A recent op-ed by a senior executive at an ASX top 20 company in the Australian Financial Review discusses the darker side of class actions that has emerged as a result of changes to the country’s Corporations Act in 2001. The change removed a requirement that a breach of continuous disclosure of market-sensitive information must be intentional, reckless or negligent. This change has led to a 325 percent increase in class actions in Australia over the past decade.
When Michaela Healey’s company faced a class action lawsuit in 2012, she discovered the litigation was backed by a Canadian law firm looking to optimize returns for its partners. “When it was time to settle, the funder didn’t care about justice for small shareholders. This was just an investment.
Healey points out that while supporters of continuous disclosure-related class actions argue that they create a culture where regulators and class actions work together to ensure companies are held accountable, the evidence does not support this argument. To make this worthwhile, the statement of claim has to be issued with $100 million-plus up front so only companies of a certain size are worth pursuing.
She writes that those companies, “in turn, make purely commercial decisions to settle because the financial and organisational cost of producing documents and preparing evidence is large, and the reputational shadow hanging over the share price even larger. They get settled not because of right and wrong, but for purely pragmatic reasons.”
“These kinds of class actions have become a kind of shakedown, a cynical exploitation of a law so lax that investors around the world flock to Australia to get a cut.”