25/03/2019

YOUR KEY BOARDROOM BRIEF

ACCC Activ8me to pay $250000 in penalties and refund customers for misleading conduct. Directors of consumer-facing companies, particularly in the internet space, should take heed of the Federal Court’s decision to impose penalties of $250,000 against internet provider Australian Private Networks Pty Ltd (trading as Activ8me) for making false and misleading representations and not displaying a single price when advertising its internet services. See ACCC’s media release. The case demonstrates the importance of ensuring pricing information in advertising – particularly for potentially complex products such as internet plans – is clearly explained. Advertisements should always be subject to a compliance / legal review prior to release.

US monetary policy shift. Only six months ago a signalling by the US Federal Reserve of three rate rises in 2019 and a more aggressive winding down of a balance sheet still swollen by the central bank’s response to the financial crisis helped spark a dramatic plunge in stocks. Yet the Fed’s announcement last week to expect no rate increases this year and its plans to end the shrinking of its balance sheet by the start of October didn’t positively impact stocks – and in fact, there was a 1.8% sell-off in the S&P500 at the end of the week in response to the dreaded yield curve inversion (when short term interest rates top long term rates in a sign of pessimism over the prospects for the economy). The US central bank downgraded its economic forecasts, predicting that unemployment would rise slightly this year and inflation and economic growth would weaken. Directors will need to be conscious of the growing number of lead indicators of an economic downturn which are being reported – potentially coupled with declining influence on the part of the US Federal Reserve as monetary policy settings begin to “normalise” and the focus shifts back to the “real economy”.

Judicial Review of Takeovers Panel Decisions – Is the Panel Above the Law? On 8 March 2019, the Federal Court recently rejected an application by Eastern Field Developments Limited for judicial review of the Takeovers Panel decision relating to Finders Resources Limited. As a result, the Takeovers Panel has varied the final orders of the review panel to reflect the Federal Court’s findings. See the Takeovers Panel’s media release. The decision follows the trend we saw with the Glencore decisions, towards endorsement of the Panel’s expertise and jurisdictional freedom. Does this mean the Panel is effectively “above the law”? Not quite, but the judicial review decisions to date confirm the Panel has very broad decisional freedom, unbound by the rules of evidence or even the views of the regulator. You can read the entire judgment here.

THE WEEK AHEAD

Coalition returned in NSW. Over the weekend New South Wales Premier Gladys Berejiklian became the first female Liberal leader to be elected to that office, enjoying the first third-term election victory since Bob Askin 48 years ago. The significance of the victory for the Federal Election will not be lost on either of the two main parties. Directors should remember that the wheels of Government will begin to slow over the next week as the caretaker period looms.

Brexit update. Last week, EU leaders agreed to a short extension to the UK’s original departure date from the EU. If Prime Minister Teresa May's deal is approved by MPs this week, the EU has agreed to extend the Brexit deadline until 22 May. If it is not — and no alternative plan is put forward — the UK is set to leave the bloc on 12 April. The UK Parliament, though, has already rejected the deal twice. Press coverage suggests a third vote on Teresa May’s Brexit deal is unlikely to happen, unless sufficient support can be canvassed. Failing that, finding an alternative that UK Parliament and the EU are happy to embrace within the next two weeks will be a very tough task indeed.

Upcoming reporting deadlines. Full year audited accounts (December year-end) are due this Friday.

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