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Parties in Burford-Funded Argentina Claim Remain Far Apart on Payout Amount 

Cases with a prolonged duration and timelines that span nearly a decade are not uncommon for those in the business of litigation finance. However, even in cases where claimants receive a favourable judgement, there is always the issue of determining the size of the award, which further prolongs these lawsuits.

A recent article by Bloomberg Law provides an update on the three-day trial in the case of Petersen Energia Inversora, S.A.U. v. Argentine Republic, which ended with the opposing parties still $6.5 billion apart on what they think the proposed payout should be. The case, which dates back to 2015, was brought on behalf of YPF SA shareholders, who argued that the Argentine government failed to offer a required payout after it re-nationalized the oil company in 2012. 

As LFJ previously reported, Judge Loretta A. Preska ruled that Argentina was liable for the shareholders’ losses in a summary judgement in March of this year.

During last month’s trial in the Southern District of New York, the shareholders argued that the payout could amount to as much as $16 billion, whilst Argentina provided a much lower estimate of $9.5 billion. The significant distance between the two amounts revolved around a number of key issues, including the date that the government took back control of YPF, with the two parties specifying dates that are three weeks apart. 

The outcome of the trial has particular significance for Burford Capital who invested $16.6 million in the litigation, and following the March judgement, had stated that the final award could total in excess of $7.5 billion. This figure is notably lower than Argentina’s proposed payout. However, Judge Preska provided no estimate of when she might deliver a ruling on the payout and attorneys for the Argentine government have already made clear that they will appeal the award, regardless of the Judge’s ruling.

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Federal Court Approves $180m Settlement in Northern Territory Stolen Wages Class Action

By Harry Moran |

The combined strength of experienced law firms and well-resourced litigation funders can be a powerful tool for disadvantaged communities seeking justice and compensation from state authorities. However, a recent settlement approval order in Australia was notable for the judge’s pointed questioning of the commercial business model behind these class actions, which sees law firms and funders receive significant payments whilst the victims they represent receive comparatively meagre compensation.

An article in ABC News covers the approval of a $180 million settlement in the Northern Territory stolen wages class action, bringing to an end the claim brought against the Commonwealth of Australia over historic mistreatment of Aboriginal workers in the Northern Territory between 1933 and 1971. Whilst Chief Justice Debra Mortimer approved the settlement along with the related payouts to Shine Lawyers and LLS Fund Services for the claimants, her written judgment raised many questions about the costs accumulated by the legal team and the relatively low value of compensation that the workers would receive.

The judgment approved payments of up to $15 million to Shine Lawyers for legal costs, and a funder’s commission of up to $31.5 million to LLS Fund Services. However, Chief Justice Mortimer’s judgment also contained criticism for both these parties, stating that their “good intentions” in supporting the claimants has been somewhat overshadowed by “the pursuit of the business model”. Mortimer expressed doubt that Aboriginal and Torres Strait Islander communities would “see much social justice” in an outcome where these “city based non-indigenous participants in this proceeding come out with so much money compared to their family and friends.”

The settlement in the Northern Territory lawsuit is the latest in a series of similar class actions brought against the Australian state, with previous settlements having been reached with the Western Australia and Queensland state governments.

The full judgment from Chief Justice Mortimer in McDonald v Commonwealth of Australia can be read here.

Case Developments Commercial

£5 Billion Opt-Out Claim Brought Against Google over Anti-Competitive Behaviour

By Harry Moran |

As LFJ reported last week, Google is the target of a €900 million claim brought against the technology giant in the Netherlands over its alleged anti-competitive behaviour. However, that is not the only lawsuit being brought against the company over such allegations, with a new claim being filed at the Competition Appeal Tribunal (CAT) in the UK.

An announcement from Geradin Partners highlights the filing of a new claim brought against Google before the CAT over allegations that the company abused its market dominance to increase prices for Google Ads and harm competitors in the search advertising market. The claim, which has an estimated value of £5 billion, is being brought on behalf of UK-based advertisers who have allegedly suffered losses because of Google’s anti-competitive behaviour. The lawsuit is to represent UK businesses who purchased advertising space on Google search spaces since 1 January 2011.

The opt-out competition damages claim is being brought by Or Brook Class Representative Limited, with Dr Or Brook acting as the proposed class representative. Dr Brook is a competition law expert, currently holding the position of Associate Professor of Competition Law and Policy at the School of Law at the University of Leeds. She is supported by a legal team led by Geradin Partners, with funding for the proceedings being provided by Burford Capital.

Dr Or Brook, provided the following comment on the lawsuit: “Today, UK businesses and organisations, big or small, have almost no choice but to use Google ads to advertise their products and services. Regulators around the world have described Google as a monopoly and securing a spot on Google’s top pages is essential for visibility. Google has been leveraging its dominance in the general search and search advertising market to overcharge advertisers.”

Damien Geradin, founding partner of Geradin Partners, emphasised that “this is the first claim of its kind in the UK that seeks redress for the harm caused specifically to businesses who have been forced to pay inflated prices for advertising space on Google pages.”

The full announcement from Geradin Partners can be read here.

Case Developments Commercial

Court of Appeal Judgment Dismisses Apple’s Appeal in Gutmann Class Action

By Harry Moran |

Ever since the Supreme Court’s ruling in PACCAR, it has become a common sight in group proceedings to see defendants bringing appeals over the funding arrangements in these cases. However, a new judgment by the Court of Appeal on one such appeal has offered a significant victory for litigation funders who wish to support these group actions.

A ruling handed down by the Court of Appeal in the case of Justin Gutmann v Apple Inc and others, dismissed appeals brought by Apple over the funding arrangements in the group proceedings brought against the company by Justin Gutmann. 

The Court of Appeal’s judgment related to two grounds of appeal that Apple had raised. Firstly, the CAT’s alleged lack of jurisdiction to make an order to payout a funder’s fees or returns before damages were distributed to class members, and the ability of class representatives to enter into funding agreements that contemplated such orders. Secondly, that the funding agreement in this case ‘created sufficiently perverse incentives that the CAT could not properly authorise’ Mr Gutmann to act as the class representative.

The Court of Appeal’s judgment, led by Sir Julian Flaux Chancellor of The High Court with unanimous agreement from Lord Justice Green and Lord Justice Briss, dismissed Apple’s appeal on both grounds. In the conclusion of his judgment, Flaux wrote that “the CAT does have jurisdiction to order that the funder’s fee or return can be paid out of the damages awarded to the class in priority to the class.” With that fact clearly established, he went on to say that it follows that “that there can be absolutely nothing wrong with the CR entering into a LFA which makes provision for that to happen.”

Leaving no room for any doubt, Flaux stated plainly that “once Ground 2 of the appeal fails, Ground 3 is indeed hopeless.”

Separate appeals brought by Apple over the consequences of the Supreme Court’s PACCAR’s ruling as it relates to LFAs being considered as damages-based agreements, are still yet to be heard. A hearing on this separate ground of appeal is scheduled for June following the Court of Appeal’s lifting of the stay on those appeals on 4 February 2025.

The full judgment from the Court of Appeal in Justin Gutmann v Apple Inc and others can be read here.