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ACCC loses again in Metcash stoush

ACCC loses again in Metcash stoush

Freehills has once again successfully acted for Metcash in its ongoing fight to acquire Franklins.On Wednesday (30 November), a full bench of the Federal Court unanimously rejected an appeal by…

Freehills has once again successfully acted for Metcash in its ongoing fight to acquire Franklins.

On Wednesday (30 November), a full bench of the Federal Court unanimously rejected an appeal by the Australian Competition and Consumer Commission (ACCC) in its bid to stop Metcash's $215 million proposed takeover of over 80 Franklins stores in NSW.

Freehills acted for Metcash in the appeal hearing, after successfully acting for the company in August before Federal Court Justice Arthur Emmett.

Freehills commercial litigation partner Grant Marjoribanks and competition partner Michael Gray led the firm's team. Barristers Peter Brereton SC and Declan Roche provided counsel.

The ACCC used barristers Allan Myers QC and John Halley SC, and were instructed by Matthew Blunn, national group leader, dispute resolution, with the Australian Government Solicitor.

Pick N Pay, the South African company that owns Franklins, engaged Blake Dawson partner and competition and consumer protection team head Peter Armitage. Barristers John Griffiths SC and recently appointed senior silk Cameron Moore SC also advised Pick N Pay.

The ACCC objected to the takeover on the grounds that Metcash's sale would lessen competition on the wholesale side.

Metcash argued that on the retail side, the acquisition would in fact enhance competition in a grocery market that is dominated by Woolworths and Coles.

In August, Justice Emmett found that the ACCC argument ignored commercial realities. He essentially agreed with the argument mounted by Metcash that in acquiring Franklins, the company would not be able to price above a competitive level on the wholesale side, as it would substantially reduce the ability of its retailers to compete with the major retail grocery franchises.

The ACCC is considering whether to seek special leave to appeal to the High Court.

Justin Whealing

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