Disputes & Investigations

Our experienced Disputes & Investigations legal team regularly publishes articles and updates – the full list of publications appears below. If you'd like to be notified when we add new Disputes & Investigations publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

Read about our track record in Disputes & Investigations.

Disputes & Investigations Publications

  • Client Update: APRA releases 'constructively tough' Enforcement Approach

    18 April 2019

    In the wake of the Financial Services Royal Commission (Royal Commission) and the introduction of the Banking Executive Accountability Regime (BEAR), APRA has undertaken a review of its enforcement strategy. The Enforcement Review Final Report (APRA Final Report) and an updated Enforcement Approach have now been released. While the new Enforcement Approach falls short of ASIC's 'why not litigate' approach, it suggests APRA will take a more active and 'constructively tough' approach to enforcement, supported by a new enforcement team.

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  • Contract Law Update 2018

    26 March 2019

    Our Contract Law Update has been summarising appellate contract law decisions since 2012. We are breaking with tradition this year and, for the first time, including a foreign judgment in this Update, which will tell you whether, according to the UK Supreme Court, it is possible for parties to prevent their written contracts being amended orally (and whether Australian courts agree). We also consider the doctrines of abandonment and frustration; explain the differences between novation and nomination, and between inferring and implying terms; and examine the latest judicial consideration on when loss of opportunity damages might be available.

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  • Focus: ASIC's change of tone in action

    15 March 2019

    ASIC's 'why not litigate?' approach to enforcement activities and its change in tone confirm the new era of regulatory engagement has arrived. Partner Kim Reid, Senior Associate Natalie Oliver and Lawyer Micaela Bassford report

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  • Client Update: ASX Corporate Governance Principles and Recommendations: 4th edition - what do they mean for you?

    1 March 2019

    The 4th edition of the ASX Corporate Governance Principles and Recommendations focuses strongly on the link between culture, values and community expectations, consistent with the themes that emerged from the Royal Commission. Entities should start to take steps now to address the new and revised principles and recommendations. Partners Kate Towey, Robert Pick and Associate Isaac Wall report.

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  • Focus: Major new corporate and financial sector penalties - what they mean for you

    22 February 2019

    New legislation that greatly increases penalties for corporate and financial sector misconduct will have wide-ranging and significant effects. Partner Alex Mason, Managing Associate Chris Kerrigan and Associate Rachele Troup report.

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  • Client Update: State of trade - the regulatory impacts on your business in 2019

    12 February 2019

    If last year was anything to go by, managing trade-related risk has never been more important to your business. In 2018 we saw significant growth in regulatory actions undertaken globally in reliance on trade law, with trade barriers at the forefront of both domestic and international policy-making. Political rhetoric from both parties, too, showed persistent enthusiasm for strengthening trade regulation, and, with an election looming, we expect 2019 to be a busy year in this space. Partners Louise Jenkins and Rachel Nicolson and Associate Alister Lloyd provide context to recent changes to the regulatory conditions for trade and consider how best to insulate your business.

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  • Client Update: ALRC's class action report - a 'canary in the coal-mine'?

    30 January 2019

    The Australian Law Reform Commission has released its much-anticipated final report on class actions and litigation funding, which makes a broad range of recommendations intended to bring the modern class action landscape back into line with the regime's original objectives. Partners Jenny Campbell and Kate Austin consider what the report means for potential class action defendants.

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  • Focus: A new enforcement landscape for Australian corporations in 2019 and beyond

    10 December 2018

    The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry Interim Report, and a raft of announcements at the federal level over the past 12 months, point clearly to a more robust enforcement environment for corporate Australia in 2019 and beyond. Partner Paul Nicols, Senior Overseas Practitioner Chris Kerrigan and Associate Samantha Naylor Brown report.

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  • Report: Class Action Risk 2018

    26 November 2018

    Class action risk continues to increase and is becoming more complex than ever before. Assessing this risk for your organisation is extraordinarily challenging and requires a broad-based perspective of the broader class actions landscape. To give that broader context, as well as practical guidance, our Class Actions team has prepared this guide to class action risk at the end of 2018.

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  • Client Update: Competing class actions - no 'one size fits all' solution

    22 November 2018

    The Full Federal Court has held that, when the court is faced with multiple 'competing' class actions in relation to the same issue, it can choose one to proceed and stay the others. In doing so, it said that there is no 'one size fits all' solution to the problem of competing class actions, and that different cases will require different approaches. Partner Jenny Campbell and Senior Associate Alex Tolliday report.

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  • Focus: International Arbitration - Australian courts' power to grant interim freezing orders

    2 November 2018

    The WA Court of Appeal has taken an expansive view of the power that Australian courts have to grant interim orders in support of international arbitrations. Specifically, it has confirmed that their power to grant interim freezing orders is not limited to orders that extend only until the arbitral tribunal is constituted - meaning that such an order might continue to apply whether or not the arbitral tribunal agrees that it is appropriate. Partner Jeremy Quan-Sing and Lawyer Caitlin Moustaka report.

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  • Client Update: The Foreign Influence Transparency Scheme - from Bill to Law

    10 September 2018

    The Federal Government recently passed the Foreign Influence Transparency Scheme Act. This is an entirely new regulatory scheme that will require persons who undertake activities on behalf of a foreign government or political organisation to register with the Attorney General's Department if those activities are intended to influence Australian governmental or political decision-making. The scheme is designed to enhance transparency around the nature and extent of foreign government influence on the Australian political process. Partner Rachel Nicolson, Senior Associate Clare Bradin, Associate Owen Nanlohy and Law Graduate Eugene Twomey report.

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  • Client Update: Full Federal Court speaks on competing class actions

    30 August 2018

    In the latest instalment in the attempts to deal with competing shareholder class actions, the Full Federal Court has ordered the transfer of four shareholder class actions against AMP to the Supreme Court of New South Wales, where a fifth class action is already pending. In doing so, the court gave the clearest indication yet that multiple class actions raising similar issues should not be permitted to proceed. It also acknowledged in more express terms than ever before that competing class actions are really all about the competing interests of class action promoters and not group members. Partner Jenny Campbell and Linklaters Associate Gert-Jan Hendrix report.

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  • Client Update: Allens' submission to ALRC Class Actions Inquiry - time to revisit the checks and balances

    14 August 2018

    The Australian Law Reform Commission's Inquiry into Class Actions and Third Party Litigation Funders provides an important (and timely) opportunity to reflect on the operation of our class actions regime. We have made a detailed submission to the ALRC's Inquiry, in which we advocated for a renewed focus on balancing the interests of claimants and defendants and more robust processes for ensuring that the class actions regime is not compromised by unfettered commercialisation. Partners Jenny Campbell and Kate Austin report.

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  • Allens insights: Key trends in the Australian products liability space - 2018

    10 August 2018

    We have seen in recent years an increasing level of activity in the Australian regulatory landscape. The current Banking Royal Commission is just one example of many dominating boardrooms and newsfeeds. Regulators are taking action more often, are seeking higher penalties and are seeking to expand the scope of their supervisory and enforcement powers. In addition to penalties that hurt the bottom line, regulators are increasingly focusing on early intervention and organisational culture, putting compliance and risk functions under the spotlight.

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  • Focus: VLRC takes first cut at class action reform

    22 June 2018

    The Victorian Law Reform Commission has completed its review of Victoria's class action regime, with a particular focus on the effect of litigation funding. The report calls for national regulation of litigation funding, lifting the ban on contingency fees both generally and in class actions (balanced with appropriate regulatory measures) and a greater supervisory role for the Victorian Supreme Court in the management of class actions. Managing Associate Kate Austin, Associate Kelly Roberts and Lawyer Katerina Dandanis discuss.

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  • Client Update: Competing class actions - the court takes control

    24 May 2018

    The Federal Court has made orders permanently staying two competing shareholder class actions against GetSwift Limited and allowing a third class action to proceed. The latest in a series of judgments where the courts have grappled with the problem of competing class actions, Justice Lee's decision suggests an increasingly 'hands on' approach to case management by the Federal Court, and a willingness to exercise those case management powers to prevent a multiplicity of actions. Partner Ross Drinnan and Senior Associate Jerome Entwisle report.

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  • Focus: Last minute increase to scheme consideration - a more flexible approach?

    2 May 2018

    A recent Federal Court decision in Re Billabong International Limited shows a pragmatic approach by the court to the question of whether, in a takeover bid effected by way of scheme of arrangement, the bidder can make a last minute increase in the scheme consideration, without having to adjourn the scheme meeting and provide supplementary disclosure to target shareholders. Partners Guy Alexander and Kim Reid and Associate Samantha Naylor Brown comment.

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  • Focus: ASIC's sanctions and powers to be strengthened

    23 April 2018

    The Federal Government has announced that it proposes to strengthen ASIC's powers, and to increase the severity of penalties (civil and criminal) that can be imposed on individuals and corporations, in line with the ASIC Enforcement Review Taskforce's recommendations. Partner Rachel Nicolson and Senior Overseas Practitioner Chris Kerrigan report.

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  • Focus: Federal Court homes in on Anti-Dumping Commission's calculation of duties on Chinese steel imports

    11 April 2018

    In a rare appellate court decision dealing with anti-dumping law, the Full Court of the Federal Court of Australia has clarified that the Anti-Dumping Commission's ability to calculate hypothetical amounts for the purposes of determining normal value is not at large, and must conform strictly with anti-dumping legislation. Partner Louise Jenkins, Associate Chadwick Wong and Law Graduate Oliver Lloyd report on what this means for future anti-dumping investigations, in the context of an increasing global focus on barriers to free trade.

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  • Contract Law Update 2017

    7 March 2018

    The phrase 'ready and willing to perform a contract' is very familiar to lawyers. But what exactly does it mean, and why is it important? The NSW Court of Appeal gave the answer last year in one of many interesting appellate decisions summarised in our annual Contract Law Update. Some other principles considered during the year include: When can a purchaser terminate a share purchase agreement following due diligence? When will illegality prevent a contract being enforced? What is the latest on the Bellgrove Principle? When does a new contract terminate an earlier contract between the same parties? We also look at the latest cases on contractual interpretation, contract formation and the penalties doctrine.

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  • Linklaters Insights: Anti-bribery and corruption law and enforcement across the globe

    24 January 2018

    Understanding the global reach of anti-bribery and corruption regulation, as well as the application of it within a specific jurisdiction, is key to managing risk for international businesses. Our global alliance partner, with input from Allens, examines 24 jurisdictions across the Asia-Pacific, Europe, Africa and the Americas and provides at-a-glance answers to eight key questions, as well as updates on new legislation and penalty increases.

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  • Linklaters Insights: Business Crime Quarterly

    19 January 2018

    In the Business Crime Quarterly Autumn 2017 edition, our global alliance partner Linklaters examined the extent to which international regulators and prosecutors are increasingly working together to tackle economic crime. We contributed summaries on the recently published judgment in the Tabcorp civil penalty proceedings for breach of the AML/CTF regime and the proposed changes to Australia's whistleblower framework.

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  • Client Update: Attorney-General announces class action inquiry

    18 December 2017

    The Attorney-General has announced that he has asked the Australian Law Reform Commission to inquire into class action proceedings and third party litigation funders. The inquiry presents an important opportunity to take stock of how the class actions landscape has evolved, particularly whether entrepreneurialism among promoters is inappropriately traversing on the rights of class members. Partner Jenny Campbell and Lawyer Jerome Squires report.

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  • Client Update: ASIC recommends tougher corporate penalties

    24 October 2017

    The ASIC Enforcement Taskforce's latest consultation paper pushes for a tougher penalty regime for corporate and financial sector misconduct, which has been key focus of the Taskforce's Terms of Reference, and indeed of ASIC's reform agenda for some time. Partner Belinda Thompson, Senior Associate Michela Agnoletti and Associate Katie Gardiner look at what the consultation paper proposes.

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  • Focus: Subpoenas under the IAA: foreign-seated arbitrations need not apply

    18 October 2017

    A recent Federal Court decision suggests a narrow approach to judicial support of international arbitrations, limiting access to evidence located in Australia for parties of foreign-seated arbitrations. Partner Nick Rudge and Overseas Lawyer Caroline Swartz-Zern report.

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  • Client Update: Security of the Cape Preston port affirmed in appeal decision

    7 April 2017

    The Full Federal Court has unanimously dismissed an appeal by former federal MP Clive Palmer's company Mineralogy against a decision that gave his former business partner, CITIC Limited and its subsidiaries, the right to operate and maintain the port at Cape Preston for the Sino Iron Project. As Partner Phil Blaxill and Lawyer Jeremy Rich report, the decision affirms that commercial agreement terms between parties can be impacted by later agreements between those parties and by state agreements, and emphasises the care commercial drafters need to take.

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  • 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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  • Contract Law Update 2016

    15 March 2017

    When is a person bound by their e-signature? When does a breach of contract constitute a repudiation of that contract? When does an exchange of correspondence give rise to a binding contract? What is the latest on penalties? These were some of the contract law issues considered by appellate courts during the past year. In this update, we review the most important contract law decisions by Australian appellate courts in the past 12 months and consider their significance for the development of Australian contract law.

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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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  • Unravelled: Improving external dispute resolution schemes - rather odd recommendations

    7 February 2017

    It is difficult to describe the interim recommendations of the Expert Panel reviewing the 'financial system external dispute resolution and complaints framework' as anything other than odd.

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  • Focus: The Rolls-Royce bribery case and its implications in Australia

    30 January 2017

    A Deferred Prosecution Agreement in the United Kingdom, which will see the Rolls-Royce company pay more than £500 million to settle charges of foreign bribery, is the most significant UK DPA to date. It is likely to influence the approach and expectations of the Australian Government and law enforcement agencies, which are considering a suite of measures aimed at facilitating a more effective response to corporate crime, particularly those that encourage self-reporting of foreign bribery. Partners Rachel Nicolson and Peter Haig, Senior Associate James Campbell and Lawyer Malak Johnson report.

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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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  • Focus: Predictive coding gets green light from an Australian court

    9 December 2016

    The Victorian Supreme Court recently handed down the first decision of an Australian court to specifically consider and approve the use of predictive coding technology in a large-scale discovery exercise. Partner Nick Rudge, Managing Associate Kate Austin and Applied Legal Technology Manager Lisa Kozaris consider the decision and its implications.

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  • Client Update: Court confirms life easier for default interest clauses post-Paciocco

    6 December 2016

    A recent New South Wales Court of Appeal case considered the application of the penalties doctrine to default interest rate provisions in loan agreements following the High Court's liberal approach to the doctrine in Paciocco v ANZ. Senior Finance Counsel Diccon Loxton, Lawyer Hamish McCormack, and Law Clerk Ryan Abotomey report on Arab Bank Australia Ltd v Sayde Developments Pty Ltd [2016] NSWCA 328.

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  • Report: Wrap-Up of Sydney Arbitration Week 2016

    6 December 2016

    The Allens Arbitration group reports on some highlights from Sydney Arbitration Week, which is an important event on the arbitration calendar. Discussion among local and international participants included some of the biggest challenges facing the future of international arbitration and practical tips for arbitration in the Asia Pacific region.

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  • Focus: Increased whistleblower protections, and more to come...

    24 November 2016

    The Federal Parliament has passed an industrial relations bill that includes significant increases to the whistleblower protections applicable to unions and employer organisations. In what would be a comprehensive overhaul of Australia's whistleblower laws, the Federal Government has separately agreed to support the introduction of equivalent (or better) whistleblower protections in the public and private sectors. Partner Rachel Nicolson, Senior Associate Chris Holland and Lawyer Karina Plain report.

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  • Unravelled: Practical pitfalls and the sacrosanct limitation of liability clause

    7 October 2016

    Commercial trusts could not operate without limitation of liability clauses; however, getting a limitation of liability clause just right is very challenging.

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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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  • Linklaters Insights: Corporate Criminal Liability report

    4 October 2016

    As pressure from prosecution authorities increases, it is becoming ever more important for international companies to be aware of the potential impact of criminal conduct committed by their executives and employees and the risks and liability the company may face as a result - not least in order to be able to fine-tune and reinforce their compliance programs. Our global alliance partner Linklaters, with input from Allens, has reviewed the risk companies face in 24 jurisdictions across the Asia-Pacific, Europe, Africa and the Americas.

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  • Client Update: E-signature - a case study, but not a test case

    29 September 2016

    A recent New South Wales Court of Appeal decision concerned a guarantee purportedly signed by e-signature without the guarantor's knowledge. It is an interesting case-study, though the decision is really about ostensible authority and ratification. Senior Finance Counsel Diccon Loxton considers its implications.

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  • Unravelled: Financial Services Class Actions

    6 September 2016

    Our class actions team recently published our Class Action Risk 2016 report. The objective of the report is to look behind the headlines and hype that often surrounds class actions to provide a more holistic and objective assessment of class action risk for our clients. This is particularly important in an environment in which the press surrounding class actions has often heralded a developing crisis for Australian business.

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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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  • 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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  • Linklaters Insights: Business Crime Quarterly

    3 August 2016

    In the latest edition of Business Crime Quarterly, our global alliance partner Linklaters, with input from Allens, looks at issues including the release of the Australian Government's long-awaited report on the statutory review of the Anti-money Laundering and Counter-terrorism Financial Act; a number of convictions for fraud and corruption, particularly in the UK; the Libor prosecutions that are set to take place in the US; the EU's enhanced package to tackle money laundering and terrorist financing; and financial crime on the increase in Australia.

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