel conduct in relation to the same allegations in late October 2021.

Alkaloids is a pharmaceutical ingredient company which produces and supplies an active pharmaceutical ingredient in antispasmodic medications called scopolamine N-butylbromide (SNBB). The CDPP alleged that Alkaloids and Mr Joyce gave effect to agreements to fix prices, restrict supply, allocate customers and/or geographical markets and/or rig bids for the supply of SNBB to international manufacturers of generic antispasmodic medications.

The matter has been committed to the Federal Court of Australia for sentencing.


High Court denies Volkswagen leave to appeal penalty

On 12 November 2021, the High Court dismissed Volkswagen AG's application for special leave to appeal the $125m penalty ordered by the Federal Court in 2019 for making false or misleading representations when importing more than 57,000 diesel vehicles into Australia. Volkswagen proposed that if special leave were granted by the High Court, it would seek orders to set aside the $125m penalty and replace it with a penalty of $75m, which was the penalty figure originally put to the Federal Court jointly by the ACCC and Volkswagen.

The High Court's dismissal of Volkswagen's application for special leave comes after the Full Court of the Federal Court refused Volkswagen's appeal of the penalty in April 2021.

Please Hold agrees to amend small business contracts to remove allegedly unfair terms

On 11 November 2021, UK-based audio branding company Please Hold (UK) Limited (Please Hold) agreed to amend certain terms in its standard form small business contracts following an ACCC investigation. The ACCC investigated allegations that certain terms in Please Hold's contracts were unfair. The ACCC was concerned that Please Hold's contracts, which commonly had terms of 24 to 36 months, automatically rolled over for another full term unless customers provided Please Hold with written notice of cancellation at least six weeks prior to expiry of the original contract term. The ACCC was also concerned that certain clauses may have contained misleading or deceptive representations about customers' rights under the ACL consumer guarantees.

Please Hold agreed to amend its contract terms to address the ACCC's concerns but did not admit its contract terms were unfair.

Bare Cremation pays penalty for allegedly misleading consumers

On 9 November 2021, Bare Cremation agreed to pay a penalty of over $13,000 in relation to an infringement notice issued by the ACCC for allegedly making false and misleading representations about the price of certain cremation and burial services. The ACCC alleged that Bare Cremation advertised certain burial and cremation services on its website as available 'from' certain prices (eg 'from $1,299'). The ACCC alleged that these prices were only available in one of the 17 regions the company operates in.