Elizabeth is a partner in Gilbert + Tobin’s competition and regulation group. Her practice includes advising on enforcement litigation and investigations, merger clearances and ongoing strategic/operational advisory work, as well as compliance training. Her practice spans a broad range of industries, including financial services, the digital economy, infrastructure, health and life sciences. She has a particular focus on multi-jurisdictional matters. Prior to joining Gilbert + Tobin, Elizabeth was an antitrust lawyer in New York.
What do you find most challenging about being a competition lawyer?
What is most challenging is also the reason I love it and what gets me out of bed every day. Every case is different, and requires a detailed understanding of the business drivers, and a complex balance of law, policy and economics. The subjective judgements that are involved in assessing prospects for a client and understanding how to frame the argument involves creative, lateral thinking. Nothing is black and white.
What are some sectors that you see as growth areas for your competition practice?
The Australian Competition and Consumer Commission (ACCC) is a very active regulator that loves to punch above its weight in global antitrust thinking. This is reflected in an in-depth digital platforms inquiry, which has been described as groundbreaking in the breadth of its recommendations, spanning proposed changes to our antitrust laws, consumer protection laws and privacy laws, in recognition of the broad implications of digital platforms. The ACCC has also commenced a number of investigations and proceedings in light of its work undertaken in the inquiry. So it is a very busy time for competition lawyers advising in relation to the digital economy.
Financial services are also a continued focus for the ACCC, having set up the Financial Services Unit to focus on this sector, and we see a significant number of inquiries and investigations in this sector. Most recently, the ACCC has commenced (at the treasurer’s request) a further inquiry in relation to mortgage pricing. Finally, in the past few years, the ACCC’s focus on healthcare and the pharmaceutical sector has increased, as it has globally.
How have merger review investigations changed since you started practising?
Merger processes have generally become significantly longer. While the process is “voluntary”, it is less so where the parties have a significant combined share, and also where Foreign Investment Review Board approval may be required. We have witnessed merger review investigations becoming longer and more document-intensive.
In addition, the new authorisation process for mergers, introduced at the end of 2017, has given rise to some interesting strategic questions about whether and how to engage with the ACCC.
How do you see criminal cartel proceedings developing over the next five years?
I think successful prosecution is going to be very difficult, due to the burden of proof and the history of how the concept of cartel conduct has been interpreted by the courts. But that won’t stop the ACCC from trying, in what promises to be very long-run litigations.
What advice would you give to someone starting out in competition?
Immerse yourself. Take the time to read the case law and ACCC decisions. Don’t shy away from reviewing documents – they are the evidence, and if you understand the evidence you will quickly become indispensable on the case. Find mentors you can learn from.
Who have your mentors been?
I have been very fortunate to learn from and be inspired by a range of amazing lawyers throughout my legal career: Margaret Taylor, Leigh Brown and Odette Gourley when I first started out; Professor Eleanor Fox at New York University (who made antitrust come to life for me); Debra Pearlstein, Helene Jaffe and Jay Fastow at Weil, Gotshal; and Gina Cass-Gottlieb and Luke Woodward at Gilbert + Tobin. I draw on things I learned from each of them every day.
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).