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Latest update: Settlement Approval Application

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 (Proposed Settlement). The Proposed Settlement provides for Vocus to pay the settlement sum of AUD$35 million (Settlement Sum), inclusive of costs and interest. The Proposed Settlement is subject to Court approval.

On 7 February 2020, the Court ordered that by 24 February 2020, a Notice of Proposed Settlement (which includes 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 contains important information about the Proposed Settlement and Group Member’s rights in relation to it (and can be downloaded from the Key Documents section below).

On 24 February 2020, 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 to have registered before the deadline) were also sent a Notice of Estimated Distribution and a Notice of Claim Data. The Notice of Estimated Distribution provides 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 lists 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.

What happens next?

For both Group Members and Registered Group Members:

If you support the Proposed Settlement

  • If, after reading the Notice of Proposed Settlement, you are in favour of the Proposed Settlement, there is nothing you need to do to participate in the Proposed Settlement. You may consider the following optional steps (2) to (3).
  • Group Members can, if they wish, obtain access to the proposed Settlement Distribution Scheme including the relevant confidential schedule setting out the loss assessment formula from 24 February 2020, by:
  • contacting Slater and Gordon at vocusclassaction@slatergordon.com.au and requesting a copy of the proposed Settlement Distribution Scheme; and
  • signing and returning a confidentiality undertaking to obtain a copy of the confidential Loss Assessment Formula, which will be sent to Group Members upon request.
  • For Registered Group Members only they can, if they believe there is grounds to do so, apply for a Review of their Estimated Distribution (see below, “If you want a Review of your Estimated Distribution”).

If you do not support the Proposed Settlement

  • If you are not in favour of the Proposed Settlement, or any aspect of the proposed distribution of the Settlement Sum, you must:
  • file a completed Notice of Objection with the Court by no later than 4.00pm (AEST) on 7 April 2020; and
  • file with the Court and serve on Slater and Gordon any evidence and written submissions in support of your objection (in addition to those included on the Notice of Objection to Proposed Settlement) by no later than 4.00pm (AEST) on 14 April 2020. Further information can be found in the Notice of Proposed Settlement from paragraph 31.

If you want a Review of your Estimated Distribution

For Registered Group Members only: If you believe an error has been made in calculating the estimated distribution amount or you wish to seek a Review, please refer to the section in the Notice of Estimated Distribution entitled ‘Requests for Review’. Review Request Forms must be received by Slater and Gordon by 27 March 2020. Any Review Request Forms received after this time will not be accepted.

Settlement Approval Hearing

The application for orders to approve the Proposed Settlement is listed to be heard at 10.15am on 24 April 2020 at the Federal Court of Australia, Melbourne before Justice Moshinsky.

Distribution

As a general indication, in the event that the Court approves the Proposed Settlement, any distribution of settlement funds to Registered Group Members will take a number of months. Those Group Members who did not register their claim in the Vocus Class Action will not be entitled to receive any compensation if the Proposed Settlement is approved by the Court.

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 Proposed 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. 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 Proposed Settlement is approved by the Court, you will lose your right to obtain compensation from Vocus 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 provides 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 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

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.

Please bear in mind that while you should contact Slater and Gordon for further information as necessary, if you do not require further assistance, it is in the interests of all Group Members to keep any further costs to a minimum.

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