The class action has been filed on an 'open class' basis. This means that all persons who acquired AMP shares during the relevant period are group members in the class action, irrespective of whether or not they have signed a Funding Agreement. However, for the reasons set out below, you are invited to sign a Funding Agreement.
First, the initial trial in a class action will usually only determine the Representative's claim and the common issues. Issues specific to your individual claims, such as whether you suffered loss and the value of the loss, will not be determined in the initial trial. It may be that further steps will then need to be taken in order to pursue your individual damages. This could include a court hearing at which your individual damages are determined. By signing a Funding Agreement, you will secure IMF's funding at the agreed commission rates that cover not only the initial trial in the class action, but also any additional steps that may be needed to advance your individual claims. You will also be protected from any adverse costs orders that may be made against you in taking these additional steps.
Second, by signing a Funding Agreement and retaining Phi Finney McDonald as you lawyers you will be kept apprised of developments in the class action, be able to ask questions of IMF and the Lawyers as a client.
Third, as the claim has been filed on an 'open' basis the Representative may ask the Court for a 'common fund' order. A common fund order is an order made by the Court requiring all group members to contribute to the costs of funding the proceeding on a fair basis, including those who have not signed a Funding Agreement. If the Court is minded to make a common fund order in this case, IMF intends to submit that the funding rate that the Court should apply to the unfunded group members be the same as the rate in the Funding Agreement. The Court will set a rate (which may be different to the rate in the Funding Agreement) that will apply consistently to all group members. Under the Funding Agreement, where the Court makes a common fund order and sets a rate which is different to the rate in the Funding Agreement, the lower of the rate provided in the Funding Agreement and the rate set by the Court will apply to members of the group who have signed a Funding Agreement. In these circumstances, you will not be financially worse off for having signed a Funding Agreement with IMF.
Fourth, if the Court is not minded to make a common fund order, then IMF's continued funding of the claim will be conditional upon a sufficient number of group members signing a Funding Agreement. The more group members who sign the Funding Agreement now, the higher the degree of certainty IMF will have as to whether there will a sufficient number to make the class action viable should a common fund order not be made.
In addition, if the Court is not minded to make a common fund order, the Court may make a "funding equalisation order" in relation to the distribution of any settlement sum. The effect of a funding equalisation order is to equalise the recovery that funded and unfunded group members receive in the hand, taking into account the fact that funded group members will be required to pay a commission to IMF. As far as we are aware, a funding equalisation order has been made upon request in all previous 'open' class actions that have included a combination of funded and unfunded group members, including several cases that were funded by IMF. A funding equalisation order would mean that unfunded group members are left in essentially the same position as if they had signed a Funding Agreement.
Finally, by signing a Funding Agreement with IMF you are also demonstrating support for the IMF-funded proceedings over any other competing proceedings. We believe that our proven track record in funding matters of this type, our demonstrable financial strength (given we are an ASX-listed public company and audited by a "Big 4" accounting firm), and the experience of Phi Finney McDonald means that this class action, if it proceeds, will be an effective vehicle for AMP shareholders to pursue their claims. Competing proceedings may mean legal and other costs to shareholders are higher than they need to be and may complicate any settlement discussions.