Elizabeth advises on enforcement litigation and investigations, merger clearances and strategic advice. Having practised antitrust in New York, she brings a breadth and depth of perspectives to her advice, which spans a broad range of industries, with a particular focus on multi-jurisdictional and financial services matters. Recently, she has advised on the ACCC Inquiry into Residential Mortgage Pricing. She is representing K-Line in the first criminal cartel prosecutions in Australia.
WHAT IS THE MOST MEMORABLE CASE YOU HAVE WORKED ON?
One of the reasons I love competition law is that every case is different, based on its own unique set of facts. In that way, every case I work on is memorable. The first case I worked on – and the reason I became interested in competition law – was the Superleague case, when I worked as an associate (judicial clerk) at the Federal Court after law school. The case involved so many issues arising from the establishment of a rival rugby league competition – it was a real tutorial in competition law, and at the same time was an exciting mix of strategic, economic and social policy issues. Since then, I have been fortunate to work on many exciting cases, including (when I worked at Weil) successfully defending American Airlines in a predatory pricing case against the US DOJ, Westpac’s acquisition of Lloyds Australian business, the Australian aspects of ABI InBev’s acquisition of SABMiller, and currently, representing a defendant (K-Line) in one of the first criminal cartel prosecutions in Australia.
HOW DOES YOUR EXPERIENCE STUDYING AND WORKING IN THE USA ENHANCE YOUR INTERNATIONAL PRACTICE?
My experience studying at NYU and then working at Weil, Gotshal in NY for eight years has had a significant influence on my practice since my return to Australia. It has helped me to “think outside the box” about issues faced by clients in Australia, drawing on a broader, comparative perspective of antitrust/competition policy. The global perspective on regulatory engagement has also assisted in understanding the complicated jigsaw puzzle of a multi-jurisdictional perspective. In addition, it gave me a great network of friends and colleagues around the world, which has continued to expand since my return to Australia, enabling me to develop trusted working relationships leading to a range of multi-jurisdictional matters.
WHAT ROLE DOES, AND SHOULD, THE REGULATOR TAKE IN RELATION TO COMPETITION LAW IN AUSTRALIA?
The Australian Competition and Consumer Commission (ACCC) takes a role that it often describes as “proactive” to assist in “making markets work”. This philosophy translates into a lot of work for the ACCC, keeping them and private practitioners, very busy. While there is certainly debate as to whether the level of intervention is warranted, given the significant compliance costs, at its core, the ACCC’s focus is on rigorous scrutiny of competition law issues. It is respected as a serious regulator. Going forward, it will be important that the ACCC stays away from populist pressure that detracts from that focus.
HOW HAVE THE ACCC’S ATTITUDES TO REGULATION AND INVESTIGATION IN THE FINANCIAL SERVICES SECTOR CHANGED OVER TIME?
Regulation of financial services is extremely complex, taking into account the need to balance stability with competition. While not the inverse of each other, there may sometimes be tension between the two – competition is only a part of Australia’s economic framework. Australia and its financial institutions were extremely fortunate to avoid the worst of the global financial crisis. Australia’s Productivity Commission has recently been critical of the prudential regulator’s failure to take into account the competitive impact of some of its policies intended to reduce perceived risk, and advocating for the ACCC to play a strong role in financial services. The government has recently funded the ACCC to set up the Financial Services Unit, so we expect the ACCC to maintain and increasingly focus on financial services.
WHAT QUALITIES MAKE AN EFFECTIVE DEFENCE LAWYER IN CRIMINAL CARTEL PROSECUTION CASES?
Representing a defendant in a criminal cartel case requires many different skills; some are familiar to a competition lawyer from a civil cartel context, but some are entirely new. Criminal prosecution is of course extremely reputationally significant to a client so there is a lot of hand-holding required through the decision-making process. Having people in the team who are experienced criminal defence lawyers is also critical.
WHAT CHALLENGES DO HEIGHTENED DISCLOSURE REQUIREMENTS POSE FOR CLIENTS WHEN SUCH INFORMATION MAY BE CONSIDERED COMPETITIVELY SENSITIVE?
Australia has recently introduced a concerted practices prohibition which would have the purpose or effect of substantially lessening competition, to address a perceived gap in the law resulting from judicial interpretation of “contract, arrangement or understanding.” Disclosures of competitively sensitive information must be even more carefully managed than ever, to limit the risk of that could be construed as having any anticompetitive purpose or effect.
WHAT IMPACT DO YOU EXPECT “OPEN BANKING” AND THE PROPOSED CONSUMER DATA RIGHT (CDR) TO HAVE ON COMPETITION LAW AND PRACTICE IN AUSTRALIA?
It is hoped that the CDR will provide benefits to consumers by reducing the costs of switching and facilitating new entry. At the moment, the requirement will only apply to those providing banking services and to be rolled out incrementally across other industries; requirements of reciprocity imposed on data recipients are limited. While, certainly, care needs to be taken to ensure that reciprocity requirements are not a barrier to entry, there is a real risk that not requiring any reciprocity from larger data owners will lead to significant market distortions in a world where “data is the new oil”.
Elizabeth Avery is “a very smart and well-experienced lawyer” who is applauded for her exceptional knowledge of competition regulation, litigation and merger clearance proceedings.
Elizabeth is a partner in Gilbert + Tobin’s competition and regulation practice.
Elizabeth brings a depth of experience that includes seven years practising antitrust at the leading US firm Weil, Gotshal and Manges LLP, to the conduct of major multi-jurisdictional mergers, litigation and investigations.
She was the lead lawyer advising Anheuser-Busch InBev NV/SA in successfully obtaining unconditional Australian merger clearance for the proposed global merger with SABMiller, the largest beer merger in history and one of the largest corporate takeovers ever. The matter was awarded Matter of the Year at the 2017 GCR awards.
Elizabeth is a relationship partner for Westpac and advises them on a wide range of competition-related matters, including the ACCC inquiry into residential mortgage products, and the Productivity Commission inquiry in competition in banking, among other matters.
She is representing NSW Ports in high-profile proceedings commenced by the ACCC in connection with the terms of the privatisation of Port Botany and Port Kembla.
She is also currently advising Microsoft in relation to the ACCC digital platforms inquiry.
She also has significant experience in relation to criminal cartel cases, and currently represents K-Line in the first group of criminal cartel prosecutions in Australia.
She provides ongoing advice to a range of clients including Westpac Bank, ASX Ltd Anheuser Busch InBev/CUB, BlueScope Steel, Carnival Australia, Graincorp, Microsoft, Maersk and Svitzer on a range of competition and regulatory issues.
Elizabeth’s global reputation is recognised through her appointment as vice president of the American Bar Association’s international antitrust committee and she is regularly invited to speak internationally on Australian competition law.
Elizabeth has great depth and breadth of experience providing financial services regulatory advice and is frequently sought out for strategic advice in complex matters as well as providing thought leadership insights. Elizabeth is recognised as a leading lawyer in major legal directories and currently ranked as the leading competition practitioner in Australia (Who’s Who Legal 2018).