Settlement Of Australian Class Actions When Not All Group Members Are Equal

In Peterson v Merck Sharp and Dohme (Aust) Pty Ltd (No 6) [2013] FCA 447, approval of a class action settlement was sought in the context of the representative party's claim, and a number of common questions, having been determined at trial and after an appeal. The representative party had been unsuccessful due to risk factors specific to the representative party, but other group members without those risk factors may be successful. The proposed settlement was designed to make payments to group members regardless of whether they were subject to the risk factors and treated all group members alike. Jessup J refused approval on the basis that the settlement was unfair and unreasonable.