Opt-Out Notice

FEDERAL COURT OF AUSTRALIA

NUROFEN SPECIFIC PAIN RANGE CLASS ACTION

  1. Why is this notice important?

A representative proceeding or “class action” has been commenced in the Federal Court of Australia by Graham Phillips and Yasminka Jang (“Applicants”) against Reckitt Benckiser (Australia) Pty Ltd (“Respondent”).  The class action arises out of the packaging of, and certain webpages in relation to, the following pain relief products which were marketed, sold and supplied in Australia in the period 1 January 2011 to December 2015:

  • Nurofen Migraine Pain ibuprofen lysine 342 mg tablet blister pack;
  • Nurofen Tension Headache ibuprofen lysine 342 mg tablet blister pack;
  • Nurofen Period Pain ibuprofen lysine 342 mg tablet blister pack;
  • Nurofen Back Pain ibuprofen lysine 342 mg tablet blister pack,

(together, “Nurofen Specific Pain Range”).

The Federal Court has ordered that this notice be published for the information of persons who might have claims affected by the class action. You should read this notice carefully.  Any questions you have concerning the matters contained in this notice should not be directed to the court.  If there is anything in it that you do not understand, you should seek legal advice.

  1. What is a class action?

A class action is an action that is brought by one or more persons, the Applicants, on his or her own behalf and on behalf of a group of people, “group members”, against another person, the Respondent, where the Applicants and the group members have similar claims against the Respondent.

Group members in a class action are not individually responsible for the legal costs associated with bringing the class action.  In a class action, only the Applicants are responsible for the costs.

Group members are bound by any judgment or settlement entered into in the class action unless they have opted out of the proceeding.  This means that:

(a)  if the class action is successful, group members may be eligible for a share of any settlement monies or Court-awarded damages;

(b)  if the class action is unsuccessful, group members are bound by that result; and

(c)  regardless of the outcome of the class action, group members will not be able to pursue their claims against the Respondent in separate legal proceedings unless they have opted out.

  1. What is Opt Out?

The Applicants in a class action do not need to seek the consent of group members to commence a class action on their behalf or to identify a specific group member.  However, group members can cease to be group members by opting out of the class action.  An explanation of how group members are able to opt out is found below in the section headed “How can you opt out of the proceeding”.

  1. What is this class action?

This class action is brought by the Applicants on their own behalf and on behalf of all persons who are group members as defined in the proceeding.

The Applicants allege in the statement of claim in Federal Court proceeding Graham Phillips and Another (Applicants) v Reckitt Benckiser (Australia) Pty Ltd, NSD 273 of 2016, that from 1 January 2011 to December 2015, certain packaging and website representations made by the Respondent were misleading or deceptive, and in breach of various provisions of the Australian Consumer Law. Those representations included: (1) that each product in the Nurofen Specific Pain Range was specifically formulated to treat the particular type of pain specified on the packaging; and (2) that each product solely or specifically treated the particular type of pain specified on the packaging.

Remedies being sought by the Applicants include a refund of the amount paid by consumers to purchase the products or, alternatively, damages or compensation.

The Respondent admits that the packaging and website representations made in the period 1 January 2011 to December 2015 (as set out in the statement of claim) were misleading or deceptive but does not admit or otherwise denies the other claims made in the statement of claim, denies that it is liable to the Applicants as alleged or at all, and is defending the class action.

  1. Are you a group member?

You are a group member if you are a consumer who purchased one or more of the Nurofen Specific Pain Range products in Australia in the period 1 January 2011 to December 2015.

If you are unsure whether or not you are a group member, you should contact Bannister Law on 1300 763 950 or email [email protected] or seek your own legal advice without delay.

  1. Will you be liable for legal costs?

You will not become liable for any legal costs simply by remaining as a group member for the determination of the common questions.  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 Bannister Law or other lawyers to do that work for you.  A copy of the terms on which Bannister Law are acting in the class action may be obtained from them on the 1300 763 950 shown below;

(b)  if any compensation becomes payable to you as a result of any order, judgment or settlement in the class action, the Court may make an order that some of that compensation be used to help pay a share of the costs which are incurred by the Applicants in running the class action but which are not able to be recovered from the Respondent; and

(c)  class actions are often settled out of court.  If this occurs in the class action, you may be able to claim from the settlement amount without retaining a lawyer.

  1. What will happen if you choose to remain a group member?

Unless you opt out, you will be bound by the outcome of the class action.  If the class action is successful, you will be entitled to share in the benefit of any order, judgment or settlement in favour of the Applicants and group members (in some cases you may have to satisfy certain conditions before your entitlement arises).  If the class action is unsuccessful or is not as successful as you might have wished, you will not be able to sue on the same claim in any other proceedings.

  1. How can you remain a group member?

If you wish to remain a group member there is nothing you need to do at the present time.  The Applicants will continue to bring the proceeding on your behalf up to the point where the Court determines those questions that are common to the claims of the Applicants and the group members.  However, you are invited to contact the Applicants’ lawyers, Bannister Law, on the number below and register as a group member so that future notices about the class action can be sent to your preferred address.

  1. How can you opt out of the class action?

If you do not wish to remain a group member you must opt out of the class action.  If you opt out you will not be bound by or entitled to share in the benefit of any order, judgment or settlement in the class action, but you will be at liberty to bring your own claim against the Respondent, provided that you issue Court proceedings within the time limit applicable to your claim.  If you wish to bring your own claim against the Respondent, you should seek your own legal advice about your claim and the applicable time limit prior to opting out.

If you wish to opt out of the class action you must do so by completing a “Notice of opting out by group member” in the form shown below (Form 21 of the Court’s approved forms), then returning it to the Registrar of the Federal Court of Australia at the address on the form.  IMPORTANT: the Notice must reach the Registrar by no later than 4.00pm Friday 28 October 2016, otherwise it will not be effective.

Please download the Notice of opting out by a group member us the link below:

You should submit the Notice of opting out by group member if:

(a)  you qualify as a group member and you wish to opt out of the class action; or

(b)  you believe that you have been incorrectly identified as a group member, because you do not meet the criteria set out in the section headed “Are you a group member” above.

Each group member should fill out a separate form.  If you are opting out on behalf of a company or business please provide your name, the name of the company or business and your position within the company or business (e.g. director or partner).

  1. Where can you obtain copies of relevant documents?

Copies of relevant documents, including the application, the statement of claim, and the defence or defences, may be obtained by:

(a)  downloading them from www.nurofenclassaction.com.au;

(b)   inspecting them between 9am and 5pm at one of the offices of Bannister Law, contact details for which are available from www.nurofenclassaction.com.au or by calling 1300 763 950;

(c)   inspecting them on the Federal Court website: www.fedcourt.gov.au or 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 Sydney District Registry on 02 9230 8567.

Please consider the above matters carefully.  If there is anything of which you are unsure, you should contact Bannister Law on 1300 763 950 or email [email protected] or seek your own legal advice.  You should not delay in making your decision.