FEDERAL COURT OF AUSTRALIA

Mitsub Pty Limited v McGraw-Hill Financial Inc (No 2) [2016] FCA 1285

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act) and subject to any further order of the Court, any Group Member who by 11 November 2016 does not register with the applicant’s solicitors (Non-Registered Group Member) or opt out of the proceeding by filing an Opt Out Notice in the form of Annexure “A” with the Court will remain a Group Member for all purposes of this proceeding but shall not without leave of the Court be permitted to seek any benefit pursuant to any in-principle settlement of this proceeding which settlement will be subject to the approval of the Court) reached at the mediation scheduled to commence on 6 December 2016, or within 28 days after that mediation is terminated by the mediator.

2.    Nothing in Order 1 precludes any Non-Registered Group Member from having their claims considered at any mediation that takes place at some future time if the mediation referred to in Order 1 is unsuccessful.

Notice to Group Members

3.    Pursuant to ss 33X(1)(a) and 33X(5) of the Act, notice be given to Group Members in the form of Annexure “B” (Notice to Group Members), which notice includes a registration form (Group Member Registration Form) and Opt Out Notice.

4.    Pursuant to s 33Y(2) of the Act, the form and content of each of the Opt Out Notice, Notice to Group Members and Group Member Registration Forms are approved.

5.    By 4.00pm on 12 October 2016:

(a)    the applicant’s solicitors, Squire Patton Boggs (SPB), who are also the applicant’s solicitors in proceedings NSD 414 of 2016 (the MDA Class Action) provide Carolyn Mitchell of Cowell Clark, Level 5, 63 Pirie St, Adelaide, South Australia, 5000 with a list of all Group Members in this proceeding and the MDA Proceeding known to SPB together with the last known postal or email address of those persons; and

(b)    the solicitors for the applicants in proceedings NSD 417 of 2016 (Lifeplan Class Action) Johnson Winter & Slattery (JWS), provide Carolyn Mitchell with a list of all Group Members in the Lifeplan Class Action known to JWS together with the last known postal and or email address of those persons,

(collectively referred to as the “Known Group Members”).

6.    Pursuant to s 33Y(3) of the Act, the Notice to Group Members be given by 14 October 2016 by Carolyn Mitchell sending the notice by registered post, and where available by email, to each of the Known Group Members, at the last known address of those persons.

7.    Pursuant to ss 33X(1)(a), 33X(5), 33Y(3) and 33ZF of the Act, within 2 business days of this Order, JWS must cause the notice set out in Annexure “C” to these Orders (Public Notice to Group Members) in a size not less than 70 millimetres by 120 millimetres, to be published in The Australian and the Australian Financial Review newspapers.

8.    Pursuant to s 33Y(2) of the Act, the form and content of the Public Notice to Group Members is approved.

9.    Any Group Member Registration Form completed by a Group Member must be delivered to JWS and or SPB at the address stated on that Form by 4:00pm on 11 November 2016.

10.    Any Opt Out Notice completed by a Group Member must be returned to the Registrar or filed in the Court, or if delivered to JWS or SPB, filed by them, by 4:00pm on 11 November 2016.

11.    JWS and SPB must, by 15 November 2016:

(a)    notify the solicitors for the Respondents of any Group Members who deliver a Group Member Registration Form to them in accordance with Order 9 and have not returned an Opt Out Notice as contemplated by Order 10; and

(b)    provide copies of any Opt Out Notice received by them pursuant to Order 10.

12.    An Overlapping Group Member (as that term is defined in the Notice to Group Members) who registers for one of the Related Class Actions (as that term is defined in the Notice to Group Members) will, for the purposes of the Mediation and any in-principle settlement reached at the Mediation (or within 28 days after that Mediation is terminated by the mediator), be deemed to have opted out of the other Related Class Actions for which they do not register insofar as their claims in relation to the Overlapping SCDOs (as that term is defined in the Notice to Group Members) are concerned.

13.    The solicitors for the parties, and JWS, have leave to inspect the Court file and copy any Opt Out Notices received by the Court in this proceeding and in the MDA Class Action and the Lifeplan Class Action.

14.    Carolyn Mitchell is to file and serve an affidavit on the solicitors for the parties and JWS deposing to the notification given to Known Group Members in accordance with orders 5 and 6 above identifying the number of Known Group Members notified but without disclosing the identity or addresses of those persons. Carolyn Mitchell is to keep the identity and addresses of the Known Group Members confidential and shall not disclose this information to any of the parties, JWS or any other person without further order.

15.    In so far as any Group Member who registers with the applicant’s solicitors agrees to information about their claims against the respondents being provided to Litigation Capital Partners LLP Pte Ltd (LCP), the undertakings provided to the Court dated 5 August 2016 and 23 August 2016 do not prevent that information being supplied to LCP.

16.    The costs of and incidental to orders 5, 6, 7 and 14 shall in the first instance be borne equally between the Applicant in this proceeding and the applicants in the Lifeplan Class Action and the MDA Class Action but are otherwise costs in the proceedings.

17.    Costs reserved.

18.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act) and subject to any further order of the Court, any Group Member who by 11 November 2016 does not register with the applicant’s solicitors (Non-Registered Group Member) or opt out of the proceeding by filing an Opt Out Notice in the form of Annexure “A” with the Court will remain a Group Member for all purposes of this proceeding but shall not without leave of the Court be permitted to seek any benefit pursuant to any in-principle settlement of this proceeding which settlement will be subject to the approval of the Court) reached at the mediation scheduled to commence on 6 December 2016, or within 28 days after that mediation is terminated by the mediator.

2.    Nothing in Order 1 precludes any Non-Registered Group Member from having their claims considered at any mediation that takes place at some future time if the mediation referred to in Order 1 is unsuccessful.

Notice to Group Members

3.    Pursuant to ss 33X(1)(a) and 33X(5) of the Act, notice be given to Group Members in the form of Annexure “B” (Notice to Group Members), which notice includes a registration form (Group Member Registration Form) and Opt Out Notice.

4.    Pursuant to s 33Y(2) of the Act, the form and content of each of the Opt Out Notice, Notice to Group Members and Group Member Registration Forms are approved.

5.    By 4.00pm on 12 October 2016:

(a)    the applicant’s solicitors, Squire Patton Boggs (SPB), who are also the applicant’s solicitors in proceedings NSD 1344 of 2015 (the Mitsub Class Action) provide Carolyn Mitchell of Cowell Clark, Level 5, 63 Pirie St, Adelaide, South Australia, 5000 with a list of all Group Members in this proceeding and the Mitsub Proceeding known to SPB together with the last known postal or email address of those persons; and

(b)    the solicitors for the Applicants in proceedings NSD 417 of 2016 (Lifeplan Class Action) Johnson Winter & Slattery (JWS), provide Carolyn Mitchell with a list of all Group Members in the Lifeplan Class Action known to JWS together with the last known postal and or email address of those persons,

(collectively referred to as the “Known Group Members”).

6.    Pursuant to s 33Y(3) of the Act, the Notice to Group Members be given by 14 October 2016 by Carolyn Mitchell sending the notice by registered post, and where available by email, to each of the Known Group Members, at the last known address of those persons.

7.    Pursuant to ss 33X(1)(a), 33X(5), 33Y(3) and 33ZF of the Act, within 2 business days of this Order, JWS must cause the notice set out in Annexure “C” to these Orders (Public Notice to Group Members) in a size not less than 70 millimetres by 120 millimetres, to be published in The Australian and the Australian Financial Review newspapers.

8.    Pursuant to s 33Y(2) of the Act, the form and content of the Public Notice to Group Members is approved.

9.    Any Group Member Registration Form completed by a Group Member must be delivered to JWS and or SPB at the address stated on that Form by 4:00pm on 11 November 2016.

10.    Any Opt Out Notice completed by a Group Member must be returned to the Registrar or filed in the Court, or if delivered to JWS or SPB, filed by them, by 4:00pm on 11 November 2016.

11.    JWS and SPB must, by 15 November 2016:

(a)    notify the solicitors for the respondents of any Group Members who deliver a Group Member Registration Form to them in accordance with Order 9 and have not returned an Opt Out Notice as contemplated by Order 10; and

(b)    provide copies of any Opt Out Notice received by them pursuant to Order 10.

Other matters

12.    An Overlapping Group Member (as that term is defined in the Notice to Group Members) who registers for one of the Related Class Actions (as that term is defined in the Notice to Group Members) will, for the purposes of the Mediation and any in-principle settlement reached at the Mediation (or within 28 days after that Mediation is terminated by the mediator), be deemed to have opted out of the other Related Class Actions for which they do not register insofar as their claims in relation to the Overlapping SCDOs (as that term is defined in the Notice to Group Members) are concerned.

13.    The solicitors for the parties, and JWS, have leave to inspect the Court file and copy any Opt Out Notices received by the Court in this proceeding and in the Mitsub Class Action and the Lifeplan Class Action.

14.    Carolyn Mitchell is to file and serve an affidavit on the solicitors for the parties and JWS deposing to the notification given to Known Group Members in accordance with orders 5 and 6 above identifying the number of Known Group Members notified but without disclosing the identity or addresses of those persons. Carolyn Mitchell is to keep the identity and addresses of the Known Group Members confidential and shall not disclose this information to any of the parties, JWS or any other person without further order.

15.    In so far as any Group Member who registers with the Applicant’s solicitors agrees to information about their claims against the Respondents being provided to Litigation Capital Partners LLP Pte Ltd (LCP), the undertakings provided to the Court dated 5 August 2016 and 23 August 2016 do not prevent that information being supplied to LCP.

16.    The costs of an incidental to orders 5, 6, 7 and 14 shall in the first instance be borne equally between the Applicant in this proceeding and the applicants in the Lifeplan Class Action and the Mitsub Class Action but are otherwise costs in the proceedings.

17.    Costs reserved.

18.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act) and subject to any further order of the Court, any Group Member who by 11 November 2016 does not register with the applicants’ solicitors (Non-Registered Group Member) or opt out of the proceeding by filing with the Court an Opt Out Notice in the form of Annexure “A” will remain a Group Member for all purposes of this proceeding but shall not without leave of the Court be permitted to seek any benefit pursuant to any in-principle settlement of this proceeding (which settlement will be subject to the approval of the Court) reached at the mediation scheduled to commence on 6 December 2016, or within 28 days after that mediation is terminated by the mediator.

2.    Nothing in Order 1 precludes any Non-Registered Group Member from having their claims considered at any mediation that takes place at some future time if the mediation referred to in Order 1 is unsuccessful.

Notice to Group Members

3.    Pursuant to ss 33X(1)(a) and 33X(5) of the Act, notice be given to Group Members in the form of Annexure “B” (Notice to Group Members), which notice includes a registration form (Group Member Registration Form) and an Opt Out Notice.

4.    Pursuant to section 33Y(2) of the Act, the form and content of each of the Opt Out Notice, Notice to Group Members and Group Member Registration Forms are approved.

5.    By 4:00pm on 12 October 2016:

(a)    the applicants’ solicitors, Johnson Winter & Slattery (JWS) provide Carolyn Mitchell of Cowell Clarke, Level 5, 63 Pirie St, Adelaide, South Australia, 5000 with a list of all Group Members in this proceeding known to JWS together with the last known postal and or email address of those persons; and

(b)    the solicitors for the applicants in proceedings NSD 1344 of 2015 and NSD 414 of 2016 (Mitsub/MDA Class Actions), Squire Patton Boggs (SPB), provide Carolyn Mitchell with a list of all Group Members in this proceeding or in the Mitsub/MDA Class Actions known to SPB together with the last known postal and or email address of those persons,

(collectively referred to as the “Known Group Members”).

6.    Pursuant to s 33Y(3) of the Act, the Notice to Group Members be given by 14 October 2016 by Carolyn Mitchell, sending the notice by registered post, and where available by email, to each of the Known Group Members, at the last known address of those persons.

7.    Pursuant to ss 33X(1)(a), 33X(5), 33Y(3) and 33ZF of the Act, within 2 business days of this Order, JWS must cause the notice set out in Annexure “C” to these Orders (Public Notice to Group Members), in a size not less than 70 millimetres by 120 millimetres, to be published in The Australian and the Australian Financial Review newspapers.

8.    Pursuant to s 33Y(2) of the Act, the form and content of the Public Notice to Group Members is approved.

9.    Any Group Member Registration Form completed by a Group Member must be delivered to JWS and or SPB at the address stated on that Form by 4:00pm on 11 November 2016.

10.    Any Opt Out Notice completed by a Group Member must be returned to the Registrar or filed in the Court, or if delivered to JWS or SPB, filed by them, by 4:00pm on 11 November 2016.

11.    JWS and SPB must, by 15 November 2016:

(a)    notify the solicitors for the Respondents of any Group Members who deliver a Group Member Registration Form to them in accordance with Order 9 and have not returned an Opt Out Notice as contemplated by Order 10; and

(b)    provide copies of any Opt Out Notice received by them pursuant to Order 10.

Other matters

12.    An Overlapping Group Member (as that term is defined in the Notice to Group Members) who registers for one of the Related Class Actions (as that term is defined in the Notice to Group Members) will, for the purposes of the Mediation and any in-principle settlement reached at the Mediation (or within 28 days after that Mediation is terminated by the mediator), be deemed to have opted out of the other Related Class Actions for which they do not register insofar as their claims in relation to the Overlapping SCDOs (as that term is defined in the Notice to Group Members) are concerned.

13.    The solicitors for the parties, and SPB, have leave to inspect the Court file and copy any Opt Out Notices received by the Court in this proceeding and in the Mitsub/MDA Class Actions.

14.    Carolyn Mitchell is to file and serve an affidavit on the solicitors for the parties and SPB deposing to the notification given to Known Group Members in accordance with orders 5 and 6 above identifying the number of Known Group Members notified but without disclosing the identity or addresses of those persons. Carolyn Mitchell is to keep the identity and addresses of the Known Group Members confidential and shall not disclose this information to any of the parties, SPB or any other person without further order.

15.    The costs of and incidental to orders 5, 6, 7 and 14 shall in the first instance be borne equally between the Applicants in this proceeding and the Mitsub/MDA Class Actions but are otherwise costs in the proceedings.

16.    The time within which the Respondents are to file and serve a Defence be extended to 5 October 2016.

17.    Costs reserved.

18.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANNEXURE A

INSTRUCTIONS FOR OPT OUT NOTICE

Complete one or more of the attached Opt Out Notices if you wish to opt out of any of the Related Class Actions

These instructions are to be read in conjunction with the Notice to Group Members attached hereto.

Instructions to complete form:

1.    To opt out of any of the Related Class Actions you will need to complete an Opt Out Notice in each proceeding that you wish to opt out of and return the notice to the Registrar, Federal Court of Australia, New South Wales District Registry, Level 17, Law Courts Building, Queens Square, Sydney NSW 2000 by no later than 4.00pm on 11 November 2016

2.    If you return an Opt Out Notice in any of the Related Class Actions to the Registrar of the Federal Court of Australia you will no longer have any right to participate in that class action or the Mediation in it.

Form 21

Rule 9.34

Opt Out Notice (Lifeplan Class Action)

No. NSD 417 of 2016

Federal Court of Australia

District Registry: New South Wales

Division: General

LIFEPLAN AUSTRALIA FRIENDLY SOCIETY LIMITED (ACN 087 649 492), BIG SKY BUILDING SOCIETY LIMITED (ACN 087 652 079) & DEFENCE HEALTH LIMITED (ACN 008 629 481)

Applicants

MCGRAW-HILL FINANCIAL, INC (A COMPANY INCORPORATED IN NEW YORK), STANDARD & POOR’S INTERNATIONAL, LLC (A COMPANY INCORPORATED IN DELAWARE) & S&P GLOBAL UK LIMITED (A COMPANY INCORPORATED IN ENGLAND AND WALES)

Respondents

To:    The Registrar

Federal Court of Australia

New South Wales District Registry

Level 17, Law Courts Building, Queens Square, Sydney NSW 2000

The person named below as a group member in this representative proceeding gives notice under section 33J of the Federal Court of Australia Act 1976 (Cth) that the group member is opting out of the representative proceeding.

Date:

Signed by: [Name]

Capacity (e.g. group member or lawyer for group member):

Form 21

Rule 9.34

Opt Out Notice (Mitsub Class Action)

No. NSD 1344 of 2015

Federal Court of Australia

District Registry: New South Wales

Division: General

MITSUB PTY LIMITED AS TRUSTEE FOR THE CHRIS CARROLL SUPERANNUATION FUND

Applicant

MCGRAW-HILL FINANCIAL, INC (A COMPANY INCORPORATED IN NEW YORK) AND STANDARD & POOR’S INTERNATIONAL, LLC (A COMPANY INCORPORATED IN DELAWARE)

Respondents

To:    The Registrar

Federal Court of Australia

New South Wales District Registry

Level 17, Law Courts Building, Queens Square, Sydney NSW 2000

The person named below as a group member in this representative proceeding gives notice under section 33J of the Federal Court of Australia Act 1976 (Cth) that the group member is opting out of the representative proceeding.

Date:

Signed by: [Name]

Capacity (e.g. group member or lawyer for group member):

Form 21

Rule 9.34

Opt Out Notice (MDA Class Action)

No. NSD 414 of 2016

Federal Court of Australia

District Registry: New South Wales

Division: General

MDA NATIONAL INSURANCE PTY LIMITED

Applicant

MCGRAW-HILL FINANCIAL, INC (A COMPANY INCORPORATED IN NEW YORK) AND STANDARD & POOR’S INTERNATIONAL, LLC (A COMPANY INCORPORATED IN DELAWARE) Respondents

To:    The Registrar

Federal Court of Australia

New South Wales District Registry

Level 17, Law Courts Building, Queens Square, Sydney NSW 2000

The person named below as a group member in this representative proceeding gives notice under section 33J of the Federal Court of Australia Act 1976 (Cth) that the group member is opting out of the representative proceeding.

Date:

Signed by: [Name]

Capacity (e.g. group member or lawyer for group member):

ANNEXURE B

FEDERAL COURT OF AUSTRALIA

(PROCEEDINGS NOS.: NSD 1344/2016; NSD 414/2016; and NSD 417/2016)

STANDARD & POOR’S CLASS ACTIONS

NOTICE TO GROUP MEMBERS

NOTICE OF RIGHTS TO:

(1)    REGISTER TO PARTICIPATE IN A MEDIATION TO BE HELD ON 6 & 7 DECEMBER 2016;

or

(2)    OPT OUT OF THE PROCEEDINGS.

This is a notice that the Federal Court of Australia has ordered be given to persons who acquired the “Synthetic Collateralised Debt Obligations” known as “Green AA” or “Blue Gum AA-” or “Esperance AA+” or “Scarborough AA” or “Torquay AA” or “Parkes AAA” or “Parkes AA-” or “Endeavour AAA” or “Federation AAA” or “Federation A+” or “Glenelg AA-” and who were NOT group members in the Federal Court Proceeding No. NSD 656/2013, City of Swan & Anor v McGraw-Hill Financial, Inc & Ors.

If you are such a person, you should read this notice carefully as it affects your rights. If there is anything in it that you do not understand you should seek legal advice.

A.    OVERVIEW OF THE RELATED CLASS ACTIONS

Mitsub Class Action (Proceeding No. NSD 1344/2015)

1    On 2 November 2015, a class action was commenced in the Federal Court of Australia (Federal Court or Court) by Mitsub Pty Limited as Trustee for the Chris Carroll Superannuation Fund (Mitsub) against McGraw-Hill Financial, Inc (now known as S&P Global, Inc) and Standard & Poor’s International, LLC (now known as S&P International, Inc) (together referred to as “Standard & Poor’s”) on its own behalf and on behalf of Group Members who purchased the synthetic collateralised debt obligation (SCDO) known as Blue Gum AA- (listed in the table below) which is alleged to have been rated by Standard & Poor’s, and suffered loss or damage as a result (Mitsub Class Action).

MDA Class Action (Proceeding No. NSD 414/2016)

2    On 23 March 2016, another class action was commenced in the Federal Court against Standard and Poor’s by MDA National Insurance Pty Limited (MDA) on its own behalf and on behalf of Group Members who purchased the SCDOs listed in the table below which are alleged to have been rated by Standard & Poor’s, and suffered loss or damage as a result (MDA Class Action).

Lifeplan Class Action (Proceeding No. NSD 417/2016)

3    On 23 March 2016, a further class action was commenced in the Federal Court against Standard & Poor’s by Lifeplan Australia Friendly Society Limited and Big Sky Building Society Limited1 (collectively, the Lifeplan Applicants) on their own behalf and on behalf of Group Members who purchased the SCDOs listed in the table below which are alleged to have been rated by Standard & Poor’s, and suffered loss or damage as a result (Lifeplan Class Action).

1 On 16 August 2016, Defence Health Limited was joined as an applicant.

Claims in respect of Green AA, Esperance AA+, Parkes AAA, Endeavour AAA, Federation AAA or Federation A+ are only brought in the Lifeplan Class Action and are hereinafter referred to as the “Lifeplan Non-Overlapping SCDOs”.

4    The applicants and certain Group Members in the Mitsub Class Action and the MDA Class Action are represented by Squire Patton Boggs lawyers (SPB) and have entered into a Funding Agreement with Litigation Capital Partners LLP Pte Ltd (LCP) (Funded Group Members). As explained in Section E below, LCP will seek a funding commission from the proceeds of any claims by the applicants and Funded Group Members in the Mitsub Class Action and the MDA Class Action for taking the risk of funding them. If the matter settles at or shortly after Mediation, LCP will only seek a funding commission from the applicants in the Mitsub Class Action and the MDA Class Action and Funded Group Members.

5    The applicants in the Lifeplan Class Action are represented by Johnson Winter & Slattery (JWS) and have not entered into a funding agreement.

6    The Mitsub Class Action, MDA Class Action and Lifeplan Class Action are collectively referred to in this notice as the “Related Class Actions”.

7    The SCDOs listed in the tables in paragraphs 1 to 3 above are collectively referred to in this notice as the “Claim SCDOs”. A number of the Claim SCDOs were also the subject of Federal Court Proceeding No. NSD 656/2013 City of Swan & Anor v McGraw-Hill Financial, Inc & Ors (City of Swan Proceedings). Those proceedings have been resolved and are not the subject of this notice. If you were a group member in the City of Swan Proceedings you are not entitled to make a further claim in any of the Related Class Actions.

8    The parties in the Related Class Actions will participate in a mediation ordered by the Court to be held by no later than 9 December 2016 at which they will explore the possibility of a settlement of one or more of those Actions (Mediation).

9    The Court has ordered that this notice be sent to you because you have been identified as someone who may be a Group Member in one or more of the Related Class Actions and, as a result:

(a)    you may be entitled to have your claims considered at the Mediation; and

(b)    your rights may be affected by any settlement that is reached as a result of the Mediation.

10    If you purchased one or more of the Claim SCDOs and suffered loss or damage as a result, you should read this notice carefully.

11    The information in Section B of this notice will help you determine whether you are a Group Member.

12    This Notice has been sent to you by Carolyn Mitchell who is an independent third party retained to issue this Notice. Carolyn Mitchell is not otherwise involved in any of the Related Class Actions. Any questions you have concerning the matters contained in this notice should not be directed to Carolyn Mitchell or to the Court. If there is anything in it that you do not understand, you should seek legal advice (from a person other than Carolyn Mitchell).

13    If you are a Group member, you have three options:

Option 1 – Register to have your claims considered at the Mediation; or

Option 2 – Opt-out of any of the Related Class Actions; or

Option 3 – Do nothing.

Each of these options is explained in Section F of this notice.

B.     ARE YOU A GROUP MEMBER?

14    In broad terms, the statements of claim in the Related Class Actions allege that the Applicants and Group Members suffered financial loss as a result of acquiring interests in one or more of the Claim SCDOs in reliance upon the credit rating allegedly assigned to each SCDO by Standard & Poor’s because the ratings were not accurate, or appropriate, by reason of deficiencies in Standard & Poor’s rating methodology, and Standard & Poor’s lack of independence. You may be a Group Member in more than one of the Related Class Actions as explained further below.

Mitsub Group Member

15    You are currently a Group Member of the Mitsub Class Action if:

(a)    during the period between 2005 and 2008, you acquired an interest in the Blue Gum AA- SCDO; and

(b)    you acquired that interest in reliance upon the credit rating assigned by or on behalf of Standard & Poor’s and have suffered loss or damage as a result; and

(c)    you are not an applicant or group member in the City of Swan Proceedings.

16    The persons who satisfy all of the above criteria are called “Mitsub Group Members”.

MDA Group Member

17    You are currently a Group Member of the MDA Class Action if:

(a)    during the period between 2005 and 2008, you acquired an interest one or more of the following SCDOs – Blue Gum AA-, Torquay AA, Scarborough AA, Parkes AA- and Glenelg AA-; and

(b)    you acquired that interest in reliance upon the credit rating assigned by or on behalf of Standard & Poor’s and have suffered loss or damage as a result; and

(c)    you are not an applicant or group member in the City of Swan Proceedings.

18    The persons who satisfy all of the above criteria are called “MDA Group Members”.

Lifeplan Group Member

19    You are currently a Group Member of the Lifeplan Class Action if:

(a)    during the period between 2005 and 2008, you acquired an interest in one or more of the following SCDOs – Green AA, Blue Gum AA-, Esperance AA+, Scarborough AA, Torquay AA, Parkes AAA, Parkes AA-, Endeavour AAA, Federation AAA and/or Federation A+ SCDOs; and

(b)    you acquired that interest in reliance upon the credit rating assigned by or on behalf of Standard & Poor’s and have suffered loss or damage as a result; and

(c)    you are not an applicant or group member in the City of Swan Proceedings.

20    The persons who satisfy all of the above criteria are called “Lifeplan Group Members”.

You may be a Group Member of more than one Related Class Action (Overlapping Group Member)

21    If you meet the definition of Group Member in relation to an interest acquired in the Blue Gum AA- SCDO, you will be an Overlapping Group Member in the Mitsub Class Action, the MDA Class Action and the Lifeplan Class Action.

22    If you meet the definition of Group Member in relation to an interest acquired in any one or more of the Torquay AA, Scarborough AA and Parkes AA- SCDOs, you will be an Overlapping Group Member in the MDA Class Action and the Lifeplan Class Action.

23    Important: If you are an Overlapping Group Member who wishes to participate in the Mediation you will need to register in respect of any Overlapping SCDOs. You may only register in one of the Related Class Actions in relation to the Overlapping SCDOs. Overlapping SCDOs are Blue Gum AA-, Torquay AA, Scarborough AA and Parkes AA-. In addition, if you also have other claims in respect of Non-Overlapping SCDOs, you will need to register your claims in respect of those SCDOs as follows:

(a)    If you have a claim in respect of Green AA, Esperance AA+, Parkes AAA, Endeavour AAA, Federation AAA or Federation A+ (the Lifeplan Non-Overlapping SCDOs), you may only register in the Lifeplan Class Action in respect of those claims.

(b)    If you have a claim in respect of Glenelg AA- (the MDA Non-Overlapping SCDO), you may only register in the MDA Class Action in respect of that claim.

(c)    If you have claims in relation to both the Lifeplan Non-Overlapping SCDOs and the MDA Non-Overlapping SCDO, you will need to register in BOTH the Lifeplan Class Action and the MDA Class Action in respect of those products.

24    If you register in one or more of the Related Class Actions, for the purposes of the Mediation and any in-principle settlement reached at the Mediation (or within 28 days after that Mediation is terminated by the mediator) of the Related Class Actions in which you do not register in respect of your claims in relation to the Overlapping SCDOs, you will be deemed to have opted-out of the Related Class Actions in which you do not register in respect of your claims in relation to the Overlapping SCDOs. This means that if the Related Class Action in which you register in respect of any Overlapping SCDOs does not settle at or within 28 days of the Mediation, but another Related Class Action in respect of any of those Overlapping SCDOs does settle at or within 28 days of the Mediation, you shall not be permitted, without leave of the Court, to seek any benefit in respect of the Overlapping SCDOs from the other Related Class Action that does settle (with such settlement being approved by the Court). The amount of the losses that you claim for any Overlapping SCDOs will not be affected by the Related Class Action in which you elect to register in respect of the Overlapping SCDOs (if any). Further information as to how to exercise this choice is set out in Section F. If you do nothing, you will not be entitled to participate in any settlement reached at or shortly after the Mediation.

C.    THE MEDIATION

25    The Mediation has been ordered by the Court and is scheduled to occur on 6 and 7 December 2016.

26    Your claims as a Group Member of the Related Class Actions will only be considered at the Mediation if you register in accordance with the registration requirements below (that is, you become a Registered Group Member).

27    Any settlement reached as a result of the Mediation must be approved by the Court as being in the interests of Group Members before it becomes effective.

D.    WILL YOU BE LIABLE FOR LEGAL COSTS?

28    You will not become liable for any legal costs by registering to participate in the Mediation and remaining a Registered Group Member. However:

(a)    if the preparation or finalisation of your personal claim requires work to be done in relation to issues that are specific to your claim, you can engage JWS, SPB or other lawyers to do that work for you. Details of the terms on which JWS are acting in the Lifeplan Class Action and SPB are acting in the Mitsub Class Action and MDA Class Action may be obtained by contacting JWS or SPB respectively (refer to Section G of this notice for contact details);

(b)    if any compensation becomes payable to you as a result of any order, judgment or settlement in any of the Related Class Actions, the Court may make an order that some of that compensation be used to help pay a share of the costs (including legal costs) which are incurred by Mitsub, MDA or the Lifeplan Applicants in the running of the particular Related Class Action but which are not able to be recovered from the respondents, Standard & Poor’s;

(c)    if you are registered in the Mitsub or MDA Class Actions you may be able to enter into a litigation funding agreement to meet the costs of having relevant documentation for the Mediation prepared. Further information about this may be obtained from SPB; and

(d)    class actions are often settled out of Court. If this occurs in any of the Related Class Actions, you may be able to claim from the settlement amount without retaining a lawyer.

E.    LITIGATION FUNDING ARRANGEMENTS

Lifeplan Class Action – self-funded

29    The Lifeplan Applicants are presently funding the Lifeplan Class Action themselves and do not intend to enter into any litigation funding agreement with a third party funder before the Mediation. However, if the Mediation is unsuccessful the Lifeplan Applicants intend to proceed to trial and may consider litigation funding options in respect of their legal costs of the Lifeplan Class Action.

Mitsub Class Action and MDA Class Action – litigation funding

30    LCP is funding the Applicants in the Mitsub Class Action and the MDA Class Action (Mitsub and MDA Applicants) and the Funded Group Members. LCP is obliged to pay the Mitsub and MDA Applicants’ costs of bringing and running the Mitsub Class Action and the MDA Class Action. The Mitsub and MDA Applicants and Funded Group Members have agreed to pay a commission to LCP if they receive any compensation as a result of any order, judgment or settlement in those proceedings.

31    If you are not a Funded Group Member and you register as a Group Member in either of the Mitsub or MDA Class Actions:

(a)    you will remain a Group Member in the Mitsub or MDA Class Actions even if you do not enter into a litigation funding agreement with LCP and will not be required to pay any commission to LCP as a Group Member if the matter settles at or shortly after Mediation;

(b)    if the Mitsub and MDA Class Actions settle at or shortly after the Mediation:

(i)    the amount of compensation payable to you will not be reduced or otherwise affected by any sum in the nature of a commission or fee to LCP;

(ii)    the Mitsub and MDA Applicants and LCP will not seek Court orders requiring all Group Members in the Mitsub and MDA Class Actions who have not entered into a litigation funding agreement with LCP to pay a portion of any compensation received by them to LCP equivalent to the amount they would have paid if they had entered into a litigation funding agreement with LCP nor any other amount in the nature of a commission or fee to LCP.

F.    WHAT ARE YOUR OPTIONS?

32    If you do not consider that you are a Group Member in any of the Related Class Actions, you do not need to do anything. If you are unsure whether you are a Group Member in one or more of the Related Class Actions, you should seek legal advice before 11 November 2016.

33    If you consider that you are a Group Member in one or more of the Related Class Actions, you must choose one of following three options:

Option 1 – Register to have your claims considered at the Mediation

34    Only a Group Member of any of the Related Class Actions who registers in accordance with the registration requirements below (Registered Group Member) will have their claims considered at the Mediation.

35    If you wish to become a Registered Group Member you must:

(a)    complete the attached “Group Member Registration Form” and submit it to JWS or SPB in accordance with the instructions on the form by 4:00pm on 11 November 2016; and

(b)    provide information to substantiate your claim as identified on the Group Member Registration Form. The information provided must be complete, accurate and legible for your registration to be effective. If you have already provided that information to JWS or SPB you do not need to provide it again.

36    If you are a Group Member in more than one Related Class Action:

(a)    you can only register in one of those class actions in respect of the Overlapping SCDOs;

(b)    you will need to register in both the Lifeplan Class Action and MDA Class Action if you have claims in respect of the Lifeplan Non-Overlapping SCDOs and Glenelg AA-.

The amount of the losses that you claim for any Overlapping SCDOs will not be affected by the Related Class Action in which you elect to register in respect of the Overlapping SCDOs (if any). If you register in one Related Class Action, for the purposes of the Mediation and any in-principle settlement reached at the Mediation (or within 28 days after that Mediation is terminated by the mediator), you will be deemed to have opted-out of the Related Class Actions in which you do not register in respect of your claims in relation to the Overlapping SCDOs. This means that if the Related Class Action in which you register in respect of any Overlapping SCDOs does not settle at or within 28 days of the Mediation, but another Related Class Action in respect of any of those Overlapping SCDOs does settle at or within 28 days of the Mediation, you shall not be permitted, without leave of the Court, to seek any benefit in respect of the Overlapping SCDOs from the other Related Class Action that does settle (with such settlement being approved by the Court).

37    If you do not register to become a Registered Group Member by 4:00pm on 11 November 2016, or you fail to provide JWS or SPB with the information to substantiate your claim (if necessary) by the time specified, you will not have your claims considered at the Mediation.

38    The information you provide in and together with the Group Member Registration Form will be used by JWS and/or SPB and all or some of it may be provided to Standard & Poor’s prior to or at the Mediation to enable Standard & Poor’s to have sufficient information about all of the claims against them to consider settlement of the Related Class Actions.

39    If a settlement is reached at or shortly after the Mediation, Registered Group Members will be contacted at the address provided on the Group Member Registration Form and informed of the terms of the settlement (which will be subject to Court approval).

40    Any person who does not opt out of a Related Class Action of which they are a Group Member (both Registered Group Members and Group Members who do nothing in response to this notice (see Option 3 at paragraphs 47 and 48 below)) will be bound by the terms of any settlement of that Related Class Action as a result of the Mediation, but only Registered Group Members in that Class Action will be eligible for a share of any settlement monies.

41    If the Mediation does not result in a settlement of a Related Class Action, then that Class Action will continue and Registered Group Members will remain eligible to participate in that Class Action unless and until they opt out in accordance with any future opt out notice.

42    If you are a Funded Group Member in the Mitsub or MDA Class Action and you are contemplating registering in the Lifeplan Class Action in respect of a Non-Overlapping SCDO, before doing so you should read carefully your Funding Agreement or seek legal advice from SPB or another lawyer. That is because your Funding Agreement contains complex terms and conditions that may result in you incurring a liability to LCP for any moneys you receive in respect of particular Non-Overlapping SCDOs or a settlement payment in the Lifeplan Class Action.

Option 2 – Opt-out of a Related Class Action

43    You can opt out of one or more of the Related Class Actions by completing the attached “Opt-out Notice” for each of the Related Class Actions that you wish to opt out of. Opt-out Notices must be sent to the Registrar of the Federal Court at the address on the Notice by 4:00pm on 11 November 2016. IMPORTANT: the Notice must reach the Registrar by no later than 4:00pm on 11 November 2016, otherwise it will not be effective.

44    The Group Members who opt out of a Related Class Action prior to 4:00pm on 11 November 2016 will no longer be Group Members of that Class Action (for all time, not just for the purposes of the Mediation).

45    If you opt out of a Related Class Action:

(a)    you will permanently cease to be a Group Member in that Class Action;

(b)    you will not participate in the Mediation of that Class Action;

(c)    you will not be bound by any settlement resulting from the Mediation; and

(d)    if the Class Action does not settle at or shortly after the Mediation, you will not be bound by or receive any benefit from the outcome of that Class Action.

46    If you opt-out of all Related Class Actions in relation to a Claim SCDO, you will be at liberty to bring your own claim against Standard & Poor’s, provided that you file Court proceedings within the time limit applicable to your claim. If you wish to bring your own claim against Standard & Poor’s, you should seek your own legal advice about your claim and the applicable time limit prior to opting out.

Option 3 – Do nothing

47    If you do nothing by 4:00pm on 11 November 2016 and:

(a)    a settlement agreement is reached at or shortly after the Mediation you will not be notified of the settlement agreement. Unless the Court grants you leave, you will not be entitled to receive any compensation from the settlement. You will also be prevented from making a claim in respect of or relating to the subject matter of the Related Class Action against Standard & Poor's by separate proceedings and in the Related Class Actions, unless you are an Overlapping Group Member in which case you will remain a Group Member in any Related Class Action that does not settle at or shortly after the Mediation, and will have the rights of other Group Members going forward; or

(b)    the Mediation does not result in a settlement, you will remain a Group Member and have the rights of other Group Members going forward.

48    This is the only opportunity for Group Members to have their claims considered at the Mediation (and, unless the Court grants you leave, to participate in any settlement that may be reached at or shortly after the Mediation). That can only occur if you become a Registered Group Member by providing JWS and/or SPB with a completed and signed Group Member Registration Form and supporting documentation (see Option 1 at paragraphs 34 to 42 above).

G.    HOW TO GET MORE INFORMATION

49    You can obtain further information about the Mitsub Class Action or MDA Class Action by:

(a)    contacting Ms. Amanda Banton at Squire Patton Boggs (Mitsub and MDA Applicants’ solicitors) on (02) 8248 7850 or at scdoclassactions@squirepb.com (copy amanda.banton@squirepb.com);

(b)    requesting that Squire Patton Boggs provide you with a copy of the originating application and statement of claim for the Mitsub Class Action and/or MDA Class Action (at no cost to you);

(c)    inspecting the originating application and statement of claim by visiting a District Registry of the Federal Court in Sydney, Canberra, Melbourne, Brisbane, Adelaide, Perth, Hobart or Darwin (the addresses for these registries are available at www.fedcourt.gov.au or by calling the NSW District Registry on (02) 9230 8567).

50    You can obtain further information about the Lifeplan Class Action by:

(a)    contacting Ms. Toni Vozzo at Johnson Winter & Slattery (Lifeplan’s Applicants solicitors) on (08) 8239 7184 or at toni.vozzo@jws.com.au;

(b)    requesting that Johnson Winter & Slattery provide you with a copy of the originating application and statement of claim for the Lifeplan Class Action (at no cost to you);

(c)    inspecting the originating application and statement of claim by visiting a District Registry of the Federal Court in Sydney, Canberra, Melbourne, Brisbane, Adelaide, Perth, Hobart or Darwin (the addresses for these registries are available at www.fedcourt.gov.au or by calling the NSW District Registry on (02) 9230 8567).

51    This Notice has been sent to you by Carolyn Mitchell who is an independent third party retained to issue this Notice. Carolyn Mitchell is not otherwise involved in any of the Related Class Actions.

Complete this form if you wish to register as a Group Member in one or more of the Related Class Actions

GROUP MEMBER REGISTRATION FORM

These instructions are to be read in conjunction with the Notice to Group Members attached hereto.

Instructions to complete form:

1.    If you wish to become a Registered Group Member in the Lifeplan Class Action in order to have your claims considered at the Mediation please complete Section A and return it with supporting documentation to Johnson Winter & Slattery, Level 25, 20 Bond Street, Sydney, NSW, 2000 marked for the attention of Toni Vozzo by 4:00pm on 11 November 2016.

2.    If you wish to become a Registered Group Member in the Mitsub Class Action in order to have your claims considered at the Mediation please complete Section B and return it with supporting documentation to Squire Patton Boggs, Level 10, 1 Macquarie Place, Sydney, NSW, 2000 marked for the attention of Amanda Banton by 4:00pm on 11 November 2016.

3.    If you wish to become a Registered Group Member in the MDA Class Action in order to have your claims considered at the Mediation please complete Section C and return it with supporting documentation to Squire Patton Boggs, Level 10, 1 Macquarie Place, Sydney, NSW, 2000 marked for the attention of Amanda Banton by 4:00pm on 11 November 2016.

4.    Important: If you are an Overlapping Group Member who wishes to participate in the Mediation you will need to register in respect of any Overlapping SCDOs. You may only register in one of the Related Class Actions in relation to the Overlapping SCDOs. Overlapping SCDOs are Blue Gum AA-, Torquay AA, Scarborough AA and Parkes AA-. In addition, if you also have other claims in respect of Non-Overlapping SCDOs, you will need to register your claims in respect of those SCDOs as follows:

a.    If you have a claim in respect of Green AA, Esperance AA+, Parkes AAA, Endeavour AAA, Federation AAA or Federation A+ (the Lifeplan Non-Overlapping SCDOs), you may only register in the Lifeplan Class Action in respect of those claims.

b.    If you have a claim in respect of Glenelg AA- (the MDA Non-Overlapping SCDO), you may only register in the MDA Class Action in respect of that claim.

c.    If you have claims in relation to both the Lifeplan Non-Overlapping SCDOs and the MDA Non-Overlapping SCDO, you will need to register in BOTH the Lifeplan Class Action and the MDA Class Action in respect of those products.

SECTION A – TO REGISTER IN THE LIFEPLAN CLASS ACTION

Federal Court of Australia proceedings no. NSD 417/2016

To:    Johnson Winter & Slattery

Level 25

20 Bond Street

Sydney NSW 2000

Attention: Toni Vozzo

The group member named below registers to have their claims in respect of the Claim SCDOs identified below considered at the Mediation of the Lifeplan Class Action.

Date:

Signed by [Name]

[Insert capacity e.g. group member/Lawyer for the group member]

SECTION B – TO REGISTER IN THE MITSUB CLASS ACTION

Federal Court of Australia proceedings no. NSD 1344/2015

To:    Squire Patton Boggs

Level 10

1 Macquarie Place

Sydney NSW 2000

Attention: Amanda Banton

The group member named below registers to have their claims in respect of the Claim SCDOs identified below considered at the Mediation of the Mitsub/MDA Class Actions.

Date:    

Signed by [Name]

[Insert capacity e.g. group member/Lawyer for the group member]

SECTION C – TO REGISTER IN THE MDA CLASS ACTION

Federal Court of Australia proceedings no. NSD 414/2016

To:    Squire Patton Boggs

Level 10

1 Macquarie Place

Sydney NSW 2000

Attention: Amanda Banton

The group member named below registers to have their claims in respect of the Claim SCDOs identified below considered at the Mediation of the Mitsub/MDA Class Actions.

Date:    

Signed by [Name]

[Insert capacity e.g. group member/Lawyer for the group member]

INSTRUCTIONS FOR OPT OUT NOTICE

Complete one or more of the attached Opt Out Notices if you wish to opt out of any of the Related Class Actions

These instructions are to be read in conjunction with the Notice to Group Members attached hereto.

Instructions to complete form:

1.    To opt out of any of the Related Class Actions you will need to complete an Opt Out Notice in each proceeding that you wish to opt out of and return the notice to the Registrar, Federal Court of Australia, New South Wales District Registry, Level 17, Law Courts Building, Queens Square, Sydney NSW 2000 by no later than 4.00pm on 11 November 2016

2.    If you return an Opt Out Notice in any of the Related Class Actions to the Registrar of the Federal Court of Australia you will no longer have any right to participate in that class action or the Mediation in it.

Form 21

Rule 9.34

Opt Out Notice (Lifeplan Class Action)

No. NSD 417 of 2016

Federal Court of Australia

District Registry: New South Wales

Division: General

LIFEPLAN AUSTRALIA FRIENDLY SOCIETY LIMITED (ACN 087 649 492), BIG SKY BUILDING SOCIETY LIMITED (ACN 087 652 079) & DEFENCE HEALTH LIMITED (ACN 008 629 481)

Applicants

MCGRAW-HILL FINANCIAL, INC (A COMPANY INCORPORATED IN NEW YORK), STANDARD & POOR’S INTERNATIONAL, LLC (A COMPANY INCORPORATED IN DELAWARE) & S&P GLOBAL UK LIMITED (A COMPANY INCORPORATED IN ENGLAND AND WALES)

Respondents

To:    The Registrar

Federal Court of Australia

New South Wales District Registry

Level 17, Law Courts Building, Queens Square, Sydney NSW 2000

The person named below as a group member in this representative proceeding gives notice under section 33J of the Federal Court of Australia Act 1976 (Cth) that the group member is opting out of the representative proceeding.

Date:

Signed by: [Name]

Capacity (e.g. group member or lawyer for group member):

Form 21

Rule 9.34

Opt Out Notice (Mitsub Class Action)

No. NSD 1344 of 2015

Federal Court of Australia

District Registry: New South Wales

Division: General

MITSUB PTY LIMITED AS TRUSTEE FOR THE CHRIS CARROLL SUPERANNUATION FUND

Applicant

MCGRAW-HILL FINANCIAL, INC (A COMPANY INCORPORATED IN NEW YORK) AND STANDARD & POOR’S INTERNATIONAL, LLC (A COMPANY INCORPORATED IN DELAWARE)

Respondents

To:    The Registrar

Federal Court of Australia

New South Wales District Registry

Level 17, Law Courts Building, Queens Square, Sydney NSW 2000

The person named below as a group member in this representative proceeding gives notice under section 33J of the Federal Court of Australia Act 1976 (Cth) that the group member is opting out of the representative proceeding.

Date:

Signed by: [Name]

Capacity (e.g. group member or lawyer for group member):

Form 21

Rule 9.34

Opt Out Notice (MDA Class Action)

No. NSD 414 of 2016

Federal Court of Australia

District Registry: New South Wales

Division: General

MDA NATIONAL INSURANCE PTY LIMITED

Applicant

MCGRAW-HILL FINANCIAL, INC (A COMPANY INCORPORATED IN NEW YORK) AND STANDARD & POOR’S INTERNATIONAL, LLC (A COMPANY INCORPORATED IN DELAWARE) Respondents

To:    The Registrar

Federal Court of Australia

New South Wales District Registry

Level 17, Law Courts Building, Queens Square, Sydney NSW 2000

The person named below as a group member in this representative proceeding gives notice under section 33J of the Federal Court of Australia Act 1976 (Cth) that the group member is opting out of the representative proceeding.

Date:

Signed by: [Name]

Capacity (e.g. group member or lawyer for group member):

ANNEXURE C

Federal Court of Australia

Standard & Poor’s Class Actions

Proceedings no: NSD 1344/2016; NSD 414/2016; & NSD 417/2016

Notice to group members

The Federal Court of Australia has ordered that this notice be published for the information of persons who might have claims affected by three class actions commenced against McGraw-Hill Financial, Inc (now known as S&P Global, Inc) and Standard & Poor’s International LLC (now known as S&P International, Inc) (together referred to as “Standard & Poor’s”) and who may wish to participate in one or more of these actions.

Mitsub Pty Limited as Trustee for the Chris Carroll Superannuation is the applicant in proceeding no. NSD 1344 of 2015 (Mitsub Class Action); MDA National Insurance Pty Limited is the applicant in proceeding no. NSD 414 of 2016 (MDA Class Action); and Lifeplan Australia Friendly Society Limited, Big Sky Building Society Limited and Defence Health Limited are the applicants in proceeding no. NSD 417 of 2016 (Lifeplan Class Action), collectively referred to in this notice as the “Related Class Actions”.

If you acquired an interest in financial products known as synthetic collateralised debt obligations (“SCDOs”) which were rated by Standard & Poor’s during the period between 2005 and 2008 and suffered loss or damage as a result, you may be eligible to participate in one or more of the Related Class Actions and have your claim considered in any settlement of that action. The SCDOs the subject of the Related Class Actions are known as Blue Gum AA-, Glenelg AA-, Scarborough AA, Torquay AA, Parkes AA-, Green AA, Esperance AA+, Parkes AAA, Endeavour AAA, Federation AAA and Federation A+.

The Related Class Actions involve claims alleging that Standard & Poor’s did not have a reasonable basis for the ratings assigned to SCDOs by Standard & Poor’s and that as such the ratings were misleading and negligent.

If you wish to participate in any of the Related Class Actions and have your claim considered in any settlement of the action, you must register your claim by 11 November 2016.

If you do not wish to be a group member, you must provide Notices of Opting-Out to the Court by 11 November 2016.

If you take no action you may lose any right to receive compensation or pursue separate action on the same claims.

Further information about the Mitsub Class Action or MDA Class Action, and to obtain registration and opt out forms contact Ms. Amanda Banton at Squire Patton Boggs (Mitsub and MDA Applicants’ solicitors) on (02) 8248 7850 or at amanda.banton@squirepb.com

Further information about the Lifeplan Class Action, and to obtain registration and opt out forms contact Ms. Toni Vozzo at Johnson Winter & Slattery (Lifeplan Applicants’ solicitors) on (08) 8239 7184 or at toni.vozzo@jws.com.au

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT)

RARES J:

1    These three representative proceedings or class actions under Pt IVA of the Federal Court of Australia Act 1976 (Cth) involve claims that, to some extent, overlap. All the parties have agreed to participate in a mediation on 6 and 7 December 2016 at which they hope to be able to reach a resolution. However, at the moment, three complications need to be addressed, namely, first, the fact that the various claims and group members overlap, secondly, the lack of certainty as to the precise composition of the members of the group in each of the proceedings, and, thirdly, the mechanism by which those group members may be given notice of the mediation and opt-out notices.

Background

2    Each of the three proceedings involves claims against S&P Global Inc. (formerly known as McGraw-Hill Financial, Inc.) and one or more of its associated companies, Standard & Poor’s International LLC and S&P Global UK Limited, in relation to the way in which S&P rated particular synthetic collateralised debt obligations (SCDOs).

3    The proceedings commenced by Mitsub Pty Limited as trustee for the Chris Carroll Superannuation Fund, concern only the SCDO known as Blue Gum AA-.

4    The proceedings commenced by MDA National Insurance Pty Limited, concern the SCDOs known as Blue Gum AA-, Glenelg AA-, Scarborough AA, Torquay AA and Parkes IIA AA-.

5    The proceedings commenced by LifePlan Australia Friendly Society Limited with Big Sky Building Society Limited and Defence Health Limited, concern the SCDOs known as Blue Gum AA-, Scarborough AA, Torquay AA, Parkes IIA AA-, together with Green AA, Esperance AA+, Parkes AAA, Endeavour AAA, Federation AAA and Federation A+.

6    MDA and Mitsub are represented by the same solicitors. In those proceedings, MDA and Mitsub have each entered into a funding agreement with Litigation Capital Partners LLP Pte Ltd (LCP) and certain, but not all group members, have signed litigation funding agreements with LCP in each of those proceedings. However, the class in each of those proceedings is an open class. So too is the class in the LifePlan proceedings, in which the applicants are represented by different solicitors without any litigation funding agreement.

The proposed notices

7    The parties have, for some time, been negotiating with a view to settling the terms of a notice that can be sent to all of the applicants and group members, so far as they can be ascertained. The purpose of the notice is to explain to group members that, to the extent they have not already done so, for the purposes of the mediation, they may register their claims in one or more of the class actions. Because some SCDOs are the subject of more than one class action, a person could be a group member in one, two or all three class actions. The group member may choose not to register, but in that case, the parties propose that without the leave of the Court, such a person would not be entitled to participate in any settlement achieved at the mediation or shortly thereafter. Another possibility is that a group member may choose to opt out entirely from the relevant proceeding or proceedings.

8    This description of the issues demonstrates the complexity of the drafting of the notice. Commendably, the parties, in large part, achieved an agreed form of notice that has been refined during the course of argument today.

9    I explained the purpose of making orders approving the dispatch of such notices under ss 33X and 33Y of the Federal Court of Australia Act in Muswellbrook Shire Council v The Royal Bank of Scotland NV [2016] FCA 819.

10    In those proceedings, as in these, S&P needed to be in an informed position as to the actual or potential size of the class and the nature and extent of the claims that the members of the class may make in order to be able to negotiate a settlement, to the extent one can be achieved. For that reason, it is necessary, first, to identify, as best can be achieved, those persons who are members of the class, and then to give them notice, allowing them to have the options of participating in the mediation, sitting by and taking the risk that they may not achieve any payment while remaining a member of the class, or alternatively, opting out of the proceedings.

11    Because of the overlap in some of the SCDOs (e.g. Blue Gum AA-) the subject of the claims made in the three proceedings and the open classes, in the case management hearing on 12 August 2016 that Wigney J and I conducted in respect of these and three other similar proceedings, the Court made clear that it would be necessary to consolidate these proceedings or to bring some regularity to them for their further conduct in Court in the event that the parties are not able to achieve a resolution.

Consideration

12    The structure proposed in the draft notice, which I will make orders approving today, will achieve the result of allowing class members to elect in which proceeding they will pursue a particular claim, in the mediation, where there is an overlap of the SCDOs between the proceedings. That will ensure that there is no overlap of claims in respect of any SCDO for each class member with any claim in another proceeding and prevent the class member from pursuing claims based on the same SCDO in more than one proceeding through the mediation process.

13    In my opinion, the way in which the parties have structured the proposed notice achieves a practical and apparently fair opportunity that can be afforded to each of the class members to identify what his, her or its commercial interests are, so far as that class member may wish to participate in, or receive the fruits of, any mediation or settlement that is reached shortly after the mediation. This is highly desirable, given the complexity of these proceedings and the issues involved.

14    A further complication arose today in respect of persons who have already signed a litigation funding agreement with LCP in the Mitsub or MDA proceedings. It may be that some of those group members also have claims to make in respect of SCDOs included in the Lifeplan action but which are not replicated in either the MDA or Mitsub actions. The funding agreement that each of those group members has signed with LCP contains complex terms and conditions that may result in that member incurring a liability to LCP for any money the member might receive in respect of those SCDOs which are not being litigated in either the MDA or Mitsub proceedings. Accordingly, I have settled a form of words in the notice so as to alert those persons to the need to read carefully the funding agreement or seek legal advice in respect of it.

15    I will also make orders that the notices be sent to group members by an independent person, being a solicitor, Carolyn Mitchell. It is necessary for Ms Mitchell to send the notices because the various solicitors acting for the applicants and LCP have differing interests in identifying who might be class members and who may already be represented by or affiliated with their particular firm or side. The parties consider that it is desirable to keep confidential the identity of the overall membership of the three classes the subject of the three proceedings. By appointing Ms Mitchell to despatch the notices, the applicants’ solicitors and LCP have allayed reciprocal concerns that one or other of them would use the opportunity of sending out the notices to recruit persons to join the proceeding(s) in which they were acting or involved, who may or may not be known to one or more of the sets of parties.

16    I will make orders in each of the Mitsub and MDA proceedings for subpoenas to issue to Lehman Brothers Australia Limited (in Liq), which holds the names of many of its former clients who may be persons who fall within one or more of the represented groups, and in all proceedings to Austraclear Limited, which was the registrar of most, but not all, of the SCDOs involved. The registrar of the remaining SCDOs is a United States bank. Another United States bank acting as registrar of a different note issue has not responded to subpoenas previously issued at the direction of Wigney J in other proceedings: Ceramic Fuel Cells Ltd (in Liq) v McGraw-Hill Financial, Inc (No 2) [2016] FCA 1059. The parties realistically do not expect the United States bank that is the registrar of the notes in issue to cooperate in the present proceedings.

Conclusion

17    For all of these reasons, I am satisfied that it is appropriate to approve the issue of notices in the form that I have settled, being the notices of rights of group members to register and to participate in a mediation to be held on 6 and 7 December 2016, to opt out of each proceeding relevant to the member and to issue registration forms in respect of each proceeding identifying each particular SCDO in respect of which the individual group member wishes to seek recovery in the mediation.

18    For these reasons, I will make orders in the terms proposed.

Associate:

Dated:    1 November 2016