Australia

Bet365 Receives $2.75M Fine For “Free” Bet Misrepresentation (Aus – civil)

“The Federal Court has ordered Hillside (Australia New Media) Pty Ltd (trading in Australia as Bet365) and its UK service company, Hillside (Shared Services) Limited (together, Bet365) to pay penalties totaling $2.75 million for making false representations by Bet365’s ‘free bets’ offer to new customers, in proceedings brought by the Australian Competition and Consumer Commission… In order to receive the represented $200 free bet offer, new customers were required to deposit and then gamble $200 of their own money first, before they could receive their $200 free bet.”

Meanwhile, Allianz Corrects “100% rebate” Misrepresentations (Aus – regulatory)

“Following ASIC action, Allianz Australia Insurance Limited (Allianz) has compensated 740 Petplan insurance customers over $231,000 and its agent, Petplan Australasia Pty Ltd (Petplan), has corrected its Petplan advertising.”

“Petplan’s website promoted the Petplan insurance product with a headline statement that the policy provided a 100% rebate on claims for veterinary bills. A small-print disclaimer then qualified this by stating that the 100% rebate excluded a fixed excess and non-claimable items.”

“ASIC was concerned that the representation about the 100% rebate on veterinary bills created an impression that Petplan customers were entitled to receive the full value of the 100% rebate on claims for veterinary bills. However, customers cannot receive the 100% rebate value for a claim made for a pet aged 8 years and over because, in addition to a fixed excess of $150, a variable excess amount (20% for a pet aged 8 years or 35% if 10 years or over) is deducted from the final claim payment made to customers.”

And In Other News, Sportscraft Pays Infringement Penalties For Allegedly Misleading Consumers (Aus – regulatory)

“Clothing retailer APG & Co Pty Ltd, trading as Sportscraft (Sportscraft), has paid penalties totalling $21,600 after being issued with two infringement notices by the Australian Competition and Consumer Commission following an investigation into the recognition of consumer guarantee rights in the clothing retail industry.”

“The ACCC issued the infringement notices because it had reasonable grounds to believe that Sportcraft had made false or misleading representations about consumer guarantees to its customers, in breach of the Australian Consumer Law (ACL).”

“From at least 29 January 2016, Sportscraft stated on tax invoice receipts that consumers would not be entitled to return or exchange faulty goods purchased from a clearance store. From at least 29 March 2016, Sportscraft also stated on its website that it would not refund, exchange or credit note the item more than 21 days after purchase.”

“‘Consumer guarantee rights apply for all purchases a consumer makes, and these rights cannot be removed or reduced by a business’s terms and conditions. Clothing retailers cannot exclude or refuse a consumer’s right to a remedy simply because the faulty goods are bought at a discount clearance store,” ACCC Commissioner Sarah Court said.'”  All you law students working in retail, take note.

IBAC Grows Some Teeth, The Ombudsman Starts Taking Calls, And The Auditor General Starts Following The Dollar (Aus – Regulatory)

The changes introduced under the new Integrity and Accountability Legislation Amendment (A Stronger System) Act 2015. are explained by The Mandarin.  You may recall that Colleen Lewis’ critique of the Bill was published by The Age back in Feb.

$9M Penalty For Woolworths For Laundry Cartel (Aus – civil)

“The Federal Court has ordered Woolworths Limited (Woolworths) to pay penalties totalling $9 million for contraventions of the Trade Practices Act 1974 (now called the Competition and Consumer Act 2010) (the Act), following admissions made by Woolworths in proceedings brought by the Australian Competition and Consumer Commission.”

“Woolworths admitted to being knowingly concerned in the making of, and giving effect to, an understanding between Colgate-Palmolive Pty Ltd (Colgate), PZ Cussons Australia Pty Ltd (Cussons) and Unilever Australia Limited (Unilever) that they would each cease supplying standard concentrate laundry detergents to Woolworths in early 2009 and supply only ultra concentrates to Woolworths from that time.”

Heavy Vehicle Operator Fined $7200 For Breach of Height Limit That Damaged Bridge (Aus – criminal)

A senior investigator for Senior for Roads & Maritime Services NSW prosecuted Kreidies Management Group Pty Ltd for an offence under  s56 of the Road Transport (General) Act 2005.  The company operated a prime mover and trailer which substantially exceeded height restrictions with expensive consequences; “[t]he truck struck the overheight bar inside the entrance of the M5 East Tunnel at Mascot and caused considerable damage, including the closure of the tunnel westbound for about 14 hours, obviously substantially disrupting traffic.” The company had relevant prior convictions and pleaded guilty.  The maximum penalty available was $55,000.  A fine of $7,200 was imposed.  By agreement, the court made a compensation order payable to the RMS for approximately $100,000, and a costs order of $60,000.

ASIC Commences First ‘Best Interests’ Litigation (Aus – civil)

ASIC has commenced proceedings against Melbourne-based NSG Services Pty Ltd (formerly National Sterling Group Pty Ltd) (NSG) for breaches of the ‘best interests duty’ introduced under the ‘Future of Financial Advice’ (FOFA) reforms.  This is the first civil penalty action ASIC has taken against a licensee alleging breaches of the best interests duty and is seeking declarations of breaches and financial penalties.” The originating process alleges a breach of s961L Corporations Act 2001.

Cement Penalty Unappealling (Aus – civil)

The ACCC is appealing the penalty handed down by the Federal Court against Cement Australia, on the ground of manifest inadequacy.  The company received effective penalties of $17.1M; the regulator had submitted that penalties of over $90M were appropriate in the case.  Recall that regulators in civil proceedings may make submissions on appropriate penalty, whereas regulators acting as prosecutors may not. Update: the appeal is listed for a three-day hearing starting 20 February 2017, before Middleton, Gilmour and Moshinsky JJ.

ASIC Cancels AFS Licence (Aus – regulatory)

ASIC has cancelled the Australian financial services (AFS) licence of TMK Index Limited (AFS Licence No 314823) for failing to comply with a number of key obligations, including requirements around the lodgment of accounts, breach notifications, meeting Net Tangible Asset requirements and maintaining adequate, competent staffing arrangements.”  Note that many Australian licensing regimes do not equip the regulator with the power to unilaterally cancel licences; instead, the regulator has to apply to a tribunal for cancellation of a licence. Examples include the Victorian sex work and motor car traders licensing regimes: see Sex Work Act 1994 and Motor Car Traders Act 1986.

NAB Latest Bank In ASIC BBSW Litigation (Aus – civil)

ASIC has today commenced legal proceedings in the Federal Court in Melbourne against National Australia Bank (NAB) for unconscionable conduct and market manipulation in relation to NAB’s involvement in setting the bank bill swap reference rate (BBSW) in the period 8 June 2010 to 24 December 2012.”

United Kingdom

Workplace Death Results In £33,000 Fine (UK – criminal)

“A motor vehicle repair company was fined after a 27 year old man gaining work experience at the garage, was crushed to death by a vehicle… HSE found that the employees of Just Mercedes Limited had not been given any specific instructions on selecting gears and use of handbrake when parking vehicles, on or off ramps. No specific instructions had been given to employees on operating the ignition from outside of the vehicle. There was no system in place for storage of keys.”  The prosecution was brought by the Health and Safety Executive.  The company pleaded guilty to two offences: failure to ensure, so far as practicable, that persons not in its employment who might be affected, are not exposed to risks to their safety (s3(1) Health and Safety at Work etc. Act 1974) and failure to ensure, so far as is reasonably practicable, the health and safety of employees (s2(1) Health and Safety at Work etc. Act 1974).

Farming Inspection Guidance Updated (UK)

I know I say it all the time, but really, the UK sets the gold standard for governmental policy transparency.  (If you can think of a government that does a better job, please let me know.)  Here are the  updated guidance documents for farming inspection processes, issued jointly by the Dept for Environment, Food & Rural Affairs, the Animal and Plant Health Agency, and the Environment Agency, among others.

UK Criminal Courts Now Paper-Free And Loving It (UK – criminal)

Australian criminal courts take note: the UK Crown (criminal) courts have moved successfully to a digital document management system that means there is virtually no need for printed paper in the court room — even the indictment is electronic, and can be amended online, without need to be printed out.  The latest BCM newsletter addresses some of the teething problems with the system, but demonstrates it is working very successfully.

Canada

A Reminder About Particulars (Canada – Criminal)

The need for careful drafting of charges can sometimes be forgotten, when offences themselves are broad, as they were in this Canadian OHS case.  In Canada, as in Australia, the need (or otherwise) for further particulars will be determined in light of both the words of the charge and the materials disclosed, which may sufficiently convey the case against the accused.

United States

Qui Tam Lawsuit Alleges Pharmaceutical Fraud On Cancer Patients; Reaps Whistleblower $10M (USA – civil)

“Pharmaceutical companies Genentech Inc. and OSI Pharmaceuticals LLC will pay $67 million to resolve False Claims Act allegations that they made misleading statements about the effectiveness of the drug Tarceva to treat non-small cell lung cancer, the Department of Justice announced today.”  The civil matter has been resolved without the companies admitting liability.  The litigation was brought “by former Genentech employee Brian Shields, in federal court in San Francisco.  The lawsuit was filed under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private individuals to sue on behalf of the government for false claims and to share in any recovery.  Shields will receive approximately $10 million.”

Norwegian Shipping Company Sentenced For Environmental Offences, Conspiracy, Witness Tampering And Obstruction Of Justice (US – criminal)

“The Norwegian shipping company DSD Shipping (DSD) was sentenced to pay a total corporate penalty of $2.5 million as a result of its convictions in Mobile, Alabama, for obstructing justice, violating the Act to Prevent Pollution from Ships (APPS), tampering with witnesses and conspiring to commit these offenses.  The company was ordered to pay $500,000 of the penalty to the Dauphin Island Sea Lab Foundation to fund marine research and enhance coastal habitats in the Gulf of Mexico and Mobile Bay. ”

“In addition, DSD was placed on a three year term of probation and was ordered to implement an environmental compliance plan to ensure the company’s vessels obeyed domestic and international environmental regulations in the future. ”

If environmental law is your thing, the full fact summary is worth a read; the facts reveal a staggering contempt for both US law and the health of the oceans on which the tanker operated, making the company’s quip that “DSD Shipping is committed to the best environmental practices on the high seas. The oceans are where DSD Shipping operates; every day, the men and women in our Company do our very best to protect them” rather obnoxious.

In a move guaranteed to upset the DOJ, “despite convictions for eight felony offenses, DSD continued to deny wrongdoing in Norwegian press accounts. ” The company pleaded not guilty, so the case ran to trial before a jury.  The original conviction press release is available here.

Dutch And US Authorities Join Forces To Stop Fraud On Elderly (US – civil)

“The United States filed a civil complaint in the U.S. District Court for the Eastern District of New York against an individual and two Dutch companies that allegedly engaged in multiple international mail fraud schemes that have defrauded elderly and vulnerable U.S. victims out of tens of millions of dollars, the Department of Justice announced.  The Department sought a temporary restraining order, which was entered by the court yesterday, as well as preliminary and permanent injunctions to prevent the defendants from further victimizing U.S. consumers. … “Schemes targeting elderly victims are increasingly international in scope, but geographic distance will not prevent us from seeking justice and holding bad actors accountable,” said Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Justice Department’s Civil Division.  “Dutch authorities have done a great service to U.S. residents and elderly victims worldwide by addressing fraud facilitated within their borders.  The Justice Department will continue to work with our international law enforcement partners to put a stop to fraud schemes that exploit vulnerable Americans.” ”

Sixty Million Car Bombs.  I Mean, Airbags. Wait, I Mean Airbag-Ticking-Time-Bombs (USA)

Berfield, Trudell, Fisk and Plungis writeup their report on Takata’s airbag crisis and recall for Bloomberg.

In the US alone, more than 60 million airbags are the subject to the recall.  The recall affects “one of every five cars on the road in the U.S.” The defects in question may affect more than 100 million vehicles globally.  So far, shrapnel from these airbags have killed 13 people, and injured over 100.

According to the Bloomberg report, “A Senate investigation and personal injury litigation have turned up company documents suggesting that Takata executives discounted concerns from their own employees and hid the potential danger from Honda, their biggest customer, as well as from U.S. regulators.”

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