The Brambles Limited Class Action is a class action against Brambles Limited (Brambles) in the Federal Court of Australia on behalf of persons that acquired Brambles securities between 18 August 2016 and 17 February 2017 (inclusive) (the Claim Period).
If you wish to become a funded client of Omni Bridgeway and Slater and Gordon you can do so by contacting Omni Bridgeway by email at email@example.com or 1800 016 464.
Alternatively, you can contact our Brambles Class Action Team by email at firstname.lastname@example.org or 1800 071 827.
What is the Brambles class action about?
This class action, the Brambles Class Action, is brought by the Applicants, Holly Southernwood and William Vincent Kidd and Mary Agnes Collum as Trustees for The Magness-Bennett Superannuation Fund, on their own behalf and on behalf of all shareholders who acquired Brambles shares during the period 18 August 2016 and 17 February 2017 (inclusive) (subject to some limited exceptions).
In the Brambles Class Action, the Applicants are being jointly represented by Maurice Blackburn and Slater and Gordon. The Brambles Class Action is being jointly funded as it progresses in relation to common issues by litigation funders Harbour Fund III, L.P. (Harbour) and Omni Bridgeway Ltd (Omni Bridgeway).
It is alleged that group members have claims against Brambles in relation to guidance provided by the company in its FY16 results (and reaffirmed on subsequent dates) regarding expected revenue and profit growth during the financial year ending 30 June 2017 (FY17).
The Applicants’ claim alleges that between 18 August 2016 and 17 February 2017 (inclusive):
- Brambles made representations to investors in relation to its FY17 financial forecasts that were misleading and/or lacked a reasonable basis;
- Brambles breached its continuous disclosure obligations under the ASX Listing Rules and the Corporations Act 2001 (Cth) by failing to earlier revise its FY17 forecasts and release material information; and
- as a result, investors who purchased Brambles shares at any time during the Claim Period suffered compensable loss. The allegations made by the Applicants in the class action are set out in full in the amended consolidated statement of claim filed in the Court.
Brambles has denied the allegations made against it and is defending the action.
Update on Proceeding
Opt Out and Claim Registration Notice
On 6 August 2021, the Court made orders for a registration and opt out process to occur in the Brambles Class Action. This includes orders for a notice to be sent to potential group members which provides important information about:
- the Brambles Class Action and who are group members in it, together with information about the basis on which it is being conducted;
- what you need to do if you do not wish to participate in the Brambles Class Action, and instead wish to remove yourself (‘opt out’) from being a group member in the Brambles Class Action; and
- the Applicants’ solicitors are encouraging interested group members to register before 4.00 pm AEDT on 14 October 2021. Registration is optional at the present time, however if you wish to register for the Brambles Class Action you can do so at the following link: https://portal.omnibridgeway.com/cases/register/brambles-shareholder-class-action.
A copy of the notice approved by the Federal Court of Australia is available for download on this website (see “Documents” below). It was also separately distributed to potential group members via Brambles’ shareholder registry from around 17 August 2021 and we encourage you to read it carefully. Please note that the deadline for opting out of the Brambles Class Action is by 4.00 pm AEDT on 14 October 2021. Group members who wish to opt-out of the class action may wish to seek independent legal advice prior to doing so.
If you purchased shares in Brambles Ltd between 18 August 2016 and 17 February 2017 (inclusive), you should read the notice carefully as it may affect your rights in the class action. Any questions you have concerning the matters contained in the notice should not be directed to the Court. If there is anything of which you are unsure, you should seek your own legal advice or contact Omni Bridgeway by email on email@example.com or free call 1800 016 464, or contact Maurice Blackburn or Slater and Gordon via the contact details below.
If you wish to remain a group member there is nothing you need to do at the present time. The Applicants will continue to bring the proceeding on your behalf up to the point where the Court determines those questions that are common to the claims of the Applicants and the group members. You will be bound by any judgment or settlement in the Brambles Class Action and, thus if the Brambles Class Action is ultimately unsuccessful, or is not as successful as you might have hoped, you will not be able to pursue the same claims, and you may not be able to pursue related claims, against Brambles in other legal proceedings.
However, you are encouraged to register for the Brambles Class Action now, by completing and submitting the online registration form via the “Brambles Ltd Shareholder Class Action” webpage, accessible at: https://portal.omnibridgeway.com/cases/register/brambles-shareholder-class-action.
Registration is not compulsory, but there is no cost to register and there are a number of reasons why you should consider registering for the Brambles Class Action now:
- First, it allows Slater and Gordon and Maurice Blackburn to confirm that you are a group member, to provide you with regular updates in relation to the Brambles Class Action, and to contact you if you become eligible to receive compensation.
- Secondly, without sufficient group member registration information, it may be harder to reach a settlement, and because it affects whether or not claim size can be reliably assessed there may also be a risk that any settlement may be lower (and produce a lower return for all group members).
- Thirdly, the Court will likely impose a deadline for group members to register anyway in the event a settlement is reached.
If you register, you will not under any circumstances be liable to pay any ‘out of pocket’ costs to Maurice Blackburn, Slater and Gordon, Harbour and/or Omni Bridgeway simply by registering for the Brambles Class Action.
Any group members who have already entered into a Retainer and Costs Agreement with Maurice Blackburn or Slater and Gordon and/or a funding agreement with Harbour Fund III, L.P. (Harbour) and Omni Bridgeway Ltd (Omni Bridgeway) to participate in the Brambles Class Action (and have provided details of their trading in Brambles shares) need not register again, as they are deemed to have already registered in the Brambles Class Action
Further information is set out in the opt-out notice and we encourage you to read it carefully. The notice can be downloaded from the Key Documents section below.
If you wish to become a funded client of Omni Bridgeway and Slater and Gordon you can do so by contacting Omni Bridgeway by email on firstname.lastname@example.org or 1800 016 464.
If there is anything of which you are unsure, you should seek your own legal advice or contact:
- Omni Bridgeway by email at email@example.com or free call 1800 016 464;
- Slater and Gordon Lawyers at firstname.lastname@example.org or 1800 071 827.
Frequently Asked Questions
You are a group member if (subject to some limited exceptions) you:
- entered into a contract to acquire an interest in fully paid ordinary shares in Brambles during the period between 18 August 2016 and 17 February 2017 (inclusive); and
- suffered loss or damage by reason of the conduct of Brambles, as alleged in the Applicants’ amended statement of claim (and which is summarised above under the heading ‘What is the Brambles class action about?’)
A class action is a proceeding that is brought by one or more persons (the applicant/s) on their own behalf and on behalf of a group of people (group members) against another person or persons (respondent/s) where the applicant/s and the group members have similar claims against the respondent/s.
Group members are bound by the outcome in the class action, unless they have opted out of the action. A binding result can happen in two ways being either a judgment following a trial, or a settlement at any time. If there is a judgment or a settlement of a class action group members will not be able to pursue the same claims and may not be able to pursue similar or related claims against the respondent in other legal proceedings:
- in a judgment following trial, the Court will decide various factual and legal issues in respect of the claims made by the applicant and group members. Unless those decisions are successfully appealed they bind the applicant, group members and the respondent. Importantly, if there is another legal action between a group member and the respondent, it may be that neither of them will be permitted to raise arguments in that action which are inconsistent with a factual or legal issue decided in the class action;
- in a settlement of a class action, where the settlement provides for compensation to group members it is likely to extinguish all rights to compensation which a group member might have against the respondent which arise in any way out of the events or transactions which are the subject-matter of the class action and may also extinguish all rights to compensation which a group member might have against the respondent’s related entities (including officers and former officers);
- class actions are supervised and monitored by the Court. Importantly, if any proposed settlement is reached in the Brambles Class Action, it will be scrutinised by, and require the approval of, the Court.
The Applicant in a class action does not need to seek the consent of group members to commence a class action on their behalf or to identify a specific group member. However, group members can cease to be group members by “opting out” of the class action.
If you consider that you have claims against Brambles which are based on your individual circumstances or otherwise additional to the claims described in the Brambles Class Action, then it is important that you seek independent legal advice about the potential binding effects of the class action before the deadline for opting out.
The class action is being run on a no win - no pay basis, with all costs fully underwritten by Omni Bridgeway and Harbour. You will not become liable for any legal costs simply by remaining a group member or by registering your claim. You will not be required to pay any upfront or out-of-pocket costs in relation to the class action as it progresses in relation to common issues.
In other words, costs are only payable by group members if, and only in the event, a successful outcome is achieved either at settlement or by judgment.
- if the preparation or finalisation of your personal claim requires work to be done in relation to issues that are specific to your claim, you can engage Maurice Blackburn Lawyers, Slater and Gordon Lawyers or other lawyers to do that work for you. A copy of the terms on which Maurice Blackburn Lawyers and Slater and Gordon Lawyers are acting in this class action may be obtained from them using the contact details set out in section 4 above;
- if you become entitled to any compensation following a judgment or settlement in the Brambles Class Action, the Court may make an order requiring you to pay some of that amount by way of a contribution to the costs incurred by the Applicants in running the class action, but which they are not able to recover from Brambles. Any such amounts will only be payable in the event of a successful outcome by way of a deduction from any compensation to which you become entitled, and will never exceed the amount of compensation to which you may otherwise become entitled. The Court will assess whether any amounts proposed to be deducted are fair and reasonable. You will be given a notice at that time informing you of the amount which it is proposed to be deducted and given an opportunity to tell the Court if you agree or disagree with what is proposed.
The Brambles Class Action is being jointly funded by two litigation funders – Harbour and Omni Bridgeway. This means that Harbour and Omni Bridgeway have agreed to pay the costs of the class action as it progresses in relation to the common issues. If the class action is unsuccessful, Harbour and Omni Bridgeway have also agreed to meet any order that the Applicants pay Brambles’ costs.
In return for funding the class action, Harbour and Omni Bridgeway charge litigation funding fees based on a percentage of the amount recovered in the class action. This means that if you have entered into a Funding Agreement with Harbour or Omni Bridgeway you have agreed to pay a funding commission to Harbour or Omni Bridgeway from any compensation you receive.
On 8 May 2019, the Court made what is known as a ‘common fund order’, which required each group member who receives compensation in the Brambles Class Action, regardless of whether that group member has entered into a funding agreement with Harbour or Omni Bridgeway, to pay to the funders a percentage of any compensation to which the group member becomes entitled as commission for funding the proceeding. The percentage funding commission under the common fund order was not set, but was to be determined by the Court following the conclusion of the class action in an amount the Court considers to be reasonable.
After the common fund order was made in the Brambles Class Action, the High Court of Australia handed down a decision in another class action, which held that the Court does not have power to make a common fund order at least at an early stage of a class action. The common fund order originally made in this proceeding has now been vacated by the Federal Court. The High Court did not consider whether a common fund order could be made towards the end of a class action, and the Federal Court of Australia has since made orders of this kind in other class actions at the end of proceedings where settlements have been reached. As such, the common fund order that was previously made in the Brambles Class Action has now been set aside. Nevertheless, the funders intend to continue to fund the proceeding in a way which is consistent with what the common fund order envisaged, and at the end of the proceeding, the Applicants intend to ask the Court to make a common fund order to approve a distribution of any money recovered by settlement or judgment on terms that the litigation funders be paid an amount the Court considers to be reasonable for funding the proceeding.
The court may either choose to take this course, or alternatively, make a funding equalisation order. Under a funding equalisation order, only group members who have entered funding agreements with Harbour or Omni Bridgeway are liable to pay these funders. The court would then adjust the distributions received by members so that the net amount received by members who have paid a litigation funding commission and those who have not are equal. The return to group members may differ depending on which course the court takes.
If the court chooses to make a common fund order, before any amounts are deducted, you will be given a notice informing you of the amount which it is proposed to be deducted and given an opportunity to tell the Court if you agree or disagree with what is proposed.
The total of any amounts deducted from compensation payable to group members for legal costs and funders’ commission will never exceed the amount a group member receives in the event of a successful outcome. That is, you will never be out of pocket by participating in the class action.
Timeline of events
On 18 August 2016, Brambles released its FY16 results, providing guidance for FY17 of profit growth between 9% to 11%, as well as sales growth projections of 7% to 9%.
The company restated this guidance some two months later at both its First Quarter Trading Update in October 2016, and at its AGM in November 2016.
However, in a series of announcements in late January 2017 and February 2017, Brambles announced that it no longer expected to achieve its guidance. Brambles instead revised its forecast profit and sales growth for FY17, ultimately reducing its projected sales growth expectations to just 5%, and profit growth of 0%.
The downgrade announcements surprised the market, with the Brambles share price falling by 15.8% following its first downgrade announcement in January 2017, and by a further 10% in the wake of the second downgrade announcement in February 2017.
If you have any questions you can contact us on
Omni Bridgeway by email at email@example.com or free call 1800 016 464
Slater and Gordon Lawyers at firstname.lastname@example.org or 1800 071 827