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Latest update: Settlement Approval Hearing

On 4 May 2020 Justice Moshinsky in the Federal Court of Australia approved the proposed settlement in the Vocus Class Action.

The approval gives effect to the settlement agreement to resolve the proceeding for a settlement sum of AUD$35 million, inclusive of costs and interest, reached by the parties on 21 December 2019 (Approved Settlement).

The judgment and the final orders dated 4 May 2020 are available under the Key Documents section below.

What happens next?

For both Group Members and Registered Group Members

There is no action required from Group Members or Registered Group Members at this time.

Distribution

As a general indication, any distribution of settlement funds to Registered Group Members will take a number of months. There is a requirement, prior to distribution, to allow for the statutory appeal period of 49 days to expire.

Slater and Gordon Lawyers has been appointed by the Court to act as Administrator to distribute the Settlement under the Court approved Settlement Distribution Scheme.

Under the Settlement Distribution Scheme, only those Group Members who registered their claim in the Vocus Class Action, or have otherwise been included under Court Orders, are entitled to receive a distribution.

Notice provided to Group Members about the Proposed Settlement and Settlement Approval Hearing

On 7 February 2020, the Court ordered that by 24 February 2020, a Notice of Proposed Settlement (which included a Notice of Objection to Proposed Settlement) be sent to all Group Members in the Vocus Class Action and be made publicly available on this website. The Notice of Proposed Settlement communicated important information about the Proposed Settlement and Group Member’s rights (and can be downloaded from the Key Documents section below).

By 24 February 2020, the Notice of Proposed Settlement was distributed by Vocus’s share registry, Computershare to Group Members on the Vocus share registry. The Notice of Proposed Settlement was also sent directly by Slater and Gordon to all Registered Group Members (those persons who registered to participate in the Vocus Class Action by the deadline on 13 August 2019 or were otherwise deemed under Court Order to have registered before the deadline).

Slater and Gordon also sent to Registered Group Members a Notice of Estimated Distribution and a Notice of Claim Data. The Notice of Estimated Distribution provided an estimate of the amount of compensation to be distributed to Registered Group Members in the event that the Proposed Settlement is approved by the Court. The Notice of Claim Data listed the Vocus ordinary share trading data provided to Slater and Gordon by Registered Group Members for the period 29 November 2016 to 2 May 2017.

The Notice of Proposed Settlement also provided information to Group Members and Registered Group Members about available processes during March and April 2020 to request a Review of the Notice of Estimated Distribution or Notice of Claim Data or to lodge an Objection to the Proposed Settlement with the Court. The deadlines for these Review and Objection processes have now closed.

On 24 April 2020 in a hearing in the Federal Court of Australia, Justice Moshinsky considered the Applicants’ application to approve the proposed settlement and also considered any objections filed by Group Members. Justice Moshinsky published his decision on 4 May 2020.

Who are the Group Members in the class action?

Group Members in the Vocus Class Action:

  1. acquired Vocus securities during the Relevant Period (29 November 2016 to the close of trade on 2 May 2017, inclusive);
  2. are not a director or officer, a close associate, a related party, a related body corporate, or an associated entity of Vocus (as defined by the Corporations Act) or a Chief Justice, Justice, Registrar, District Registrar or Deputy District Registrar of the High Court of Australia or the Federal Court of Australia; and
  3. have suffered loss and damage by reason of the conduct alleged against Vocus in the most current version of the Applicants’ Statement of Claim (Group Member).

To participate in the settlement, Group Members were required to register. The Court made orders on 21 May 2019 requiring Group Members to register to participate in the mediation and any settlement of the Vocus Class Action by 4:00pm AEDT on 13 August 2019. Under these orders, Group Members had the following options:

  • to register to participate in the mediation and any settlement of the Vocus Class Action; or
  • to opt out of the Vocus Class Action; or
  • to take no action, with the result that the Group Member would be bound by, but not entitled to participate in, any settlement.

Notice of these orders and these options and the requirement to register and the registration process was widely distributed to Group Members.

Can I still register as a Group Member of the Vocus Class Action?

As the Settlement of the Vocus Class Action has now been approved by the Court, we are no longer able to accept further registrations.

If you are unsure of your registration status, please contact us at 1800 071 827 or at vocusclassaction@slatergordon.com.au.

Please note: that under the Court orders dated 4 May 2020 approving the settlement, all Group Members who did not opt out of the Vocus Class Action by filing a Notice of opt out with the Court, are now bound by the settlement terms and prevented from advancing any further claim against Vocus arising from the same allegations.

How much will it cost to be part of the class action?

Amounts for funding, legal costs and other expenses, including the Settlement Administrators expenses, have now been approved by the Court under the Court orders dated 4 May 2020 and these costs are deducted from the Settlement fund, so there will continue to be no out of pocket costs to Group Members. See the Court orders dated 4 May 2020 for the amount of the approved deductions in the Key Documents section below.

What is the Vocus Class Action about?

In the Vocus Class Action, Michael and Tracy Fisher ATF the Tramik Super Fund Trust (the Applicants) allege that:

  1. on and from 29 November 2016 until the close of trade on 2 May 2017 (the Claim Period), Vocus engaged in misleading or deceptive conduct by providing guidance for the 2017 financial year with respect to its revenue, earnings before interest, taxes, depreciation and amortisation, net profit after tax, and achievement of acquisition synergies, when it did not have reasonable grounds for doing so;
  2. in the Claim Period, Vocus breached its obligations of continuous disclosure, in contravention of section 674(2) of the Corporations Act 2001 (Cth) (Act) and the ASX Listing Rules, by failing to disclose various information that would have revealed and disclosed that the guidance provided for the 2017 financial year would not be achieved and did not have reasonable grounds; and consequently
  3. persons who acquired an interest in ordinary shares in Vocus during the Claim Period have suffered loss and should be compensated.

Vocus, one of Australia’s largest telecommunications companies, achieved substantial growth through a number of acquisitions in 2015 and 2016. Vocus:

  1. acquired Amcom, a telecommunications company with an extensive fibre network;
  2. merged with M2 Group Ltd, a provider of a range of communication, utility and insurance services; and
  3. acquired Nextgen Networks, one of Australia’s largest national fibre backhaul networks.

On 29 November 2016, Vocus provided the following guidance in respect of its expected financial performance for FY17 in its Annual General Meeting:

  1. its revenue would be approximately $1.9 billion;
  2. its earnings before interest, depreciation, taxation and amortisation (EBITDA) would be approximately $430 million – $450 million;
  3. its net profit after tax (NPAT) would be $205 million – $215 million; and
  4. it was on track to achieve acquisition synergies in the previously announced time frame.

(the FY17 Guidance)

Vocus re-iterated the FY17 Guidance when it released its first-half results for the 2017 financial year on 22 February 2017.

On 2 May 2017, Vocus downgraded its forecast for FY17. Vocus announced:

  1. its revenue for FY17 would be approximately $1.8 billion;
  2. its EBITDA for FY17 would be approximately $365 million – $375 million; and
  3. its NPAT would be $160 million – $165 million.

(the FY17 Downgrade)

Vocus reported that the FY17 Downgrade was a result of the following factors:

  1. the “impact of lower than forecast billings combined with an increase in service delivery headcount in the Enterprise & Wholesale division”;
  2. “higher than forecast expenses in Group Services, primarily technology”;
  3. the revenue associated with a number of large projects included in the 2H17 forecast would be predominately recognised in future periods following an accounting review;
  4. “lower earnings than forecast from the Mass Market energy business following the volatility created by extreme weather events in 3QFY17”; and
  5. “other trading variances across the Group”.

The price of Vocus shares fell by approximately 27% in the trading days following the FY17 Downgrade.

Key documents

For more information regarding the Vocus Class Action, please refer to the following documents:

Contact details

If you have any questions regarding the above, please call us on 1800 071 827 or email us at VocusClassAction@slatergordon.com.au.

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