The High Court has ruled in favour of shareholders in Walton & Anor v ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) & Ors. In a 3:2 decision, the majority permitted former shareholders of Arrium Ltd to examine the insolvent company’s officers under s 596A of the Corporations Act 2001 (‘CA’) for the purpose of potentially bringing a class action against the company’s managers. The Road Ahead The High Court (3:2) decision is positive news for shareholder class actions as it confirms that “eligible applicants” can publicly examine corporate officers about a corporation’s affairs, to test the merits of a potential class action against the company. This is even if a liquidator does not intend to investigate or pursue claims against the officers of the company. The approach adopted by the majority is a welcome step forward for corporate accountability in the midst of many attempts by the legislature to constrict the Australian class action landscape. Procedural history The applicants were shareholders in a former mining company, Arrium Ltd (‘Arrium’). The applicants bought shares in Arrium during a capital raising in 2014. Shortly thereafter, Arrium announced an impairment to the value of its business of over $1billion. Arrium was then placed into administration, and then finally liquidation. Under s 596A CA, the Court is to summon a person for examination about a corporation’s ‘examinable affairs’ if an eligible applicant seeks the order, and the court is satisfied that the person subject to the order was an officer or liquidator of the corporation during the prescribed period. With authorisation from ASIC, the applicants sought an order from the Supreme Court of New South Wales summoning a former director of Arrium for public examination. The applicants sought the order,  as they believed that they may have claims against the former directors and auditors of Arrium arising out of the capital raising and the company’s published financial results for the same period. The goal of the examination was to investigate whether pursuing these claims as a class action with other shareholders was viable. The Supreme Court of New South Wales initially granted the order.  However, the Court of Appeal overturned the decision to allow the examination on the basis that it was an abuse of process, as the examination did not benefit Arrium, its creditors, or its contributories. The issue to be determined by the High Court was whether the applicant’s purpose for seeking the order was an abuse of process. This involved considering whether the purpose of the application was consistent with the purpose of s 596A CA. Was the Proposed Examination an abuse of process? The majority (Justices Edelman, Steward and Gageler) allowed the appeal, finding that the application was not an abuse of process. The purpose for the application was held to be within the scope of s 596A CA. In coming to this conclusion, the court considered section 596A CA to ascertain its purpose, which involved lengthy consideration of the preceding iterations of the statutory scheme for public examinations. The High Court acknowledged that earlier laws insisted on public examinations being for the benefit of the company or its creditors, or for bringing criminal or regulatory proceedings in connection with the company. However, the High Court concluded that these requirements did not apply to bringing an application under s 596A CA because s 596A CA has no direct analogy with any former provision in the earlier companies’ legislation. Instead, the court held that s 596A has much broader requirements than the former laws on this issue. This is because: 1.     section 596A CA is drafted differently, and applications under it require less supporting evidence than earlier companies’ legislation and other sections within the same part of the Corporations Act 2001; 2.      section 596A CA was intentionally drafted to have a broad application; 3.     section 596A was enacted in the public interest to facilitate the administration or enforcement of the law concerning a corporation and its officers in public dealings. Therefore, an application under this section will not be an abuse of process if it promotes compliance with the law. On this basis, the High Court concluded that using a compulsory examination to test the merits of a potential class action for corporate misconduct coincides with the purpose of s 596A CA. The fact that the proposed class action would not benefit all of Arrium’s shareholders did not jeopardise the validity of the application, because s 596A CA is directed to enforcing the law, rather than benefitting the company in administration. The judgment is available here: Walton v ACN 004 410 833 (formerly Arrium Ltd) (in liq) [2022] HCA 3, 16 February 2022. About the Authors Lillian Rizio specialises in managing large scale complex litigation, particularly with claims involving multiple parties. Lillian’s emphasis is on corporate disputes, class actions, professional negligence and insurance, across most Australian jurisdictions. Lillian also has extensive experience advising clients in relation to right to information matters, in both federal and state jurisdictions Julia Hegarty is a law clerk in the Dispute Resolution and Litigation team at Piper Alderman in Brisbane. She is currently studying a Bachelor of Commerce/Laws (Hons) at the University of Queensland. Julia has an interest in externally funded litigation and shareholder class actions. For queries or comments in relation to this article please contact Kat Gieras, Litigation Group Project Coordinator | T: +61 7 3220 7765 | E:  kgieras@piperalderman.com.au

Northleaf Capital Partners (Northleaf) today announced that it acted as the lead arranger of a A$250 million senior secured credit facility for Omni Bridgeway (ASX: OBL), a global leader in financing and managing legal risks, with expertise in civil and common law legal and recovery systems. 

“Omni Bridgeway represents the fourth litigation finance platform with which we have partnered over the past 24 months,” said David Ross, Managing Director and Head of Private Credit at Northleaf. “These types of specialty finance assets provide our investors with portfolio diversification while generating consistent, stable cash flows and enhanced returns that are uncorrelated to the broader economy.” 

“We are delighted to partner with Omni Bridgeway, leveraging our specialty finance expertise to support the firm’s continued global growth,” added CJ Wei, Vice President at Northleaf. “Northleaf’s flexible investment approach allows us to provide senior debt as well as hybrid and equity capital to support leading specialty finance and financial technology businesses across consumer, commercial and other verticals.” 

“The Northleaf team brought the necessary capabilities to meet the evolving capital demands of our business as we transition into the next phase of our growth, making them the right partner for us in this transaction,” said Andrew Saker, Managing Director & CEO and Chief Strategy Officer – US at Omni Bridgeway. “This transaction creates significant benefits for our company and our customers.”

 Northleaf’s private credit program seeks to provide investors with diversified exposure to private credit investments globally, with a focus on floating rate loans to middle market companies and specialty finance platforms in North America, Europe and Australia. Northleaf invests across the capital structure, including first lien, unitranche, second lien, mezzanine and subordinated debt and equity structures. 

About Omni Bridgeway

Omni Bridgeway is the global leader in litigation financing and managing legal risk, with expertise in civil and common law legal and recovery systems. With international operations based in 20 locations, Omni Bridgeway offers dispute finance from case inception through to post-judgment enforcement and recovery.

Omni Bridgeway is listed on the Australian Securities Exchange (ASX: OBL) and includes dispute funders formerly known as IMF Bentham Limited, Bentham IMF and ROLAND ProzessFinanz, and a joint venture with IFC (Part of the World Bank). For more information visit www.omnibridgeway.com. 

About Northleaf Capital Partners

Northleaf Capital Partners is a global private markets investment firm with more than US$19 billion in private equity, private credit and infrastructure commitments under management on behalf of public, corporate and multi-employer pension plans, endowments, foundations, financial institutions and family offices. Northleaf’s team of more than 175 professionals, located in Toronto, Chicago, London, Los Angeles, Melbourne, Menlo Park, Montreal and New York, is focused exclusively on sourcing, evaluating and managing private markets investments globally. Its portfolio includes over 500 active investments in more than 40 countries, with a focus on mid-market companies and assets. For more information on Northleaf, please visit www.northleafcapital.com.

Nearing its fourth anniversary in June, leading litigation funder Validity Finance, announced the arrival of three senior members to its team including a new portfolio counsel for investment review, a new corporate counsel and a first-time marketing officer. Validity also reports the promotion of seven professionals in New York, Houston and Tel Aviv. In Houston, Michelle Eber joins as portfolio counsel from Baker Botts, where she represented technology and energy clients in patent litigation matters. In New York, Abe Sutton arrives as corporate counsel from Windels Marx Lane & Mittendorf, where he practiced commercial and real estate law. And joining Validity as its chief marketing officer is John Neidecker, who previously led marketing and business development initiatives at several Am Law 100 firms.

• Michelle Eber – Portfolio Counsel: Ms. Eber is responsible for Validity’s patent matters, including evaluating new cases for investment and managing funded cases. She brings more than 10 years of patent and trade secret litigation experience, including significant courtroom experience. She was formerly special counsel at Baker Botts in Houston, where she represented plaintiffs and defendants in the energy and technology sectors in high-stakes IP cases, including disputes involving oilfield technologies, telecommunications systems, data and video compression systems and computer hardware and software. She has been recognized as “One to Watch” in The Best Lawyers in America in 2022 and a Texas Super Lawyer – Rising Star for IP Litigation in 2020-2022.  She received her J.D. with honors from the University of Texas School of Law, where she was a member of the Texas Law Review. She also holds an M.B.A. from the University of Texas McCombs School of Business. Ms. Eber graduated magna cum laude from the University of Pennsylvania with a B.S. in systems engineering.  The addition of Ms. Eber reflects a growing pool of complex patent disputes that Validity is considering funding.
• Abe Sutton – Corporate Counsel: Mr. Sutton will work closely with Validity clients and their respective in-house and outside counsel, along with the firm’s investment team, to navigate all aspects of risk mitigation and funding. He was previously a senior associate at Windels Marx, focused on commercial real estate matters. He represented private and public companies, and private equity clients in corporate transactions including mergers and acquisitions, financings, reorganizations, corporate governance and securities law compliance. He received his J.D. from Fordham University School of Law, where he was a member of the Fordham Law Review. Mr. Sutton graduated summa cum laude from Yeshiva University with a B.S. in Finance.
• John Neidecker – Chief Marketing Officer: Mr. Neidecker has over 20 years of experience in professional services, including top marketing/business development positions at one Big Four accounting firm and four Am Law 100 firms including Steptoe & Johnson, Covington & Burling and Foley Lardner. He also spent seven years as a marketing director for PricewaterhouseCoopers. Mr. Neidecker holds a B.S.B.A. in Marketing from the University of Arkansas.

 

• Laina Hammond  – Managing Director, Senior Investment Officer: Formerly an investment manager, Ms. Hammond has been with Validity since launch, directing the firm’s Houston office.  She was previously a litigation principal at Shipley Snell Montgomery.
• David Kerstein – Managing Director, Senior Investment Officer: Mr. Kerstein likewise joined Validity at its 2018 launch. A former trial attorney at Gibson, Dunn & Crutcher, he was formerly a senior investment manager and counsel at litigation funder Bentham IMF.
• Julia Gewolb – Chief Risk Officer: Ms. Gewolb has been with Validity since 2018.  A former litigator with Boies Schiller Flexner, Ms. Gewolb was previously legal counsel at Bentham IMF with Messrs. Sutton and Kerstein.
• Wendie Childress – Investment Advisor: Formerly a portfolio counsel at Validity, Ms. Childress joined the company in 2019; she was previously a trial attorney at litigation and appellate boutique Yetter Coleman.
• Joshua Libling – Director of Risk Analytics/Portfolio Counsel: Mr. Libling has been with Validity since 2020. He was previously a counsel at Boies Schiller Flexner.
• Jason Listhaus – General Counsel: Mr. Listhaus, who joined Validity in 2020, was previously was a member of the corporate department at Fried, Frank, Harris, Shriver & Jacobson.
• Eli Schulman – Senior Advisor: Mr. Schulman joined Validity in 2020, establishing the firm’s presence in Tel Aviv.

 

LFJ's latest digital event featured Litigation Finance advisors Rebecca Berrebi (Founder and CEO, Avenue 33, LLC), Peter Petyt (Co-Founder, 4 Rivers Legal), Andrew Langhoff (Founder and Managing Director, Red Bridges Advisors), and moderator Ed Truant (Founder, Slingshot Capital). The panel discussed how they navigate between funders, law firms and claimants, as well as the challenges they face in this market, and the numerous benefits they provide each counter-party. ET: Can you comment on some of the key changes you have seen in the litigation finance market since you got started?  RB: The number one biggest change is that there is so much more money out there than there used to be. In 2016, we rarely had competition on deals. There are so many funds out there that want to allocate capital. If you have a good case, or a portfolio of cases that has merit and a good chance of winning, there would be multiple funders out there looking to fund your case. That is primarily the change I have seen over the arch of my life in litigation finance.  PP: The change that I have seen over the last couple of years is the willingness and appetite for funders to provide capital in addition to what is necessary to run the case. What I have seen is the willingness and appetite for funders to provide working capital. That’s definitely been the development over the last couple of years.  ET: What do you believe is your greatest value add for your clients?  PP: It becomes clear that a very low amount of opportunities that are presented to funders are actually funded. It is in the low single digits. And I am very confident that I will achieve much better success rates than that. And I think it's the approach that is the most important thing and value add here.  ET: Can you talk about your origination efforts and how you find opportunities? AL: I have been lucky over the last five years being a broker and intermediary, cases and opportunities have found me. What I have found is referral and repeat business is really the best part of the origination process for me. The trick is to find lawyers who are entrepreneurial, who are very open to litigation finance.  RB: I am a lawyer by background. I have a pretty strong network from my whole career working at law firms and funds. And I do try to educate the market the best way I can. Frankly, I get a lot of hits that way by being out in the market and talking in the media.  ET: When a client comes to you, what are they looking for?  PP: I think in the vast majority of cases, plaintiffs may have never used litigation finance before.  There is no doubt in my mind that law firms are the right people to go out and seek opportunities. I think we perform a valuable role here and I think plaintiffs know that. I think it is about managing processes, but adding value.  ET: What are some of the legal considerations as you take on a new client?  RB: You have to start thinking about confidentiality from the get-go. Disclosure with respect to privilege we have to be careful about. There are state-specific issues related to litigation finance that you have to be careful about, specific to disclosure.  ET: In terms of the intake, can you provide us an overview?  AL: I think it is far more effective to take all the information, organize it, mitigate any concerns and present it to the funder. Almost in a way that you are doing the funder’s work for them. Ideally, when I give them that memorandum, I know many funders will paste it into their investment committee memorandum. And that is that idea, I am trying to make it drop dead simple for them. Click here to listen to the entire episode.