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Case Developments Commercial

FORIS AG Announces Settlement in Dispute Over Deutsche Bank’s Postbank Takeover

By Harry Moran |

Whilst third-party funding is less commonly seen within the various European Union jurisdictions, a landmark case in Germany that dates back to a 2010 takeover of Postbank has finally achieved a settlement according to the litigation funder that provided the financial backing for the claim.

An announcement from German litigation funder FORIS AG revealed that a settlement has been reached in the legal proceedings brought against Deutsche Bank related to the bank’s takeover of Postbank in 2010. FORIS had financed two claims that represented a total of 19 Postbank shareholders, and following the agreement with Deutsche Bank, all that remains is for the plaintiffs to decide whether or not to accept the settlement.

The claims which were first brought in 2017 focused on allegations that Postbank shareholders had been underpaid for their shares, when they were forced to accept 25 euros per share. The settlement provides for each shareholder in the claims to receive an additional payment of 31 euros per Postbank share they held at the time of the takeover, with the total value of the dispute estimated at around 4.5 million euros.

Dr. Anke Warlich, senior legal counsel at FORIS, said that the funder was pleased with Deutsche Bank’s willingness to settle and that there was already a high approval rate for the settlement amongst the shareholders whose claims FORIS has financed. Warlich emphasised that without third-party litigation funding, the risk and costs involved in pursuing such a claim would have meant that the injured parties would not have been able to take on these legal proceedings.

The plaintiffs in the claims were represented by the law firms AWARR.legal/Schirp &Partner and Nieding & Barth.

Announcements Commercial Fundraising

Irish Litigation Firm Signs €150M Funding Deal With European Investment Company

By Harry Moran |

Nera Capital’s groundbreaking partnership with a substantial European investment platform, is poised to significantly benefit the company’s consumer division. 

This latest success has come at a prosperous time for Nera Capital, which earlier this year expanded into Europe, opening an office in The Netherlands, adding to its locations in England and Ireland. 

Following its establishment in 2011, the company has become a pioneer in the legal finance industry. Nera Capital is a specialist funding provider to law firms across Europe and the US.  The firm has administered legal finance in numerous jurisdictions and assisted more than 200,000 claimants to date. 

Recently, Nera secured a sought after spot in the European Litigation Funders Association. Director of Nera Capital, Aisling Byrne, said: “This latest funding partner is a strategic advancement which will greatly enhance the services we provide to our clients and partners. 

“I am excited about the possibilities this funding line will unlock.” Ms Byrne called the deal a ‘significant milestone’ for the business.  She added: “Nera Capital continues to advocate for transparency and promoting higher industry standards. We assist financially vulnerable consumers, whilst maintaining exceptional returns for our investors and all stakeholders. 

“This newest collaboration allows us to enhance consumer access to justice, supporting equitable outcomes over time for more people.” 

Case Developments Commercial

NZ Court of Appeal Approves Opt-Out Class Action Against ANZ and ASB Banks

By Harry Moran |

When it comes to ensuring that litigation is effective in providing full access to justice for individuals, a key factor in class actions is often whether these claims are brought on an opt-in or opt-out basis. In the latest example of this important distinction being at stake, a New Zealand court has ruled that a large class action against two of the largest banks will be allowed to proceed as an opt-out claim.

Reporting by RNZ covers the news that a class action being brought against ANZ and ASB banks has been approved to be brought on an opt-out basis by the New Zealand Court of Appeal. The class action was first filed in 2021 over allegations that the banks breached their disclosure obligations under section 22 of the CCCFA, and failed to sufficiently refund customers’ interest payments and fees that the banks were not entitled to charge. The Court of Appeal’s decision to approve the opt-out proceedings means that the class action could end up representing up to 100,000 customers.

Scott Russell, managing director of Russell Legal and lawyer for the claimants, said that the ruling “not only removes a significant barrier for consumers who might have been unaware they had a right to participate, it means if we are successful, ANZ and ASB will be held liable for every eligible customer that was allegedly impacted when the banks breached New Zealand consumer protection laws.” The class action covers those who were customers of ASB Bank between 6 June 2015 and 18 June 2019, as well as ANZ Bank customers between 6 June 2015 - 28 May 2016, for loans entered into post 6 June 2015.

Whilst the latest article makes no mention of third-party funding, when the class action was filed in 2021, it was reported that the legal proceedings were being jointly funded by CASL and LPF. On the Banking Class Action website, both CASL and LPF are still listed as the funders for the class action.

ANZ provided the following statement in response to the ruling:

"The recent Court of Appeal hearing rejected the plaintiffs claim for a wider ANZ class and confirmed the High Court decision that the banking class action currently before the courts only includes ANZ customers who entered into a loan from 6 June 2015 and also received a loan variation letter that was affected by the calculator issue (i.e. received a letter containing incorrect information between 6 June 2015 and 28 May 2016).

"We have relevant records for customers who might be part of the class, which we will retain. There is no need to contact the bank at this stage. The Court will consider as part of the proceedings how and when to notify customers who are part of the class and who may have a claim."

Case Developments Commercial

Delaware Court Orders Full Disclosure of Class Action Funding Agreement

By Harry Moran |

Disclosure of litigation funding agreements has been one of the most contentious issues in recent years, particularly in the state of Delaware, where certain judges have focused on in questions of transparency. However, a class action in the state has produced one of the most interesting rulings of the year, as the court ordered the full disclosure of the funding agreement and suggested that the litigation funder may also be a competitor of the defendant.

An article in Reuters examines a case in the Court of Chancery for the State of Delaware, in which Vice Chancellor Nathan Cook ruled that plaintiffs in a class action must share their litigation funding agreement with the defendants. The class action at stake is a 2018 case brought against insurer Genworth Financial over allegations of fraudulent transfers that stripped assets from its long term care subsidiary, resulting in the company being unable to pay future claims and commissions to policyholders and insurance brokers. The August 21 ruling granted the defendants’ motion to compel the production of both the litigation funding agreement and the unredacted fee agreements.

Cook explained his ruling in part by emphasising that both the nature of class action lawsuits and the specific context of this case, “give rise to several unique concerns, including the potential for class counsel to face conflicts of interest and for the third-party funders to exercise improper control over the litigation”. Cook also highlighted that the language used in the funding agreement appeared to acknowledge that “the arrangement set forth within, will be disclosed in some fashion during litigation.”

Cook went on to refute the arguments made by the plaintiff’s lawyers that the funding agreement contained privileged or confidential information, stating: “I am confident that, in compelling production of the Funding Agreement, I am not requiring Plaintiffs to disclose meaningful opinion work product.” Referencing existing case law set down in the cases of Carlyle and Charge Injection, Cook concluded that “contrary to Plaintiffs’ assertion, it is not “well established” that, under Delaware law, “litigation funding agreements . . . are not discoverable.”” 

One of the most interesting elements of Cook’s ruling was that he appeared to infer that the nature of the unnamed litigation funder had raised concerns. Cook noted that the funders behind the Genworth class action “do not seem to be entities ordinarily involved in litigation funding”, going on to state that “they appear to be competitors financing litigation against a market peer.”

Announcements Consumer

Express Legal Funding Launches LFAFF: New Trade Organization to Protect Consumers & Law Firms with Strategic Vendor Partnerships

By Harry Moran |

Express Legal Funding, a leading provider of pre-settlement funding services, proudly announces the establishment of the Legal Funders for Actually Fair Funding (LFAFF), a coalition dedicated to safeguarding consumers and law firms through strategic vendor partnerships and ethical pre-settlement funding practices.

A New Standard in Legal and Consumer Protection
LFAFF aims to redefine the legal funding industry by championing fairness, transparency, and inclusivity. This new trade organization is committed to ensuring that injured claimants, regardless of their background, can access the financial support they need to cover their living costs while pursuing justice, and law firms benefit from reliable, transparent vendors to accelerate their growth.

"At Express Legal Funding, our commitment has always been to support both our clients and the legal community with integrity," said Aaron Winston, Author and Strategy Director at Express Legal Funding. "With the launch of LFAFF, we're taking this commitment to the next level by establishing a trusted alliance that prioritizes ethical standards and transparency in all legal service industry vendor partnerships, reducing overhead expenses and protecting law firms from wasted SEO and marketing costs."

Core Objectives of LFAFF

  • Industry Best Practices (B2C): Implement a higher standard for pre-settlement funding, providing plaintiffs access to financial resources without compromising their legal claims.
  • Law Firm Support (B2B): Providing law firms with access to pre-vetted, trustworthy vendors to enhance their practice and client service, with potential discounts for member firms.
  • Ethical Standards and Transparency: Promoting high ethical standards across all vendor partnerships, ensuring that the legal funding industry remains accountable and trustworthy.

Membership and Benefits
Expanding beyond the pre-settlement funding industry, LFAFF is open to law firms and vendors who are committed to upholding the organization's ethical standards and guidelines. Members will benefit from a network of like-minded professionals, access to exclusive resources, and the opportunity to contribute to the ongoing development of industry best practices.

About Express Legal Funding
Express Legal Funding is a nationally recognized and trusted pre-settlement funding company and brand based in Plano, Texas. As a premier provider of pre-settlement funding, it's dedicated to offering plaintiffs the financial support they need while they await the resolution of their cases. The company is committed to ethical practices and transparency, ensuring that its clients receive fair and equitable services.

About LFAFF
The Legal Funders for Actually Fair Funding (LFAFF) is a trade organization founded by Express Legal Funding to promote ethical standards, consumer protection, and strategic partnerships in the legal funding industry. LFAFF is committed to fostering a fair and transparent environment for both law firms and the consumers they serve.

Announcements Commercial

Nakiki SE: Examination of First Capital Market Claim

By Harry Moran |

Nakiki SE announces that it is investigating a capital market claim of up to EUR 400,000 against a company listed on the Open Market of the Düsseldorf Stock Exchange. Nakiki is thus opening up a new area of business: the financing of securities law claims.

With this step, Nakiki SE expands its expertise in the area of litigation financing and continues its growth strategy. The financing of securities litigation enables investors and shareholders to pursue potential claims against listed companies without financial risk. Nakiki SE assumes the full cost of the litigation and receives a share of the proceeds in the event of a successful outcome.

This new business area responds to the growing demand for specialised financing models for legal claims in the capital market. Nakiki SE is supported by an experienced team of lawyers and financial experts to ensure that cases are thoroughly investigated and the plaintiffs’ chances of success are maximised.

With the establishment of securities litigation financing, Nakiki SE is positioning itself as a leading player in a dynamically growing market. We see considerable potential here to facilitate investors’ access to capital market legal protection and at the same time to diversify our portfolio,” says Andreas Wegerich, CEO of Nakiki SE.

Announcements Case Developments Commercial

Geradin Partners Announces Class Action Claim Brought Against Google by UK Android App Developers

By Harry Moran |

Today a leading competition law expert, Professor Barry Rodger, has filed a legal claim worth up to £1.04 billion against Google before the UK Competition Appeal Tribunal (“CAT”). Google is accused of abusing its dominant position to the detriment of a large class of thousands of UK app developers who need to use its app marketplace, ‘Play Store’ or ‘Google Play’, to access their customers. The class action lawsuit seeks compensation for the losses in revenues suffered by those individuals and businesses, many of whom are SMEs, from August 2018 onwards. 

Professor Rodger alleges that Google has used a variety of technical and contractual restrictions to ensure that Google’s Play Store is the only place where UK app developers can market or sell apps designed for Android devices. The result is that UK app developers have little choice other than to use the Google Play Store if they want to reach a wide audience. Google has then used its dominant position in app distribution to require developers to pay excessive and unfair commissions (of up to 30%) on all their sales of digital content to customers. Professor Rodger claims that absent the combination of exclusionary and exploitative conduct, app developers would have paid less to distribute their apps and sell their digital content. 

Professor Rodger’s action follows significant litigation and regulatory scrutiny of Google’s Play Store conduct around the world, including by the European Commission, the UK’s Competition and Markets Authority and the US Congress. 

A class action is needed in the present case because UK app developers would not individually have the means to each bring claims against Google. The UK’s opt-out class action regime in the CAT provides a mechanism by which these app developers can legitimately seek damages for the harm they have suffered as a result of Google’s conduct. 

Professor Rodger’s claim is backed by a legal team composed of competition litigation and digital markets specialists, Geradin Partners and a counsel team of Robert O'Donoghue (Brick Court Chambers), Daniel Carall-Green (Fountain Court Chambers) and Sarah O’Keeffe (Brick Court Chambers). The claim also relies on the expertise of Professor Amelia Fletcher CBE, Professor of Competition Policy at the University of East Anglia, who has been assisted in preparing her economic report by a team of economists at Fideres. The claim is funded by Bench Walk Advisors, a leading litigation funder with a team of multi awardwinning finance professionals and litigators. 

Professor Rodger said: “It is extremely important that the principles of fairness and equality of opportunity underlie our rapidly expanding digital economy by ensuring effective redress for those harmed by any abusive anti-competitive behaviour in the marketplace. I am bringing this claim because I believe that Big Tech businesses like Google should not be allowed to run roughshod over small businesses. I teach my students every day about the importance of enforcement of competition law and I am now ‘practising what I preach’ by seeking redress in the form of compensation for significant business damage suffered by this class of Android app developers.” 

Founding Partner of Geradin Partners, Damien Geradin, said: “Google is one of the most powerful companies in the world. Regulators around the globe have scrutinised its Play Store conduct and consider it harmful. Yet Google continues to use its monopoly position to force out competition and to exploit app developers. It is imperative therefore that developers in the UK also have the opportunity to seek redress for Google’s wrongful conduct.” 

More information on the claim and regular updates for the proposed class can be found at: www.googleplaystoredeveloperclaim.com.  

Announcements Commercial People Moves

McDonald Hopkins’ Litigation Finance Group welcomes seasoned attorney to its powerhouse team

By Harry Moran |

McDonald Hopkins is proud to welcome John J. Hanley as a Member in the Business Department and the Litigation Finance Practice Group. John brings with him years of experience, a proven track record of success and an innovative spirit that will play a pivotal role at the firm.

“McDonald Hopkins is a great brand in the litigation finance space.” said John. “The goal here is to capture market share. We will continue to be among the best and most active in the litigation finance space, and I’m excited to contribute to it.”

John specializes in litigation finance and complex financial transactions. He has over two decades of extensive experience from highly esteemed East Coast law firms in first and second lien financings, private debt and equity placements, acquisition and sale of loans, securities, trade claims, and other illiquid assets. His clientele includes a diverse array of financial entities, such as litigation funders, business development companies, specialty lenders, investment banks, hedge funds and others. He attributes his success in the field to his client-focus and the way he approaches complex matters.

“I identify as a part of the client’s team. I use terminology like ‘our position,’ ‘our claims,’ ‘our proceeds,’ and I mean it. It may seem small, but I think it strikes a chord and makes a difference,” John noted.

John’s arrival is a strategic step in building upon the success and influence the Litigation Practice Group has achieved. His addition bolsters a powerhouse team of attorneys, including Marc Carmel and Edward Reilly, who have deep experience in this field. This addition aligns with the group’s recent Chambers ranking, which recognized it as one of five firms ranked in the 2024 Chambers Litigation Support Guide for Litigation Support Deal Counsel (USA-Nationwide) and Marc Carmel as one of eight attorneys ranked individually.

“With John, we truly are positioned to offer unparalleled expertise and service in the litigation finance realm. This not only affirms our leadership in the field but also demonstrates our ongoing dedication to expanding and enhancing the support we provide to our clients. We believe no other middle-market practice matches the scope of our engagements, and John’s arrival shows that the best in the business want to be here. We are thrilled to have him on the team,” said Marc Carmel, Chair of the Litigation Finance Practice and Managing Member of McDonald Hopkins’ Chicago office.

David Gunning, the Chair of McDonald Hopkins’ Business Department echoed Carmel’s sentiment.

"John is an invaluable addition to our Business Department,” said David Gunning, the Chair of McDonald Hopkins Business Department. “His experience will not only strengthen our Litigation Finance Group but will also enhance our broader finance capabilities. We’re excited to have John on board as we continue to grow our department and provide exceptional service to our clients across all areas of finance.”

John will be mostly remote from his home in New Jersey, but will be working closely with McDonald Hopkins’ Chicago office.

Community Spotlights

Community Spotlight: Boris Ziser, Co-Head of Finance Group, Schulte Roth & Zabel

By Boris Ziser |

Boris Ziser is a partner and co-head of Schulte Roth & Zabel’s Finance Group, where he advises on a diverse range of asset classes and transactions such as asset-backed lending and securitization, warehouse facilities, secured financings, specialty finance lending and esoteric finance transactions. Boris manages the London finance practice and the global litigation funding and law firm finance practice.

With almost 30 years of experience, Boris works on a variety of asset classes, including life settlements, litigation funding, equipment leases, structured settlements, lottery receivables, timeshare loans, merchant cash advances and cell towers, in addition to other esoteric asset classes such as intellectual property, various insurance-related cash flows and other cash flow producing assets. He also represents investors, lenders, hedge funds, private equity funds and finance companies in acquisitions and dispositions of portfolios of assets and financings secured by those portfolios.

Company Name and Description: With a firm focus on private capital, Schulte Roth & Zabel LLP is comprised of legal advisers and commercial problem-solvers who combine exceptional experience, industry insight, integrated intelligence and commercial creativity to help clients raise and invest assets and protect and expand their businesses. The firm has offices in New York, Washington, DC and London, and advises clients on investment management, corporate and transactional matters, and provides counsel on securities regulatory compliance, enforcement and investigative issues.

Company Website: https://www.srz.com/

Year Founded: 1969

Headquarters: New York, New York, U.S.A.

Area of Focus: Finance, Litigation Finance, Private Credit, Structured Finance

Member Quote: "With its uncorrelated investment opportunity and plethora of rules that vary by jurisdiction (State-by-State and international), litigation funding is a complicated asset class that is rewarding at the same time, as it enables those with meritorious claims, but without the necessary resources, to pursue justice."