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Commercial Regulatory Issues

Industry Reacts to UK Government’s Announcement of Legislation to Reverse PACCAR Ruling

Earlier this week, LFJ covered the announcement by the Ministry of Justice (MOJ) that it would introduce new legislation to reverse the effects of the Supreme Court’s PACCAR ruling, and protect access to third-party litigation funding. As part of this announcement, the government also revealed that it would be conducting a review of litigation funding, to ensure that claimants who access funding receive an adequate share of any compensation secured through funded litigation. Since the announcement, we have seen a variety of responses from litigation funders and legal professionals, as the industry looks towards the future of litigation finance in the UK. Reacting to the announcement on Monday, Factor Risk Management’s managing director, Mohsin Patel, described it as ‘very welcome news to funders, claimants and lawyers alike’, adding that the proposed law ‘will provide much needed certainty and clarity for stakeholders in future.’ However, he voiced caution around the Government’s plans for reform of litigation funding in the UK, emphasising that it should not ‘take any steps that may jeopardise its development.’ The president of the Law Society of England and Wales, Nick Emmerson said that his organisation welcomed ‘the UK government’s aim of helping the public achieve access to justice.’ With regards to the planned review of the litigation finance market, he acknowledged that ‘there could be merit in a review,’ but suggested that the government should consider ‘the risk of the funding arrangement rendering any victory hollow for the consumers affected.’ A statement from Martyn Day, co-president of The Collective Redress Lawyers Association (CORLA), described the government’s plans as ‘a very sensible and welcome development’ and suggested that the new legislation would prevent ‘corporations tying up court time and money in trying to unpick the funding agreements that make the claims possible.’ Similarly to other industry figures, Day argued that any planned reforms around the funding of collective actions ‘must build on today’s welcome announcement and not undermine it.’ Furthermore, he expressed CORLA’s willingness to ‘work closely with government on any reform that gives clarity, certainty and fairness to claimants and those who support them in bringing their claims.’ In a letter to the Financial Times, Steven Friel, chief executive of Woodsford, focused on the Lord Chancellor’s suggestion that as part of the review of litigation funding, it would consider a cap on the fees paid to litigation funders. Friel stated that instituting a cap ‘would be a mistake’, arguing that with a competitive market already providing a measure of self-regulation on fees, ‘a cap that will inevitably be lower than the market is prepared to go on some cases will cause many meritorious claims to become economically unviable to fund.’ Instead, Friel suggested that the government should ‘redirect the obligation to pay some or all of the litigation funding fees from the victims to the wrongdoers.’ Tets Ishikawa, managing director of LionFish Litigation Finance, offered a similar verdict on the government’s intention to conduct a review into third-party funding, arguing that recoverability of funders’ fees is the best solution. Ishikawa suggested that ‘allowing recoverability would allow the funding industry to support the many impecunious clients with cases smaller than the Post Office matter that we currently have to turn away.’ Jack Bradley-Seddon, partner and litigation funding specialist at Thaxted Capital, celebrated the ‘positive tone in the announcement’ and highlighted that it  was a welcome contrast with ‘a lot of the negative sentiment that has been printed about the industry previously.’ He went on to caution that ‘the devil will be in the detail’ of the proposed legislation, noting that there is ‘a big difference between positive soundbites before an election, and a precise and carefully worded piece of legislation that actually fixes the problem.’
Case Developments Commercial

$18 Million Settlement Agreed in Merivale Underpayment Class Action

The strength of litigation funding for class actions in Australia continues to be demonstrated, as a class action representing underpaid hospitality workers has reached a multimillion dollar settlement with the employer. An article in the Australian Financial Review covers the resolution of a class action brought against hospitality company, Merivale, who has agreed to a without-admission settlement of $18 million. If approved by the Federal Court, $8.6 million of the settlement will be distributed to cover the legal costs and the commission for the class action’s litigation funder, ICP Funding. The class action was brought against the hospitality giant over allegations that it had underpaid around 14,000 employees, with the total amount of unpaid wages amounting to $129 million. The lawsuit alleged that Merivale had been relying on an outdated ‘WorkChoices’ agreement from 2007, which had not been legitimately approved and failed to meet the industry award. Despite agreeing to settle the case, Merivale’s spokesperson said that the company “strongly denies these allegations and continues to do so.” The group action’s members were represented in the case by Adero Law, with the costs of the case covered by ICP Funding. The terms of the settlement agreement would see the funder receive roughly 25% of the total amount, with $2.5 million for costs and $4.4 million as commission. Adero would receive $1.25 million for its deferred costs, plus $500,000 to cover its administration costs for distributing the remaining settlement.
The LFJ Podcast

Episode 85: Michael Volpe

Hosted By Michael Volpe |
Our guest today is Michael Volpe, Executive Director of the Milestone Foundation. Michael discussed the Milestone Foundation's unique structure as a nonprofit that funds litigation, and how this benefits both their clients, and the broader litigation finance industry. [podcast_episode episode="12666" content="title,player,details"]
Case Developments Commercial

Ontario Court Approves Funding Arrangements in Class Actions Targeting Canadian Banks

Within North America, it is the US market which sees the majority of activity when it comes to funded litigation. However, north of the border, there are still viable opportunities for funders to engage with, as has been demonstrated by an Ontario court’s decision to approve the funding agreements in a number of class actions brought against Canadian banks. An article on Advisor.ca highlights a decision by Ontario’s Superior Court of Justice to approve third-party funding arrangements for several proposed class actions targeting four of Canada’s largest banks. The class actions are being brought against Bank of Montreal, CIBC, Bank of Nova Scotia, and Royal Bank of Canada, over allegations that these financial institutions improperly charged their customers with ‘duplicative insufficient funds (NSF) fees for failed pre-authorized debit (PAD) transactions.’ Whilst each of the class actions is technically a separate lawsuit, due to the similarities and overlap between the claims, the Superior Court provided a single ruling to approve the litigation funding arrangements for all four cases. As part of its ruling, the court approved the scale of the funder’s returns, which will vary between 7% and 12% of any final damages awarded, based on the point at which the case is settled or resolved. In addition, the court found that the funder had sufficient capital to cover a costs award, if the defendants are successful in the cases. In its ruling, the Superior Court wrote that the terms of the funding agreements allowed for “a reasonable reward for the funder in exchange for providing the necessary costs indemnity and disbursement funding.” Appearing to acknowledge the importance of third-party funding in such cases, the court went on to say that “the funding agreements are thus necessary to facilitate access to justice for the class, and promote behaviour modification.” With the funding agreements approved and the plaintiffs’ motions approved, the class actions are now able to proceed.
Commercial Regulatory Issues

Proposed Litigation Funding Disclosure Rule Rejected by Supreme Court Of New Jersey’s Civil Practice Committee

Moves by state legislatures to introduce new laws governing litigation financing have dominated much of the recent conversation around the regulation of third-party funding. However, the roles of state and federal courts in implementing rules around funding disclosure are helping to shape the future of litigation finance in the US. Reporting by The National Law Review provides an overview of the decision by the Supreme Court of New Jersey’s Civil Practice Committee to reject a proposal that would require the disclosure of litigation funding arrangements at the start of any civil lawsuit. The proposal had been brought by the New Jersey Civil Justice Institute, which had argued that such a rule would provide transparency around third-party litigation funding, and would ensure that all parties were aware of funding arrangements that could affect resolution and settlement proceedings. In its rejection of the proposed rule, the Committee argued that it did not have the “sufficient experience to meaningfully develop a rule change at this time,” and suggested that attempts to draft such a rule “may prove difficult.” Whilst the Committee has declined to introduce a disclosure rule at this time, it acknowledged that legal or regulatory developments may require the issue to be revisited “at some point in the future.” The Committee’s decision stands in contrast to the action taken by the District Court for the District of New Jersey in 2021, when it passed Local Civil Rule 7.1.1. This rule requires the disclosure of information surrounding litigation funding, including the identity of the funder and their financial interest in the case, for all cases in New Jersey’s federal courts. The District Court’s decision echoed similar moves to introduce a disclosure rule by many federal District Courts across the country, along with six United States Courts of Appeal.
Announcements Consumer

Counsel Financial Announces $25M Equity Transaction and Launch of New Loan Servicing Business

Counsel Financial, a pioneer in providing financing solutions to the plaintiffs’ bar, is proud to announce the successful close of a $25 million private equity transaction and the launch of its innovative loan servicing business. This strategic development marks a significant milestone in the company’s 25-year history. “Our team possesses unparalleled technology-enabled underwriting and monitoring capabilities, and we look forward to institutional investors leveraging our experience through our enhanced servicing platform,” said Counsel Financial President and CEO Paul Cody. The equity transaction has paved the way for Counsel Financial to renew and extend its nearly $200 million in credit facilities, enhancing its capacity to support law firms with efficient and flexible financing options. Counsel Financial’s equity partners have expanded access to hundreds of millions of investment capital in support of the company’s law firm financing strategies. This influx of capital and confidence from financing partners underscores Counsel Financial’s strong position in the market and its commitment to serving the unique needs of law firms and their clients. The rollout of the loan servicing business represents a natural extension of Counsel Financial’s expertise in underwriting plaintiffs’ law firms and managing contingent fee case collateral. Designed to cater to institutional investors, the new technology-enabled servicing platform offers a comprehensive suite of tools for underwriting, managing, and valuing litigation finance assets, enabling clients to leverage decades of industry experience and a vast repository of historical data to provide unmatched oversight and investment insights. About Counsel Financial Counsel Financial is an industry leader in originating, underwriting and servicing loans and other financing solutions for contingent fee law firms. For over two decades, Counsel Financial has provided more than $2 billion in capital investments across 300+ law firms. These investments have financed the growth of firms in every area of plaintiffs’ litigation, including personal injury, mass torts, class action and labor and employment.
Commercial People Moves

Burford Capital Hires Judgement Enforcement and Foreign Asset Recovery Expert

When talking about the benefits of third-party funding, litigation funders are often keen to talk about the expertise they can bring in the areas of judgement enforcement and collection. One funder is demonstrating its own commitment to this field, as it has hired a leading judgement enforcement expert to bolster its own team. An article in The American Lawyer highlights Burford Capital’s recruitment of Carrie Tendler, a former partner at Kobre & Kim, to strengthen its judgement enforcement team through her expertise in foreign asset recovery. Tendler brings 16 years of experience at Kobre & Kim to her new role at the litigation funder, having led a practice focused on international judgment enforcement and cross-border asset forfeiture and recovery.  Discussing her new role at Burford, Tendler explained she would focus on helping Burford “in those types of situations where they are the stakeholder in international judgment claims to better manage, strategize and fulfill the role of an in-house litigator.” Tendler also used the interview to offer praise for the value that third-party funding has brought to the legal system, stating: “Lawyers are able to take cases that we wouldn’t have been able to take without the benefit of financing, and claims get adjudicated that should be adjudicated, and that’s all enabled by litigation finance.” It is no coincidence that this recent hire aligns with Burford’s efforts to enforce the $16 billion judgement in the Argentina YPF case, as the funder is in the middle of pursuing a variety of routes to collect the award. Referencing the YPF example, Tendler explained that Burford has many such cases “where Burford is a stakeholder where they need to enforce judgments and having someone full time working on the enforcement of those judgments is my new role.” Burford’s CEO, Christopher Bogart highlighted Tendler as “a leader in global enforcement and cross-border asset recovery”, and stated that the firm is excited to bring “her skillset to our already exceptional asset recovery team, with a particular focus on the YPF matter.”
Announcements Commercial People Moves

Keller Postman UK merges with Lanier, Longstaff, Hedar & Roberts to form specialist collective redress law firm KP Law Limited

Today Keller Postman UK Limited and Lanier, Longstaff, Hedar & Roberts LLP announce their merger to form a new specialist collective redress law firm called KP Law Limited. The merged firm will specialize in bringing large scale consumer claims in the areas of product liability, workers’ rights, data breach and privacy, investment fraud and financial products mis- selling, and competition law. The merged firm will also pursue in the UK and Europe cases being brought by The Lanier Law Firm in the US, which well-known US trial lawyer Mark Lanier heads up. Andrew Nugent Smith, formerly Managing Partner of Keller Postman UK, will be Managing Partner of the new firm, with Tom Longstaff and Duncan Hedar becoming Partners and taking on the roles of Head of Product Liability and Head of Competition, respectively. Keller Postman UK has previously resolved diesel emissions claims against Volkswagen, workers’ rights claims against Uber, and data breach claims against British Airways, Ticketmaster, and Equifax. Ongoing cases for the firm include further diesel emissions claims against Mercedes and Vauxhall, equal pay cases against the major UK supermarkets, and a number of other large group actions. The new KP Law will also continue to pursue claims against talcum powder manufacturers previously brought by Lanier, Longstaff, Hedar & Roberts, with many other large group actions in the pipeline. Mark Lanier commented: “This merger represents an extremely important and significant collaboration for the Lanier Law Firm as we continue to be strategic in developing relationships with firms internationally. I’m thrilled and excited at what a positive development this is for our clients. It’s equally important to me that we are continuing our partnership with Tom Longstaff and Duncan Hedar who are, without a doubt, two of the finest lawyers in the UK.” Andrew Nugent Smith commented: “This merger adds new product liability and competition law expertise to our existing workers’ rights, data breach and privacy, financial products and investment fraud and mis-selling practices. In Tom Longstaff and Duncan Hedar, we gain two stellar collective redress lawyers with the ability to develop and progress collective redress cases, and we are incredibly excited by the opportunity to collaborate with The Lanier Law Firm in the US.” Tom Longstaff commented: “We are delighted to join forces with Keller Postman UK which will allow us to benefit from their established position in the collective redress ecosystem and to increase the pace and scale at which we can bring a large number of opportunities we have developed in the short time that Lanier, Longstaff, Hedar & Roberts has been operating.”
Case Developments Commercial

South American Countries File Briefs in Support of Argentina’s Appeal of $16 Billion Judgment 

Whilst most of the conversation about the $16 billion judgement in the YPF Argentina case has focused on attempts by Burford Capital to collect on the award, this does not mean that the Argentine government has simply given up on continuing its fight against the judgment. In what is perhaps the most significant geopolitical development in the case yet, Argentina’s regional neighbours have joined its legal fight to appeal the US court’s decision. An article in The Financial Times highlights the growing level of global attention focused on the $16 billion judgment faced by Argentina, as its neighbouring countries have lent their support by filing briefs in support of Argentina’s appeal to the US Court of Appeals. In a bold sign of regional solidarity, Brazil, Chile, Uruguay and Ecuador have all signed on to briefs in support of Argentina’s appeal, arguing that upholding the judgment would amount to a violation of national sovereignty. The brief filed by lawyers for Brazil and Uruguay stated that they were concerned the court’s judgement had “misapplied crucial doctrines that are designed to ensure respect for the prerogatives of foreign sovereigns and their courts, protect foreign litigants from the burdens of litigating in the United States, and safeguard against the misapplication of foreign law.” Furthermore, the brief argued that the multibillion-dollar award had created an undue burden on Argentina, saying that “the people of the region should not be forced to endure the economic consequences of a judgment that flagrantly misapplies the governing law, entered by a court that never should have exercised jurisdiction in the first place”. The second brief, signed by Chile and Ecuador, focused on the effect this judgment might have on South American businesses, arguing that it could make these regional companies hesitant about engaging in US markets. The brief argued that “the threat of increased and wide-roaming judgments by US courts, based on only the most tenuous connections to the US” may have wider ramifications for commerce between South American and US corporations.