ACCC action on attempted cartel conduct in financial services industry

influence legal competition lawLate last month the ACCC announced that it has commenced consent proceedings against ANZ and Macquarie in relation to allegations of attempted cartel conduct.

The proceedings involve conduct in 2011, when traders at Macquarie and ANZ, as well as other banks, are alleged to have communicated in private chatrooms about submissions to be made to the Association of Banks in Singapore about the benchmark rate for the Malaysian ringgit (MYR), and the Macquarie and ANZ traders are alleged to have tried to make arrangements with other banks to make high or low submissions.

The ACCC, ANZ and Macquarie have agreed on facts and penalties to be submitted to the Federal Court. The proposed penalties are $9 million for ANZ and $6 million for Macquarie, as well as costs contributions.

These proposed penalties compare with the maximum penalties as follows:

  • $10 000 000
  • 3 times the total value of the benefits attributable to the conduct
  • where benefits cannot be determined, 10 per cent of the annual turnover of the corporate group in the preceding 12 months,

whichever is the greater.

The MYR benchmark rate is used as a reference rate for settling non-deliverable forward contracts (NDFs). The ACCC has pointed out that the MYR NDF market in Australia in 2011 was worth approximately $9 to 10 billion and that ANZ and Macquarie’s customers included Australian companies, stating that “the integrity of foreign exchange markets plays a fundamental role in our market economy.”

However, it’s of interest to note that the conduct alleged in these proceedings occurred entirely outside Australia.

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