Public and Private Enforcement of Securities Laws

The Regulator and the Class Action in Australia's Continuous Disclosure Regime
Erscheinungsjahr 2022
ISBN: 978-1-5099-4151-3
Verlag: Bloomsbury Publishing PLC

Buch, Englisch, 312 Seiten, Hardback, Format (B × H): 251 mm x 176 mm, Gewicht: 710 g

Reihe: 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.

Autoren/Hrsg.

Legg, Michael

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)

Inhaltsverzeichnis

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

Über Autor(innen)

Legg, Michael
Michael Legg is a Professor at University of New South Wales (UNSW) Law, Sydney, Australia. He is also the Director of the Law Society of New South Wales Future of Law and Innovation in the Profession (FLIP) research stream at UNSW. Michael's research interests are in civil litigation (including class actions), regulation and enforcement, alternative dispute resolution and the legal profession. Michael is a member of the Law Society of New South Wales' Future Committee and the Law Council of Australia's Class Actions Committee. In 2017 he was awarded Academic of the Year at the Lawyers Weekly Australian Law Awards. Michael is admitted to practice in the Supreme Court of NSW, Federal Court of Australia, High Court of Australia and in the State and Federal courts of New York. He holds law degrees from UNSW (LLB), the University of California, Berkeley (LLM) and the University of Melbourne (PhD).

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