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Global Web Enterprises Pty Ltd(GWE) and Mr Brendon Nicholas, director, has admitted to developing and causing to be published a website at the domain www.cashfororgans.com.au that contained representations that were misleading and deceptive or likely to mislead or deceive under s52 of the Trade Practices Act.
Mr Brendon Nicholas have provided court enforceable undertakings to the ACCC that he will not cause to be re-published or otherwise involved in the re-publication by any persons of the cash for organs website, solicit any person to make a payment for membership and represent that persons can lawfully buy or sell organs through the use of the website.
Mr Brendon Nicholas also provided undertakings to the ACCC that he will not represent that the site is in any way affiliated with medical professionals and represent via a website that a person has provided a testimonial in relation to the goods or services when that is not the case.
Mr Nicholas further undertakes to attend a trade practices compliance seminar within six weeks of commencing or joining the operations of any new business, trading via a website or joining the operations of any new training company, and within six months of this undertaking coming into effect complete twenty hours of volunteer work with a registered health charity.
On 26 September 2008, the ACCC accepted the undertaking of Shane Burt, a director of Toll Holdings Ltd and/or its related bodies corporate.
Under the undertaking Mr Shane Burt agrees to sell down any interest he has in Asciano Limited and thereafter maintain his independence from Asciano.
In addition, Mr Shane Burt must immediately resign from all positions within Toll, and take no further part in the company, if he ceases to meet the requisite standards of independence.
The undertaking is associated with the fifth variation, accepted by the ACCC on 18 April 2007, to the undertaking given by Toll to the ACCC on 11 March 2006. The fifth variation relates to Toll’s restructure of its group businesses by way of scheme of arrangement to create a new listed entity and trust, Asciano.
The ACCC's decision to consent to the fifth variation is given effect through the following documents:
a variation to Toll's undertakings
a new undertaking from Asciano Limited, and
new undertakings from the directors of Toll and Asciano.
A copy of those documents can be viewed on the ACCC’s website.
In proceedings taken by the ACCC, the Federal Court has declared that GM Holden Ltd made false and misleading claims in its “Grrrrrreen” campaign which promoted the environmentally friendly nature of its Saab range of vehicles.
In the advertisements GM Holden represented that it had taken measures so that the carbon dioxide emissions from any Saab motor vehicle would be neutral over the life of that motor vehicle.
In the same advertisements, GM Holden also represented that in the first year following the purchase of a Saab motor vehicle, GM Holden would plant, on behalf of the purchaser, 17 native trees which would offset the carbon dioxide emissions for the life of that motor vehicle.
The ACCC's view was that the carbon dioxide emissions from any Saab motor vehicle would not be neutral over the life of that motor vehicle, and the planting of 17 native trees would only provide a carbon dioxide emission offset for a single year’s operation of the motor vehicle.
By consent, the Federal Court declared that GM Holden contravened sections 52 and 53(c) of the Trade Practices Act 1974 by engaging in misleading conduct.
V8 Supercars Australia Pty Ltd has acknowledged the ACCC's concerns that its claim that carbon emissions would be entirely offset by the planting of trees may have been misleading or deceptive and therefore a breach of section 52 of the Trade Practices Act, because there was no explanation that it is likely to take the life-time of the trees before those emissions are absorbed.
V8 Supercars has provided court enforceable undertakings to the ACCC that:
any future claims about 'green marketing' will be considered by a solicitor with experience in trade practices law before being made;
any future claims about trees being planted to offset carbon emissions will include an explanation about the period of time before those emissions would be offset;
that it will place an acknowledgement of the ACCC's concerns on its website for a period of no less than 2 months.
Austrimi Seafoods Pty Ltd has offered a section 87B court enforceable undertaking to the ACCC in relation to the packaging of its ‘Kalamari’ branded product.
The ACCC was concerned that the packaging of the ‘Kalamari’ product was misleading as the picture of the crumbed seafood rings and use of the word ‘Kalamari’ gave the impression the Product was made predominately of calamari or squid whereas the ingredients list stated it contained only 4% squid.
The ACCC had concerns that the overall impression created by the packaging was likely to misled consumer as to the content of the Product in contravention of sections 52 and 53(a) of the Trade Practices Act 1974.
Austrimi Seafoods Pty Ltd has undertaken to the ACCC that in the future it will not:
supply the product in its current packaging;
use the name ‘Kalamari in relation to the product;
supply seafood products in packaging and/or with labelling that conveys an overall impression that the product consists mainly of, or includes a not insubstantial proportion of, a particular seafood ingredient when this is not the case;
Austrimi Seafoods has also undertaken:
to place a corrective notice on its website;
to use its best endeavours to have its retail customers place corrective notices at point of sale for a period of 28 days; and
to implement a compliance program.
The ACCC accepted a section 87B undertaking from Aurora Energy and the Tasmanian Government in relation to the acquisition of the Tamar Valley Power Station Project and other related assets by Aurora Energy.
The undertaking required the parties to hold the assets separate for an interim period, so that the ACCC was able to conduct a full competition assessment of the proposal.
The Ingles Group is a property developer located on the Gold Coast with a number of developments, including a housing estate known as the Tee Trees Residential Golf Community (the Estate). A major feature of the Estate, in promotional and marketing material, was that it was to include a golf course. Purchasers experienced significant delay in the commencement of the construction of the golf course, and complained that Ingles Group had misled them that they had obtained Gold Coast City Council (Council) approval for the golf course. (The golf course is not yet complete, but is presently being constructed by the Ingles Group.)
By a letter dated 28 May 2003, the Ingles Group and Mr Ingles made representations to residents and potential purchasers as to the status of the Council approval and otherwise to the progress of the construction of the golf course. The Ingles Group has admitted that these representations were misleading or deceptive, or likely to mislead. Mr Ingles, the sole director of the Ingles Group, has also admitted to being knowingly concerned in the conduct.
The Ingles Group has undertaken to the ACCC that it will:
place corrective notices in the Gold Coast Bulletin newspaper;
place corrective notices on its websites;
on a quarterly basis, place a notice on its websites advising of the progress of the construction of the golf course;
on a quarterly basis, mail out a notice to residents of the estate advising of the progress of the construction of the golf course; and
establish, implement and maintain a Trade Practices Compliance Program for 5 years, to minimise the risk of future breaches of Part V of the TPA.
Raktos Distribution Services Pty Limited (trading as ‘Smokers Supplies’) is an importer and distributor of tobacco products and accessories.
Raktos and its directors have admitted that from approximately March 2007 to June 2008, Raktos supplied retailers, in contravention of sections 65D and 75AZT of the Trade Practices Act 1974, with Captain Black Little Cigars Filters and Captain Black Gold branded tobacco products which did not comply with the tobacco labelling requirements prescribed by the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004.
Raktos and its directors have provided court enforceable undertakings to the ACCC that:
Raktos and its directors will refrain from supplying tobacco products which do not comply with the tobacco regulations which are in force at any particular time;
Raktos will remove non-complying tobacco products from sale and offer a full refund of the purchase price or replacement tobacco products to retailers who bought non-complying tobacco products from Raktos or its directors; and
Raktos will implement and maintain a trade practices law compliance program.
Flinders Ports offered the section 87B undertaking (undertaking), to avoid delay and address the ACCC’s concerns about the impact that the proposed joint venture may have on the supply of container stevedoring services at Port Adelaide, South Australia.
Post-transaction, Flinders Ports would have dual roles as container stevedore and port manager, and would be responsible for allocating the necessary inputs for container stevedoring at Port Adelaide to parties who are potentially also its competitors.
Broadly, the undertaking requires Flinders Ports to:
notify the ACCC of any allocations of certain relevant land at Port Adelaide, and licences for container stevedoring at Port Adelaide;
delay settlement of any allocations of land or container stevedoring licences notified to the ACCC pursuant to the undertaking, until the ACCC has concluded a review and confirmed the outcome to Flinders Ports; and
provide written reports to the ACCC concerning approaches made to Flinders Ports by interested third parties who have sought allocations of land or container stevedoring licences from Flinders Ports.
The undertaking adequately addresses competition concerns that the proposed joint venture would increase barriers to entry in the market for container stevedoring services at Port Adelaide.
It ensures that the process used by Flinders Ports to allocate the necessary inputs for container stevedoring is transparent, and subject to review by the ACCC in accordance with the Merger Review Process Guidelines 2006.
The notification process established by the undertaking also ensures that prospective new entrants are not deterred from seeking entry by the fact of the joint venture between Flinders Ports and DP World (SA) Pty Ltd, the incumbent stevedore.
A Public Competition Assessment will be issued on the Mergers Public Register in relation to the proposed acquisition.
Vision Group is a provider of ophthalmic services. Icon Laser (Aust) Pty Ltd (Icon), a wholly owned subsidiary of Vision Group, owns and operates a number of ophthalmic consulting and surgical businesses, including the Central Queensland Eye Centre (CQEC) practice.
Icon recruited Dr Blanc to work at the Hervey Bay and Maryborough clinics of CQEC and entered into an Independent Contractor Agreement (Agreement) with him in July 2006. The Agreement concerned the terms and conditions on which Dr Blanc was engaged by Icon and included a provision confining the area in which Dr Blanc could undertake private ophthalmic practice during, and for a defined period following the termination of, the Agreement.
The Agreement was terminated following a break down in discussions between the parties. Dr Blanc commenced his own practice in Maryborough in the same region as a CQEC clinic in potential breach of the restraint clause in the Agreement. Vision Group instituted legal proceedings against Dr Blanc in relation to the alleged breach. The parties settled the dispute by way of a Deed of Release dated 17 July 2007 (Deed).
Clause 3.1(4) of the Deed provided that Dr Blanc must not perform operations at the Hervey Bay Surgical Centre located at Boat Harbour Drive, Pialba, Queensland for a period of 12 months from 18 May 2007 unless St Stephen's Hospital Hervey Bay was in liquidation and/or ceased to operate in which case Dr Blanc may perform operations at the Hervey Bay Surgical Centre.
The ACCC considers that clause 3.1(4) of the Deed constitutes an exclusionary provision for the purpose of restricting or limiting the supply by Dr Blanc at the Hervey Bay Surgical Centre of ophthalmic services to patients in the relevant geographic region of Hervey Bay and Maryborough (and thereby constraining the Hervey Bay Surgical Centre from competing in the market).
Cotton On Clothing Pty Ltd operates 164 retail stores throughout Australia.
Between April and May this year, Cotton On Clothing retail outlets made available for sale to consumers a Home Boots footwear product.
Video Ezy proposed a variation to the section 87B undertaking (undertaking) accepted by the ACCC on 18 September 2007 in relation to Video Ezy’s acquisition of the Blockbuster business in Australia.
Broadly, the variation:
allows Video Ezy to introduce and offer a new point-of-sale system (POS) to the Blockbuster network of franchisees
provides that the Video Ezy and Blockbuster POS systems will operate on separately operated and located servers
provides for the separation of the marketing teams for Video Ezy and Blockbuster networks with regard to the separate POS systems
prohibits confidential POS system information from being shared between the networks
provides that franchisees are not obliged to use centralised pricing and can override such pricing
provides that compliance training will include the obligations relating to confidential information and confidential POS system information, in particular for information technology personnel.
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