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Experience

Please click on the headings below to take you to information about our expertise and experience in the following areas:

Class actions
Product recall
Insurance exposures
Criminal exposure
Product and marketing law compliance

Class actions

Class action litigation is increasingly common in Australian jurisdictions, particularly in the product and financial services liability context. Such actions can involve hundreds or even thousands of potential plaintiffs and numerous defendants across several jurisdictions. Shareholder class action litigation is an emerging trend in the Australian legal landscape, and the threat to corporations from large groups of shareholders suing in respect of corporate governance issues or misrepresentations associated with financial products is particularly real. Class actions require a depth of resources and specialist knowledge in order to be properly managed and successfully defended and resolved.

Class actions also require an expert understanding of the relevant court rules and basis on which mass claims can be challenged, a solid forensic knowledge of the relevant product or financial service, and a comprehensive understanding of the industry within which the client operates.

Freehills acted on behalf of Femcare in class action litigation.

Product recall

Product recalls can be the result of a defect, contamination, tampering or extortion threat. Voluntary safety-related recalls are primarily the responsibility of the manufacturer and supplier, although they are conducted pursuant to regulatory guidelines.

Effective decision making in a product crisis situation requires more than an understanding of the law. Corporations must also demonstrate that they prioritise consumer safety in an effort to maintain (or even enhance) their reputation despite the crisis.

It is also necessary to establish and maintain strong relationships with key regulators such as the ACCC, ASIC, ANZFA and the Therapeutic Goods Administration (TGA).

Freehills acted on behalf of Mayne in relation to issues arising from the suspension of Pan Pharmaceuticals' manufacturing licence and the recall of Pan manufactured products.

Insurance exposures

It is a commercial reality that all too often a corporation's contractual and risk allocation strategy and/or insurance program does not give adequate coverage. For an effective insurance program, corporations should have:

Freehills advised Smith-Kline in relation to a variety of insurance and risk management issues arising out of the recall of Panadol products.

Criminal exposure

Under general law (both statute and common law), a manufacturer or supplier can be exposed to criminal liability for the reckless or grossly negligent infliction of harm against consumers. The standard of negligence required is the criminal standard necessary to support a charge of, for example, manslaughter and is of a higher degree than the negligence that gives rise to a claim for compensation in commercial (civil) proceedings.

Nevertheless, the risks of criminal exposure for directors and officers cannot be ignored, particularly in light of the potential impact of the Commonwealth Criminal Code and its greater emphasis on the importance of corporate criminal responsibility (including the ability to pierce the corporate veil).

Freehills successfully acted for the Victorian Government and its related state entities following the explosion and fire at Esso's Longford gas plant in September 1998.

Product and marketing law compliance

Product and marketing compliance law is concerned with the laws that affect the packaging, labelling, advertising or promotion of products and financial services. Some of this information is required by law, some is a commercial or practical necessity and the rest is designed to ensure product differentiation and to create or protect market share.

Companies must consider the accuracy and appropriateness of their product or financial service and associated marketing information, whether needed for legal or marketing purposes. To do this, companies need: Freehills acts for a variety of clients in determining the appropriateness of their products' labelling and packaging.