Enforcement, Investigations & Disputes

There has been a substantial increase in the number of major investigations and enforcement actions commenced by Australian regulators - particularly following the Financial Services Royal Commission. With any regulatory investigation or enforcement action the financial and reputational implications can be significant.

Overview

We are recognised for our regulatory engagement and response. We listen to our clients to understand their business and provide strategic advice aligned to those needs.

We have assisted our clients to respond, resolve and defend the most complex and significant regulatory investigations and enforcement actions in recent times. In addition, we have also assisted our clients to implement and improve governance and risk management frameworks to mitigate both further regulatory investigation and potential litigation exposure - including through large scale remediation programs.

"A highly regarded contentious practice, with experience assisting with regulatory investigations, litigation and the enforcement of licence conditions."

– Chambers Asia Pacific

Experience

Resolution of enforcement litigation

Acting in a number of significant ASIC investigations and enforcement proceedings and reaching agreed resolutions through efficient and cooperative regulator engagement. Recent cases include:

Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790
Australian Securities and Investments Commission v Commonwealth Bank of Australia (No 2) [2021] FCA 966
Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 1543

CBA – monthly account fees: ASIC enforcement proceedings

Acting in defence of enforcement proceedings commenced by ASIC in relation to the charging of monthly account fees on savings and transactions accounts.

AMP Financial Planning

The first case that properly considered from a civil penalty perspective the interaction of best interest provisions of the Corporations Act with a licensee's duties to ensure compliance with those duties. We acted for AMPFP in enforcement proceedings brought by ASIC arising from insurance re-writing by some its advisers, including the court ordered remediation schemes to compensate affected clients.

CCI – criminal prosecution

Acting for CBA in defence of criminal proceedings commenced by ASIC, which is the first sentencing proceedings under s12DB of the ASIC Act (misleading or deceptive conduct).

We are also acting for CBA and CMLA in the related class action.

ANZ (BBSW)

Defended the high-profile civil penalty proceedings commenced by ASIC in the Federal Court of Australia alleging that the bank manipulated the bank bill swap rate (BBSW).

C-Suite Individual representation: s19 examinations

Regularly act in ASIC investigations, including representing C-suite individuals (including Directors and Executives) and assisting them to prepare for regulatory examination.

Essential Super ASIC proceedings

Acting for CBA in civil penalty proceedings in the Federal Court of Australia concerning alleged conflicted remuneration in respect of the sale and distribution of Essential Super.

FX markets

Advising in a £1 billion+ class action in the Federal Court including allegations that defendants rigged the global foreign exchange market.

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