Consistently ranked as one of Australia’s top-tier competition lawyers by clients, legal directories and peers, Gina is a recognised leader in complex merger clearances for acquisitions and industry consolidation. Gina has advised on some of the largest and most contentious and complex merger clearance matters for acquisitions and joint ventures in Australia and New Zealand, including PMP Limited on its proposed merger with IPMG Group and Tabcorp’s Tatts acquisition (co-competition counsel with HSF).
YOU HAVE STRONG EXPERTISE IN THE FINANCIAL SERVICES INDUSTRY. WHAT ATTRACTED YOU TO THIS AREA?
The financial services industry performs a critical role in the domestic and global economy. My introduction to the industry and its global structure and dynamics arose many years ago during LLM studies at Boalt Hall UCB where I studied payment systems, credit card scheme arrangements and the SWIFT rules. Since that time I was fortunate to have opportunities to advise and consult with financial services industry associations and institutions to address policy questions and design new regulatory frameworks. The industry continues to sit at the crux of key commercial, regulatory and policy questions.
GILBERT + TOBIN HAS A MULTIDISCIPLINARY ECONOMIC AND LEGAL APPROACH TO COMPETITION LAW. HOW DOES THIS ENHANCE THE FIRM’S OFFERING TO CLIENTS?
Competition law matters and tests draw upon legal and economic analysis informing the investigative and adjudicative assessments of competition agencies, and the submissions and advocacy we offer to our clients. Our multidisciplinary approach enhances the depth, insight and efficiency of our practice’s offering in the way we investigate and understand our clients’ businesses, cost structures, market position and competitive dynamics and are able to represent them before regulators.
HOW WOULD YOU APPROACH CASES WHERE MERGER CLEARANCE HAS PREVIOUSLY BEEN REFUSED?
The critical elements are to understand the underlying reasons for the refusal and then to rigorously test what relevant parameters may have changed. Such parameters may include market entry, changes in demand, technological change, new regulatory obligations or industry trends that indicate that the previous competitive structure and dynamics have altered.
WHAT QUALITIES DO CLIENTS LOOK FOR WHEN APPOINTING COUNSEL TO ADVISE ON GLOBAL ENFORCEMENT MATTERS?
In these important matters clients look for a keen understanding of their global business and profile and the interaction of advice in each jurisdiction with other advisers in determining the best overall approach. This is matched with strong domestic expertise, experience and judgement.
HOW, IF AT ALL, HAS THE CRITERIA UPON WHICH THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (ACCC) REFERS MATTERS FOR A CRIMINAL PROSECUTION CHANGED IN RECENT YEARS?
The ACCC commissioners and senior enforcement staff have spoken recently, confirming that the Commission emphasises the serious nature of cartel conduct and will in most cases refer such matters for consideration by the Commonwealth Director of Public Prosecutions (CDPP) for criminal prosecution. The criteria referenced are set out in the Memorandum of Understanding between the ACCC and CDPP.
IN WHAT WAYS DO YOU EXPECT THE EXTENSION OF MARKET STUDIES IN AUSTRALIA TO IMPACT YOUR PRACTICE?
The Competition and Consumer Act does not expressly grant power to conduct market studies. However, a part of the Act, pertaining to prices surveillance, has provided powers under which the Commonwealth Government has initiated a series of market inquiries. Those inquiries have ranged widely, including across the energy, agriculture and financial services industries. The inquiries address market structural, behavioural and policy questions.
This breadth of scope – for the clients, the subject of the inquiries and our practice in representing them – draws upon industry knowledge, multidisciplinary expertise and data analytical competencies.
WHAT CHALLENGES HAS THE CONCERTED PRACTICES PROHIBITION, INTRODUCED IN NOVEMBER 2017, POSED SO FAR, AND HOW DO YOU EXPECT IT TO DO SO IN FUTURE?
Concerted practices conduct, while well understood in European jurisprudence and guidance, prior to the November 2017 amendments was not part of Australian competition law. The new focus upon practices short of an understanding has introduced a need to review business conduct in broader situations, with particular focus on information disclosures, but not limited to that conduct. The challenge is to provide compliance guidance to recognise more risky conduct without chilling usual, productive and efficient interactions.
WHAT DO YOU CONSIDER TO BE THE GREATEST ACHIEVEMENT OF YOUR CAREER TO DATE?
As a senior practitioner, I am most proud of my endeavours as a mentor to women lawyers as they progress either within a law firm career, or in corporate counsel or business positions. As a competition law adviser I greatly value being trusted to advise corporate counsel, senior management and boards in critical matters, particularly ones with close engagement with regulators.
Gina Cass-Gottlieb wins widespread international praise from peers who consider her a top name in the Australian market for merger clearance matters and related disputes.
Gina is a senior partner in Gilbert + Tobin’s competition and regulation practice.
Gina is repeatedly sought out by clients to provide advice on complex and cutting-edge work. She is known for achieving outstanding commercial results through innovative solutions and perseverance, even when previous applications for transaction clearance or dispute settlement have failed.
Gina has advised on some of the largest and most contentious and complex merger clearance matters for acquisitions and joint ventures in Australia and New Zealand. By way of example, she has recently acted in a number of significant transactions, including (with her partner Elizabeth Avery) acting for Anheuser-Busch InBev NV/SA (ABI) in obtaining Australian regulatory clearance for their proposed global merger with SABMiller; advising on Tabcorp’s proposed acquisition of Tattersall’s (co-competition counsel with Herbert Smith Freehills); advising on Viva Energy and Coles Group’s restructure agreement; and advising on a number of significant merger matters in early stages of ACCC confidential review.
Gina has played critical and strategic roles for high-profile clients under ACCC’s enforcement and regulatory investigations. In the past 12 months, she has been co-lead partner for a critical investigation for a large listed company in relation to ACCC’s investigation of alleged cartel conduct and also for an Australian subsidiary of a global healthcare company under investigation.
Gina is also widely recognised as one of Australia’s leading advisers specialising in financial services regulatory advice, and representing financial institutions and their industry associations before the ACCC, APRA, ASIC and AUSTRAC. Her expertise is evidenced by her re-appointment by the Commonwealth Treasurer to the Reserve Bank of Australia’s Payments System Board for a further five-year term (effective 1 August 2018).
Gina was a Fulbright scholar at the University of California, Berkeley, majoring in US competition law, financial institutions regulation and securities regulation.