Allens

Class Actions

We regularly publish articles on class actions (and related) matters. These publications contain commentary and analysis to help organisations keep up-to-date with and better understand the complex and challenging issues related to class actions.

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Read about Allens' track record in this dynamic area.

Class Actions Publications

  • Focus: The latest from the High Court on contractual interpretation

    30 March 2017

    There is an ongoing controversy as to whether, in construing a contract, the 'true rule' in Codelfa mandates that a contract be ambiguous (on its face) before a court may consider evidence of surrounding circumstances. The High Court this week had an opportunity to consider this issue. Although its decision did not expressly resolve the controversy, it may be seen as a (further) departure from the 'ambiguity gateway' approach. Partner, Malcolm Stephens and Senior Associate, Jaime McKenzie report.

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  • Paper: 25 years of class actions

    27 March 2017

    Class action risk is changing. A new wave of entrepreneurialism by plaintiff lawyers and litigation funders has substantially changed class action dynamics in recent times. The 25th anniversary of the class action regime is a good opportunity to reflect on whether, in the light of those and other developments, the regime is still serving its objectives.

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  • Paper: Class actions in Australia

    14 March 2017

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation.

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  • Paper: Shareholder class actions in Australia

    14 March 2017

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation. This evolution has been facilitated by recent developments in the Australian legal landscape and Federal government support for class actions (and the litigation funding of class actions). This paper outlines some of the key issues and trends in Australian class actions (including litigation funding).

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  • Focus: Anti-bribery & corruption: Key questions for boards and executives

    6 March 2017

    Australian boards and senior executives are expected to maintain oversight of risk and compliance issues including bribery, sanctions, human rights and anti-money laundering. In-house counsel perform a central role in supporting this oversight and maintaining compliance. In the first of a five-part series, Partners Rachel Nicolson and Peter Haig, Senior Associate Tim Farhall and Lawyer Shamistha Selvaratnam look at the key questions that Australian boards and senior executives should be asking themselves about anti-bribery regulation and compliance practice in 2017.

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  • Focus: Disclosing privileged documents to regulators

    16 December 2016

    In Cantor v Audi, the Federal Court denied Australian class action plaintiffs access to documents exchanged between Volkswagen AG and a foreign regulator. The case provides insights into what you should consider before providing privileged documents to a regulator. This is critical in an era of increasing regulatory action and class actions in which plaintiffs seek to piggy back off global regulatory investigations and proceedings. Partner Alex Cuthbertson, Senior Associate Monisha Sequeira and Lawyer Alex Lee report on the decision.

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  • Focus: A blow to class action judgments achieving finality

    12 December 2016

    Ordinarily, a party cannot raise in later proceedings issues which it could and should have raised in earlier proceedings. This principle recognises the public interest in resolving disputes with finality. In a recent decision, the High Court considered how that principle applies in the context of group proceedings. The judgment sounds a cautionary note that a successful class action defendant cannot rely on mere failure by members of a class action to opt out of group proceedings to establish that these members are subsequently prevented from raising other claims in relation to the same factual circumstances in new proceedings. Partner Belinda Thompson and Lawyer Alex Lee examine the decision and its implications.

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  • Client Update: An opportunity for greater certainty for class action defendants

    5 October 2016

    Class action settlement negotiations are often hindered by uncertainty about the number and identity of potential claimants. A recent decision of the Supreme Court of NSW has paved the way for defendants to achieve greater certainty in respect of unregistered class members at an earlier stage than had previously been the case. Partner Jenny Campbell, Associate Daniel MacPherson and Lawyer Hugo Dupree report. 

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  • Client Update: Privilege during class action investigations - no client required

    2 September 2016

    Our recently released Class Action Risk 2016 report highlights the effect of lawyer and funder entrepreneurialism on the class action landscape. Last week's decision in the ongoing confidentiality dispute between IOOF Holdings Limited and Maurice Blackburn has provided a rare insight into the way class actions are prepared, promoted and funded. The court has also determined that class action lawyers are able to claim privilege over advice given to potential funders or to themselves in connection with the preparation of a class action, before any prospective client has given them instructions. Partner Jenny Campbell and Associate Jerome Entwisle report.

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  • Report: Class action risk 2016

    19 August 2016

    Class actions have featured frequently in the press in recent years, often with a theme of a developing crisis for Australian business. It is, however, important that class action risk be assessed by reference to objective data rather than the headlines. Having gathered and analysed that data, our report identifies some interesting trends that run counter to some of the typical commentary.

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  • Paper: Class actions in Australia

    18 August 2016

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation.

    Read More
  • Paper: Shareholder class actions in Australia

    18 August 2016

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation. This evolution has been facilitated by recent developments in the Australian legal landscape and Federal government support for class actions (and the litigation funding of class actions). This paper outlines some of the key issues and trends in Australian class actions (including litigation funding).

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  • Focus: Finally - a class action regime for Queensland

    17 August 2016

    Class actions in Queensland are one step closer with the introduction of proposed new legislation into the Queensland Parliament. Partner Michael Ilott, Special Counsel Robyn Morrison and Senior Associate Suzie Fraser report.

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  • Client Update: Penalties: The final word

    27 July 2016

    Today, the High Court handed down its long-awaited decision in Paciocco v Australia and New Zealand Banking Group Limited, bringing an end to six years of litigation. The High Court dismissed the appeal, holding that the late payment fee charged by ANZ on credit card accounts was not a penalty or otherwise unconscionable, unjust or unfair under the relevant statutory prohibitions. The decision provides the final word on the application of the penalties rule (at least for now). Partner Belinda Thompson, Managing Associate Kate Austin and Lawyer Kelly Roberts consider the decision and its implications.

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  • Focus: Court refuses to approve class action settlement

    12 April 2016

    In a recent Federal Court decision, Justice Murphy refused to approve the settlement agreement between the parties to the Willmott class action, finding that the terms of the settlement were not 'fair and reasonable'. Partner Belinda Thompson and Graduate Lawyer Nathan Van Wees examine what this decision means for future class action settlements.

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  • Class actions: a ten year survey

    28 May 2015

    Class action risk has become a major issue for boards, senior management and general counsel. A key question often asked in that context is whether the changing nature of the class actions landscape poses an increasing area of risk for Australian corporates.

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  • Paper: Class actions in Australia

    28 May 2015

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation.

    Read More
  • Paper: Shareholder class actions in Australia

    28 May 2015

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation. This evolution has been facilitated by recent developments in the Australian legal landscape and Federal government support for class actions (and the litigation funding of class actions). This paper outlines some of the key issues and trends in Australian class actions (including litigation funding).

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  • Class Action Insights

    7 April 2015

    The recent settlement of the Great Southern class action raises a number of interesting and important issues, not only because the court took the unusual step of publishing its reasons for judgment after the settlement had been announced.

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  • Focus: Babcock & Brown - a market disclosure claim decided

    10 March 2015

    The Federal Court has dismissed shareholders' claims against Babcock & Brown alleging failure to disclose market sensitive information. The court made important findings on the scope of listed entities' continuous disclosure obligations in the context of accounting irregularities, and potential insolvency. The court has also given theoretical support to market-based causation, although this was not necessary to decide the case. Partner Duncan Travis and Lawyer Michela Agnoletti report on the decision, and its implications.

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  • Focus: Productivity Commission - Access to Justice Arrangements report and recommendations

    5 December 2014

    The Access to Justice Arrangements report proposes broad-ranging reforms to our civil justice system, with the aim of improving access to justice. Partner Belinda Thompson and Lawyer Annie Santamaria highlight some recommendations, which also have the potential to impact more broadly on Australia's legal landscape.

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  • Client Update: Court takes an expansive view of threshold requirement for class actions against multiple respondents

    8 September 2014

    A representative proceeding can only be commenced where seven or more group members have claims against the same person. In proceedings with multiple respondents, there has been conflicting authority as to whether each group member is required to have a claim against each respondent. Last week, in Cash Converters International Limited v Gray, the Full Federal Court appears to have resolved this uncertainty, by confirming that no such requirement exists. Partners Peter O'Donahoo and Jenny Campbell and Associate Thomas Bagley report.

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  • Class Action Insights

    8 August 2014

    In recent months, the funding of class actions has been prominent in the legal press. The issues canvassed have included the regulation of third party funders, the case for and against lawyers charging contingency fees, attempts by lawyers to establish third party funding vehicles, the Productivity Commission's draft recommendations in relation to the private funding of litigation, and the Commonwealth Attorney-General's proposed review of the litigation funding sector.

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  • Client Update: The limits of lawyer-driven litigation

    24 July 2014

    In a recent decision the Victorian Supreme Court has examined the limits on entrepreneurship by securities class action lawyers. It has stayed a class action in which the plaintiff's lawyer was also its shareholder and director. The plaintiff had a 'business model' of purchasing small shareholdings in listed companies with the objective of subsequently commencing class actions against some of them for breaches of continuous disclosure obligations. Partners Belinda Thompson and Matthew McLennan and Associate James Campbell report.*

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  • Client Update: 'Fraud on the market' theory survives challenge in the US

    26 June 2014

    Perhaps the most important unanswered question in Australian class action law is how causation may be established in the context of a shareholder class action. In the United States, this issue has been addressed by the 'fraud on the market' theory. This week the US Supreme Court rejected a challenge to the validity of that theory. Partners Ross Drinnan and Jenny Campbell and Senior Associate Mark Hare report.

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  • Class Action Insights

    4 December 2013

    Welcome to the first edition of Class Action Insights - Allens' quarterly publication in relation to current class action issues.

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  • Client Update: US Supreme Court to reconsider 'fraud on the market'

    28 November 2013

    Perhaps the most important unanswered question in Australian class action law is how causation may be established in the context of a shareholder class action. In the United States, this issue has been addressed by the 'fraud on the market' theory. The US Supreme Court has, however, recently decided to hear a challenge to the validity of that theory. The outcome in that case is likely to be significant in determining how the causation issue is resolved in Australia. Partners Ross Drinnan and Jenny Campbell and Lawyer Thomas Bagley report.

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  • Client Update: Acceptance of class action funding reaches new heights

    21 August 2013

    The Full Federal Court signalled a new level of acceptance of class action funding when it recently required that security for costs be provided in a series of related (and unfunded) class actions. Of particular interest is the court's finding that a failure by the representative applicants to provide evidence as to why their claims were not commercially funded was a factor in favour of ordering that they provide security. This is the first time an order for security has been made in a class action that is not commercially funded and is another indication of the growing acceptance of third-party funding by the courts. Partner Jenny Campbell and Lawyer James Ebert report.

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  • Focus: Federal Court refuses to approve Vioxx class action settlement

    31 May 2013

    The Federal Court recently refused to approve a proposed settlement of the long running Vioxx pharmaceutical class action. While the applicant and respondents had agreed on the terms of the proposed settlement, the Federal Court considered that the settlement would not be in the interests of group members as a whole, and refused to grant its approval. Partner Belinda Thompson and Senior Associate Kate Austin examine the decision and its implications.

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  • Client Update: Litigation funders and law firms - how close is too close?

    27 May 2013

    With important implications for the expansion of litigation funding in Australia, the Full Court of the Federal Court is being asked to determine whether a litigation funder which has financial connections with a plaintiff law firm would be justified in providing funding for a class action run by that law firm. Partner Duncan Travis, Senior Associate Tim Maxwell and Lawyer Mark Hosking report.

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  • Client Update: Regulations clear the way for litigation funding (again)

    6 February 2013

    In recent years, questions relating to the regulation of litigation funding have been the subject of a series of appeal court decisions. Are funding arrangements managed investment schemes? Do funders require an Australian Financial Services Licence? Are funders providers of credit? At various times, each of those questions has been answered in the affirmative. The Federal Government has, however, recently implemented new legislation that reverses that position. Partners Ross Drinnan and Jenny Campbell, and Senior Associate Georgia Steele comment on the latest development in the regulation of litigation funding.

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  • Focus: Class closure refused in recent class actions

    16 November 2012

    Although it is accepted the Federal Court has the power to make orders requiring class closure, two recent class actions show that it may not always be willing to exercise that power. Partner Peter O'Donahoo and Lawyer Nadia Guadagno report on the reasons behind the decision and the implications for parties in class actions.

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  • Client Update: Obstacles to class action funding cleared

    19 July 2012

    The Federal Government has cleared the way for litigation funders to fund class actions without an Australian financial services licence and without complying with the requirements for managed investment schemes. This does not, however, resolve the question of whether litigation funders need a licence to fund non-group claims. Partners Ross Drinnan, Jenny Campbell and Lawyer Andrew Ta report

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  • Client Update: Centro settlement approved

    26 June 2012

    The Federal Court has approved the settlement of the Centro class actions, the largest settlement in Australian securities class actions history. Partner Ross Drinnan and Senior Associate Jenny Campbell report

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  • Client Update: Centro class actions settled

    14 May 2012

    The announcement last week of the settlement (subject to court approval) of the Centro class actions, the largest settlement in Australian securities class actions history, is highly significant, but leaves a number of issues unresolved. Partner Ross Drinnan and Senior Associate Jenny Campbell report.

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  • Client Update: Securities class actions - where are we up to?

    29 February 2012

    The trial of the securities class actions against the Centro Group - the last of a cluster of high-profile securities class actions commenced in the Federal Court between 2006 and 2008 - is scheduled to commence next week. The commencement of the trial brings with it the possibility of the first judgment in an Australian securities class action and, importantly, the possibility of the first decision to deal with causation in a securities class action. As Centro is only the third securities class action to reach trial, it is a good time to reflect on the current state of the Australian securities class action landscape. Partner Ross Drinnan and Senior Associate Jenny Campbell report

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  • Focus: When the cable snaps - the Vioxx appeal

    26 October 2011

    A recent decision of the Full Court of the Federal Court of Australia highlights the difficulties in successfully pursuing claims relating to the manufacture and sale of pharmaceuticals as a class action. Partner Peter O'Donahoo, Senior Associate Eleanor Fletcher and Law Graduate Daniel Kinsey report

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  • Focus: The Timbercorp class action cut down

    29 September 2011

    In a landmark decision, the Victorian Supreme Court recently dismissed a class action by Timbercorp investors following the collapse of the Timbercorp Group in April 2009. Partner Irene Trethowan and Lawyers Kate Austin and Brenton Pollard look at the decision, which further clarifies the disclosure obligations of companies when issuing product disclosure statements for financial products and is likely to have implications for investors involved in other managed investment scheme class actions

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  • Focus: Litigation funding decision impacts on insolvency practitioners

    2 May 2011

    The New South Wales Court of Appeal recently held, with significant implications for insolvency practitioners, that a litigation funding agreement constituted a 'financial product' and could be rescinded because the funder was not licensed to deal in 'financial products'. This follows the Full Federal Court's 2009 decision that litigation funding arrangements for class actions constitute 'managed investment schemes' (a particular type of 'financial product'). Partners Ross Drinnan and Michael Quinlan and Senior Associate Jenny Campbell report

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  • Focus: Litigation funding hits another speed hump

    20 April 2011

    The New South Wales Court of Appeal recently held that a litigation funding agreement constituted a 'financial product' and could be rescinded because the funder was not licensed to deal in 'financial products'. This follows the Full Federal Court's decision in 2009 that litigation funding arrangements for class actions constitute 'managed investment schemes' (a particular type of 'financial product'). Partner Ross Drinnan, Senior Associate Jenny Campbell and Lawyer Elnaz Nikibin report on the Court of Appeal's decision in International Litigation Partners Pte Ltd v Chameleon Mining NL [2011] NSWCA 50.

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  • Client Update: New class actions regime for NSW - Bill tabled

    26 November 2010

    A new class actions regime for NSW has been introduced into Parliament. Partner Ross Drinnan and Lawyer Mark Hare report

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  • Competition & Consumer Law Quarterly

    22 November 2010

    We look at the ACCC's 'tougher' approach on mergers; the first Public Warning Notice under the new Australian Consumer Law; two important cartel class actions decisions; the record penalty in the Cabcharge case; and some of the consumer reforms of the Australian Consumer Law

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  • Client Update: New class actions regime for NSW

    3 November 2010

    A draft Civil Procedure Amendment (Supreme Court Representative Proceedings) Bill and a discussion paper detailing a proposed new class actions regime for NSW have been released. Partner Ross Drinnan, Senior Associate Jenny Campbell and Lawyer Mark Hare report

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  • Food Law Bulletin - October 2010

    25 October 2010

    In this edition, we look at the issue of the mandatory display of nutritional information on fast food; a new beef labelling system in NSW; misleading claims about extra virgin olive oil; colour as a trade mark on food labelling; and establishing a product's reputation for a successful trade mark opposition

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  • Client Update: Multiplex class action settlement - a bird in the hand?

    27 September 2010

    Recently, the Federal Court handed down its reasons for approving the settlement of the Multiplex shareholder class action proceedings. Partner Ross Drinnan, Senior Associate Jenny Campbell and Lawyer Mark Hare report on the settlement and the court's reasons for its approval. Of interest are Justice Finkelstein's comments about the settlement of class actions generally, the factors his Honour considered in deciding whether to approve the proposed settlement and issues surrounding the question of causation in shareholder class actions.

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  • Client Update: New class action regime for NSW

    10 August 2010

    The NSW Attorney General has announced a proposal to introduce a new class action regime for NSW. Partner Ross Drinnan and Senior Associate Jenny Campbell report on the proposal, which is likely to increase the number of class actions commenced in the Supreme Court of NSW

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  • Competition & Consumer Law Quarterly

    6 August 2010

    Welcome to the first edition of the Allens Arthur Robinson Competition & Consumer Law Quarterly newsletter

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  • Focus: US courts' extraterritorial reach in securities fraud cases reinstated

    5 August 2010

    The recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act extends the extraterritorial jurisdiction of the US federal courts for claims brought by the US Securities and Exchange Commission and the Department of Justice to enforce federal securities laws in relation to overseas conduct and partially overturns the recent decision of the US Supreme Court in Morrison v NAB. Partner Annette Hughes and Lawyer Dora Banyasz report

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  • Client Update: New Federal Court procedure for class actions

    6 July 2010

    The Federal Court has issued a Practice Note relating to the conduct of representative proceedings brought under Part IVA of the Federal Court of Australia Act 1976 (Cth). Partner Ross Drinnan, Senior Associate Jenny Campbell and Lawyer Hayden Smith report on key features of the Practice Note, which is designed to deal with some of the practical aspects of conducting representative proceedings

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  • Focus: Historic decision creates upheaval for US securities class actions

    5 July 2010

    The United States Supreme Court has overturned more than 40 years of jurisprudence of US federal courts by ruling that plaintiffs may only pursue claims alleging securities fraud under the US Securities Exchange Act of 1934 in relation to the sale or purchase of shares in the US or of securities listed on an American domestic stock exchange. As Partner Belinda Thompson and Lawyer Emily Austin explain, the historic decision limits the types of securities class actions that may be brought against foreign companies that are not listed on an American stock exchange

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