The following piece was contributed by Anne Freeman of Australian law firm, Piper Alderman.
Virgin Australia, which has been sued by investors who purchased unsecured notes in the airline based on statements in a 2019 prospectus for a capital raising, has been ordered to advise the lead applicant in the class action whether its has made a claim against its insurer for its costs and any liability in the class action, and whether its insurer has agreed to grant indemnity. It has also been ordered to produce copies of any insurance policies which might respond to the claims made in the class action[i]. The orders made are in contrast to a 2020 decision of the Court[ii], which found that the case management powers of the Court did not empower it to order the disclosure of the respondent’s insurance policies in class actions. In that case, very similar orders were sought, namely for production of policies and for communications regarding the insurer’s position on the grant of indemnity. The applicant in that case relied upon a 2019 Federal Court authority, Simpson v Thorn Australia Pty Ltd trading as Radio Rentals[iii] , which had resulted in orders for the production of insurance information, to argue that the documents were relevant to inform the applicant whether further prosecution of the proceedings was commercially viable and whether mediation was appropriate and, if so, what the appropriate quantum of settlement might be. The applicant also argued that the documents were relevant to the approval of the settlement and to determine whether action against the insurer may be needed to obtain a declaration of indemnity. The judge disagreed, taking the conventional position that insurance information is not relevant to the proof of a cause of action in the proceedings and is therefore not discoverable, and noting that the case management powers of the Court were not designed to “confer an asymmetric commercial advantage in favour of one party at the expense of another” in mediations. Beach J also rejected the suggestion that the documents were needed for any settlement approval, and distinguished the position in Simpson where leave had been granted to bring a claim against the insurer. The orders are also in contrast to a decision of another Federal Court judge, who declined an application by a shareholder to access insurance policies under a discretionary power which may allow shareholders access to the books and records of the company, if the application is made in good faith and for a proper purpose[iv]. That decision was based upon a finding by the judge that the claims made by the class members did not arise from their rights and entitlements as shareholders but rather as potential investors, and that therefore the application was not brought for a proper purpose. The orders in Virgin Australia were made in the context of a Deed of Company Arrangement and the need to consider which claims against the company were covered by insurance. That made the insurance position relevant, and distinguishes it from the decision in Evans. However, the decision does show that accessing insurance information is a matter to be considered carefully in the circumstances of the individual case. There are mechanisms available to obtain insurance information, which is obviously valuable in considering the recoverability of any funded claim. Early consideration should be given in each class action as to potential means to obtain this information. [i] Matheson Property Group Australia Pty Ltd as Trustee for The MPG Trust v Virgin Australia Holdings Limited NSD346/2022, order of Lee J, 28 June 2022 [ii] Evans v Davantage [2020] FCA 473 [iii] [2019] FCA 1229 [iv] Ingram as trustee for the Ingram Superannuation Fund v Ardent Leisure Limited [2020] FCA 1302Current directorships/partnerships: | African Arbitration Association |
Directorships/partnerships in the past five years: | Africa International Legal Awareness Ltd |
Global law firm PGMBM will now be known as Pogust Goodhead after a succession of litigation victories.
Following a landmark ruling ensuring mining giant BHP will face their day of reckoning in the English courts over the Mariana dam disaster, the law firm will also be expanding their services in Brazil.
With the addition of a new office in Rio de Janeiro, Pogust Goodhead plans to continue spearheading environmental litigation in Brazil, as well as around the world through offices in the Netherlands and United States.
The expansion also includes plans for a new legal process outsourcing centre based in Governador Valadares, Minas Gerais, Brazil to help process and service clients worldwide – which will bring over 300 jobs to the area.
Alongside the expansion into Brazil, the firm is growing its global securities department, with a new office in San Diego – headed up by experienced securities litigator Takeo Kellar. Enhancing this practise area aligns with Pogust Goodhead’s commitment to bringing shareholder engagement and litigation solutions to investors around the world.
The news comes after a series of historic settlements including on behalf of 15,000 claimants in the Volkswagen Group Litigation in May 2022 and 16,000 victims of the British Airways Data Breach in 2021.
A partnership and £100m funding deal with North Wall Capital was also recently announced as the largest investment in a UK claimant law firm to date.
The ongoing investment in Brazil will also see the addition of 20 new Brazilian lawyers in the coming weeks, after a series of UK hires.
Pogust Goodhead has recently seen the recruitment of C-Suite leaders Chief Operating Officer Alicia Alinia and Chief Financial Officer Jash Radia, bringing decades of experience in strategic leadership across the business.
Global Managing Partner and CEO Tom Goodhead said:
“In the past twelve months, we have successfully concluded group litigations against British Airways, Volkswagen and just last month we secured an extraordinary victory against the largest mining company in the world, BHP.
“Today we are moving to the next chapter. As the business continues to grow, it is vital that we make changes to ensure that we have a strong, reliable, and sustainable infrastructure to facilitate our ambitions to transform group litigation globally.
“Our Brazilian cases have always been the driving force of the firm and with a new office in Rio we hope to build on the great progress we have made with cases against defendants such as BHP and Tuv Sud.
“Most importantly we want to ensure our clients are given an even better experience and to ultimately ensure we represent their desire for justice, continuing to fight the good fight across all our litigations.”
Chairman Harris Pogust added:
“We are delighted to be building on the successes of recent years in what we feel is the next crucial step for our firm. I am beyond proud to have my name standing big and bold next to my amazing partner, Tom Goodhead. As we continue to grow the firm, brand recognition becomes an even more important item in our growth. With this name change we believe the brand Pogust Goodhead will be one of the most recognizable in the legal landscape.
“There is no law firm out there doing the cutting edge, ground-breaking work on behalf of those who are in most need of legal representation than Pogust Goodhead, and these changes will ensure we take things to the next level.
“We are beyond proud of the talented people we have on board at the firm and the incredible work they do every day, championing justice for our clients.
“We are only just getting started.”
Therium Capital Management, the world’s leading global provider of legal finance, today announced that it has added four investment managers to its transatlantic investment team, Chris Wilkins and Charlie Temperley in London and Corey Banks and Joshua Card in New York.
Neil Purslow, Founder and Chief Investment Officer at Therium said: “We are delighted to welcome these four investment managers to our transatlantic investment team. Their strong legal know-how and experience of high-value litigation and arbitration across jurisdictions will add to our high-calibre investment team, as we continue to invest in a broad range of cases across the legal sector.
Alongside our investment team, they will work on cases right through from origination to completion. This unique approach allows our investment managers to build strong and enduring relationships with clients,get under the skin of the complex matters, be incredibly responsive and deliver top quality execution.”
Therium has now added five investment managers to date this year, including Fred Bowman who joined in January. The new investment managers will provide legal finance to meritorious cases, law firms and corporates through a range of innovative financing structures.
Corey Banks who will be based in New York has over five years’ experience as a commercial disputes associate at prominent New York law firm Wachtell, Lipton, Rosen & Katz, where he worked on a broad range of funded commercial disputes, including corporate and financial matters, breach of contract, antitrust/ competition and bankruptcy litigation. Previous roles include clerking at a US District Court and the Second Circuit US Court of Appeals. Corey also worked as an Associate at Clearly Gottlieb Steen & Hamilton. He graduated magna cum laude from Harvard Law School and holds a BA in International Relations and Japanese from Tufts University, Massachusetts.
Joshua Card, also based in New York joins from Sidley Austin’s where he was a senior managing associate in the Commercial Litigation and Disputes and Securities and Shareholder Litigation practices. Prior to this, Josh worked at Wachtell, Lipton, Rosen & Katz. He has experience of M&A cases, corporate governance litigation, white collar criminal matters and other corporate and securities matters, including commercial arbitration. Josh has also been a law clerk at a US District Court and the Second Circuit US Court of Appeals. He holds a BA in Political Science from Amherst College and obtained a Juris Doctor, magna cum laude from Brooklyn Law School.
Charlie Temperley, based in London, previously worked at Michelmores and Womble Bond Dickinson, where his practice encompassed a broad range of commercial litigation including high value, multi-jurisdictional disputes and enforcement actions. He has experience working on commercial contract claims, group actions, civil fraud and asset tracing, trusts and probate disputes, shareholder disputes, professional negligence, property litigation and joint venture breakdowns. Charlie holds a First-Class Joint Honours degree in Mathematics and Philosophy from the University of Nottingham and an MPhil in Philosophy from the University of Cambridge. He completed a Graduate Diploma in Law and Legal Practice Course at the University of Law, Guildford.
Chris Wilkins, also based in London, joins after nine years as a solicitor at Slaughter and May. In the Disputes and Investigations Group, his practice focused on resolving large-scale, complex and often multi-jurisdictional disputes for large corporates, including FTSE 100 companies, across a wide range of industry sectors. He has advised on cases in the High Court and Competition Appeal Tribunal, as well as international arbitrations. Chris holds a First Class Honours degree in History from King’s College London and a Master’s degree with Distinction in International Relations from the London School of Economics. Chris completed a Graduate LLB at the University of London and a Legal Practice Course at BPP Law School.
About Therium Capital Management:
Therium is a leading provider of investment capital to the legal industry and one of the largest, having raised over $1bn since 2009. With investment teams in the UK, USA, Australia, Germany and Norway, Therium has funded litigation and arbitration claims exceeding $40 billion, including many of the largest and most high profile funded cases in the UK and internationally and arbitrations under rules of the LCIA, ICC, UNCITRAL, LMAA, AAA, CIETAC, ICSID, Stockholm Chamber of Commerce and the Energy Charter Treaty. Therium has been Top Ranked by Chambers and Partners and Leaders League with investment officers across the UK, Europe, USA and Asia Pacific recognised as leading individuals in litigation finance.
To mark the firm’s tenth anniversary, Therium Access was launched in 2019 as a not-for-profit venture to fund a wide range of access to justice projects and cases – supporting the most vulnerable in our society and helping to bridge the widening justice gap. With its own board composed of eminent figures from the legal community and a dedicated grants officer, Therium Access has made over £1.3 m in financial commitments over the last 18 months to over 26 different organisations. As the first initiative of its kind, Therium has been shortlisted for several awards for launching this ground-breaking initiative, including the FT Innovative Lawyer Awards 2019, The Lawyer Awards 2021 and the Lexis Nexis Awards 2020 and 2022.
Therium also invests in AI and software projects to accelerate the advancement of the industry. As a founding member of ALF, ILFA and the Litigation Funding Working Group, Therium is also committed to shaping the future of legal finance and setting high standards for the industry.