Herbert Smith Freehills (HSF) has highlighted the different approaches the Australian Competition and Consumer Commission (ACCC) and the Australian Competition Tribunal take when reviewing mergers.
Acting as lead legal adviser to Tabcorp, which recently won regulatory approval from the tribunal for its $11bn merger with Tatts Group, HSF says that the merger approval strategy it and joint competition adviser Gilbert + Tobin took was unusual.
Lead competition partner on the deal, Chris Jose, said that the approach bypassed the usual ACCC approval process to go directly to the tribunal.
“It was based on an in-depth understanding and appreciation of the fact that the ACCC views such approvals solely in the context of potential impact on competition in a particular market, whereas the tribunal can fully consider a merger’s public benefits and also hear from a wider group of stakeholders, and in the context of this merger in particular, we felt that was really important,” he said.
Lead disputes partner Grant Majoribanks said that the approach increased transparency, which better informed the tribunal during its deliberations.
“The tribunal approvals process provides for greater transparency, with all evidence and submissions being available so they can be directly tested and addressed. The tribunal also works to a very tight timeframe which, in complex or contentious matters, can be substantially quicker than ACCC clearance,” Majoribanks said.
Jose and Majoribanks, along with competition partner Patrick Gay, led the HSF team that acted on the deal, the largest gambling industry merger ever in Australia. They were assisted by senior associates Sarah Benbow and Merryn Quayle.
Gilbert + Tobin, as joint competition adviser to Tabcorp, fielded a team led by competition and regulation partners Gina Cass-Gottlieb, Luke Woodward, and Simon Muys.
Clayton Utz advised Tatts, with a team led by partner Andrew Walker on corporate matters and partner Michael Corrigan on competition matters.
Chris Jose
Grant Majoribanks
Patrick Gay
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