ACCC cautioned banks on cartel charges
ANZ, Citi and Deutsche will become the first financial services companies to face criminal charges in Australia over alleged cartel conduct - in this case dating from 2015 - assuming the DPP and ACCC follow through on claims publicised on Friday.The Australian Competition and Consumer Commission has prosecuted big businesses only once before over criminal cartel conduct, with a Japanese shipping line copping a A$25 million fine last year.In the case of ANZ, the ACCC said that "the charges will involve alleged cartel arrangements relating to trading in ANZ shares following an ANZ institutional share placement in August 2015."Amid a frenzy of capital raising around the sector at the time, ANZ hit the market for up to $3.0 billion in new shares, supported by an underwriting on $2.5 billion from Citi, Deutsche and JP Morgan. The bank later sold more than $700 million in shares under a retail share purchase plan.ASIC is also on the tail of ANZ and two of the three investment banks engaged at the time. ASIC is investigating whether ANZ's announcement of 7 August 2015 "should have stated the joint lead managers took up approximately 25.5 million shares of the placement at the time," ANZ said in a media release on Friday.ANZ elaborated that "the [ACCC] proceedings relate to an arrangement or understanding allegedly made between the joint lead managers in relation to the supply of ANZ shares.""It will be alleged that ANZ and the individuals were knowingly concerned in some or all of the conduct," the ACCC has said.In respect of Deutsche Bank AG and Citigroup Global Markets Australia Pty Limited, all the ACCC said on Friday was that each of these banks were "another company against which charges are expected to be laid, along with a number of individuals."The DPP "also intends to bring proceedings against ANZ group treasurer Rick Moscati," the bank has said. Moscati so far is the only individual singled out.The Federal Court of Australia will be the forum that hears any charges.Any robust defence - as promised by Citi and ANZ on Friday - may compound the penalty if a court finds against the banks.For corporations, the maximum fine or pecuniary penalty for each criminal cartel offence or civil contravention (whichever applies) will be the greater of $10 million, or three times the total value of the benefits obtained by one or more persons and that are reasonably attributable to the offence.Where benefits cannot be fully determined, 10 per cent of the annual turnover of the company (including related corporate bodies) in the preceding 12 months is the alternative maximum penalty.In the shipping case last year, Nippon Yusen Kabushiki Kaisha paid a fine of $25 million. The fine included a significant discount of 50 per cent for an early guilty plea, cooperation and contrition.The ACCC and its chair Rod Sims have played up the emphasis at the regulator for prospective actions with a cartel theme in banking.Sims warned the sector in 2015 that the Financial Services Inquiry identified competition as one of the main areas