BHP class action

Record your interest

The BHP Class Action, known as Vince Impiombato, and Klemweb Nominees Pty Ltd as trustee for Klemweb Superannuation Fund v BHP Group Ltd (BHP Class Action), has been the subject of a Court ordered opt out and registration process. The opt out and claim registration deadline was 4pm (AEST) on 31 May 2024.

If you registered before the registration deadline passed, there is nothing further you need to do to participate in any settlement of the BHP Class Action.

If you did not register prior to the registration deadline, we encourage you to still confirm your details and interest in participating in any settlement of the BHP Class Action by completing a registration of interest form.

Unregistered current and former shareholders who acquired an interest in fully-paid BHP Billiton Limited (BHP Ltd) and/or BHP Billiton Plc (BHP Plc) shares between 8 August 2012 to 9 November 2015 (inclusive), can record their interest in participating in any settlement of the BHP Class Action, at no 'out of pocket' cost, by clicking the ‘Record your interest’ button and providing the information requested.

Background

On 5 November 2015, the Fundão tailings dam at the Germano mine in Minas Gerais, Brazil collapsed in the largest tailings dam rupture ever recorded. The mudflow killed 19 people and has had a catastrophic and enduring impact on the surrounding communities and the environment.

The mudflow created by the dam rupture ultimately travelled 600 kilometres to the ocean, creating a toxic brown plume visible from space. 700 people lost their homes, 8,500 fishermen lost their livelihoods, and 400,000 people lost access to fresh water. It is the worst environmental disaster in Brazil’s history.

The Germano mine is operated by Samarco Mineração SA, a joint venture of BHP and Vale SA. BHP is an Anglo-Australian owned multinational and the world's largest diversified mining and mineral resources company.

In the period that followed the dam collapse, BHP’s stock price plunged across all markets, falling 22% in Sydney and 23% in London and Johannesburg between 5 November 2015 and 30 November 2015. The class action will seek to recover losses to BHP Ltd and BHP Plc shareholders throughout this period, during which BHP’s combined market capitalisation fell by more than $25 billion.

Allegations

The BHP Class Action is an open class proceeding and seeks recovery of investor losses incurred up to 30 November 2015 by BHP Ltd and BHP Plc shareholders because of BHP’s alleged failure to disclose material information to the market and its alleged misleading or deceptive conduct.

The BHP Class Action alleges that BHP Group Ltd:

(a) contravened its continuous disclosure obligations between 8 August 2012 and 9 November 2015 (inclusive) (Claim Period) by failing to properly inform the Australian Securities Exchange (ASX) of BHP’s knowledge of the Fundão dam (located in the Germano mine in Minas Gerais, Brazil, operated by Samarco Mineração SA, a non-operated joint venture between BHP Billiton Brasil Ltda and Vale SA in Brazil) being at risk of failure, and knowledge that if the dam failed serious adverse human, environmental, and financial consequences would likely result;

(b) engaged in misleading or deceptive conduct by representing to the ASX (by publishing in its annual reports between FY11 – FY15) that:

(i)  the primary consideration in every aspect of BHP’s business was the safety of its people and the safety and sustainability of the environment and the communities in which it, and its subsidiaries, carried on business; and

(ii) BHP had effective systems and processes in place to identify and effectively manage risks to the safety of its people and the safety and sustainability of the environment and the communities in which it, and its subsidiaries, carried on business, including the Samarco mining operation.

The BHP Class Action alleges that investors who acquired BHP Ltd or BHP Plc shares in the Claim Period are entitled to compensation for loss and damage as they paid more for those shares than they would have paid as a consequence of BHP’s conduct. The BHP class action also alleges that some Group Members would not have purchased BHP Ltd or BHP Plc shares if BHP had complied with its obligations.

A class action against BHP in the United States on behalf of investors that acquired New York Stock Exchange (NYSE) listed American Depository Shares settled on 9 August 2018. The US proceeding did not (and cannot) recover losses suffered in respect of shares traded on the ASX, LSE or JSE. Investors that participated in the US proceeding, who also acquired BHP Ltd and/or BHP Plc shares may also participate in this class action.

Funding and costs

The BHP Class Action is partially funded by G&E KTMC Funding LLC.

G&E KTMC Funding LLC is backed by Grant & Eisenhofer and Kessler Topaz Meltzer & Check, two of the United States’ most successful and respected shareholder litigation firms. The funding terms are extremely competitive in the context of Australian shareholder class actions. In accordance with these funding terms, and subject to court approval, if the class action is successful (that is, if compensation is recovered for Group Members), G&E KTMC will be entitled to recover:

(a) PFM’s legal costs;

(b) disbursements and other litigation expenses;

(c) costs and premiums paid or payable under the after-the-event insurance arrangements procured for the BHP Class Action;

(d) eighteen percent (18%) of any compensation to which group members who have entered into a litigation funding agreement with G&E KTMC become entitled, after the deduction of the amounts described in subparagraphs (a) and (b) above, as commission for funding the BHP Class Action.

Maurice Blackburn is performing its legal work on a No Win, No Fee basis, charging a 6.25% uplift in the event the class action is successful.

In the event of a successful outcome, one of G&E KTMC, Maurice Blackburn or the Joint Applicants will seek an order that G&E KTMC’s entitlements pursuant to the G&E KTMC litigation funding agreement and Maurice Blackburn’s entitlement pursuant to the Maurice Blackburn retainer and costs agreement, be paid out of the total amount recovered for all Group Members.  The effect of such an order would be to share the liability for payment of G&E KTMC and Maurice Blackburn’s entitlements on a pro rata basis between all group members who have benefited from the action, so that all registered group members are in the same position, regardless of whether they have signed a litigation funding agreement with G&E KTMC or a retainer and costs agreement with Maurice Blackburn or who have registered through the online registration portal. These costs will never exceed the amount of compensation to which you may otherwise become entitled.