Class action lawyers Slater and Gordon and litigation funder IMF Bentham Ltd have issued proceedings against Bellamy’s Australia Ltd (BAL) on behalf of persons that acquired BAL securities between 14 April 2016 and immediately prior to the commencement of a trading halt in Bellamy’s securities on 12 December 2016 inclusive.
What are the allegations made against Bellamy’s?
The Proceeding alleges that Bellamy’s:
- contravened its obligations of continuous disclosure of price sensitive information under section 674 of the Corporations Act 2001 (Cth), by failing to keep the market informed of matters relevant to its FY17 financial performance; and,
- made statements regarding benefits arising from regulatory change in China and in relation to its future growth trajectory which amounted to misleading or deceptive conduct in contravention of section 1041H of the Corporations Act 2001 (Cth).
I purchased shares in Bellamy’s between 14 April 2016 and 12 December 2016 – how do I participate in the proceeding?
The Federal Court of Australia made orders on 8 December 2017 requiring group members to take steps in relation to their participation in the proceeding.
Pursuant to the orders of the Court, all registrations were to be submitted before 4:00pm AEDT on 29 January 2018 (the Class Deadline). Although registrations to participate in the proceeding have now closed, the Court made orders on 3 April 2018 to address the claims of group members who have sought to register after the Class Deadline.
Although the acceptance of any late registration is subject to the discretion of the Court, we intend to make an application for the participation of late registrants at a time before mediation. If you have not yet registered your claim or are unsure of your registration status, we encourage you to contact us to discuss your options on 1800 071 827 or at email@example.com.
Please note that if you do not register your claim, you will lose your right to obtain compensation in the event of a successful settlement of the proceeding. You may also lose your right to advance a claim against Bellamy’s for the same allegations.
What is the claim about?
On 14 April 2016, Bellamy’s made an announcement to the ASX regarding recent regulatory changes announced in China, titled “Bellamy’s well placed to continue growing in China”, noting that the company believed it was “well placed to transition to the new requirements once they are known”.
On 17 May 2016, Bellamy’s released a presentation to the ASX which detailed the company’s responses to potential Chinese regulatory change and noted that it was “well positioned for potential regulatory changes in China”.
On 19 August 2016, Bellamy’s released its results for the financial year ending 30 June 2016 (FY16), noting, inter alia, that:
- it was “set to benefit from new Chinese regulations"
- it had “strong foundations to continue [its] growth strategy; and
- its EBIT margin had more than doubled between FY15 and FY16 to 22%.
On 19 October 2016, at Bellamy’s AGM, the company reiterated the messages of the 19 August 2016 releases.
The price of BAL shares fell from $12.13 to $6.85 in the trading days following a Business Update released by Bellamy’s on 2 December 2016.
A further market update released by Bellamy’s on 11 January 2017 saw the price of BAL shares fall to $5.35 on 11 January 2017, with a further decline to $4.40 on 12 January 2017.
How much will it cost to be part of the class action?
IMF Bentham is funding the proceeding – under the terms of the funding agreement, you will not have to pay any fees unless the class action claims are successfully resolved. If the class action is successfully resolved, a contribution towards costs will be deducted from each group member’s recovery. If the class action is unsuccessful and the claims are lost, IMF Bentham will bear the cost of the proceeding and pay the other side’s costs.
The Applicant in the McKay Class Action applied for orders for a ‘common fund’, and this application was heard on 29 March 2018.
The Applicant applied for the common fund order for the following reasons:
- it would be unfair for group members who have signed funding agreements with IMF Bentham to be the only group members subjected to pay a commission in circumstances where all group members benefit from the class action; and
- the class action procedure enables group members who do not want to participate in the case, or who do not wish to pay a commission to the funder, to opt out of the proceeding.
The Federal Court of Australia made orders on 3 April 2018 approving the common fund order. These orders mean that any settlement or judgment sum recovered for group members (whether or not they have entered into a funding agreement with IMF Bentham) will be used to pay IMF Bentham a commission for the funding of the proceedings. The commission will either be 30% or any such lower rate the Court considers reasonable at the time the claims are settled or a judgment has been handed down.
The Federal Court has made orders requiring that a mediation be conducted before 29 June 2018 before a mediator agreed by the parties. Any further updates regarding the outcome of the mediation will be provided as it becomes available.
Documents relating to the Bellamy’s Class Action
- Amended Originating Application;
- Further Amended Statement of Claim;
- Amended Interlocutory Application – Opt-Out Class Closure and Common Fund
- VID 163/2017 Order of Beach J – 8 December 2017 (Opt Out, Registration and Notice to Group Members)
- VID 163/2017 Order of Beach J – 3 April 2018 (Common fund, Mediation, Late registrations, Strike out application)
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