ANZ and other defendants charged with cartel conduct alleged to have arisen out of an institutional share placement undertaken by the bank in 2015 will be allowed limited access to legal documents created by JP Morgan and its lawyers, the investment bank granted immunity by the ACCC after disclosing its own role in the affair.
In June 2018, the Commonwealth Director of Public Prosecutions charged three corporate entities and six individuals with having participated in cartel conduct in the period between 7 August and 30 September 2015.
The conduct was alleged to have arisen out of the institutional share placement undertaken by ANZ for which JP Morgan), Deutsche and Citigroup were the joint lead managers and underwriters (the JLMs).
Six individuals were also charged, employees of one or other of these entities, including ANZ’s treasurer Rick Moscati.
The committal proceedings in relation to the charges have concluded.
On 1 February 2021, the DPP filed an indictment against the nine accused. It alleges 42 counts of cartel conduct, but not all the accuseds are subject to all counts.
In skirmishing before the matter finally proceeds to trial, the Federal Court of Australia has required JP Morgan to produce the notes of interviews and outlines of evidence which JP Morgan’s in-house lawyers and its legal advisors, Gilbert + Tobin, prepared between September 2015 and November 2015.
Justice Richard White ruled on “whether privilege did attach to the documents when they were brought into existence and, if so, whether it has been waived by the subsequent conduct of JP Morgan.
“Those questions are to be determined in the context that JP Morgan sought and obtained conditional immunities from civil action from the Australian Competition and Consumer Commission and immunity from criminal prosecution from the DPP under their respective immunity policies.”
Justice White found that” JP Morgan has shown that the notes of interview and outlines of evidence were protected by legal professional privilege at the time they were brought into existence but that, save for some limited categories, JP Morgan waived that privilege by its disclosure of the contents of portions of the documents to the DPP in October and November 2020.”
For now the defendants will have access only to a limited number of documents at issue in the hearing before Justice White:
The documents in this category “are said to have been prepared for the dominant purpose of JP Morgan obtaining legal advice, that is, they recorded factual matters on the bases of which legal advice was sought.”
These are “records created by Gilbert + Tobin and JP Morgan litigation lawyers during and shortly after employee interviews for the purpose of JP Morgan obtaining confidential legal advice from Gilbert + Tobin and in-house JP Morgan lawyers in connection with the 2015 ANZ capital raising”.