Burford German Funding Sued Over Hausfeld Ownership Stake

When looking for those jurisdiction most amenable to class actions supported by litigation funders, the Netherlands remains at the top of the list, as has been demonstrated once again today by a court’s approval of a privacy claim brought under the WAMCA regime.

An article on DutchNews covers the news that an Amsterdam court has approved the approach of a Dutch foundation to bring a claim against Google over allegations that the tech company violated the privacy of Android phone users. The court ruled that the Stichting Massaschade & Consument meets the admissibility requirements of the Act on Collective Damages in Class Actions (WAMCA). The court’s approval of the foundation’s structure and its involvement of a litigation funder means that the parties can now move forward with the class action which has reportedly registered over 100,000 consumers since 2023.

According to the foundation’s website, the class action is being financed by Eaton Hall Funding LLC, with the agreement allowing for the funder to receive 17.5% of the proceeds after costs, if the claim reaches a settlement or favourable ruling. Rubicon Impact & Litigation, an Amsterdam-based law firm, is providing legal representation for the claimants.

Frank Peters, co-founder and head of impact & litigation at Rubicon, emphasised the importance of working with a litigation funder on the case, stating that “you need very deep pockets to expose what Big Tech is trying to hide.” He explained that working with this funder, “our client was able to expose what information Google takes from Android phones, even when you are careful with your privacy settings”, and that the court’s ruling “makes clear that it is perfectly fine that  class actions come about like this.”More information about the claim can be found on the foundation’s website.

The Competition Appeal Tribunal (CAT) has continued to dominate the legal funding headlines this week, as we have already seen two class actions commence at the Tribunal. However, a new judgment released yesterday provided an unexpected and disappointing result for another claim, as the Tribunal refused to certify the collective proceedings after raising concerns about whether the class representative “has the appropriate expertise and is supported by appropriate advice” to lead the claim.

Reporting by Reuters covers the decision by the CAT to deny certification for the collective proceedings brought by Professor Christine Riefa against Apple and Amazon, which alleged that the companies had colluded to remove resellers of Apple products and thereby inflate the prices of these products for consumers. The claim, which was valued at around £494 million, sought to represent a class size of over 36 million people, including any consumers who purchased Apple or Beats products from any retailer in the UK from 31 October 2018.

The decision to refuse the application for certification had its origins in the funding arrangements between Asertis and Hausfeld & Co to support the proceedings, and Prof Riefa’s ability as the Proposed Class Representative (PCR) to act in the interests of the class members balanced against the terms of the funding agreement.

The Tribunal’s judgment largely focused on the role of Prof Riefa as the PCR, and what they described as “considerable doubts about whether we could be satisfied that the PCR would fairly and adequately act in the interests of the class members, for the purposes of the authorisation condition.” The judgment provided a detailed account of the various iterations of the litigation funding agreement and the witness statements provided by the parties involved in the proceedings, with particular emphasis on Prof Riefa’s role as the PCR. 

At the centre of the judgment, was the CAT’s view on whether Prof Riefa had satisfied the authorisation condition, finding that when it came to the funding arrangements, she did not “have a good understanding” of both the “terms being offered” and “the overall context in which it is being advised”. In their conclusion to their assessment on the authorisation condition, the Tribunal’s panel said that their “key concern in this case is that Prof Riefa has not demonstrated sufficient independence or robustness so as to act fairly and adequately in the interests of the class.”

As to the further implications that this ruling might have on other collective proceedings, the Tribunal emphasised that they were neither “seeking to impose any specific conditions on the types of PCRs that are put forward”, nor were they “seeking to impose specific obligations on future PCRs as to the manner in which funding arrangements are negotiated.” However, the judgment made clear that the CAT’s primary concern “is for each PCR to demonstrate, to the satisfaction of the Tribunal, that it is suitably qualified to act for the class, and that the manner in which it has approached the funding arrangements reflects sufficient regard to the interests of the class members.” The judgment made clear that Prof Riefa had not demonstrated that she met those requirements in the application for the CPO. 

More information about the case, Christine Riefa Class Representative Limited v Apple Inc. & Others, can be found on the CAT’s website, with the full judgment available to read here

More information about the UK Apple and Amazon Claim can be found on its website.