Maurice Blackburn, in partnership with litigation funder IMF Bentham, has filed a class action against Sirtex Medical Limited (ASX:SRX) on behalf of shareholders following an announcement of deteriorating earnings and sales growth, followed by a further announcement confirming an external investigation into the share trading activities of then-CEO Gilman Wong.
The class action alleges contraventions of the ASIC Act, Corporations Act and the Australian Consumer Law in seeking to establish that Sirtex engaged in misleading or deceptive conduct and/or breached its continuous disclosure obligations.
SRX is a life-sciences company listed on the ASX100, which has regulatory approval for a product called SIR-Spheres Y-90 resin microspheres which provides targeted radiation treatment for liver tumours. The SIR Spheres are priced at around USD$16,000 per dose.
The primary disclosure issue relates to Sirtex’s dose sales growth guidance for the SIR Spheres and it’s disclosure to the market that the 1H17 dose sales were substantially less than previously forecast. After Sirtex was prompted by the ASX, it made an announcement on 9 December 2016 that the dose sales growth rate would be 4% to 6% rather than the 15.7% previously forecast. Upon the announcement, the Sirtex share price fell by 37%.
A further disclosure issue is the nature of share trades undertaken by then-CEO, Gilman Wong. Mr Wong sold 74,968 Sirtex shares on 26 October 2016 in order to, in the company’s words, ‘cover the tax incurred in relation to the recently vested tranche of rights.’ When Sirtex subsequently announced on 16 December 2016 that they had formally engaged its legal advisors, Watson Mangioni, to investigate Mr Wong’s trading activities, the Sirtex share price suffered a two day price drop of 9%. Mr Wong’s employment with Sirtex was subsequently terminated on 13 January 2017.
The key disclosure events are as follows:
24 August 2016
Sirtex stated, in providing a FY 2016 overview, ‘another year of strong double digit volume, revenue and profit growth delivered.’
SRX also provided FY17 market guidance that ‘we anticipate double digit dose sales growth will continue in FY17…’
25 October 2016
At Sirtex’s AGM, CEO Gilman Wong restated that ‘we anticipate double digit dose sales growth will continue in FY17…’
26 October 2016
Representatives from the ASX had a discussion with Sirtex regarding the use of imprecise terms such as ‘double digit’ in the 25 October announcement
2 November 2016
Sirtex announced that CEO Gilman Wong disposed of 74,968 ordinary shares on 26 October 2016. In a subsequent announcement, Mr Wong stated that ‘To clarify, the reason for the sale of shares was to cover the tax incurred in relation to the recently vested tranche of rights.’
2 December 2016
Following a tip-off, the ASX had a discussion with Sirtex querying whether Sirtex’s double digit growth guidance for dose sales was still current, and that upon conclusion of an internal planning process, Sirtex would take the appropriate action to ensure that ASX continuous disclosure requirements were met.
6 December 2016
A Sirtex board meeting was held, and received a report regarding revised dose sales growth for FY17.
The report was discussed but not adopted or approved by the board, as it required further work to be completed on the revised estimate.
9 December 2016
Sirtex released a Trading Update to the ASX, in which it confirmed
- First half dose sales growth was expected to be in the order of 4-6%, compared to 15.7% in the prior corresponding period;
- First half EBITDA was anticipated to be in the range $30m to $32m (representing a decline of 16% to 9% on the prior corresponding period)
- Full year dose sales growth was anticipated to be in the order of 5% to 11%, compared to growth of 16.4% in FY16;
- Full year EBITDA was anticipated to be in the range of $65m to $74m, representing a decline of between 12% to no growth compared to FY16;
16 December 2016
Sirtex informed the ASX that it had retained Watson Mangioni to coordinate an investigation into the trading of Sirtex shares in October 2016 by CEO Gilman Wong.
13 January 2017
Sirtex announced that following the receipt of a report from Watson Mangioni, it had terminated the employment of CEO Gilman Wong with immediate effect.
The disclosures on 9 and 16 December 2016 resulted in significant share price reactions:
- 9 December 2016: a 37% share price drop (from $25.49 to $16.00) which wiped more than $500 million from SRX’s market capitalization; and
- 16 and 19 December 2016: a further 9% price drop over two days of trading (from $16.40 to $14.94).
Registration for the class action
The Court recently ordered the parties to send out a notice to all Sirtex shareholders who are likely to be included in this action (Notice).
The deadline for opt-out and formal registration under the Notice was 1 November 2018 (Class Deadline). However, if you took no steps, you are still a class member in the Sirtex Class Action and you are still able to register your interest in this matter. You should do so if you want to remain updated on the progress of this case.
There are now three options available to you:
- Complete a registration form to be a Late Registered Class Member; OR
- Return a Funding Agreement with IMF and Retainer and Costs Agreement with Maurice Blackburn Lawyers to be a Late Funded Class Member; OR
- Do nothing and remain a Class Member of the proceeding.
Option 1 or 2: Late Registered or Late Funded Class Member
You are not required to undertake these steps. However, any information you provide could assist in the resolution of the matter. If you undertake these steps now, we propose to apply to the Court that any Late Registered or Late Funded Class Members be able to participate in any distribution from any settlement or judgement of the proceeding. Any settlement will be subject to Court approval.
It is important to note that the Court has made a Common Fund Order. The Funding Terms approved by the Court as part of the Common Fund Order, will override the terms of the IMF Funding Agreement to the extent of any inconsistency.
There are benefits which include receiving updates on the progress of the matter. Other benefits are outlined in the Sirtex Updated Answers to Questions document.
To become a Late Registered or Late Funded Class Member click here: https://www.imf.com.au/cases/register/sirtex-medical-limited-overview
Please contact IMF’s Client Liaison Team on 1800 016 464 (if calling within Australia) or via email at firstname.lastname@example.org if you wish to proceed with these options or have any further queries.