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Latest update: Conditional Settlement Agreed

When the Vocus Class Action was filed, the parties agreed to a shortened Court timetable, designed to explore early resolution of the matter if possible. The parties agreed to limited preliminary discovery against agreed categories of documents and to attend an early mediation, held on 2 December 2019.

On 21 December 2019, the parties to the Vocus Class Action entered into an agreement to resolve the proceeding, subject to approval by the Court (Conditional Settlement). The Conditional Settlement provides for Vocus Group Limited to pay the settlement sum of AUD$35 million, inclusive of costs and interest. The proposed settlement remains subject to Court approval.

What happens next?

The next step is to apply to the Court for approval of the settlement and distribution of the settlement sum to Group Members who registered prior to the Court deadline for registration (see below).

Group Members will be sent a notice that will include information about the settlement and their rights (Notice of Proposed Settlement). You do not need to take any steps in order to receive the Notice of Proposed Settlement.

The Notice of Proposed Settlement will include further information about the process and estimated timetable. As a general indication, the settlement approval process and any distribution of settlement funds will take a number of months as the process is subject to Court supervision. We will be approaching the Court to approve the Notice of Proposed Settlement at the next Court hearing scheduled in early February 2020 and expect the Notice will be distributed in February.

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 Conditional 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 by 4:00pm AEDT on 13 August 2019. Notice of these orders, the requirement to register and the registration process was widely distributed to Group Members.

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

As the Court’s deadline for registration has now passed, we are no longer accepting 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 if you did not register your claim, and if the settlement is approved by the Court, you will lose your right to obtain compensation and you may also lose your right to advance a claim against Vocus for the same allegations.

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

Any deductions for funding, legal costs and other expenses are subject to Court approval and are deducted from the Settlement Fund, so there will continue to be no out of pocket costs to Group Members.

The Notice of Proposed Settlement will provide further information on the proposed deductions from the Settlement Fund, including for litigation funding and legal costs, consistent with Funding and Legal Cost Agreements and previous information provided to Group Members.

What is the Vocus Class Action about?

In the Vocus Class Action, Michael and Tracey 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 Relevant 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 Relevant 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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