Richard Pratt walked out of the Federal Court in Melbourne at 12.15pm today with a big smile on his face. And why wouldn’t he. A lucrative five-year cartel over the $1.9 billion a year cardboard box market was probably only going to cost him $37.5 million in fines – $36 million for his Visy corporate entity and $1.5 million for CEO Harry Debney.
While Justice Heerey reserved his decision after three hours of submissions, it is unlikely he’ll deviate from the course recommended by the ACCC, which includes no personal fine for Pratt because he owns Visy.
The ACCC’s counsel, Peter Jopling QC, was absolutely right to express surprise that Harry Debney still has his job as Visy CEO. Even worse, Visy confessed that the company would cover Harry’s record individual fine, which was seven times larger than the previous highest.
Whilst the agreed statement of facts and the carefully crafted oral submission by Visy counsel Jonathan Beach QC was all about minimising the financial damage, poor old former Visy general manager Rod Carroll will have to pay his own $400,000 fine, assuming the judge accepts the plea-bargain arrangements.
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It was Carroll and the Amcor Five who exposed Australia’s most comprehensive cartel structure and none of them remain employed in the industry.
The $36 million fine for Visy comprises $1.25 million for each of the 13 specific deals associated with the biggest contract customers such as Lion Nathan, Goodman Fielder and Nestle.
There was also the following fines for these cartel negotiated price increases for ordinary garden variety customers:
2000: 7% agreed price increase, $2 million fine
2001: 8.25% agreed price increase, $2 million fine
2002: 3.25-3.5%% agreed price increase, $1.5 million fine
2003: 2.75-3% agreed price increase, $1.5 million fine
Pratt’s counsel made arguments for the judge not to increase the fines, including that the 2000 increase happened before the original cartel agreement was reached in a Glen Iris home. The 2001 increase was effected by a GST-inspired jump in inflation, whilst the following years were just in line with inflation.
Pratt’s counsel also claimed that significant trading losses were incurred by the duopolists in the two years before the cartel began when there were no price increases.
Pratt negotiated hard to not disclose the profits generated by the cartel’s 20% price rise over five years, clearly mindful of the coming class action and customer renegotiations. But his counsel claimed that the price rises would have happened anyway.
Jonathan Beach QC also worked very hard to protect Debney, even going into the specifics of each contract in an attempt to finger Rod Carroll. If Pratt is serious about his contrition, Debney would get the boot.
The ACCC also criticised Pratt’s press release from last Monday when he claimed only “technical breaches” due to the complexity of the law.
There’s nothing technical about a good old fashioned cartel as was spelled out in the 1998 Visy ACCC compliance manual which was completely ignored by Pratt’s team.
Pratt’s counsel also claimed they should get a discount for hiring Graeme Samuel’s predecessor, Professor Allan Fels, to advise on ACCC compliance and that they shouldn’t be hit too hard given that Amcor, which instigated the arrangement, has got off “scott free”.
The cheek of it. Let’s hope Justice Heerey takes matters into his own hands and shows the ACCC a thing or two about proportionality.
Pratt refused to speak to the media on the way into court, but on the way out he once again pleaded an element of ignorance, saying he knows a lot more now than he did at the time.
Given his form and the enormous details now known about the cartel, the $5.4 billion man really has got off very lightly.