Australia: When will the ACCC clear a failing firm transaction?

Key Points:

The evidentiary burden to obtain ACCC informal clearance for a proposed merger which would otherwise substantially lessen competition is very high.

The ACCC's 2008 Merger Guidelines make it clear that a poor financial position, a poor profitability prognosis and/or a firm's intention to exit the market may constitute sufficient grounds to clear a proposed merger which would otherwise substantially lessen competition (SLC). This is sometimes called the "failing firm" defence in merger control analysis.

However, merger parties should be aware that the evidentiary burden to obtain ACCC informal clearance in these circumstances is very high. A recent case in the steel packaging sector provides the clearest indication for some time of the required standard of proof. If the ACCC can establish through independent expert evidence (for example forensic accounting data) that a firm is in danger of exiting the market, it may be willing to apply the failing firm defence.

The rules on SLCs and market exits

Transactions contravene section 50 of the Competition and Consumer Act 2010 (Cth) and may be prohibited by the Federal Court of Australia if they would have the effect, or be likely to have the effect, of an SLC.

If two competitors in a concentrated sector were to merge, the ACCC would pay close attention. The ACCC considers that there is a major risk of an SLC where transactions reduce the number of firms in a market from three to two (and clearances of two-to-one transactions are very rare indeed, for obvious reasons).

To assess whether an SLC would be likely to result from a deal, the ACCC compares and contrasts the likely future competitive environment where the proposed merger would proceed, to the likely future competitive environment if the proposed merger would not.

So, if the ACCC is able conclude that a target business would exit the market absent the transaction, the ACCC may be able to issue an approval for a transaction that would otherwise raise competition risks. In short, if the relevant business or assets would disappear in any event, it is unlikely that an SLC could occur out of a transaction, even where there is significant concentration.

The ACCC's 2008 Merger Guidelines set out stringent conditions which must be established where parties put to the ACCC that a market exit is likely to occur:

  • the firm is in imminent danger of failure and is unlikely to be successfully restructured;
  • absent the transaction, the assets associated with the firm, including its brands, will leave the industry; and
  • the likely state of competition after the deal is implemented would not be substantially less than the likely state of competition after the target has exited.

The VIP/NCI acquisition

The ACCC recently concluded a public review of a proposed acquisition by VIP Steel Packaging Pty Ltd (VIP) of assets used for the production of large steel drums from National Can Industries Pty Ltd (NCI).

VIP and NCI both supplied a variety of plastic and steel packaging providing products, including drums, cans and pails. NCI's steel drum operations had been plagued by financial difficulties and had experienced declining demand. The business had been unprofitable since NCI purchased it in 2012.

The ACCC was concerned that the acquisition would remove the only alternative supplier of new large steel drums in Australia. However, NCI's large steel drum operations had failed to achieve profitability and the ACCC concluded that, with or without VIP's proposed acquisition, there would only be one supplier of new large steel drums remaining on the market.

How the ACCC came to give approval to the acquisition

This case is particularly interesting because the ACCC appears to have itself appointed a forensic accountant to examine the financial accounts for NCI's large steel drum operations. This forensic accountant's independent analysis appears to have assisted the ACCC's conclusion that NCI's large steel drum operations were not viable, either historically or in the future.

In addition, the ACCC also carefully reviewed confidential information and internal documents from NCI in relation to its sales process for these assets. This material supported NCI's submissions to the ACCC that there was no alternative acquirer of these assets and the assets would leave the market in the absence of the proposed acquisition. We understand that NCI's receivers also supported this position.

Finally, there was evidence of significant excess production capacity on the market, and that NCI had attempted to restructure its large steel drum operations, such as by closing its Queensland plant and discontinuing production at its NSW plant, leaving only one of its facilities, in Victoria, operational.

In granting approval, the ACCC said that: "in this case there was clear evidence that the relevant assets would leave the market if VIP Steel's proposed acquisition does not go ahead. In these circumstances, the opportunities for competition in the supply of new steel drums would be the same with or without the proposed acquisition."

Key lessons for future application of the failing firm defence

Three key lessons emerge from the analysis of the VIP/NCI merger:

  • the use of a forensic accountant shows that ACCC requires granular and independent evidence of financial position and likely exit;
  • parties' internal materials must be consistent with any available independent evidence; and
  • the threshold is whether the opportunities for competition in the relevant market would be the same with or without the proposed acquisition.

This is the standard which merger parties will have to reach to obtain approvals using the failing firm defence. It is a very high bar indeed, but it is possible to overcome with granular, independent and corroborated evidence.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.