What 2022 holds for class actions
The year ahead will see a number of issues arise in the class actions space, according to a number of key predictions from the team at Herbert Smith Freehills.
Whilst 2021 was an eventful year for Australian class actions, in 2022, a number of key trends will continue in the space, according to Herbert Smith Freehills’ Jason Betts, partner and global head of class actions; Aoife Xuereb, senior associate; and solicitor Rafael Lawrence.
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“Against a backdrop of broader political and social justice debates about the value of class actions, we saw: multiple overlapping claims; challenges to common fund orders and class closure orders; modifications to the continuous disclosure laws; and increased regulation of third-party litigation funders,” the trio said.
“Despite the shifting landscape and a packed reform agenda, a significant number of class actions were filed and Australia is presently experiencing class action filing rates of more than one per week.”
The team predicts that data will play a key role moving forward, as recent high-profile actions in the UK and US against some of the world’s largest tech companies, as well as changes in political and public sentiment, suggest that increases in class actions relating to the misuse of personal data and privacy breaches are to be expected in 2022.
However, the most recent report from the Office of the Australian Information Commissioner (OAIC) listed the top five industries to notify data breaches in the first half of 2021 as health service providers, finance legal, accounting and management services, the Australian government, and insurance. Additionally, it found that “malicious or criminal attacks remained the leading source of data breaches”, totalling 65 per cent of all notifications.
Australian class action law is still developing in the data breach space. Plaintiffs have traditionally experienced difficulties in demonstrating actual financial loss caused by such breaches, which has called into question the economic viability of associated class actions. However, the growth of data-related class actions overseas, as well as a potential recognition of the intangible value in personal data, suggests that we may see a similar trend in Australia.
Further, while there is no individually enforceable statutory right to privacy in Australian law at this time, this is currently the subject of a review by the Attorney-General. If introduced, this right could provide a platform for class actions seeking larger aggregate losses.
“For publicly listed companies, additional considerations arise with respect to the materiality of the data breach, associated continuous disclosure obligations, and the extent to which it may pave the way for a subsequent securities class action,” the trio said.
“An equally pervasive threat facing some large data handlers is the risk of consumer and competition-based class actions relating to terms and conditions governing user data and representations to customers or employees about the use of their data, an area that is increasingly the subject of our regulators’ focus.”
In addition, climate change activism is likely to be reflected in the profile of Australian class actions filed in 2022.
“In recent years, we have seen a number of key developments in this area, including the Federal Court permitting a misleading and deceptive conduct claim to proceed against the Commonwealth of Australia for an alleged failure to disclose material information relating to climate change and its impact on sovereign bonds, and an action filed on behalf of Torres Strait Islanders, also against the Commonwealth, for a failure to prevent a rise in sea levels that threatens their communities,” the HSF team said.
“Despite some lingering uncertainty regarding causation and the quantification of any claim for damages, many plaintiff lawyers and activists are united in the view that the contribution of governments and corporate entities to climate change will remain a key focus in future litigation both in Australia and globally.”
Another key trend to look out for in the class actions space in the coming year is the rise of the Australian cryptocurrency and digital-asset industry, according to HSF.
“Cryptoassets, crypto-linked projects and crypto-linked exchange traded funds (ETFs) operate in an inherently volatile environment. In a reactive market, issuers are attuned to the potential for allegations of mis-selling or misleading and deceptive conduct, which could underpin traditional consumer class actions,” the trio said.
“Further, the increasing appetite of corporate Australia to engage and trade in this sector, either through direct investment in or issuing their own utility tokens or non-fungible tokens (NFTs), is an area that may create new areas of legal risk. While dealers in cryptoassets and crypto-linked ETFs can now refer to ASIC’s recently updated guidance on the financial regulation of cryptoassets, the regulatory framework is rapidly evolving, which means the legal exposure to class actions will also evolve.”
Additionally, the trio said, exchanges are potential targets for cyber attacks and are otherwise exposed to outages and malfunctions, all of which can significantly impact the value of customers’ accounts. Internationally, we have seen affected users seek collective redress over these incidents, which will likely serve as a barometer for Australian class actions.
From a procedural perspective, 2022 is likely to see a continued increase in class actions filed in the state courts.
Class action regimes now exist in Victoria, NSW, Queensland and Tasmania, while a similar regime is anticipated in Western Australia, following the WA Legislative Assembly’s passage of the Civil Procedure (Representative Proceedings) Bill 2021 in October 2021.
“While all of these regimes are modeled on the federal regime under Part IVA of the Federal Court of Australia Act 1976 (Cth), some significant differences between the regimes may lead to class action promoters increasingly preferring one jurisdiction over another in 2022,” the HSF team predicted.
“In particular, we anticipate that the Victorian Supreme Court will continue to receive a steady stream of filings throughout 2022, following the recent introduction of contingency fees in that jurisdiction. The use of contingency fees in Victoria will add fuel to the debate regarding whether the choice of jurisdiction for class actions should be determined by where law firms may receive the greatest level of fees.”
Furthermore, the latter half of 2021 saw significant developments in the regulation of funders, including the Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill 2021, which, if passed, will effectively prescribe a minimum return to group members of 70 per cent of any funded class action settlement, the HSF team added.
“Even absent such a statutory cap on returns, courts are increasingly closely scrutinising funder commissions and practices, with the appointment of a contradictor (to represent group members’ interests) likely to remain a common practice throughout 2022,” the trio concluded.
“Finally, the introduction of contingency fees in Victoria (as referred to above) presents an alternative to third-party litigation funding. These factors, individually and collectively, will continue to impact the funding landscape into 2022.”