Class Action Risk 2018
Class action risk continues to increase. Filings are at an all-time high and more promoters are seeing class actions as highly lucrative profit-making vehicles than ever before. ASX-listed companies and the banking and financial services sector are most at risk. These trends are likely to continue, including as a result of issues raised in the Royal Commission. There is, however, growing momentum for reform to ensure that the commercial pursuits of the promoters facilitate, rather than undermine, the objectives of the regime. Assessing class action risk in this rapidly evolving landscape requires a broad-based perspective of the various drivers for that risk. 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.
Class actions are an established and specialised part of the Australian legal landscape
A company is more likely to face a major class action in Australia than in any other country apart from the United States. A plaintiff-friendly class action regime, an increasingly entrepreneurial legal market and an active (and largely unregulated) third party funding market have all contributed to this position.
Addressing the issues that arise in the course of a class action requires specialised knowledge and expertise. Entrusting the defence of a class action to lawyers who are not class action experts involves unnecessary risk.
Our class action experts have been involved in a broad range of the largest and most complex class actions
That experience gives them the practical knowledge and insights to deal with the unique legal, strategic and reputational issues that can arise when a class action is threatened or filed.
Some of our recent high profile class actions have included the following:
- Shareholder class actions – we acted for Aristocrat Leisure Limited in the first shareholder class action to be brought to trial in Australia. Since that we time have we acted for defendants in numerous other shareholder class actions including QBE, AWB, Leighton Holdings (now CIMIC) and Vocation.
- Complex financial product class actions – we acted for ABN Amro in the landmark class action relating to the credit rating assigned to complex financial products known as CPDOs – the first case in the world to put a credit rating on trial. We also act for the Commonwealth Bank and ANZ Bank in class actions relating to the sale of CDOs.
- Other investor class actions – we acted for Bendigo and Adelaide Bank in sixteen investor class actions arising out of the Great Southern collapse, and for Macquarie Bank in an investor class action that followed the collapse of Storm Financial.
- Consumer class actions – we act for Westpac Banking Corporation in the class actions relating to exception fees charged by most of Australia's retail banks, the biggest set of coordinated class actions to be brought in Australia. We also acted in a threatened class action in respect of telecommunications network coverage.
- Product and environmental class actions – we are acting for Ford in the defence of a class action raising allegations about defects in the power shift transmission in certain Ford vehicles. We are also acting for PTTEP Australasia in respect of class action arising from an oil spill at its Montara oilfield in 2009. We have acted in a range of products class actions for multi-nationals such as Pfizer (pharmaceutical products), (Phillip Morris (tobacco), Du Pont (Benlate® fungicide) and Dow Corning (breast implants). We have also advised on bushfire class actions and for Glencore, BHP Billiton and Oz Minerals in class actions alleging environmental damage in the course of mining operations.
Learn more about our experience.
A proven track record in helping our clients to deal with the big picture
Dealing with a class action (whether filed or threatened) raises a broad range of legal, commercial and strategic issues that extend well beyond the litigation itself. Successfully navigating the non-legal issues is often just as important (if not more so) as securing an acceptable outcome on the legal issues.
Our class action experts draw on the depth and breadth of their experience to work closely with clients to address the broad range of issues that arise in the course of a class action, including the following:
- implementing risk minimisation strategies prior to the commencement of class action proceedings;
- developing broad-ranging strategies covering legal and factual defences, internal management issues and external relations;
- identifying and minimising business and reputational risks;
- identifying and managing potential regulatory risks and other contagion risks;
- creating and exploring innovative options for commercial resolution of the dispute;
- establishing effective lines of communication with other stakeholders; and
- efficiently and effectively project managing the conduct of the dispute, including managing documents efficiently and confidentially.
Our class actions experts are 'thought leaders'
Class actions practice has changed substantially in recent years as the entrepreneurial methods of class action lawyers and funders test the boundaries of the class actions regime.
Our class action experts are at the forefront of discussion and debate in relation to class actions and the related topic of litigation funding. Among other things, we represent the collective interests of clients in court and industry committees, by making submissions to law reform bodies and through commentary at conferences and in publications.
Class action thought leadership