Class action trends, developments, and Shine Lawyers' next steps

This is a Momentum Media Production. Welcome to the Lawyers Weekly Show. For an in-depth look at the issues facing the legal profession. Hello everyone and welcome to a special episode of the Lawyers Weekly Show, produced in partnership with our friends at Shine Lawyers. My name is Jerome Dorosami. I'm coming to you today from Cameray Gulland in Sydney. And I'm very pleased to be joined in the studio by Craig Olsop, who is the Head of Class Actions at Shine Lawyers. Craig, welcome to the show. Thank you Jerome. And thank you to Shine for its support of Lawyers Weekly. Now we're going to be covering a few different things today. We're talking about emerging trends in class actions and what's the state of affairs on the ground for lawyers in this space that will also touch on where Shine Lawyers is at, see it in the market, what's been happening for it in the past year and where it is headed moving forward. But Craig, as a starting point, let's learn a little bit about yourself. Can you tell us a bit about your legal career and how and why you ended up in class actions? Yes, certainly. So I always wanted to practice on the plaintiff side of things actually started off with about five years at ASIC working in their enforcement. Department, including through the global financial crisis, which was definitely an interesting time to be at a regulator. And then through there, I've moved through a couple of different firms and I was working at a legal consultancy business when we saw this opportunity for more competition in the class action space at the time it was really just two players. So we started up that firm in 2018, Shine purchased my firm and I came over and joined the Shine Class Actions team and then became joint Head of Class Actions in 2022. And then now this year, I've become the sole Head of Class Actions at Shine and still loving the plaintiff work. Yeah, so what is it about plaintiff work that is so motivating for you? It sounds as though this is what you've wanted to do your entire legal career and you haven't strayed from that path. Yeah, what is it about this kind of work that gets you out of bed in the morning? I think just not only the ability to help people, but also to lead to change and reform, which ASIC does a great job trying to do it, but it's got limited resources. It's got a very wide remit and I think most plaintiff lawyers that practice in the space for a while realize the only real way to get reform out of corporate and government is to hit them in the hip pocket. And I think I was always on the plaintiff side just partly because of my background and upbringing grew up in the Sullenshire first person in my whole extended family to go to university and then you started off in ASIC and kind of formative years as a lawyer seeing a good that could be done there. Yeah, absolutely. You are a finalist for our upcoming partner of your awards in the class action partner of the year category. So first of all congratulations for that. And secondly, how you feeling about your position as a finalist and about the awards in general? I'm really excited and honoured, but I have to emphasise as I know all the finalists do how much of a team if it is. I'm the head of a very dedicated passionate team, but I do think achieving a finalist position this year is a reflection of kind of the transformative and massive year that China's had in class actions. And it's an honour because the Lawyers Weekly partner of the year awards are a highlight every year. Everybody reads the finalists and the nominations. I've been to the ceremony as a guest several times. So very, very excited to be there as a finalist this year. Well, I appreciate your kind words. There are a band's team. Definitely does a fantastic job. Now you mentioned the transformative year that shine lawyers has had and I do want to get into all of that. But perhaps it might be better for us to start by talking about what's happening on the ground in class actions. That will help us paint a picture for how and why shine has moved in the directions that it has. So, Kary, you guys are starting point here. Can you give us your headline reflections and takeaways on the past year in the class action space and why some of those reflections and takeaways are of such significance? Yes. So I think on the practical side of things, Vince Morabito's report earlier this year showing that the GCO's group cost orders are bringing down the cost of running class actions and resulting in more money and people's pockets is a significant outcome. And I think it's a mandate for GCO. So we'll continue to see a lot of action in that space. And then in terms of the nature of class actions, we know there was a lot around privacy in the last couple of years. We've now had a tranche, one of privacy reform come through. There'll be further reform. So that's going to continue to be a growth area. And we're seeing competition claims like the ad tech claim in Australia. And we're seeing consumer claims like the recent judgment against meta for social media in the US. I do think there's a lot of stuff we're looking at, not quite ready to air it to the world yet. Of course. Just I think you've got a combination of monopolies or oligopolis, extremely powerful corporations, a poorly regulated environment, which is changing. And a lot of very poor behavior in relation to people's intellectual property into trying to influence people's behaviors, taking advantage of people's personal information. It's just the whole gamut of misconduct there. So I think we'll see more and more. Yeah. And I would imagine that's probably going to be the case until such time as there is new legislation in this space that can catch up to the development of such technological platforms and perhaps also corresponding regulatory scrutiny as well. Yeah. And we're seeing the first steps so Australia is putting the social media ban. I know people say, you know, how can Australia influence these global companies? But it has to start somewhere. Alphabet, Google's parent companies under scrutiny again in the US about whether it should be allowed to continue as the conglomerate, a bunch of services and software and hardware that it is or if it should be split up. I've always found the EU to be, you know, a bit of a leader in this space. It's forced Apple to change its conduct from time to time. So it's just technology moves so quickly. But I do think we're kind of at a shift point where we're now, you know, going from a lack of understanding about what can happen to seeking accountability and redress for the misconduct that's happened. Yeah. Is that something that is a pretty common mindset for plenty of lawyers across the board? Or is it something that you're seeing more so within the offices of shine? I think it's across the board. One of the things I love about working at Chinese, we will take on any type of class action. We've got the breadth of experience. And as I said, we're looking at big tech as well as a bunch of other things. But I think it's a realization, not just by law firms, but by consumers by the small businesses, everybody that's been exploited by big tech. Yeah. What are some of the other areas across culture, across society, where we might start to see more claims being filed? You know, by 2030, let's say, are there other areas across the community across society that you think could well be hotspots for lack of a better term for such proceedings? Yeah. I mean, it's nothing new, but climate change and greenwashing always come up. As it took a couple of enforcement actions in relation to misrepresentations about greenwashing. And I think if you're looking at a time frame to 2030, we will see more of that. And again, science, developing and understanding the impact certain behaviors have had. And then most importantly, looking to stop it, but also redress, where it has caused environmental damage, which impacts people's lives. And going back to one of the earlier points you made, you were talking about bringing down the costs to run proceedings. What's the flow on effect there? I'm not just for plaintiff firms like yours, but then also for the individual claimants on the ground. Yeah. So the class actions are really expensive to run. We've got an adverse cost regime in Australia. So if you bring something as a plaintiff and lose, you potentially have to pay the defendant's costs. So anything we can do to bring down the cost effectively means we can bring more class actions. So most class actions run in Australia are funded by litigation funders because you're looking at millions or tens of millions to run a class action. So I think the group cost orders in Victoria, very simple, clear, transparent funding structure for group members. It's a percentage, you know, 25 percent. Everybody can understand that. And the other thing I'm really looking at and shine as a firm is looking at is AI to bring down costs for the processes like discovery in particular where there's already established AI tools that we can take advantage of. That's a really interesting point actually. Is that something that has been driven by firms like shine? You're looking to create efficiencies, obviously looking to reduce the cost burden. But is that something else that may also be driven by the claimants themselves? Are they expecting that firms like shine will explore these new technologies in order to expedite processes? I think it's still at a fairly early stage in terms of dealing with clients. Certainly the litigation funders who are the ones that are paying the costs for the litigation are asking about where AI can be used to provide savings. But for shine at least it's largely driven internally. We can see it's there. We can see the value. And it's a matter of when or if so we have been very consciously looking at responsibly using AI where it can be in litigation. We have to be mindful every court has its own practice note. And you know the dreaded hallucination, the incorrect citation. So it's it's we I think all law firms are going to be looking at. going to have to use it, but we all have to find a way to use it responsibly. Certainly. So Craig, reflecting on some of those headline takeaways from the past year, and also what's coming forward regarding costs, AI, the potential for claims and proceedings in climate change, in big tech, what's your take on how difficult it might be to be in the class action space right now? Is this one of the more challenging times to be a class action lawyer, or is it perhaps one of the more exciting or somewhere in the middle? I would definitely describe it as exciting, but the thing that I learned early on in class actions is there's things like the regulatory environment and, you know, availability of capital through litigation funders. All of that is pretty good at the moment, but these are large commercial claims and they're hard to run and they're challenging and they're fought by the best defense lawyers. So it's never ever easy, but definitely exciting and challenging and with, I think, an increasing awareness and recognition about what class actions can do and their benefits, I think they're definitely not going away any time soon. Yeah. So with that in mind, then, I mean, do you have a firm view on what's going to constitute best practice for class action lawyers and teams like yours moving forward? I think the courts are increasingly looking to case manage and move things along quickly. The killer for us is delay and part of it being a transformative year for shine is a number of claims that we commenced pre-COVID and during COVID got to the point where they resolved. So we resolved eight class actions in around the last 12 months. And then all of that learning goes into the next round of class actions trying to run the more efficiently save costs. The courts are definitely right onto it. They'll try to limit discovery depending on the judge. They'll set trial dates early. So I think it's all moving in the right direction and the cost pressures are coming from increasing discovery, increasing complexity of claims, but offset by simpler funding models and AI. Okay. Speaking of funding, one thing I wanted to ask you about was new sources of funding for Australian class actions. Is this something that shine is looking to look at looking to leverage and take advantage of? Yes, definitely. It's part of our wider international mass torts strategy, which is one of the more interesting things and one of the things I love about working at shine. So some listeners might be familiar with the round up and issue, class action losses in the last couple of years. And so generally, I think the industry would think mass torts are too challenging too hard to take on. Whereas we've gone the other way and and really focusing on it. So we've announced four investigations in the last little while. The largest one, Johnson and Johnson's Health, causing a their end cancer. And then we've got depot-provera, a female contraceptive that causes brain cancer. We've got proton pump inhibitors for indigestion and heartburn, which cause kidney damage and earplugs for our military servicemen and women that are supposed to protect their hearing that don't. I think the common theme is it's all really reprehensible kind of conduct. You wonder how these things were sold, how the corporations could continue to let the alleged misconduct that we say, you know, happen. Yeah, and it certainly sounds like really important work. And how is shine looking to lean into the international mass torts space? Are you guys broadening the team out, potentially internationally? Yes, certainly. So our executive director is in the US as we speak. We've got a fledgling US team that's in the US where most of these claims start. It's where US plaintiff lawyers and multi-district litigation is commenced access to experts and importantly access to the respondents or defendants, you know, in their native jurisdiction so that we can talk directly. And then the aim is to instead of, you know, these defendants kind of dealing with countries one by one is to bring a more global coordinated effort to redress alleged misconduct. So we've also got a team in New Zealand which we're growing and we've recently started up a team in Thailand as well. So genuinely international, which is very exciting. Yeah, no, that's fantastic. I didn't realize the firm had outposts in so many different nations across the globe. Is this something that you would envision continuing? Would you want to get into other hubs in APAC for example or in Europe? Yeah, it's definitely something we're considering. One of the good things about shine is it's very entrepreneurial and that also manages risks. So we're not going to run out and, you know, do the classic, oh, now we have offices in 15 different countries and then have to shuttle live and down within 12 months. So it's a considered approach. New Zealand, you know, we've had a presence there for many years. The US is a no-brainer because it's still the global center of class actions. But certainly, yeah, other APAC, Europe, North America, anything's on the cards. So just to dive into that a little bit more and of course without asking you to, you know, reveal the firms, you know, in a workings and strategies. But how do you look to identify the right kinds of opportunities for such expansion? You just said that you're not going to grow for growth sake, of course. Do you consider certain types of claims that could be lodged or is it a matter of identifying the right market and its idiosyncrasies? Is it both? Yeah, it's all of the above. So we look at the regime, see if it's class actions friendly, see if it has a class actions regime and then, you know, more less quantitative type characteristics of jurisdictions. So whether we think we can get fair access to justice in the jurisdiction and then there's also a lot of thought about the claims. As I said, you know, there's a conscious strategy around international mass torts, but there's also other claims, you know, really, it's really where you have defendants and corporates operating at a global level, trying to go toe to toe with them at the global level. Yeah, absolutely. And is there much expansion happening for the firms Australian officers as well? Yes. So that there's the four international mass torts investigations we've announced. There's also there's been four domestically originated for one of a better term claims that we filed as well. And then the biggest achievement we've made over the last, it's still only two and a half years, is going from having no presence in Melbourne to a team of 20 under lawn francs down there. So he's running a lot of our international mass torts. He's an amazing leader doing an amazing job. So to go from zero to 20 in such a short time frame is a phenomenal achievement. And then it obviously lines up very well with the group cost order regime in Victoria. And now that being, you know, as popular as the federal court as a jurisdiction to file. Absolutely. So sounds like quite a lot of strategic growth both domestically and abroad. Does the firm have a view on how it wants to be positioned, you know, by this time next year given how it's looking to grow and where it's looking to, you know, be filing its claims? Yeah. So it's going to be a year of large growth. So in our half-year results, we announced we obtained a $40 million funding facility to fund one mass tort class action, which I think is probably unprecedented in Australia to have that size funding facility. So there's lots of growth to run that claim, to run the other international mass tort claims. So we are looking to greatly increase the size of the team all up and down the East Coast. So we're currently looking for lawyers at all levels, including associate and senior associate to come in and join us be part of this amazing team and be part of the growth story. Yeah, certainly. And tell me a little bit more about some of the firm's class action results from this past year as we as we head towards the end of the financial year. Yeah. So last calendar year, I actually went to 10 class action mediations, which is probably not far off the number I'd been to before last year. It was just a crazy year. And yeah, we managed to settle eight claims at a variety of stages. Most of them quite close to trial. Colonial first state was the biggest at 140 million. That was a financial services class action. That was a second largest settlement last year. We also settled Q-Super AMP and Commonwealth Bank, all financial services class actions coming out of ultimately the Royal Commission back in 2018. We also settled out first two group costs order claims in the Supreme Court of Victoria, A2Milk and EML. And we settled out first New Zealand claim, which was exciting. A Hino card defects claim over in New Zealand. It was it was really great to see how things are so much the same but so much different in their jurisdiction. And then yeah, we kept it off with Q-Super being approved just last week. Fantastic. And note in, of course, that those are all unique proceedings with their own with their own challenges and their own outcomes. Are there any sort of common themes or lessons coming out of the year that Shine has had that you as the head of the class actions team will look to impart upon those coming through the ranks about what it means to be a good class actions lawyer in FY27 and beyond. Yeah, I think the challenging thing for class actions because they're multi year massive projects is always to focus on the outcome. And there's so much cut and thrust and correspondence and interlocatory applications, fights over discovery, expert evidence. But if you are always looking at the end result and and how to get there and informing your strategy and approach by that, I think you can't really go too wrong. And, you know, generally we on the plaintiff side, we're pressing to move things ahead. And I wouldn't and go so far as to say the defendants pressing to delay, but it is generally on the plaintiff lawyer to work out a strategy to bring this thing to a head to be able to resolve it and put money in group members pockets. Yeah, and as a follow-up to that, of course, there's a lot of challenges in class action space as there are in all legal practice areas, but also sounds as though there's some really good opportunities. And certainly a lot of workplace and market shifts, the class action lawyers are having to grapple with or can take advantage of looking ahead, what are you most excited about when it comes to the day-to-day experience of class action lawyers at Shine? I think the international mass talks claims will be exciting and will be leaders in the market there, but it's also important to remember the social justice claims that we're bringing in Australia as well. So we've got claims in Western Australia and New South Wales alleging discriminatory removal of First Nations children. We've got some great results in historic discrimination, stolen wages, stolen generations. This is more important to me in a way because it's about changing current behaviour and getting redress for people that it's very fresh. It may still be happening to them. And for those listening, if they're interested in working at Shine or if they want to learn more about Shine, how can they do so? How can they get in touch? Yeah, we are recruiting at the moment. So there's ads out in the market and people can go to our website, we're recruiting at all levels for class actions to support the growth in the teams. And we've also had some great people come over recently. Lisa Galate is just joined us as a practice leader in Sydney coming over from Banton Group. But we've also seen a lot more defendant lawyers interested in coming over. We've had some special counsel come over in the last 12 to 18 months from the defendant lawyers. So we, the important thing is to have the litigation skills. You don't necessarily need to be a class actions expert. It's a young area. It's only been around for 30 something years. We're after experience commercial litigators. And Craig, just before I let you go, is there anything else you wanted to touch on regarding the state of the market in class actions in Australia and beyond and also where Shine is at in the market? I think the market has reached a level of maturity. It's good. There's competition on the plaintiff firm side. There's competition on the fund aside, but we're all aware that we're in it together. And it's become much more collaborative. And as I already said, I think the Supreme Court of Victoria is going to continue to be the place to file. And it's going to be interesting to see if there's any reform in other jurisdictions that with similar changes to make justice more accessible. Yeah. We'll certainly be on the lookout for such reform. Craig, all stop. Thank you so much for coming in. Thank you, Jerome. Thank you. And thank you to Shine lawyers for its support of lawyers weekly. Thank you to the listener for tuning in. We hope you enjoyed this episode. See you again next time. This podcast is produced for educational purposes to give you general information and a general understanding of the law and should not be considered legal advice. Any advice is general in nature and does not take into account your objectives, situation, or needs. Because of that, you should seek professional legal advice before acting on any of the content. [BLANK_AUDIO]