Introduction
Regulatory investigations, prosecutions and third party actions for damages - including class actions - have become an established part of the Australian landscape. This has occurred in an environment where:
- regulators have been a counter-cyclical force in the GFC, with increased budgets and increased manpower;
- the regulatory landscape has globalised, with regulators increasingly engaging in cross-border dialogue with their counterparts in other jurisdictions, including to co-ordinate investigations and prosecutions;
- the global operations of many businesses mean they face global risks;
- legislation has criminalised conduct that once only resulted in civil consequences, making the stakes higher during regulatory investigations; and
- specialist plaintiff law firms have become an established part of the regulatory environment. When they source work, they adopt a sophisticated approach by working closely with litigation funders, international networks of plaintiff’s counsel and the media. They share information about follow-on actions for damages (including class actions) across jurisdictions.
Our nationally integrated Class Actions and Regulatory Investigations Team is recognised for the depth and breadth of our expertise. Our way of working is closely aligned to our client’s needs throughout the course of a matter, delivering:
- better forecasting through the life of a matter,
- fewer surprises, as our proactive approach provides greater certainty; and
- innovative and ingenious solutions in complex situations.
Our experience
We have extensive expertise in representing clients in the initial stages of regulatory investigations, including in relation to requests for documents and applications for immunity and leniency, through to enforcement proceedings by regulators and third party actions for damages.
We have been in involved in many of Australia’s largest regulatory investigations (including for cartel conduct, for alleged breaches of securities law and for alleged breaches of continuous disclosure obligations).
We have also been involved in many of Australia’s largest enforcement proceedings, follow-on actions for damages and class actions (including for mass tort and product liability).
Our relationships with regulators are long standing and strong. They are built on mutual respect and trust and they allow us to deliver innovative and optimal outcomes for our clients.
We have used the court process in innovative and ingenious ways to optimise outcomes for our clients. Most recently:
- we succeeded in establishing that class actions which receive litigation funding are technically “managed investment schemes” for the purposes of the Corporations Act, an important decision on the legality and regulation of such class actions;
- we have made inventive use of interlocutory procedures to limit the scope of discovery required by clients and to access documents from regulatory investigations to assist our clients’ cases;
- we have made complex and technical arguments in relation to issues such as the scope of jurisdiction to reduce the potential penalties imposed by regulators;
- we have co-ordinated our client’s responses to complex civil and criminal cartel investigations and prosecutions by various regulators across the Asia Pacific region, including in Australia, New Zealand, Korea, Japan, Singapore and China. In some cases, our clients’ responses have involved applications for immunity or leniency in prosecutions for cartel conduct;
- we have co-ordinated our client’s responses to class actions and follow-on claims for damages in Australia with their responses to class actions in other jurisdictions; and
- we have acted for claimants for damages in class actions as well as in landmark individual follow-on claims for damages..
We regularly provide advice in relation to the importance of protecting privilege and confidentiality in dealings with regulators (including the risk that material provided to regulators will be discoverable in an action for damages), the benefits and detriments of participating in class actions as a group member, negotiating regulatory settlements and their potential impacts on damages claims and directors’ duties.
Our reputation and network
We have a reputation for high levels of trust with regulators, including the ACCC and ASIC, which has consistently allowed us to deliver successful outcomes for clients. Our lawyers have also been listed in Chambers Global Guide, PLC Which lawyer?, IFLR 1000, APL 500 and Best Lawyers International.
As well as being involved in key industry organisations, such as the Law Council of Australia, the International Bar Association and the American Bar Association, we have strong relationships with high calibre firms throughout the Asia Pacific, Europe and the United States. This network enables us to represent clients in multiple jurisdictions in relation to both regulatory investigations and follow-on litigation.
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2 September 2010
Baxter decision adds to the drip, drip, drip of penalties - 2 September 2010
Almost eight years after the ACCC commenced proceedings, the Federal Court has imposed a penalty of $4.9 million on Baxter Healthcare for contraventions of sections 46 and 47 of the Trade Practices Act.
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8 July 2010
Hong Kong’s Competition Bill: the beginning of the end
The long-awaited Competition Bill was introduced into the Hong Kong Legislative Council and gazetted on 2 July 2010, beginning the process that should lead to Hong Kong’s first cross-sector competition law regime.
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17 June 2010
We have ways of making you talk: mediate before you litigate
The Federal Government has introduced the Civil Dispute Resolution Bill 2010 which has implications for almost all parties contemplating litigation in the Federal sphere by imposing a preliminary step that must be followed before proceedings can be commenced.
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May 2010
Competition Quarterly Update: to catch a thief - extradition for cartel conduct a real threat
March 2010 saw the first individual deported from the UK to the US in relation to cartel conduct. Following the introduction of the Australian criminal cartel regime, executives can now be extradited from Australia to face charges in countries with criminal cartel law including the US and the UK.
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31 May 2010
Are you contracting out of proportionate liability legislation? - 31 May 2010
The Supreme Court of Tasmania recently handed down a judgment which provides some clear guidance as to what is required to contract out of the Civil Liability Act 2002 (TAS), the relevant provisions of which are almost identical to the provisions of the Civil Liability Act 2002 (NSW).
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April 2010
A brave new world - Senate endorses unfair terms legislation
The Trade Practices Amendments) Bill 2009 has been passed by the Senate. The Bill amends the Trade Practices Act 1974 (Cth) and the ASIC Act 2001 (Cth) to introduce new civil penalties for consumer (or investor) protection breaches, new enforcement powers for regulators to pursue alleged consumer protection breaches and a national unfair terms regime.
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9 March 2010
Vioxx class action judgment - a bitter pill for Merck to swallow
On 5 March 2010, the Federal Court of Australia handed down its decision in the matter of Paterson v Merck, Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180. This class action was the first hearing relating to arthritis drug Vioxx outside the United States, and the first successful class action in the world brought against its manufacturer Merck.
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February 2010
Competition Quarterly Update: Victory for Air New Zealand in air cargo cartel proceedings - confidentiality orders quashed
The High Court New Zealand recently found that confidentiality orders issued by the Commerce Commission under section 100 of the Commerce Act 1986 were an abuse of its power.
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2 December 2009
C7 appeal: a decision with a purpose
After more than eight years since proceedings were commenced, the Full Court of the Federal Court of Australia has handed down its decision in the marathon C7 “mega-litigation”.
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November 2009
Competition Quarterly Update: Road rage for Hino truck sellers
The Federal Court of Australia has found that an arrangement between two truck retailers and three individuals breached provisions of the TPA. Justice Dowsett ordered each company to pay penalties of $500,000 and the individuals to pay penalties of $30,000 each.
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20 October 2009
Appeal decision - Litigation funding and managed investment scheme regulation
The Full Federal Court has handed down its findings in Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147, an important decision in relation to the legality and regulation of class actions which receive litigation funding.
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16 October 2009
Regulatory investigation and waiver of privilege - ASIC v Lindberg
The recent decision of the Victorian Court of Appeal in ASIC v Lindberg [2009] VSCA 234 considered whether someone who holds legal professional privilege can assert that privilege in information that is in the hands of a third party who has obtained it from someone other than the holder of the LPP.
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August 2009
Competition Quarterly: Seat belts fastened as another air freight cartel case comes before the courts
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July 2008
Centro faces multiple class actions
The Centro Properties group will be forced to defend two separate class actions, both in relation to alleged inadequate market disclosure concerning the extent of its debt obligations.
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24 July 2009
Double damages and mandatory IP licensing under the AML: Chinese competition law heats up for summer
Regulators in China have published merger control measures for financial institutions and commenced consultation on draft intellectual property guidelines, as well as draft judicial guidelines including proposals to facilitate class actions and the award of “double damages”.
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14 July 2010
Chinese competition regulators focus on cartels and sharpen their investigatory tools
China’s Anti-monopoly Commission has published guidelines that provide a basis for all enforcement activity under the Anti-Monopoly Law that involves defining the relevant market. Firms should now prepare themselves for possible dawn raids and other enforcement action by the National Development and Reform Commission against pricing cartels.
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17 June 2009
Cartel conduct criminalised in Australia
The Federal Parliament has passed the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009. This Act significantly amends Part IV of the Trade Practices Act 1974 (Cth) by introducing parallel civil and criminal sanctions for cartel conduct.
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9 June 2009
Chinese antitrust regulators signal the commencement of AML investigations and fines
On 5 June 2009, China’s State Administration of Industry and Commerce (SAIC) officially issued its first two procedural rules under the Anti-Monopoly Law, signalling that from 1 July 2009, firms will need to be ready for SAIC investigations and the risk of fines being imposed.
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June 2009
Competition Quarterly
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March 2009
Competition Quarterly
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23 December 2008
ASIC investigations and waiver of privilege - AWB Ltd v ASIC
A recent Federal Court decision considered ASIC’s obligations when it receives privileged material from employees or former employees of a company under investigation.
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7 November 2008
A closer look at Cartel Criminalisation - practical impacts on commercial contracts
We take a closer look at some of the practical impacts of the Trade Practices Amendment (Cartel Conduct and other Measures) Bill 2008 which is due to be introduced into Parliament before the end of the year and is likely to become law in the first half of 2009.
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28 October 2008
Cartelists closer to the clink
Cartelists are now one step closer to the clink, with Assistant Treasurer Hon Chris Bowen’s release of the finalised Bill to criminalise cartel conduct. The proposals have undergone several key changes since their release as a draft exposure Bill in January this year.
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September 2008
Competition Quarterly
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July 2008
Victorian Law Reform Commission recommends sweeping changes to class actions
As part of its review of the Victorian civil justice system, the Victorian Law Reform Commission (VLRC) has recommended substantial changes to Part 4A of the Supreme Court Act 1986 (Vic) with respect to class actions.
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July 2008
Class Actions Bulletin
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July 2008
EC considers class actions for antitrust violations
The European Commission has moved one step further in facilitating class actions to recover damages as a result of companies violating EU antitrust rules with the release of a White Paper suggesting an opt in class action system, compensatory damages for actual losses and a limited discovery regime.
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July 2008
Protection of whistleblowers in class actions
In the course of an investigation into Multiplex's public disclosures concerning the Wembley National Stadium project ASIC used its statutory powers to obtain documents from Multiplex and examine a number of persons.
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July 2008
Aristocrat leisure settles proceedings - awaits court approval
On 19 May 2008, Aristocrat Leisure Limited announced that it had reached a settlement of a class action brought against it by Dorajay Pty Limited on behalf of investors who purchased shares in Aristocrat between 19 February 2002 and 26 May 2003.
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July 2008
ASIC to commence fresh class actions on behalf of Westpoint investors
ASIC has vowed to commence fresh proceedings to continue to seek compensation for Westpoint investors, despite a recent ruling that ASIC could not take over proceedings that had been instituted by the liquidators of various mezzanine companies against directors and officers of those companies on the basis that those directors and officers had misapplied funds raised by the mezzanine companies.
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July 2008
Mind your language - plantiff firm’s blunder extends opt out period
An order to publish corrective advertising and an extension of the opt out deadline resulted from misstatements made by the solicitors for the plaintiff in a class action against Amcor and Visy claiming damages as a result of price fixing of cardboard packaging.
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February 2008
Competition Quarterly Update: Hitting home - extradition for cartel criminals
The exposure draft of the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 would allow persons in Australia to be extradited to a foreign country for trial under the laws of that foreign country for criminal cartel conduct.
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January 2008
Cracking cartels - Kevin contemplates the clink
On Friday 11 January 2008, the Hon. Chris Bowen, released the exposure draft Trade Practices Amendment (Cartel Conduct and other Measures) Bill 2008 to criminalise serious cartel conduct for public comment.
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December 2007
P Dawson Nominees Pty Ltd v Multiplex Ltd [2007] FCA 1061
The Federal Court of Australia in this case provided judicial commentary on litigation funding in the context of a securities fraud class action. The Respondents in this interlocutory application contended the proceeding could not continue as a class action.
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1 June 2007
A lack of understanding: ACCC fails in price fixing case
On 29 May 2007 the ACCC failed in its bid to have eight Geelong petrol retailers found guilty of price-fixing by the Federal Court. The decision represents another illustration of the difficulties associated with establishing a breach of section 45 of the Trade Practices Act 1974 by relying on circumstantial evidence.
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February 2007
Damages actions for cartel conduct: immunity is not the end of the story
In the much publicised cardboard packaging cartel case, Amcor won the race to the regulator’s door obtaining immunity from prosecution by the Australian Competition and Consumer Commission in exchange for its full cooperation in the ACCC’s case against Visy.
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August 2006
High Court gives litigation funders the green light: Campbells Cash and Carry Pty Limited v Fostif Pty Limited
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June 2006
Corporate class actions in Australia
Paper delivered at the CCLSR Twilight Seminar 2006.
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April 2006
The gathering momentum of shareholder class actions
Increasing shareholder vigilance in Australia is not limited to a growing interest in corporate governance and in issues like directors' and executives' remuneration. Shareholder class actions present a recent but growing reputational and financial risk to listed companies and their directors.
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February 2006
Reputation and risk - class actions
Class actions have been a possibility in Australia now for some considerable time. Part IV of the Federal Court Act was introduced in 1992 and Victoria followed suit in 2000 with the introduction of Part 4A of the Supreme Court Act. The procedure under both regimes is almost identical.
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February 2006
When the regulator comes knocking
The ACCC has extensive investigative powers. Corporations should be prepared so that they can respond properly and appropriately if they receive a “dawn raid” or some other statutory demand for information or documents.
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June 2005
On Board update: Personal contributions by directors in WorldCom and Enron settlements
The settlement of US securities class action litigation against former directors of WorldCom and Enron involved the directors making a personal contribution towards the settlement rather than the settlement money coming entirely from the company and/or the proceeds of D&O insurance.
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25 January 2005
Australian competition law 2004 - the year in review
The past year has seen major developments in Australian competition law.