Opt out and claim registration notice
Federal Court of Australia
What is this Notice?
On 2 July 2014, a class action was commenced by Brian Jones in the Federal Court of Australia against Treasury Wine Estates Limited (TWE). The Federal Court has ordered that this Notice be published for the information of persons who are members of the class on whose behalf the action is brought.
If you purchased shares in TWE between 17 August 2012 and 14 July 2013 (inclusive), you should read this notice carefully as it may affect your ability to participate in the class action.
If there is anything in this notice that you do not understand, you should seek legal advice. Any questions you have concerning the matters contained in this notice should not be directed to the Court.
Key points to be aware of
- If you wish to register to obtain compensation from any settlement of this proceeding you must:
(a) Have already retained Mr Jones’ solicitors, Maurice Blackburn, to act for you in writing and/or signed a funding agreement with IMF Bentham Limited (IMF) in relation to this proceeding; or
(b) Before 4.00 pm on 26 May 2017 complete and submit the online TWE Class Member Registration Form accessible at the domain hosted by IMF www.tweclassaction.com.au.
- If you do not wish to be involved in the class action, before 4.00 pm on 26 May 2017, you must complete and submit an opt out notice.
- If you wish to challenge the orders of the Federal Court, before 4.00 pm on 26 May 2017, you must write to Maurice Blackburn stating the reasons for your challenge.
- If you have not already retained Maurice Blackburn and/or signed a funding agreement with IMF and you do nothing, your rights (if any) may be determined without your participation.
What is a class action?
A class action is an action brought by one person (plaintiff) on his or her own behalf and on behalf of a group of people (class members) against another person (defendant), where the plaintiff and the class members have similar claims against the defendant.
Class members are bound by any judgment or settlement in the class action, unless they have opted out of the proceeding. This means that:
- If the class action is successful, class members may be eligible for a share of any settlement monies or Court-awarded damages;
- If the class action is unsuccessful, class members are bound by that result; and
- Regardless of the outcome of the class action, class members will not be able to pursue their claims against the defendant in separate legal proceedings unless they have opted out.
The plaintiff does not need to seek the consent of class members to commence a class action on behalf of those persons. However, class members can cease to be class members by opting out of the class action. Unless you opt out, you will be bound by the outcome of the class action. An explanation of how class members may opt out of this proceeding is set out below.
The TWE class action
The TWE class action was commenced on 2 July 2014 by Mr Jones. Mr Jones brings the proceeding on his own behalf, and on behalf of all persons who are class members as defined in the proceeding. The definition of class member is set out below.
Mr Jones’ principal allegation relates to TWE’s Australian Securities Exchange (ASX) release on 15 July 2013 announcing expected provisions to its FY13 accounts and lower earnings growth in FY14, arising from actions it had determined it would take in respect of wine inventory held by its US distributors.
In summary, Mr Jones alleges that in the period from 17 August 2012 to 14 July 2013 (inclusive), TWE failed to advise the ASX of information which was likely to have a material impact on the value of TWE’s shares and made statements that misled or deceived the market about TWE’s expected earnings.
Mr Jones claims that this conduct breached TWE’s continuous disclosure obligations under the Corporations Act 2001 (Cth) (Corporations Act) and the ASX Listing Rules and the prohibition against misleading or deceptive conduct under the Corporations Act and the Australian Consumer Law.
Mr Jones claims that he and the class members suffered loss as a result of these alleged breaches. TWE denies the allegations and is defending the class action.
The TWE class action is funded by IMF.
Another class action against TWE has been filed by Melbourne City Investments Pty Ltd (MCI) as lead plaintiff. That proceeding was brought on behalf of the same or substantially the same class of persons as the TWE class action and includes the same or similar claims to those made in the TWE class action. On 5 July 2016 the Federal Court of Australia found that MCI had brought its class action for an illegitimate or collateral purpose and, on that basis, found that it was an abuse of process and should be permanently stayed. The Court stated in its reasons that the TWE Class Action, in which Maurice Blackburn act as solicitors, is a preferable vehicle for litigating the core claims made against TWE. The decision is available here. MCI has applied to the Court to set aside its decision. That application has been heard but has not yet been determined.
Are you a class member?
You are a class member in the TWE class action if you:
- Purchased ordinary shares in TWE on the ASX during the period from 17 August 2012 to 9.30 am on 15 July 2013;
- Suffered loss or damage as a result of the conduct of TWE, as alleged in the Further Amended Statement of Claim; and
- Are not any of the following:
(a) A related party of TWE;
(b) A related body corporate of TWE;
(c) An associated entity of TWE; or
(d) An officer or a close associate of TWE.
If you are not a class member in the TWE class action, you may disregard this Notice. If you are a class member, you should read this Notice carefully as it will affect your rights. If you are unsure whether you are a class member, you should contact Maurice Blackburn Lawyers at TWEClassAction@mauriceblackburn.com.au or seek your own legal advice without delay.
You may inspect copies of the relevant documents filed in connection with the TWE class action:
- During business hours at the Sydney office of Maurice Blackburn;
- On the Federal Court website at http://www.fedcourt.gov.au; or
- At a District Registry of the Federal Court in Sydney, Melbourne, Canberra, Brisbane, Perth, Adelaide, Hobart or Darwin.
What class members must do
If you have already signed a retainer with Maurice Blackburn and/or a funding agreement with IMF in relation to this class action, you are deemed to have already registered. Notwithstanding this, you must contact Maurice Blackburn or IMF in order to provide certain information concerning your dealings in TWE shares.
If you are a class member in the TWE class action, and have not retained Maurice Blackburn and/or signed a funding agreement with IMF, you must select one of the following options by 26 May 2017:
Option 1 – Register your interest in receiving compensation
If you wish to make a claim for any loss you may have suffered as a result of TWE’s alleged conduct, you must complete the online TWE Class Member Registration Form available on the TWE class action website, accessible at www.tweclassaction.com.au.
Registration Forms must be completed online before 4.00 pm on 26 May 2017. Registration Forms completed after this time will not be accepted and you will be treated as having not responded to this notice (see Option 4 below).
Option 2 – Opt out and cease to be a class member
If you do not wish to remain a class member in the TWE class action, you must opt out of the proceeding by completing the opt out notice that is available below. If you opt out of the TWE class action you will:
- Not be affected by any orders made in the TWE class action;
- Not be permitted to participate in the distribution of any damages award or settlement outcome; and
- Be entitled to commence separate legal proceedings against TWE in relation to the matters the subject of the TWE class action on your own behalf if you so wish.
Completed opt out notices must be submitted to the New South Wales District Registry of the Federal Court of Australia at Level 17, Law Courts Building, Queens Square, Sydney NSW 2000 on or before 4.00 pm on 26 May 2017. Opt out notices received after this time will not be accepted and you will be treated as having not responded to this notice (see Option 4 below).
Option 3 – Apply to the Federal Court to vary orders regarding opt out and registration protocol
If you wish to challenge the orders made by the Federal Court in relation to either Option 1 or Option 2 above, you must send a written notice to Maurice Blackburn setting out the challenge you will make and the reasons for that challenge. You will be required to attend the Federal Court in Sydney at a later date in order to have your challenge heard and decided by the Court.
Any notice challenging the Federal Court orders must be delivered to Maurice Blackburn before 4.00 pm on 26 May 2017. Any such notice received after this time will not have any effect.
Option 4 – Not respond to this Notice
If you do nothing, i.e. you do not act in accordance with Options 1, 2 or 3 above, you will remain a class member in the TWE class action and be bound by any judgment or settlement agreement in the proceeding. However if there is a settlement, you will not be entitled to make a claim for part of that settlement.
In other words, if you do nothing, you will lose your right to share in the proceeds of any settlement with TWE in relation to the matters the subject of the allegations made against TWE in the TWE class action.
If Mr Jones and TWE reach an in-principle settlement of the TWE class action, Mr Jones will seek orders that are commonly sought in relation to the settlement of class actions. The effect of these will be that all group members as defined in the TWE class action will be bound by the settlement of that proceeding and will be prohibited from bringing a further claim against TWE in relation to the same issues as are raised in the TWE class action. If these orders are granted, this will mean that group members in the TWE class action will not be permitted to continue claims under the MCI proceeding described above. This will only ever be relevant if MCI succeeds in setting aside the orders of the Court staying the MCI proceeding and the permanent stay is lifted.
Will you be liable for legal costs?
You will not become liable for legal costs simply by remaining as a class member for the determination of common questions or by registering your interest in receiving compensation.
If the TWE class action is unsuccessful, IMF will pay Mr Jones’ costs and satisfy any order against Mr Jones to pay TWE’s costs.
If the TWE class action resolves by way of a judgment in favour of Mr Jones or by way of a negotiated settlement arrangement, then:
- The finalisation of your personal claim might require work to be done in processing your claim. If such work is required you may need legal assistance. You may enter into a retainer agreement with Maurice Blackburn (or other solicitors) to do that work if it becomes necessary and you will be liable for legal costs associated with the determination of issues concerned only with your claim; and
- If any compensation becomes payable to you as a result of any order, judgment or settlement in the TWE class action, the Court may order that some of the compensation be used to pay a portion of the legal costs incurred by Mr Jones in running the TWE class action. Mr Jones may also seek an order that part of any compensation that becomes payable to class members who have not signed a funding agreement with IMF is paid to IMF in return for IMF funding the action. Alternatively Mr Jones may apply for orders that class members receive the same rate of return in the TWE class action, whether or not they have signed a funding agreement with IMF.
If you are unclear about whether you are a class member, or if you have any other questions regarding the TWE class action, you should contact Maurice Blackburn at TWEClassAction@mauriceblackburn.com.au or by writing to Maurice Blackburn, Level 32, 201 Elizabeth Street, Sydney NSW 2000, Attention: Ben Slade. Alternatively, you can seek legal advice from other solicitors.