MILAN (29 July 2009) — International law firm McDermott Will & Emery Studio Legale Associato secures a significant victory on behalf of Zero9 S.p.A.
On 23 July 2009, the Rome Court of First Instance ruled in favour of Firm client, Zero9, a leading creator, manager and promoter of interactive content for mobile phone users. The successful appeal was against the amount of fine imposed by the Italian Competition Authority to Zero9 for an alleged breach of Italian consumer protection and unfair commercial practices rules.
The McDermott team resumed this matter before the Italian Competition Authority while the investigation was already underway. Given Zero9’s involvement in a number of other unfair commercial practice cases, the client was facing an ill-disposed attitude by the Authority, and risked the imposition of the suspension of its business activity, which is only ordered in very serious cases. The McDermott team advised Zero9 to offer immediate commitments to remove the alleged unlawful aspects of its conduct and amend the advertisement under review, in order to obtain a reduction in the amount of the fine. The McDermott team anticipated that Zero9 would have been unlikely to obtain full immunity from the fine, given that the advertisement under scrutiny was considered allegedly "seriously and manifestly unlawful." This is because, under Italian law, in case of "seriously and manifestly unlawful" conducts, the Authority cannot close the proceeding without investigating the offence, following the commitments offered by the parties. The Authority shall, however, take into account such commitments, as a mitigating circumstance, in the setting up of the fine. McDermott also obtained a hearing before the Authority, which had never been granted before in an unfair commercial practice case.
Following the initial fining decision, McDermott advised Zero9 to challenge the Authority's assessment on the setting up of the fine, on the basis of various arguments including the fact that it failed to take into account the commitments offered by Zero9, as a mitigating circumstance. The Rome Court of First Instance accepted this latter argument, annulled the fine originally imposed, and ordered the Authority to re-determine its amount taking account of such mitigating circumstance.
The McDermott team was led by Italian EU Competition and Regulatory practice group head, Veronica Pinotti and included associate Martino Sforza.
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