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  • ILFA Urges Government to Clarify Rather Than Rebuild the Opt-Out Collective Actions Regime

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Tax Guide Warns Plaintiffs to Settle Funding Tax Treatment Before Signing

A new practitioner guide warns that plaintiffs negotiating commercial litigation funding agreements face two distinct tax problems — one on receipt of the funder's advances, the other on collection of proceeds — and that both must be resolved in the document itself, because afterwards a claimant's options narrow considerably.

As reported by the National Law Review, authors Jonathan Friedland and Jeremy T. Waitzman use the example of a $1 million advance at closing to illustrate the front-end risk. While loan proceeds are generally excluded from gross income, most litigation funding is non-recourse, so repayment is contingent. In Novoselsky, the Tax Court held that upfront litigation support payments documented as non-recourse "loans" were not bona fide loans, were includable as prepaid income in the year of receipt, and sustained accuracy-related penalties. The court applied an unconditional-obligation-to-repay test alongside a multi-factor indebtedness analysis covering security, interest, fixed repayment schedules, ability to repay, and whether repayments were actually made. Novoselsky involved an attorney rather than a plaintiff, but the reasoning applies equally.

Industry practice, the authors write, is to structure advances as prepaid forward contracts or absolute assignments of a portion of anticipated proceeds, deferring tax until settlement — a more defensible path, though the IRS has not formally blessed the treatment. They also flag routing: advances paid to counsel versus to the plaintiff raise constructive receipt and anticipatory assignment of income issues. Their recommendation is to have the funder disburse fee advances directly to counsel under a separate fee-funding agreement to which the plaintiff is not a party, route operating-expense advances to the plaintiff, and specify recipient, purpose and tax reporting position for each tranche before execution rather than retrofitting afterward.

On the back end, the guide identifies a character mismatch: recoveries are typically ordinary income, while the funder's return may generate a capital loss capped at $3,000 a year for individuals, stranding it as a carryforward.

New Burford Quarterly Frames Law Firm Technology Spending as a Capital Allocation Question

Burford Capital has released a new issue of the Burford Quarterly, its journal of legal finance, arguing that the decisions law firms and corporate legal departments face on technology, growth and disputes are increasingly capital allocation decisions rather than operational ones.

As reported by Burford Capital, Vice Chair David Perla said that "capital is playing an increasingly important role in how both companies and law firms make decisions about the future," and that the issue examines how "a more commercial mindset is reshaping the business of law." The edition collects four pieces aimed at general counsel, law firm leadership and finance professionals evaluating how legal assets and legal spend sit on the balance sheet.

Managing Director Evan Meyerson opens with "The future of law firms is a capital question," positioning technology investment and expansion as competing claims on finite firm capital. A second article explains monetization, under which non-recourse capital accelerates part of an expected recovery from a pending claim while the claimholder retains control of the litigation and its upside. A third presents new Burford research produced in association with The Lawyer, "The economics of disputes: What UK GCs and law firms told us about litigation in 2026," in which cost emerged as the leading factor in deciding whether to pursue a dispute at all. The final piece, "Patents as capital: Asia's next chapter in IP monetization," looks at developments in Japan, South Korea and Taiwan.

The framing reflects a broader repositioning by the larger funders, which increasingly market themselves less as litigation financiers and more as providers of corporate capital that happens to be secured by legal claims.

CAT Approves £25 Opening Payout in Woodsford-Funded Car Delivery Charges Distribution

The Competition Appeal Tribunal has approved the distribution plan for the Woodsford-funded car delivery charges class action, setting a £25 payment for a class member's first vehicle in a deliberate attempt to drive engagement rather than to precisely mirror each individual's loss.

As reported by Legal Futures, consumers and businesses stand to receive up to £56 million of the £93 million in settlements reached so far, with costs, fees and disbursements accounting for a further £34 million. The damages pot comprises £34 million in guaranteed damages plus a further £22 million available if take-up is high enough; absent that, the additional sum may cover outstanding costs, pass to the Access to Justice Foundation, or revert to defendants that settled early. Distribution itself is expected to cost around £2.5 million. Payouts are set at £25 for a first vehicle, £5 for vehicles two through six, and at least £2.50 for each thereafter, with a potential further £2.50 depending on claim volume. Class members can take payment by bank transfer, Open Banking, PayPal, Nectar points, vouchers, or charitable donation.

Judge Hodge Malek KC said the plan "is not intended to operate as a mechanism for precisely reproducing the estimated loss suffered by each represented person," adding that the first-vehicle payment "is also intended to encourage represented persons to engage with the distribution process and submit claims." One defendant had argued payouts should open at £15 and called £25 a "windfall." The Tribunal pointed to the Stagecoach boundary fares settlement, where 1.4 million potentially eligible passengers claimed just £216,500 and almost £10 million went unclaimed.

Class representative Mark McLaren, who began the action in 2020 with funding from Woodsford and representation by Scott+Scott, said the team has "done everything we can to make this process as easy as possible for those affected." Five defendants have now settled a claim originally valued at around £150 million, covering 17 million new cars and vans sold or leased between October 2006 and September 2015.

Timbercreek’s TC Alternatives Reaches First Close on US Mass Tort Litigation Fund With Reform Capital

TC Alternatives, the alternative investment platform of Toronto-based Timbercreek Capital, has reached the first close of the TC Alternatives Litigation Fund LP, a private closed-end vehicle built with mass tort specialist Reform Capital to give qualified investors structured exposure to the US mass tort litigation finance market.

As reported by Newsfile Corp, the fund — marketed as "T-LIT" — held its first close on September 28, 2026, and will continue raising toward an initial target of $50 million. The strategy deploys capital to finance claimant acquisition and case advancement on behalf of established US law firms, and in return takes a share of those firms' contingent legal fees once cases are successfully resolved and settled. TC Alternatives is targeting diversified exposure across established case equity, secondary acquisitions and earlier-stage opportunities, and describes the US mass tort market as an annual opportunity in excess of $40 billion.

Fraser McEwen, President and Portfolio Manager of TC Alternatives, said litigation finance "sits at the intersection of attractive returns and real-world outcomes." Reform Capital, founded by Daniel Dubois and Sean Jimenez, sources opportunities through relationships with US mass tort law firms and case administrators, and monitors case performance through its proprietary AI-driven analytics platform, Handled. Dubois said that "partnering with Timbercreek brings that approach to a broader base of investors, and puts more capital behind the law firms and claimants working to hold some of the world's largest companies accountable."

The fund is aimed at qualified investors. Its launch extends a pattern of established alternative asset managers building dedicated access points into litigation finance rather than allocating through existing funders.

Dutch Funder FairPlay Legal Halts Financing of Gambling-Loss Claims After Supreme Court Ruling

FairPlay Legal has stopped funding Dutch gambling-loss claims and is terminating its existing files after the Hoge Raad, the Netherlands' Supreme Court, ruled that the absence of a Dutch licence does not by itself render an online operator's contracts void.

As reported by Casino Zorgplicht, the Court held in its 3 July 2026 judgment that the Wet op de kansspelen, the Dutch gaming act, never had the effect of invalidating contracts with operators acting contrary to article 1(1)(a). That conclusion removes the central legal theory underpinning thousands of claims seeking recovery of losses incurred with unlicensed offshore operators. The ruling followed preliminary questions referred in June 2024 by the district courts of Amsterdam and North Holland, and was consistent with the advisory opinion delivered by Advocate General Lindenbergh in November 2025.

FairPlay Legal withdrew financing immediately, telling the publication that the claims no longer offer "legal and commercial perspective." The funder, which worked exclusively with advocaat Pepijn Le Heux on the portfolio, said it will continue to pursue a separate category of cases in which operators refuse to pay out winnings. It has no connection to Fair Play Casino.

The decision illustrates how quickly a consumer-claims portfolio built on a single statutory argument can be wound down once an apex court closes the theory. Dutch gambling-loss claims had attracted significant funded volume over the past three years, and the ruling effectively strands files that had not yet reached judgment or settlement.

Linklaters Urges Standalone Cost-Benefit Test for UK Antitrust Class Actions

Linklaters has called for a new standalone hurdle at the certification stage of UK antitrust collective proceedings, arguing that claims should advance only where their expected financial benefits substantially outweigh the costs of bringing them.

As reported by PYMNTS, citing Law.com International, the firm submitted the proposal to the Department for Business and Trade's consultation on "Swifter and simpler competition redress, regulatory appeals and competition enforcement," published in July with responses due 25 September. Linklaters argued that the Competition Appeal Tribunal should apply heightened scrutiny to novel or unestablished theories of harm, and framed its concerns around litigation costs, third-party funding structures and the proportion of any award that ultimately reaches class members.

The submission enters a debate that has intensified since the Supreme Court's decision in Merricks, widely read as lowering the certification threshold and opening the door to a substantial pipeline of opt-out claims. Critics of the regime point to outcomes such as Waterside v Mowi, where the distribution of recoveries between class members, their lawyers and their funders drew judicial attention.

The proposal sits in direct tension with submissions from the claimant and funding side, including the International Legal Finance Association's call for the government to clarify rather than rebuild the opt-out regime. With the consultation window now closed, attention shifts to whether the Department for Business and Trade treats funder economics as a certification question or leaves it to the Tribunal's existing discretion.

Pogust Goodhead to Change Its Name as Both Namesake Founders Demand Removal

Pogust Goodhead will abandon the name it has traded under since 2021 after both of its namesake founders publicly demanded their names be stripped from the firm, deepening a governance crisis at one of the most heavily funded claimant firms in the UK market.

As reported by Legal Futures, Harris Pogust announced via LinkedIn that he had issued a cease-and-desist demanding the firm stop using his name, saying he was "embarrassed to have my name anywhere on that document" in reference to proceedings the firm has brought against its own client committee. "You are suing someone you are asking the court to allow you to continue to represent?" he wrote. Co-founder Tom Goodhead followed with a similar demand days later.

A firm spokeswoman confirmed the change: "We intend to move away from the Pogust Goodhead name. The firm has moved on from its former leadership and its name should too." The rebrand will be the practice's fourth identity since 2018, following SPG Law and PGMBM.

The dispute centres on the £36 billion Mariana Dam claim against BHP, brought on behalf of more than 400,000 Brazilian claimants. Pogust Goodhead has filed a claim against its own client committee after the committee moved to replace it with Bailey Glasser International. An expedited hearing is expected.

For funders, the episode is a reminder that concentration risk in mass-claims portfolios extends beyond case merits to the stability of the firm running the book.

UK Tribunal Certifies Revived Apple and Amazon Consumer Claim, Subject to Changes in Funding Arrangements

The Competition Appeal Tribunal has partially certified a revived consumer claim against Apple and Amazon, but conditioned certification on changes to the proposed class representative's funding arrangements and remuneration — the second time funding terms have been the pivotal issue in this proceeding.

As reported by the Cyprus Mail, Judge Kelyn Bacon found the claim concerning Apple product sales on Amazon's UK marketplace to be "plausible, credible and grounded in the facts," while refusing to certify broader allegations relating to other retailers as resting on a "complex and speculative theory of harm." The certified claim is valued at between £289 million and £306 million including interest. Tribunal records list the case as 1759/7/7/25, brought by JLP A&A Class Representative Limited, with Justin Le Patourel as the proposed class representative.

Funding has shaped this litigation from the outset. In January 2025, the Tribunal refused a collective proceedings order sought by academic Christine Riefa, finding she was insufficiently independent of her funder, Asertis, given an uncapped success-fee multiple, a priority-payment obligation and confidentiality over the funding terms. Interim costs of £1,695,797.16 were awarded, with a further £1,355,347.77 in interest.

The latest ruling signals that the Tribunal remains willing to certify substantial opt-out claims while treating funder economics and class representative compensation as conditions precedent rather than post-certification housekeeping. The claimant side will now need to redraft its funding terms before the proceedings advance.

Burford Capital Discloses Up to $1.4 Billion Entitlement From $5.7 Billion Apple Patent Verdict

Burford Capital has told the market it could be entitled to as much as $1.4 billion following a San Diego federal jury's award of roughly $5.7 billion to Taction Technology in a patent dispute with Apple. The verdict, returned after market close on Friday, is among the largest patent damages awards ever entered against the technology company.

As reported by PR Newswire, Burford said that if the award were paid as rendered, its entitlement would be approximately $1.4 billion, split roughly evenly between its balance sheet and its investment funds. The funder attached unusually heavy caveats to that figure, noting that Apple is expected to file post-trial motions including a motion for judgment as a matter of law, that any judgment would be subject to review by the U.S. Court of Appeals for the Federal Circuit, and that "very few large patent verdicts survive the post-verdict process intact." Burford cautioned that the ultimate recovery could be substantially lower than the verdict amount, or nothing at all.

Burford's shares rose approximately 9% in London trading following the disclosure, which was also filed with the U.S. Securities and Exchange Commission as an exhibit to a Form 8-K.

The announcement arrives roughly six months after the Second Circuit's reversal in the YPF matter, where Burford had reported a far larger potential entitlement tied to a $16 billion judgment against Argentina. That reversal underscored the volatility of concentrated, single-case exposures — a dynamic Burford's own caveats appear designed to pre-empt this time.

ILFA Urges Government to Clarify Rather Than Rebuild the Opt-Out Collective Actions Regime

The International Legal Finance Association has filed its response to the UK Government's consultation on competition redress, arguing that reforms intended to speed up the opt-out collective actions regime must not add cost or complexity that makes meritorious claims harder to fund.

The submission responds to the Department for Business and Trade's consultation on "Swifter and Simpler Competition Redress, Regulatory Appeals and Competition Enforcement," which opened on 17 July and closed on 25 September. ILFA's central argument is that the Competition Appeal Tribunal and the appellate courts have already developed workable mechanisms for overseeing class representative suitability, and that the Government should deliver clarity through guidance and the formalisation of existing practice rather than new statutory or procedural requirements.

"Third-party litigation funding is the cornerstone of the opt-out collective actions regime," said Neil Purslow, Chairman of the Executive Committee of ILFA. "Without it, consumers and small businesses would have no realistic means of bringing meritorious claims against well-resourced defendants. In our response, we make it clear that any new reforms must not inadvertently introduce cost or complexity, which only serve to make valid claims harder to bring."

ILFA ties the Government's proposal to permit damages-based agreements in collective proceedings to the unresolved question of funder returns. "Crucially, the Government's proposal to permit damages-based agreements in collective proceedings underscores the urgent need to reverse the PACCAR ruling retrospectively," Purslow said. "To keep this regime viable and investable, we must give funders earlier certainty over returns and introduce better cost budgeting to rein in unpredictable, disproportionate costs."

On costs, the association supports mandatory costs budgeting for claimants and defendants alike from certification onwards, and greater use of alternative dispute resolution where it is required early and backed by real costs sanctions. It also backs a central CAT website for claims and settlements, while cautioning that efficiency measures such as reduced panel composition may yield only marginal savings.

"Maintaining a true equality of arms is essential," Purslow said. "Large defendants should not be allowed to weaponise structural hurdles to quash meritorious claims and ordinary businesses and consumers must remain empowered to hold the powerful to account."

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