I wrote a paper on the reception of a causation presumption employed in American securities class actions, the fraud on the market doctrine. Since no shareholder class action has gone to judgment in Australia, how the difficult issues associated with causation in these kinds of cases will be treated remains to be worked out. In contrast to the dearth of authority, there is a surfeit of academic speculation. There are a number of useful resources which are either recent or may not be well known in Australia:
- A collection of conference papers published as K E Lindgren (ed) Investor Class Actions (2009) see this page;
- (2009) 32(3) University of New South Wales Law Journal which contains 12 articles on class actions, including several entirely or partly devoted to causation questions;
- Nera Economic Consulting’s website, with numerous reports on the state of securities class actions in America.
- Stanford Securities Class Action Clearing House, which aggregates writing on the subject.
- Professor Morabito’s first two reports on Australian class actions: one, two.
- The D&O Diary blog.
- And The 10b-5 Daily blog.
The full bibliography for my paper is reproduced below.
ABC Radio National, ‘The Flash Crash’, Background Briefing , 29 August 2010 http://bit.ly/bvHDH0.
Australian Securities Exchange, 2008 Australian Share Ownership Study http://bit.ly/bAEfcB.
Beck, Jim, ‘No State Law Market for Fraud on the Market’, Drug and Device Law http://bit.ly/cDUKoo.
Betts, Jason ‘The Rise of Shareholder Class Actions in Australia’, Findlaw http://bit.ly/9oYL02.
Boros, Elizabeth and John Duns, Corporate Law, (Oxford, 2nd ed, 2010).
Buckberg, Elaine, Todd Foster, Ronald Miller, Stephanie Plancich, ‘Recent Trends in Shareholder Class Action Litigation: Bear Market Cases Bring Big Settlements’, (Report, Nera Economic Consulting, February 2005) http://bit.ly/9Ln9ST.
Clark, S Stuart and Christina Harris, ‘The Past, Present and Future of Product Liability and Other Mass Tort Class Actions in Australia’ (2009) 15 University of New South Wales Law Journal 1022.
Coffee, John C Jr, ‘Rescuing the Private Attorney General: Why the Mode of the Lawyer as Bounty Hunter is Not Working’  42 Maryland Law Review 215.
Cox, James D., ‘Making Securities Fraud Class Actions Virtuous’ (1997) 39 Arizona Law Review 497.
Dobbie, Mark, ‘D&O Liability Issues for the Board’, speech delivered to the Australian Institute of Company Directors, 22 June 2010.
Duffy, Michael, ‘Fraud on the Market: Judicial Approaches to Causation and Loss from Securities Nondisclosure in the United States, Canada and Australia’ 29 Melbourne University Law Review 621 http://bit.ly/diSyqs.
Erenburg, Grigori, Janet Smith Kiholm and Richard L Smith, ‘The Paradox of “Fraud-on-the-Market Theory”: Who Relies on the Efficiency of Market Prices?’ (April 9, 2009). Robert Day School of Economics and Finance Research Paper No. 2008-2 http://bit.ly/90Ntid.
Ferrillo, Paul, Frederick Dunbar and David Tabak, ‘The “Less Than” Efficient Capital Markets Hypothesis: Requiring More Proof from Plaintiffs in Fraud-On-The-Market Cases’, 78 St. John’s Law Review 81 http://bit.ly/9mREGG.
Grave, Damien, Leah Watterson and Helen Mould, ‘Causation, Loss and Damage: Challenges for the New Shareholder Class Action’ (2009) 27 Companies and Securities Law Journal 483.
Hamer, David ‘Mind the “Evidential Gap” Causation and Proof in Amaca Pty Ltd v Ellis’, (2009) 31 Sydney Law Review 465 http://bit.ly/9e7YXf.
Hays, Kristen , ‘Enron Settlement: $7.2 billion to shareholders, $688 million to lawyers’, Houston Chronicle (online), 9 September 2008 http://bit.ly/99Xc9a.
Houston, Greg, Svetlana Starykh, Astrid Dahl and Shane Anderson, ‘Trends in Australian Securities Class Actions: 1 January 1993 – 31 December 2009’ (Report, NERA Economic Consulting, May 2010) http://bit.ly/9wvNfF.
Kelly, Liam, ‘Causation and s. 82 of the Trade Practices Act’, (Paper presented at Bar Association of Queensland Current Legal Issues seminar, Brisbane, 10 June 2010) http://bit.ly/axtTS0.
Kitney, Damon, Wary Directors Flee Boards as Liability Fears Take Their Toll’, The Australian (online), 1 November 2010 http://bit.ly/bFlPuL.
K E Lindgren, Investor Class Actions (Ross Parsons Centre of Commercial, Corporate and Taxation Law; 2009) see http://bit.ly/a241Pt.
Lockhart, Colin, The Law of Misleading or Deceptive Conduct (LexisNexis, 2003).
Klausner, Michael and Jason Hegland, ‘How Protective is D&O Insurance in Securities Class Actions’ (2010) 23 Professional Liability Underwriting Society Journal 23 http://bit.ly/cDE0WU.
LaCroix, Kevin M, The D&O Diary www.dandodiary.com.
Legg, Michael J, ‘Shareholder Class Actions in Australia – The Perfect Storm?’ (2008) 31(3) University of New South Wales Law Journal 669 http://bit.ly/aDLgtc.
Lipp, Barry ‘Mass Tort Class Actions Under the Federal Court of Australia Act: Justice for All or Justice Denied?’ 28 Monash University Law Review 361 http://bit.ly/dy5LXX.
Lockhart, Colin The Law of Misleading or Deceptive Conduct (LexisNexis, 2003).
Mason, Keith, ‘Fault, Causation and Responsibility: Is Tort Law Just an Instrument of Corrective Justice?’ (2000) 19 Australian Bar Review 201.
Milev, Jordan , Robert Patton, Stephanie Plancich and Svetlana Starykh, ‘Trends 2010 Mid-Year Study’ (Report, Nera Economic Consulting, 27 July 2010) http://bit.ly/9WESrM.
Morabito, Vince, ‘An Empirical Study of Australia’s Class Action Regimes: First Report; Class Action Facts and Figures’ (Report, Monash University, Department of Business Law and Taxation, December 2009) http://bit.ly/9nfc0D.
Morabito, Vince, ‘An Empirical Study of Australia’s Class Action Regimes: Second Report; Litigation Funders, Competing Class Actions, Opt Out Rates, Victorian Class Actions and Class Representatives’ (Report, Monash University, Department of Business Law and Taxation, September 2010) http://bit.ly/d6eMsj.
Richards, Lesa ‘Where to from Ingot Capital Investments v Macquarie Equity Capital Markets?’ (2010) 84 Australian Law Journal 645.
Roberts, Lyle The 10b-5 Daily http://www.the10b-5daily.com.html.
Sheller, Mark, Sarah Wheeler and Nicholas Wendon, ‘The Production of Insurance Policies: Where Are We Now?’ Tress Cox Lawyers http://bit.ly/aaYpQv.
Silvester, John, ‘Mass Class Action on Bushfires’, The Age (online) 19 June 2010, http://bit.ly/9QYEuy.
Staffs of the CFTC and SEC to the Joint Advisory Committee on Emerging Regulatory Issues, ‘Findings Regarding the Market Events of May 6, 2010’ http://bit.ly/b1EtVO.
Stapleton, Jane, ‘Factual Causation’, (2010) 38 Federal Law Review 467.
Vout, Paul, Unconscionable Conduct (Lawbook Co, 2010).
Walker, John, Susanna Khouri and Wayne Attrill, ‘Funding Criteria for Class Actions’, (2009) 15 University of New South Wales Law Journal 1036.
Walker, John ‘Causation Without Reliance in Aristocrat’, IMF (Australia) Ltd http://bit.ly/9dDrK8.
Watson, Andrew and Jacob Varghese, ‘The Case for Market-Based Causation’ (2009) 32 University of New South Wales Law Journal 948.
Wright, David Remedies Under the Trade Practices Act (Oxford University Press, 2006).