NCLAT rejects Amazon plea against CCI order, directs to pay Rs 201 cr

The National Company Law Appellate Tribunal (NCLAT) on Monday turned down Amazon.com’s plea that challenged antitrust body Competition Commission of India’s (CCI’s) order striking down its 2019 deal with the Future group. It was for suppressing information while seeking regulatory approval.

The deal involves a Rs 1,431-crore investment by the US major to purchase a 49 per cent stake in Kishore Biyani-led Future Coupons Pvt Ltd (FCPL) in 2019.

The tribunal has upheld views of the CCI that Amazon had misled the antitrust regulator to believe — through false statements and material omissions — that the combination and its purpose were in the interest of Amazon in the business of FCPL. 

However, the actual purpose of the transaction was to achieve a strategic alignment with the Future group as a ‘foot-in-door’ in the Indian retail sector, it said in its 300-page order.

The tribunal observed that Amazon had made only limited disclosures with regard to Future Retail (FRL) only in the realm of FRL’s equity warrants held by FCPL.

It had not spelt out the real combination, that is, acquiring ‘strategic rights’ and interests over FRL as well as executing ‘commercial contracts’ between it and FRL.
 

Citing CCI’s December order, NCLAT said, “This appellate tribunal is in complete agreement with the view arrived at by the CCI.”
 

The NCLAT also upheld the penalty of Rs 200 crore imposed by CCI in its order, stating it is to secure “ends of justice.”

Amazon was also directed to file a Form-II (comprehensive details) and deposit the penalty within 45 days. The NCLAT’s reasoning is that the penalty is a fair and sensible one.

Notably, CCI’s fine break up is Rs 1 crore for suppressing information and Rs 200 crore for failure to notify the combination, in terms of obligation.

Sources said that Amazon’s legal team is reviewing the NCLAT order and may challenge it in the Supreme Court.

“While making a submission to CCI, it clearly mentioned that the company’s investment in Future Coupons was a strategic investment. This is because the government — at some point in time — may allow investment into the multi-brand retail sector in the country,” said people aware of Amazon’s legal strategy.

The team, according to sources, is reviewing the 300-page order.

It is expected to contend that Amazon gave all the information to CCI in written format but CCI is now saying that it should have emphatically pointed out FRL, sources said.

On observation that Amazon gave different views at different forms, sources said that Amazon didn’t structure or present the document in a way that it would become complex for CCI to understand or suppress any information.

The same document was also shared with the Singapore International Arbitration Centre during the arbitration procedure. It clearly understood that Amazon’s investment was going into Future Retail through Future Coupons, sources pointed out.

Amazon may also contend that CCI does not have the authority to unwind the deal approval post 12 months. The person said that the 'abeyance' won’t be applicable.

“CCI either had to approve or revoke the deal within 12 months,” they said.
 

On CCI’s powers and limitations, the tribunal underlined that CCI has an incidental/ancillary/residual power to pass an 'order’ of keeping its approval orders in abeyance.

It said that since Amazon had not notified the 'proposed combination’ as a 'whole’ and in an omnibus manner, the period of limitation of one year…is “inapplicable.”

“With CCI getting a thumping from the appellate tribunal, the companies involved in merger and acquisition activities will be on their toes when evaluating deals and the level of disclosures,” said Vaibhav Choukse, partner (competition law) at JSA.

Key Events 

2019:

• Amazon buys 49% stake for Rs 1,431 crore in Future Coupons

2020:

• Future Retail board approves Rs 24,713-crore deal with Reliance Retail
• Amazon moves Singapore International Arbitration claiming Future Group violated its contract, seeks halt on Reliance deal
• SIAC halts Reliance deal, issues interim order
• CCI approves Reliance RetailFuture Retail deal

2021:

• CCI imposes Rs 202-crore penalty on Amazon, suspends 2019 Future deal nod
• Alleges suppression of facts while seeking approval

2022:

• NCLAT admits plea of Amazon against CCI order
• NCLAT rejects Amazon plea against CCI order