Stay on top of updates and developments around key cases across various global jurisdictions.

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.  

A prominent European finance company has announced it will be funding over 25,000 claims in a €1 billion class action against truck manufacturers, who were part of a price-fixing cartel.

Nera Capital, which has offices in Manchester, Dublin and The Netherlands, is focussing exclusively on group redress claims, helping consumers and small to medium sized businesses, fight for justice against antitrust behaviour by corporates.

In 2016, the European Commission found MAN, Volvo/Renault, Daimler, Iveco, and DAF broke European Union antitrust rules by colluding on truck pricing and on passing on the costs of compliance with stricter emission rules from 1997 to 2011.

The Commission imposed a record €2.93 billion fine on the manufacturers, except MAN as it revealed the existence of the cartel. All companies acknowledged their involvement and agreed to settle the case.

Speaking about this historic class action, Nera Capital Director, Aisling Byrne, said this investment will ensure truck owners receive justice for the damage the 14-year cartel caused. “The agreements covered both medium-duty trucks and heavy-duty trucks and affected the entire European Economic Area. While the cartel stopped running in 2011, the after affect was felt by truck owners in the following years, and it is important that those affected get their chance for justice.”

Nera Capital has appointed a leading German law firm to act for the claimants in the case.

When the European Commissioner for Competition Margrethe Vestager handed down the historic fine in 2016, she said it was not acceptable that the manufacturers were part of a cartel instead of competing with each other. In 2016 she commented on the more than 30 million trucks on European roads, which accounted for around three quarters of inland transport of goods in Europe, playing a vital role for the European economy.

Ms Byrne echoed these comments and said the firm’s success is built through its strong industry relationships and a passion for justice. “This is a pivotal moment for corporate accountability,” she added. “Our investment underscores our commitment to supporting small businesses and consumers who have been impacted by antitrust violations. With a strong track record of committing over £475 million, in aggregate, into claims, we are excited to offer our support to truck owners across Europe, because we believe justice should be accessible to all. Nera Capital stands firm in its mission to level the playing field against corporate misconduct. This class action is not just about compensation but also about holding accountable those who undermine fair competition.”

About Nera Capital

·       Established in 2011, Nera Capital is a specialist funding provider to law firms.

·       Provides Law Firm Lend funding across diverse claim portfolios in both the Consumer and Commercial sector.

·       Headquartered in Dublin, the firm also has offices in Manchester and The Netherlands.

.     Member of European Litigation Funders Association.

.     www.neracapital.com

Former shareholders of STADA Arzneimittel AG who tendered their Stada shares as part of the takeover offer by Nidda Healthcare Holding AG in August or September 2017 are entitled to an additional payment of €8.15 per share. This was decided by the Federal Court of Justice in May 2023. Since Nidda Healthcare Holding AG refuses to make a voluntary additional payment to all former STADA shareholders, SdK Schutzgemeinschaft der Kapitalanleger e.V. is offering litigation financing for a legal claim without any cost risk to the affected former STADA shareholders.

On July 19, 2017, Nidda Healthcare Holding AG, a joint venture of the international financial investors Bain Capital and Cinven Partners, submitted a voluntary public takeover offer to the shareholders of STADA Arzneimittel AG to acquire their shares at a price of € 66.25 per share. Within the acceptance period (until the end of August 16, 2017), the bidder’s offer was accepted by 63.76 % of STADA shareholders and within a further acceptance period (until September 1, 2017) by a further 0.11 % of STADA shareholders. The bidder thus achieved a tender volume, including shares held by STADA, of approx. 63.87 % of STADA’s share capital and voting rights. 

On August 30, 2017, a shareholder holding 8,265,142 shares (13.26 % of the shares and voting rights) agreed to a domination and profit and loss transfer agreement between Nidda Healthcare and STADA if the amount of the compensation under the domination and profit and loss transfer agreement is at least EUR 74.40 per STADA share. Several former shareholders of STADA, who had accepted the lower takeover offer, filed a lawsuit against the bidder demanding the difference between the offer price and the compensation under the domination and profit and loss transfer agreement of EUR 74.40. 

In two identical judgments dated 23 May 2023 (case no. II ZR 219/21 and II ZR 220/21), the German Federal Court of Justice (BGH) ruled in favor of two plaintiffs pursuant to sections 31 (5) and (6) WpÜG, referring to the principles of the so-called Celesio case law. In principle, all former shareholders of Stada AG who had initially exchanged their regular shares for the securities tendered for sale with ISIN DE000A2GS5A4 or for securities subsequently tendered for sale with ISIN DE000A2GS5B2 and had subsequently tendered these in the takeover offer are entitled for the payment of the difference. 

Following a request of the Federal Financial Supervisory Authority („BaFin“), the Bidder published a corresponding notice in the Federal Gazette, but pointed out that, in its view, any payment claims by former shareholders could be based on the defense of the statute of limitations. In the opinion of the Bidder, the statute of limitations generally began at the latest at the end of 2017. However, this is incorrect. The claims of the former shareholders of STADA are not yet time-barred: This is because after the courts of the 1st and 2nd instance had still rejected the claim for subsequent payment, only the BGH confirmed this claim for additional payment. The claim for additional payment is therefore not yet time-barred.

The SdK is offering affected former STADA shareholders legal cost financing to enforce their claims for additional payment. The claims can thus be enforced without any cost risk. The SdK, as the financier of the legal costs, assumes all costs of the legal proceedings in return for a profit participation of 30% of the proceeds in the event of success. For more information please contact us at info@sdk.org.The SdK will be happy to answer any questions from its affected members by e-mail at info@sdk.org or by telephone on +49 89 / 2020846-0.

The ownership or funding of law firms by litigation funders continues to be a hot topic in the world of legal funding, with models such as alternative business structures (ABS) gaining momentum in places like Arizona. However, a complaint filed by a client in Delaware reveals a falling out due to the reverse funding model, where a law firm maintained an ownership stake in the funder.

Reporting by Bloomberg Law covers a new lawsuit brought against Burford German Funding (BGF), an affiliate of Burford Capital, by a client who claims that the funder failed to disclose the fact that BGF was partly owned by the same law firm it nominated to lead the client’s antitrust cases. Financialright Claims GMBH (FRC) alleges that when it negotiated the funding agreement with BGF for its antitrust litigation against the trucks cartel, it had no knowledge “that Hausfeld  was  also  a  part  owner  of  BGF  through  an  entity  called German Litigation Solutions LLC (“GLS”) or that one of the lead German partners at Hausfeld responsible for the firm’s representation of FRC had a personal stake.”

The complaint, filed by FRC in the Delaware Superior Court, explains that as Hausfeld is part-owner of BGF, and the funding agreement “provides for a share of FRC’s recoveries in the Trucks Litigations to flow to FRC’s lawyers”, this constitutes a contingency fee arrangement which are illegal under German law.  FRC had filed a lawsuit against Hausfeld in a German court and then applied for discovery from BGF, Burford and GLS in the Delaware District Court, which was followed by an assertion by these parties that the application for discovery “is subject to mandatory arbitration” under the terms of the funding agreement.

FRC argues that “as  a  direct  result  of  BGF’s  fraud  on  FRC,  FRC  did  agree  to  the Arbitration Agreement that—according to BGF—subsumes disputes between FRC and GLS.” However, FRC claims that it “would  never  have  agreed  to  an  arbitration  clause  requiring  it  to arbitrate claims against Hausfeld”, were it not for the concealment of Hausfeld’s ownership stake in BGF. FRC is therefore asking the Superior Court to declare that “BGF fraudulently induced  FRC  into  agreeing  to  the  Arbitration  Agreement”, and that the agreement should be declared both invalid and unenforceable.

Lisa Sharrow, spokesperson at Hausfeld LLP, provided the following statement:  “The US-based Hausfeld LLP and the UK-based Hausfeld & Co LLP hold indirect economic minority interests in Burford German Funding. These are separate legal entities from Hausfeld Rechtsanwälte LLP that do not practice law in Germany. Burford German Funding was of course developed and set up in a way that was fully compliant with all relevant regulations.”

David Helfenbein, spokesperson at Burford, also provided a response to Bloomberg via email: “There is a dispute in Germany between a client Burford has funded and its lawyers. Burford is not a party to that dispute and its outcome has no impact on us. This Delaware proceeding is a third-party discovery request to Burford for material for the German litigation, which Burford believes should be adjudicated in arbitration and not in the Delaware courts.”

The full complaint filed by FRC can be read here.