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.
Allens has one of the leading Disputes & Investigations practices in the region. Many of our litigation partners are recognised as world leaders in their field and independent market research shows that our accomplished litigation practice has 'put airspace between itself and its competitors' (Chambers Global – The World's Leading Lawyers).
With more than 220 lawyers, our Disputes & Investigations team has the expertise to assist in any dispute and are geared to mobilise quickly in the event of a complex dispute or investigation.
We frequently assist with major international disputes, and have the capacity to conduct matters in multiple jurisdictions. Our alliance with Linklaters provides our clients with access to market leading lawyers through a global network of 39 offices across 28 countries.
The disputes and investigations matters we work on typically involve the collection, management and review of vast quantities of data. Our Disputes team works side-by-side with our integrated document review solutions team – Allens Arrow. Our Arrow team comprises more than 30 people with skills in computer science, management consulting, mathematics and project management. With the combination of low cost document review, the application of AI, predictive coding and other advanced legal technologies, and close integration with our lawyers, we provide our clients with significant cost-reduction, certainty and timeliness.
Some of our recent high-profile cases include:
- QBE – in a class action relating to a profit downgrade of over A$1 billion largely connected to QBE’s North American operations. The proceeding involves consideration of complicated factual and technical issues relating to the financial operations of a multinational insurer, insurance accounting, actuarial analysis and goodwill impairment testing. It also raises important legal issues for class action litigation in Australia.
- Westpac – in defending the civil penalty proceedings that ASIC brought as a result of its investigation of potential manipulation of the Bank Bill Swap Rate (known as BBSW and the Australian equivalent of Libor). The Allens team has at times, involved over 30 lawyers.
- Seven West Media – we were engaged by the Board of Seven West Media to investigate, and report to the Board on, highly-publicised allegations made by a former employee against the SWM CEO.
- Ford Australia – in a class action proceeding brought on behalf of owners of certain Ford vehicle models regarding alleged breaches of consumer guarantees and a misleading or deceptive conduct claim.
- Rio Tinto – in connection with its involvement in a complex dispute between Hancock Prospecting, Wright Prospecting and DFD Rhodes over the multibillion-dollar Hope Downs iron ore project in Western Australia. The matter draws upon Allens' depth and breadth of expertise in the resources sector. The proceedings involve disputes and resources specialists across our Sydney and Perth offices.
- KPMG – in a number of proceedings relating to high-profile corporate collapses, including a class action, auditors' negligence claims and liquidators' examinations.
Principal practice areas
We have a depth and range of experience across many practice areas, including:
Arbitration – Working with clients in a range of industry sectors, particularly energy and resources, mining, and construction, we have undertaken numerous high-profile international arbitrations in Australia and abroad under a variety of arbitration rules, including ICC, UNCITRAL, HKIAC, CIETAC, SIAC and LCIA.
Class actions – We are acknowledged market-leaders in the defence of class actions. No other firm has a team that rivals the depth and breadth of our class action practice.
Competition law/trade practices – Our competition law practice regularly represents clients in landmark competition law litigation and in major investigations conducted by the ACCC.
Insurance and professional indemnity – With one of the leading Insurance & Reinsurance practices in Australia and Asia, we are known internationally for our full service expertise in all aspects of insurance and reinsurance law and regulation.
Intellectual property – With a team of dedicated Intellectual Property specialists, our team successfully act for clients in major litigation proceedings relating to infringement of patents, trademarks, copyright and design rights, as well as breaches of confidence and information technology rights.
International business obligations – Clients dealing with sensitive inquiries and investigations come to us for advise across the full suite of corporate crime issues, including anti-bribery, anti-money laundering, sanctions, disaster management, international trade law and business human rights obligations.
Product liability – Many large Australian and multinational companies have entrusted our experienced lawyers to represent them in some of Australia's most complex product liability cases.
Project disputes – With many years advising government, principals and contractors (and their insurers) in relation to a broad range of construction contracts and disputes on major projects, our experience includes disputes arising in the context of structural, civil, mechanical, electrical and geotechnical engineering, architectural and project management related issues.
Regulatory investigations and compliance – As a core element of our practice, we have advised clients across all sectors, in all aspects of regulatory investigations and commissions of inquiry, from strategic planning and advice in relation to potential investigations, applications for immunity and leniency, advising on self-reporting obligations and their limits, to 'dawn raids', the compulsory production of documents, compulsory interviews and examinations of senior executives, and in defending enforcement proceedings and follow-on litigation, including private proceedings.
Commissions of inquiry – We have extensive experience across a wide spectrum of royal commission roles, public investigations and inquiries, helping clients to manage the reputational and litigation risks arising from commissions and investigations.
Restructuring and insolvency – Our team enjoys a solid reputation for technical competence and expertise in conducting complex, large-scale and multi-jurisdictional restructurings and insolvencies which require extensive legal capability and bench depth in resources. Our ability to call upon experts from across all necessary disciplines gives our clients a team of leaders in their respective fields.
Taxation – With a leading reputation in tax disputes and investigations, dispute resolution, including litigation and audit management, we have acted in several of the largest tax disputes and investigations undertaken by the ATO.
Workplace relations/occupational health & safety – Working with clients both in the private and public sectors on workplace issues that can arise in the employment lifecycle – from recruitment, on-boarding, management, retention, disputes, restructure, redundancies and exit to post-employment protection of confidential information and enforcement of restraints and claims by former employees. Clients call on us to conduct investigations into complaints (including by whistle-blowers) of employee misconduct (bullying, harassment, policy breaches) and undertake reviews of our their compliance with their obligations under employment and safety laws.