Public and Private Enforcement of Securities Laws: The Regulator and the Class Action in Australia’s Continuous...

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Professor Michael Legg (University of New South Wales, Australia)

Public and Private Enforcement of Securities Laws

The Regulator and the Class Action in Australia’s Continuous Disclosure Regime

Professor Michael Legg (University of New South Wales, Australia)

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English

Hart Publishing
10 February 2022

Civil procedure, litigation & dispute resolution; Capital markets & securities law & regulation

Series: Civil Justice Systems

This book undertakes unique case studies, including interviews with participants, as well as empirical analysis, of public and private enforcement of Australian securities laws addressing continuous disclosure.

Enforcement of laws is crucial to effective regulation. Historically, enforcement was the province of a government regulator with significant discretion (public enforcement). However, more and more citizens are being expected to take action themselves (private enforcement). Consistent with regulatory pluralism, public and private enforcement exist in parallel, with the capacity to both help and hinder each other, and the achievement of the goals of enforcement in a range of areas of regulation.

The rise of the shareholder class action in Australia, backed by litigation funding or lawyers, has given rise to enforcement overlapping with that of the government regulator, the Australian Securities and Investments Commission. The ramifications of overlapping enforcement are explained based on detailed analysis. The analysis is further bolstered by the regulator’s approach to enforcement changing from a compliance orientation to a “Why not litigate?” approach.

The analysis and ramifications of the Australian case studies involve matters of regulatory theory and practice that apply across jurisdictions. The book will appeal to practitioners, regulators and academics interested in regulatory policy and enforcement, and the operation of regulators and class actions, including their interaction.

By: Professor Michael Legg (University of New South Wales Australia)
Imprint: Hart Publishing
Country of Publication: United Kingdom
Dimensions: Height: 244mm, Width: 169mm,
Weight: 699g
ISBN: 9781509941513
ISBN 10: 1509941517
Series: Civil Justice Systems
Pages: 312
Publication Date: 10 February 2022
Audience: College/higher education , Primary
Format: Hardback
Publisher's Status: Active

1. Introduction I. Research Questions II. Structure of the Text III. Scope of Study and Text IV. Case Studies V. Key Findings VI. Conclusion 2. Background I. Introduction II. Continuous Disclosure III. Misleading or Deceptive Conduct IV. ASIC Enforcement V. Shareholder Class Actions VI. Conclusion 3. Analytical Framework I. Introduction II. Deterrence III. Compensation IV. The Regulatory Process V. Conclusion 4. Case Studies I. Introduction II. Methodology III. Telstra IV. Multiplex V. Centro VI. Leighton VII. Conclusion – Summary of Case Studies 5. Application of the Analytical Framework to the Case Studies I. Introduction II. Application of the Analytical Framework – Deterrence III. Application of the Analytical Framework – Compensation IV. Application of the Analytical Framework – Regulatory Process V. Conclusion 7 6. Effectiveness and Coexistence of Regulatory Enforcement and Class Actions I. Introduction II. Effectiveness of ASIC Enforcement and Class Actions III. Ramifications of ASIC Enforcement and Class Actions Coexistence IV. Conclusion 7. Public and Private Enforcement Recalibrated I. Introduction II. ASIC’s Enforcement Approach Revisited III. Class Actions Revisited IV. Reformulating the Continuous Disclosure Laws V. ASIC Enforcement and Continuous Disclosure Class Actions Post-2017 VI. Conclusion 8. Coordination of Public and Private Enforcement I. Introduction II. Why Coordination? III. Existing Coordination Mechanisms IV. Coordination in Other Regulatory Regimes V. Concerns with Coordination VI. Coordination Strategies for Securities Regulation VII. Conclusion Appendix 1 I. Interview Questions for ASIC II. Interview Questions for Class Action Applicants, Litigation Funders and their Lawyers III. Interview Questions for Regulated Entity/Class Action Respondents’ Directors/Officers and their Lawyers IV. Summary of Interviews V. Interviews with Short Title Appendix 2 Table 1 Continuous disclosure infringement notices from 1 July 2004 to 30 June 2021 Table 2 Continuous disclosure enforceable undertakings – 1998 to 30 June 2021 Table 3 Continuous disclosure class actions – 2002 to 30 June 2021

Michael Legg is Professor of Law at the University of New South Wales, Australia.