Corporate law is evolving rapidly, and senior lawyers must adapt quickly to manage legal, reputational, and stakeholder risks across litigation and investigation.
Two legal experts have warned that the pace of change in corporate law is “faster than it has been in 30 years”, driven largely by growing regulatory and political pressures. The onus is now on senior lawyers to keep pace to mitigate emerging risks.
“What you knew last December is largely outdated. Regulators are in different phases, and recent court judgments have reshaped both the process and substantive law for class actions,” said Jason Betts, partner and head of class actions, Asia, and Australia at Herbert Smith Freehills Kramer.
Betts and fellow partner Melissa Gladstone will deliver a masterclass on these changes as part of Captivate Q’s Law Mastery Series in partnership with Lawyers Weekly on 3 November in Sydney.
Litigation and class actions: A broadening field
Gladstone said the class action landscape is rapidly broadening. While securities and product liability class actions remain dominant, other areas of class action risk are emerging.
“We’re seeing more consumer claims centred on terms, conditions, and warranties. There’s been a sharp increase in employment-related class actions involving underpayments, entitlements, employee conduct, and discrimination,” she said.
“And we’re finally starting to see how cyber security and data breach class actions will take shape; there are now representative complaints before the OAIC and pleaded cases in the Federal Court, giving us insights we simply didn’t have 12 months ago.”
Just this month, we saw the first guidance from the courts on key principles relating to the new tort for serious invasion of privacy, as well as other statutory requirements for entities relating to eligible data breaches under the Privacy Act.
Across these areas, corporate exposure is widening.
“If you think about those four areas – consumers, employees, data, and corporate conduct – it’s hard to imagine any organisation that isn’t touched by at least one of them. It’s something most organisations need to be actively managing,” Gladstone said.
Betts added that the funding landscape has shifted considerably, and these shifts are another factor that has impacted class action risks facing businesses. Recent court rulings have clarified what third-party funding structures are permissible, while confirming that lawyers cannot charge contingency fees except in Victoria.
“What’s attractive to a funder or to a firm working on a contingency basis looks very different today than it did even six months ago,” he said.
He also warned that class actions are increasingly proceeding to trial rather than settlement.
“This trend appears to be based on a number of key decisions which have been handed down by the courts in the area of securities class actions and in which defendant companies have secured favourable outcomes. As a result, defendants to securities class actions are more willing to run cases to trial,” he said.
The prospect of taking litigation all the way to trial requires disciplined, strategic decision making along the way, he counselled, to increase the possibility of a successful defence.
Regulatory investigations: A delicate balance
The face of regulatory investigations is also changing.
“The issues regulators are pursuing have become far more technical and forensic, whether it’s the fallout from a cyber security incident or the pricing of complex financial products,” Betts said.
That complexity makes it harder for organisations to anticipate and manage investigations.
Meanwhile, companies are taking a more cooperative stance towards investigations.
“Five or 10 years ago, the conventional wisdom was to limit contact to protect your position. Now the expectation is that you will be working with regulators,” Betts said.
Companies often face concurrent risks of class actions and market disclosure arising from an investigation, at the same time as they are engaging with regulators about the investigation.
“Sometimes you’re managing a regulatory investigation while also watching for a potential class action. Figuring out how to balance those demands is a challenge,” Betts said.
Betts agreed that regulatory and internal investigations and litigation risk are deeply interconnected and require a holistic approach.
“When an incident arises, you’re almost always dealing with all three at once – responding to regulators, investigating internally, and preparing for potential class actions. Your strategy must address them together from the outset,” he said.
Internal investigations: The double-edged sword of transparency
Internal investigations are also evolving due to post-financial services royal commission expectations around transparency. Balancing this transparency with protecting corporate value is one of the hardest parts of managing an investigation.
“In today’s environment, investigations are about demonstrating good corporate citizenship. You want transparency, you want stakeholders to know that you’re taking action,” Gladstone said.
“But the challenge is doing it in a way that doesn’t expose the company to legal risk.”
Lawyers play a key role in guiding organisations through this balancing exercise, including by advising on potential exposure to civil penalties and various types of litigation.
To manage this effectively, legal leadership should have a clear direction in mind for how they, and the rest of their organisation, will respond to a developing issue. With advance planning, lawyers are better placed to execute swiftly to manage regulatory, community and customer interests, as well as the organisation’s underlying legal exposure. Features of that planning will be front and centre at the masterclass on 3 November.
Gladstone and Betts are excited to share their expertise and provide senior lawyers with practical solutions to the emerging risks facing companies in the class actions and regulatory space.
Law Mastery’s Litigation & Dispute Resolution masterclass will be held on 3 November 2025 at ANZ Tower, Sydney. Visit www.lawmastery.au for more details and to register. Spaces are strictly limited.
