Petrol profits

The Commerce Commission's paper on measuring profitability in the petrol business didn't formally call for submissions but if people had any views they could send them in by close of play today. Here are a few of mine.

The first thing is that, somewhat surprisingly, firms - perhaps many of them - can be earning persistent 'excess' profits even in workably competitive markets. The graph below, which is the absolutely standard 'demand curve crosses the supply curve' picture, shows how it happens.

We know that producer A would be earning its weighted average cost of capital at price PA because it is willing to offer to supply at that price, and it wouldn't if it wasn't. At the higher market price of Pe it is making above-normal-WACC returns.

Or as a very good text book* says, when you have upward sloping supply curves, as in my view you often will, "the market price in equilibrium will normally be determined by the level of cost of the higher-cost producers - the 'marginal producers' - who will make only a 'normal' profit (the market price only just covers their costs) ... At the market price, the lower-cost suppliers will make a healthy margin above cost".

So the ComCom paper is bang on when it says that "Even where competition is effective, the profitability of some suppliers may be above normal or competitive levels" (para 37) and that "Analysis of profitability by itself may not distinguish whether higher than competitive levels of profits are due to cost advantages [as with producer A in the graph], the exercise of market power, or a mix of both".

It follows that the focus of the profitability analysis should be firmly on the returns being earned by the marginal producer at Pe and not on intra-marginal producers like A. This was the approach correctly adopted in last year's first report from our Electricity Price Review (write-up here, with links to the review). It looked at whether prices were in line with the costs of the next (the 'marginal') generator commissioned.

The logic was

Contract prices that were above costs on a sustained basis would suggest weak competition among generators, and that the entry, or threatened entry, of new generators was not restraining prices. On the other hand, prices that were well below costs on a sustained basis would suggest looming problems with reliability of supply because new investment would not be able to keep pace with demand. The comparison suggests competition has been effective in restraining prices. Figure 14 shows how wholesale prices have moved broadly in line with the cost of adding more capacity. Importantly, there is no evidence contract prices have been above costs on a sustained basis in recent years (p32)

The other main point I'd like to make is that the ComCom paper currently places some reliance on where analysis of 'gross margins' might take you in any assessment of profitability. I'd say that the answer is, almost nowhere. They may have accounting or commercial relevance, but for all the reasons mentioned in para 68 of the paper they are indeed "an incomplete measure of performance". From an economic perspective gross margins tell you very little, although they might (in a very homogeneous industry) give some limited insight into productive efficiency. In particular there is no way of telling whether any particular level of gross margins is "too high"

I appreciate that in a world of limited and non-standardised industry data, ComCom is going to have to scrabble for whatever indicators, however indirect, are available to hand. But I'd downplay the gross margins route, and put more reliance on estimates of return on capital employed or return on equity (ROE), which in a market economy are the numbers that matter from an allocative efficiency point of view.

Two final small points.

In para 93 ComCom says that it will consider as an indicator of profitability "The returns being achieved on recent and proposed investment both by new entrants, and by existing participants expanding their operations, in the retail fuel markets ... we would expect returns on more recent investment to approximate the cost of capital if competition is workable and effective", which is very much along the lines of the point I made above about the profit conditions of the marginal producer. The only gloss I'd add is that, as ComCom looks at recent or proposed investments, it should be wary of the 'hurdle' rates companies tend to use to assess the profitability of investments (the projects have to have an internal rate of return that beats some minimum 'hurdle' level).

While generally it's very useful to examine internal company thinking at the time, the evidence is that hurdle rates are not good sightings of what the investing company thinks is its true WACC or ROE. The hurdle rate is typically well north of that, as companies tend to use hurdle rates to filter out overoptimistic managerial gaming of the investment budget.

And if the focus is going to be on ROE (as it ought), Stats already has some estimates of petrol company ROE in its Business Performance Benchmarker tool. Here for example are ROEs by size of petrol station. No idea of the basis of the calculations, but on the adage that if all else fails, read the instructions ...

* Gunnar Niels, Helen Jenkins, James Kavanagh, Economics for Competition Lawyers, 2nd edition, Oxford University Press 2016, p10

In a regulatory moo-d

The latest Auckland seminar from LEANZ - the Law and Economics Association of New Zealand - brought together a panel of experts on the theme, 'What's Right and What's Wrong with New Zealand Dairy Sector Institutions?'

An important issue at any time, but especially on the money right now with the current review of the regulatory Dairy Industry Restructuring Act (DIRA). So far (according to the Review website) it's reached the stage where it's analysing the submissions on the discussion document it put out last November, and the Review team is now working on policy recommendations for regulatory change. Unless I've missed it, there doesn't seem to be a master list on the site of all the submissions received, but google a bit and you'll find some of the main players' views. Fonterra's are here.

The LEANZ panel was a battle-hardened bunch of dairy experts: in alphabetical order Tony Baldwin, business consultant, A E Baldwin New Zealand; Phil Barry, Director, TDB Advisory (his LEANZ slides are here, well worth a look); Alex Duncan, Consulting Economist at Finology; and Alex Sundakov, Executive Director at Castalia.

It would be nice to say I came away with all the moving parts neatly analysed and clarified and put into a tidy box, but - in the nicest possible way - I didn't, and that's fine. As Mencken's Law says, "For every complex problem there is an answer that is clear, simple, and wrong".

That said, I can't say I was totally disabused of the notions in my head before I went into the seminar, either. 'National champion' strategies are to my mind poor plans (see here and here) and I think the Commerce Commission got the right end of the stick when it proposed in 1999 to disallow the merger that ultimately (via DIRA) became Fonterra (I dug out the details here).

They may not have settled down into a coherent whole, but some of the ideas I took away from the seminar were:

• I liked Tony Baldwin's exploration of deep-seated, long-standing cultural norms in the dairy industry (including worship at the altar of 'white gold', dislike of competition, a wariness of markets in general and outside capital in particular, a strong desire for government involvement/support) and which, he argued, are still in play today and will continue to shape wherever we go next. Tony tells me he's polishing up his slides with extra commentary, and I'll post a link (and maybe some discussion) once they're ready. Alex Sundakov wasn't greatly minded to traverse 'old history' and suggested we should focus more on what's in front of us today, and there is that, but Tony's story still seemed highly relevant to me. Tony also concluded that the current regulatory structure can't deliver the strategy it's committed to, which I'm leaning towards as well. On similar lines Alex Sundakov also argued that existing institutional mechanisms aren't able to accommodate necessary market adjustments

• Alex Duncan, who I last encountered when he took the Commerce Commission for its first walk through the intricacies of the milk price manual, made an intriguing point. The mantra in dairy has been 'value add': he questioned that. He felt that the ingredients business - your powders, your casein - could be the real money-spinner, because it has the production flexibility to turn out whatever pays best on the day, especially if a deeper futures market develops and enables it to lock in transient opportunities or sell-off existing positions if better ideas turn up

• The seminar was largely free of entrenched  'pro Fonterra' and 'anti Fonterra' attitudes but still accommodated some discussion of Fonterra's calculation of the farmgate milk price. In  principle Fonterra could raise the input costs of competing processors via a high price. In practice, that's hard to square with evidence of profitable new entry (see for example Phil Barry's Slide #7) or with the potential discipline from investors in the Fonterra Shareholders' Fund who have an interest in making sure the dividend is not disadvantaged by an overly high farmgate price. Though, as someone said at the seminar, what effective recourse do they have other than to sell out of the FSF? 

• Alex Sundakov was somewhat bemused by the Kiwi predilection for froofrooing over whether regulation is necessary and what form it should take, and said that the Aussies tended to go "Bang! You're Regulated!" (my summary). Fair point - policy analysis in New Zealand has typically been, let's charitably say, exhaustive (don't get me started on reform of s36 of the Commerce Act). But I'm not sure he's right in this case about the Aussies' pace. The ACCC proposed a mandatory code of conduct for the processors who buy the Aussie farmers' milk back in April 2018, itself the outcome of an 18 month inquiry started in 2016. The draft code surfaced in March this year: who knows when (or if) the regulation will go live. And in any event, ditherers or not, Aussie code or not, dairy farmers in New Zealand are much better protected from oligopsonistic market power than their counterparts across the ditch.

A fascinating evening. If you're not on the LEANZ mailing list, subscribe. If you're yet not a member, join up. And thanks too to Richard Meade who organises the Auckland events, and to Bell Gully for the generous hosting that makes these seminars viable.

Revisiting regulation

In a later-career bit of diversification, I've been lecturing, last week delivering an intensive three-day course at the University of Auckland Law School - "Economic regulation: principles and practice", a master's level programme also available for some undergraduate study paths.

It's been stimulating: the class was high calibre, motivated, and ready with questions for me and the three visiting speakers I'd lined up. Big, big hat tips to Andrew Riseley, General Counsel on the regulation side of the ComCom house, Diego Villalobos, Principal Economist of the same parish, and former Telco Commissioner and the big honcho on regulation and competition at Minter Ellison, Dr Ross Patterson.

I don't know whether bringing in visiting firemen is standard in academia. All I can report is that, having tried it earlier at Victoria on a business cycles course run with colleagues Adrian Slack and Viv Hall, it seems to go down well with the students. They get to see that the stuff the lecturer has been going on about is actually what is happening and being used out there in the real world, and hearing it said in another voice probably helps it all sink in. Plus it also gives them some feel for whether they'd like to get into that line of work themselves later on.

Along the way I discovered a newish (2017) book that I recommended to the students as their first go-to resource. It's Thomas Lambert's How to regulate:  a guide for policymakers, Cambridge University Press. If you haven't come across it, it's excellent. Lambert is a full professor at the University of Missouri Law School, but evidently caught the economics virus as part of his undergraduate philosophy degree, and is very comfortable in the crossover badlands between economics and law. He contributes to the interesting Truth on the Market competition/regulation blog (I sympathised with their somewhat plaintive 'About us' description, where they say "We hope you find some of our posts insightful, thought-provoking, or at least mildly interesting").

His book had the structure I wanted for the course - an explanation of why workably competitive markets are the ideal, followed by all the instances where they won't necessarily work as well as you'd want (externalities, market power, asymmetries of information and the like), with good examples of how they can crop up and what you might do about them. You can currently get the paperback at the ever reliable Book Depository for NZ$51.16 (postage included) but if the pennies are tight or you prefer e-books you'll find Amazon does a Kindle version for US$20.79.

As you assemble your thoughts for a course like this, you wonder what the big takeaways for the students ought to be. Mine? The primacy of workably competitive markets; hence and otherwise the need to make sure any diagnosis of "market failure" is well founded; matching problems with the appropriate regulatory responses and, within that, prioritising more market-friendly and lighter-handed solutions; and regularly reviewing the need for regulation.

On which latter score we look to be doing reasonably well. I was encouraged by the latest rollback from the telco folk. The Telecommunications Commissioner Stephen Gale and his team are recommending that resale of Spark's copper-based voice services doesn't need its collar felt any more: "competition has been established, is increasingly effective, and is no longer dependent on access to these services". Right on, lads.

Though I'm less encouraged by the proposed 'building blocks model' (BBM) regulation of Chorus's fibre lines. One of Ross Patterson's points was that wireless broadband will serve as an effective competitive discipline on fibre prices, and I'm inclined to his view. The case for regulation no longer looks compelling, let alone regulation along the heavy duty BBM model that seems to have become our default. Fortunately, as Diego explained, we have had the wit to introduce an element of incentive regulation into the BBM at least as it applies to electricity lines businesses.

We also went through the history of the regulatory pendulum: right out to the pro-regulation side through to at least the late Seventies (France was still nationalising banks as late as 1982 and New Zealand was in regulatory lockdown until 1984); right back to the pro-market side up to the GFC; and the more recent swing to reregulation.

One thing that occurred to me is that, while the zeitgeist is now pro-regulation, and we may not now get a chance to fix them, the high water mark of the deregulation decades still left many areas overregulated when the tide started to retreat again. This past weekend's social and mainstream media, for example, are full of the follies of Easter trading restrictions, and (as I've said before) in an era when government funds are tight and we apparently can't find the funds for needed infrastructure in Auckland and elsewhere, successive governments have elected to go on owning a bunch of dairy farms, a policy which has not the slightest shred of public policy rationale.

Finally, we had a bit of fun in the class with the Weighted Average Cost of Capital (not a sentence you ever thought you'd read). We played "guess the beta", beta (for those who aren't regulation tragics) being a parameter in WACC which attempts to capture whether a share is more volatile than the average share and which might therefore need to offer a higher return. Beta is defined as how much a share price goes up relative to changes in the share market as a whole: beta greater than one, it goes up (and down) more than the market, beta less than one, it doesn't do as well (or as badly) as the rest of the market.

So I showed them the betas for a few of the listed utility-style companies, based on the very useful financial data you can find at Yahoo! New Zealand's finance site. You have Chorus on 0.61, and the gentailers not far away: Meridian 0.71, Genesis 0.79. And I pointed out that the current beta in the default price/quality paths for the electricity lines businesses is 0.72. Same diff.

All good, and then I showed them some companies and asked them to guess their betas. The class generally made a good fist of the likes of Auckland Airport (1.17), Fletcher Building (1.26), and Sky City (1.41). The surprises, for them and for me when I was devising the mental exercise, were Port of Tauranga (an unusually low 0.48) and - for a company down the higher-tech end and, with its assembly line robotics, you'd imagine would be facing some leveraged exposure to world trade - Scott Technology's oddly low 0.67.

ComCom had a go a while back at pulling together the literature on what drives betas - it's here, on pp35-8 - but I can't help feeling that it's still a work in progress. You'd wonder if the betas are sometimes more driven by the fads of investors than by the inherent volatility of the firm's line of business. 'Value' stocks for example can have extended periods in the sun - right now, for example, surveys of fund managers show that steady-Eddie utility shares are all the rage, partly because of the current 'hunt for yield' - only to languish later when 'growth' stocks are the in thing. And we regularly see 'sectoral rotation', where you can't give tech shares away one day and can't get them for love or money the next.

So despite the WACC cost of capital equations that look cut and dried, there's still a greyness around appropriate rates of return. Even if it wasn't a good idea anyway for dynamic efficiency reasons, ComCom's practice of using things like the 67th percentile of an estimated WACC range is exactly the right thing to do as a guard against faux precision.

Speaking of rates of return, ComCom has just put out the latest couple of papers as part of its petrol market study, one on what they're minded to zero in on and another on measuring profitability. If you want to respond to either of these (and I'll likely rise to the bait on the profitability one) you've only got till May 7 to do it, so skates on. And if market studies in general are of interest, don't forget to sign up to their update mailing list at marketstudies@comcom.govt.nz.

Is there a credit squeeze?

This is from the latest ANZ business survey, and it worried me. If businesses are finding it hard to get finance in good times - and we're still in what is now a sustained eight year long expansion - what on earth are their prospects of getting credit in bad times?

It could of course be that they're just venting, in the way that surveyed 'business confidence' has a fair degree of politics in it, although it's not obvious what extraneous factor could drive such a large and prolonged fall in the expected ease of credit.

As it happens, there is another window into credit availability, though it's not the easiest to peer through. The Reserve Bank's credit conditions survey, in its current form, is run only six-monthly, and so far covers only March and September 2018, so it's not yet the full monty. There was a longer-running 'experimental' one which goes back to 2009, but it's not possible to align the old and new ones perfectly: the Bank says that "The mapping of historical indicators to the current set of indicators ... is imperfect". But I've done it anyway just to get some sort of longer-run feel.

Here's what the banks say about the recent availability of credit to SMEs and to the big end of town, the corporates and institutions. You can see the unfreezing of credit after the GFC, a rather mysterious temporary pullback in SME lending in 2013-14, and more recently a progressively tighter approach (barring that uptick in corporate credit on the latest reading, which may be a blip).

Strictly speaking the ANZ survey asks about expected rather than historical availability of credit, but fortunately the RBNZ survey also asks the same question. Here's what the credit suppliers answered when asked.

Assuming that zero on the index is neither happy nor unhappy, they're saying, essentially, that they're slightly on the relaxed side of lukewarm about extending business credit in coming months. They're not outright gung-ho, but they're not shuttering up the shop, either.

So there's not a great meeting of the minds at the moment between the businesses who respond to the ANZ survey and the banks who respond to the RBNZ's. Maybe the businesses are griping more loudly about extra documentation and hoops to jump through, but are actually getting the credit in the end, despite all the hassle along the way. Let's hope there isn't any genuine blockage in the flow of funds to businesses wanting to invest: the cyclical outlook is getting a bit more fragile, and it doesn't need any more headwinds.

Did Special Housing Areas help?

A while back I went and had a looksie at some local Special Housing Areas near me in Auckland.

I wasn't hugely impressed. At the first one I went to look at, I felt that designating it an SHA didn't seem to have made any material difference either way. On the left, by the way, is the very latest state of play on that first SHA site I visited. Still a long way from being finished - no dramas, it's the developers' prerogative to set whatever schedule best suits them - but not an obvious example of SHA status moving things along.

On a follow-up visit I had more doubts, noting that non-SHA apartment blocks were going up all over the place but the SHA sites were somnolent. "I'd like to believe", I said, that "Special Housing Areas greased the wheels of the housing planning process, and either accelerated or increased new construction, or both ... But how will anyone definitively know? ... I'm hoping that someone - an economic consultant with an interest in housing, maybe? - will be asked to turn their minds to a proper 'with and without' exercise: matching a bunch of otherwise similar SHA and non-SHA areas, and checking to see if the SHA ones outperformed in speed or quantity".

Another visit left me asking the same questions. "it still leaves me with a nagging feeling that the interesting Special Housing Area initiative (faster planning approval in exchange for including some 'affordable' housing) didn't work out as everyone had imagined. We need to know whether this policy experiment worked, and if it did, repeat it or widen it, and if not, why. Otherwise we'll continue to blunder around with well-intentioned housing ideas that never get properly evaluated".

Lo and behold, someone's actually done exactly that "proper 'with and without' exercise: matching a bunch of otherwise similar SHA and non-SHA areas". It's just been published in the online version of New Zealand Economic Papers as "Price effects of the special housing areas in Auckland": the abstract is here and if you've got access to NZEP online, here's the link to the full article. It's by Mario Fernandez of Auckland Council's Research and Monitoring Unit and two co-authors, Gonzalo Sánchez at ESPOL in Ecuador and Santiago Bucaram at the Inter-American Development Bank.

They used a difference-in-differences approach which looked at what happened to house prices in SHAs compared to those in nearby non-SHA areas. Before the SHA experiment, prices in both areas had been rising at about the same rates: assuming (I think reasonably) that those trends would have carried on absent the SHA cunning plan, you can attribute any subsequent differences between SHAs and non-SHAs to the effect of the SHA policy.

The SHA initiative did not scrub up well:

Our findings indicate that the SHA programme caused price increases (inside SHAs) amounting about 5% on dwelling prices and 4% on the price per square metre, and had no effect on the probability of affordable transactions to occur but actually increased the probability of costly transactions. These results cast doubts on the reliability of the SHAs as a housing policy aimed at improving affordability (p11) ... the findings of this paper suggest that the effectiveness of the SHAs on improving affordability was questionable or negligible (p13)

The findings were robust to the usual econometric tyre kicking (eg allowing for the possibility that developers and buyers saw the SHAs coming and might have changed their behaviour accordingly, and making the comparisons only on SHAs and non-SHA areas that are very close neighbours).

The authors say, "the policy questions that arise are: what weakened the SHA programme? or why
were the affordability requirements not binding to developers?".

On the first, one possibility (they say) is that "the fast-tracking of the consenting process [the SHA deal was faster consents, in exchange for agreeing to build an element of affordable housing] resulted with the developers being able to offer an additional attribute to their products: rapid delivery of new constructions ... Hence, the SHA programme simply allowed developers to offer new homes with an additional attribute (a shorter delivery time), which consequently implied higher prices" (p12).

On the second, there was an element of gaming the system. Developers had the option of waiting to see what planning options might become available under the Auckland Unitary Plan, rather than forging ahead with their SHA consents: "there were expectations of greater profits under the rules of the AUP rather than the SHA programme. Therefore, this could explain why prices did not decrease inside the SHAs as the timing of development may have relied on building first the more profitable (and expensive) houses and later (or never) the affordable" (p12). Scuttlebutt I picked up at the time fits with this explanation.

I'm not going to bag the designers of the SHA: I'm more in the 'let a thousand flowers bloom' camp when it comes to policy experiments, and anything that sounded plausible (the faster consent / affordability combo) was worth a go. I think we all knew that it wasn't going to make much of a difference compared to the impact, say, of a large expansion in the supply of housing-zoned land. But at the margin it might have been a small help.

It wasn't. People more familiar than me with the intricacies of the housing market can carry on the conversation about why not. My takeaway from the whole exercise is that any policy experiment ought to automatically come with follow-up provisions to see how it went. Not rocket science, you'd think, but it's routinely ignored all over the place: we're throwing money in the air, and not checking to see where it drifts or who picks it up. It's time to realise that 'evidence based policy' isn't just about designing a plausible initiative: it also means seeing if it lived up to expectations, and if not, why not.

Jumping the gun

A colleague in the competition business read my post about a recent Aussie 'gun jumping' case and let me know that one of the recent OECD 'Best Practice Roundtables on Competition Policy' had been all over the topic.

These roundtables focus on the hot competition issues of the day, and they're good stuff. 'Public interest considerations in merger control' (March '17), for example, was directly relevant to the issues at play in the NZME/Fairfax merger. Other recent ones on current frontier issues include 'Excessive pricing in pharmaceuticals' (November '18), plus two coming up this June, 'Vertical mergers in the technology, media and telecom sector' and 'Licensing of IP rights and competition law'. I found their market studies one very helpful when I was lobbying for legal change to allow market studies here (and they've since added a how-to-do them kit, 'Market study methodologies for competition authorities').

The gun jumping one, 'Gun jumping and suspensory effects of merger notifications', is also worth a read. The roundtable put two different things into the same 'gun jumping' box: not notifying mergers when you're required to or ought to, and premature coordination between merging competitors before the merger goes final. I'd personally have said only the second one is what most people would see as 'gun jumping' but it's semantics: it really doesn't matter whether you see them as two kinds of the same thing or two different things. The Commerce Act in any event puts them in different boxes (s47 for going ahead with an anti-competitive merger you should have had cleared or authorised, s27/s30 for premature collusion).

The roundtable was mostly geared to the vast majority of countries which operate compulsory merger notification schemes: as the OECD summary report says at para 21, "The UK, Australia and New Zealand are the only OECD jurisdictions with purely voluntary notification systems". But it also had some useful practical advice (at paras 65-77) for businesses under either regime, on how to avoid premature coordination. Sadly, there isn't any bright line certainty.

competition agencies fully recognise that these types of co-ordination are often necessary to achieve the legitimate objectives of a merger agreement ... Merging parties certainly have room to satisfy information and co-ordination needs which are justifiable in the context of a transaction. Such acts may need to be accompanied by appropriate safeguards in order to avoid gun jumping ... The remaining uncertainty on how to distinguish forms of information exchange, value preservation and post-merger planning that amount to gun jumping from those that are lawful seems inevitable ... While certain provisions in agreements and covenants and the safeguards applied may be considered ancillary, justifiable and sufficient in one case, this might not be true in another case [66, 76-77]

Interestingly both the ACCC and our own ComCom put in written submissions.

The ACCC talked about the Cryosite case but was also concerned about too-clever-by-'arf arrangements - my phrasing, not theirs -  that achieve all the benefits to the parties of an anti-competitive merger without looking like one. They cited one back in 1996, and they're currently alleging there was one in 2017: 'ACCC takes action against Pacific National and Aurizon'.

ComCom revisited NZ Bus and the Waikato pathology case and also mentioned a more recent instance in the horticultural sector where "the [acquirer's] receipt of the target’s customer lists and the target’s possible encouragement of its customers to switch to the acquirer raised concerns about pre-merger coordination" (para 45). In the end the Commission flagged away any enforcement action under s47 or s27/s30 but added that in general it sees "gun jumping as a potentially serious breach of competition law and is prepared to enforce against such breaches" (para 46).

Stepping back a bit from the minutiae, I think anti-competitive mergers and pre-merger-closing gun jumping are now one of the touchier hot buttons for competition authorities everywhere. There's a rising political head of steam building - here's just one example - behind the idea that too many mergers have been allowed through, with various damaging effects. In that environment, the enforcement level gets dialled up: horses and stable doors, maybe, but if you're on either side of a merger, it's time to be extra careful that the swinging door doesn't bang you on the bum.

Too harsh?

So, this guy comes into your shop, wants his widget repaired.

"Like to help", you say, "thing is, we're not taking on repairs any more, we're selling out to WidgeCorp, here's their number, they'll see you right".

An innocuous scene from everyday commercial life? Not if the deal with WidgeCorp falls through.  In the meantime you may have been party to an agreement to divvy up the market with WidgeCorp. You've been anti-competitively "jumping the gun", as the competition authorities call it.

Which is where Cryosite, an Aussie company which banks umbilical cord blood and its potentially useful stem cells, found itself last month (ACCC announcement here, the case here). Its sale to Cell Care fell through, but as part of the deal it had agreed to stop competing and to refer all new business to Cell Care. It got pinged A$1 million plus A$50K costs. It can easily happen in New Zealand too: here is the Commerce Commission response to the Waikato pathology services case in 2010 and the case itself.

Yes, it wasn't the right thing for Cryosite to do. As ACCC Commissioner Sarah Court said in the ACCC release, "This outcome should be a strong reminder to competing companies that they must conduct themselves at arm’s length until a deal has been completed".

And yet I looked at the level of penalties, and wondered. Cryosite is ASX-listed, and you might think it's a decent sized corporate who will (properly) feel the hit, but can carry on. Cryosite, though, is among the micro-est of microcaps (A$2.1 million market capitalisation), is making an operating loss, and the judge was obliged to put the penalty on the never-never ($200K upfront, the rest in 10 equal  annual instalments out to 2029).

The penalty looked on the tough side to me. And maybe that's the ACCC's intention. As chair Rod Sims said in a speech last year, "we need higher penalties for CCA [their Commerce Act] breaches to raise the cost of them ... Over the next year you can expect the ACCC to take even more enforcement action, and to take a firmer stance on sanctions and penalties with a view to making an even greater impact on compliance".

It may be, too, that the pair of them had got offside with the ACCC with their proposed merger: as the chair of the ACCC said about the merger at the time, "While parties are not obliged to approach the ACCC for clearance, it is concerning that an acquisition in a highly concentrated market such as this would not prompt the parties to contact the ACCC". And it didn't help that Cryosite banked a A$500K non-refundable deposit as part of the proposed merger. That was a standard "no timewasters please" investment banking mechanism which Cryosite would have got irrespective of whether the merger materialised and irrespective of any "gun jumping". To my mind it should not have been characterised as a gain from the conduct, but you can see how people might have reckoned it should have gone into the penalty balancing exercise. There may be other wheels within wheels, too, as yet not vouchsafed unto us.

On what we've seen, though, this looks like a rather harsh rap on the knuckles. I'm all for throwing the book at brazen anti-competitive conduct - like the Japanese shipping lines' cartel on cars into Australia - and I was pleased to see an unapologetic cartelist get its penalty quintupled after an ill-advised appeal. But I'm not sure that context is getting enough of a hearing in less shameless breaches of competition law, a local example being the real estate agents backed into a collusive corner by a large threatened rise in TradeMe listing fees.

I suspect we'll be hearing a lot more about the appropriateness of penalties. It has already made for a lively session at last year's CLPINZ workshop and is on the agenda for the Commerce Commission's 'Competition Matters' conference in July. I'm looking forward to what I think will be a robust exchange of views.

Naïve? Casual? What?

When I was a cricket umpire, a colleague recalled how he had given one batsman out for handling the ball, and another for hitting the ball twice. These are rare kinds of dismissal: what was even odder still, they happened in the same over.

Which is a roundabout way of saying, sooner or later in any game you see everything. Last year, for example, I noted that the Commerce Commission was having an unusual run of (equally rare) s47 investigations - where the Commission looks at potentially anti-competitive mergers that should have come in for clearance or authorisation, but didn't.

There had been one in 2008, one in 2012, one in 2015. But since March 2018, there have been eight of them, with the latest announced last week. The full list is here.

We've also just learned what happened to one of them, First Gas's acquisition of GasNet's gas distribution pipeline network in Papamoa (suburban Tauranga). GasNet, ultimately owned by Whanganui District Council, had a local gas distribution network, and had started to eye up the gas distribution possibilities in new sub-divisions in Papamoa. Why a local authority thinks it's a good use of its ratepayers' resources to get into the gas pipeline game on the other side of the country is beyond me, but in any event they went for it. And got squashed like a bug.

First Gas, owner of the (ex Vector) North Island high-pressure gas transmission pipeline as well as of lots of local lower-pressure distribution pipeline networks, was not at all pleased. It tried to buy GasNet out with a succession of offers. And it threatened (and went some way to implement) laying its own pipes alongside GasNet's. It would have been uneconomic for both of them but signalled their willingness to play a game of mutually assured destruction. And First Gas used carrots and sticks on the sub-division developers: the judgment says at [22] that "First Gas also advised the developer that, if its offer was not accepted, it would lay the pipelines anyway and this retrofitting [digging up established development] would cause considerable disruption". GasNet caved, agreed to be bought out, and in addition signed a restraint of trade not to re-enter the Bay of Plenty for five years.

First Gas was bang to rights under s47. Whatever the market was - at [37] "the construction of distribution networks in new subdivisions in one or more of the following areas: the areas served by the Papamoa 2 delivery point; the areas served by all delivery points in Papamoa and Mt Maunganui; the Bay of Plenty" - First Gas was taking out its competition there. And the restraint of trade fell foul of s27: at [39] it "had the purpose, effect or likely effect of removing current competition in the market between First Gas and GasNet and of preventing future competition between First Gas and GasNet for at least the period of the restraint".

Bottom line, $3.4 million penalty. The judge said at [51], "The penalty together with the purchase price mean that the assets acquired will not be profitable over their life time. In the context of a business which is almost entirely regulated, this means First Gas will incur a material loss from the acquisition".

Fair enough, too. Yes, there was a remarkable naïveté  about First Gas's actions: at [30], First Gas "did not appreciate there were competition implications", at [47] "it was unintentional – First Gas did not appreciate there were Commerce Act implications despite the regulatory regime to which it is subject". And yes, you've got to give credit to First Gas for cooperating with the Commission: at [50], "Once alerted to the Commission’s concerns First Gas was entirely cooperative and this has led to an early and agreed resolution to the matter". But there's no doubt either about (at [47]) "a concerted effort on a reluctant seller to remove a competitor. First Gas was successful in its effort, and the effect on the market is on-going and is potentially permanent. The conduct has removed existing competition and is likely to have removed future competition in the market for the foreseeable
future". Plus there's whatever demonstration effect it might have in other distribution markets where competitors might have been thinking of giving it a go.

As I said last year, a voluntary notification scheme and self-policing of mergers is a good way to go. It's "one of those bits of social capital that lubricate the free flow of business and avoid the heavy-handed alternatives. Fingers crossed that this mini-outbreak of s47 investigations is just happenstance, and not a sign of a change in the times".

But now eight of the things have surfaced. It could still be happenstance, I suppose, though the odds are beginning to drift out.  It could reflect nothing worse than a more widespread First Gas style naïveté: in New Zealand we tend to informality in business and don't always cross the i's and dot the t's. And nothing may come of some of these s47 investigations: everything might be hunky dory, nothing to see, move along.

But at this stage I'd also guess that the Commission must be wondering if it should have put more effort into its market intelligence over the years. And the business community, if it's been chancing its arm, ought to put more effort into voluntary compliance. It's in businesses' own interest: the alternative, compulsory merger notification, would be clunkier, slower, and more expensive.