Litigation Finance Journal is dedicated to informing and engaging the global litigation finance community through daily news, insight, analysis and original content.

The announcement of a settlement being reached is often viewed as the point at which a class action arrives at its preferred destination. However, in the case of the Merivale class action in Australia, it has taken only two months since the announcement of the settlement for the mood to sour and fresh obstacles to arise.

Reporting by the Sydney Morning Herald reveals that the $18 million settlement agreed in the class action brought against hospitality company, Merivale, is now under threat. Whilst a Federal Court hearing to review the settlement had been set for May 7, the law firm representing the applicants is now seeking to renegotiate the settlement, after there was a significant increase in the number of members registering for the settlement.

Adero Law’s Rory Markham stated that during the December mediation hearing, the total number of group members had risen to 788, and therefore the $18 million settlement figure now represented “a poor deal that has been substantially diluted by the additional registrations.” As a result, Adero has withdrawn its approval application and has been ordered by the court to provide further information and financial modelling to explain the group members’ decision to withdraw.

Richard McHugh, SC, who acts as counsel for Merivale, suggested that rather than increase the total settlement figure, “an obvious way through is for the funding commission or legal costs to be reduced”.

As LFJ reported in March, the without-admission settlement would have seen Merivale pay $18 million, with $8.6 million set to be distributed to cover legal costs and the litigation funder’s commission. According to the terms of the original agreement, Investor Claim Partner would have received approximately 25% of the settlement whilst Adero would have received approximately $1.75 million, including administration costs for settlement distribution.

In court, Justice Tom Thawley emphasised that regardless of whether or not “the lawyers for the applicants were grossly incompetent” in miscalculating the number of registrants, “the court isn’t going to approve a settlement which isn’t fair and reasonable.”

Reporting by Lawyer’s Weekly covers a major development in two Australian class actions, where litigation funder Galactic obtained a favourable ruling from the full Federal Court to double its commission from its funding of lawsuits brought against 7-Eleven and ANZ Bank. Justices Craig Colvin, Bernard Murphy and Michael Lee, overturned a 2023 judgement by Justice O’Callaghan that refused to make Galactic’s CFO order. As a result, Galactic’s commission from the class actions will drastically rise from $12 million, to a total $24.5 million.

The Federal Court’s ruling on 2 May found that Justice O’Callaghan had been wrong to refuse making the CFO order on the basis that the court did not have the power to do so. The three Justices wrote that Galactic’s $24.5 million commission “is commercially realistic and properly reflects the costs and risks Galactic took on by funding the proceedings.”

The class actions brought against 7-Eleven and ANZ Bank focused on allegations that the fuel and convenience store chain’s standard Franchise Agreement had ‘unfair contractual terms’ that violated consumer law. ANZ Bank were targeted by the second class action over claims that it had failed to meet its obligations under Australia’s Code of Banking Practice, ‘by lending to buy into the franchise system, often up to 100 per cent of the franchise license.’

An article in ETF Express covers the announcement from Level, a family law and private client lender, that it has acquired Tower Street Finance in order to expand its presence in the probate lending sector. Level’s acquisition strategy is reportedly being guided by the growth in activity around probate lending, which is being fuelled by processing delays and individuals’ demand for third-party capital amid a difficult economic climate.

Commenting on the acquisition, Level’s founder and CEO, George Williamson said: “Tower Street Finance have been the standout market leader since pioneering the probate market in 2020, while Level has done the same in the family law market.  By combining Tower Street Finance’s unparalleled expertise and network in the probate market with our platform and trusted reputation, we have a significant advantage over our competitors.”

Jim Sission, co-founder of Tower Street Finance, will be joining Level alongside two of his employees. Sission said that the acquisition by Level brings together the two company’s expertise across family law and probate lending, and will create “a best-in-class platform for legal funding.”

In addition to the acquisition, Level also announced that it had secured another £10 million in outside investment, comprised of a £5 million equity capital investment from Kendal Capital and £5 million debt investment from Correlation Risk Partners. Kendal Capital’s CEO and co-founder, Grant Kurland will be joining Level’s board of advisers, which already includes notable industry names such as Neil Purslow, CIO of Therium Capital. Kurland said that “the combination of Level & TSF is well placed to capitalise on their respective market leading positions in the family and probate sectors.”

An article The Financial Times covers legal actions being brought against Uber on behalf of London’s black-cab drivers, centred on allegations that Uber misled Transport for London (TfL) to obtain its license. Specifically, the lawsuit focuses on the claim that Uber misled TfL around its booking model, and that the company allowed its drivers to receive direct bookings from customers rather than through a central system.

The claim is being brought in the High Court by RGL Management and is representing more than 10,500 black-cab drivers, who argue that they were harmed by unfair competition and are seeking up to £25,000 in compensation per driver. The claimants are represented by Mishcon de Reya and Katch Investment group are providing the litigation funding for the claim, with the total value of the group litigation reaching £250 million.

In a statement, Uber continued to deny the allegations and said that the claims “are completely unfounded”, maintaining its position that the ride-hailing company “operates lawfully in London, fully licensed by TfL.”

More information about the group litigation can be found on RGL Management’s ‘Black Cabs v Uber Litigation 2021’ (BULit21) website.

In an article shared on LinkedIn, Nick Rowles-Davies, founder and CEO of Lexolent, makes the case against the retrospective aspect of the UK government’s Litigation Funding Agreements (Enforceability) Bill. Whilst acknowledging that many within the industry disagree with his position, Rowles-Davies argues that ‘the Bill should be prospective only and that the retrospective element is fundamentally flawed.’

Rowles-Davies summarizes his extensive article into the following key points:

1. ‘The starting point for any consideration of the Bill must be firstly to correct the various inaccurate Supporting Documents (to the Bill) such that the law as it stands, and has always stood, is properly reflected. 
2. The Government has put forward no credible justification to support the retrospective provision in the Bill.
3. When considered under the true set of facts, this legislation appears to be incompatible with the ECHR. 
4. The justification for the Bill’s prospective elements and its (arguably unprecedented) retrospective aspect must be considered separately. The Supporting Documents grossly misrepresent the position. Save for pure value transfers from previously funded parties to existing funders, what the Bill properly seeks to achieve can be accomplished through prospective only legislation. 
5. If retrospectivity survives, it is likely that the matter will come before the courts quickly thereafter in relation to the ECHR.’

Rowles-Davies argues in the article that ‘the Supporting Documents to the LFA Bill provide absolutely no evidence of legal precedent to support the retrospective aspect of the Bill.” He goes on to say that not only is this bill ‘unprecedented’, but it also fails to provide ‘credible “public interest” justification for the retrospective aspect.’ 

In the conclusion of the article, Rowles-Davies calls on both chambers of Parliament to ‘take proper time to explore the foundation upon which the Bill rests and then test its contents after it has been repaired.’ Furthermore, he argues that ‘the positioning of the Bill is disrespectful to a busy Parliament tasked with addressing far more pressing global, social, and public interest matters.’

Reporting by Bloomberg Law covers the campaign to introduce new rules governing litigation funding in the state of Louisiana, with proponents of the legislation sensing an opportunity to make progress since the state elected a new governor, Jeff Landry. The two bills making their way through the Legislature are: HB336, which would create a Litigation Financing Disclosure Act, and SB355, which would enact ‘transparency and limitations on foreign third-party litigation funding’. 

In an interview with Bloomberg, Representative Emily Chenevert ,who brought HB336, explained that the turnover in elected representatives provided a fresh opportunity, saying: “The appetite was there already within the legislature and so now it’s like, let’s attempt this and let’s see with a new House and some new senators what could happen.” Dai Wai Chin Feman, managing director at funder Parabellum Capital, spoke out in opposition to Chenevert’s bill but said that SB355 was “acceptable to our industry.”

HB336 would require any party in a civil action to disclose the existence of a litigation financing agreement, whilst redacting the financial details of the agreement, and would make all financing arrangements ‘permissible subjects of discovery’. The bill also prohibits funders from controlling or making any decisions in the proceedings, stating that ‘The right to make these decisions remains solely with the plaintiff and the plaintiff's attorney in the civil proceeding.’

SB355 requires any foreign litigation funder involved in a civil action in Louisiana to disclose its details to the state’s attorney general (AG), and to provide the AG with a copy of the funding agreement. Similarly to HB336, this bill would prohibit the foreign funder from controlling the legal action in any way and also prohibits the funder from being ‘assigned rights in a civil action for which the litigation funder has provided funding’.

HB336 has been approved by the state House and was referred to the Senate Judiciary Committee, whilst SB355 has cleared the majority of procedural hurdles and now awaits a vote by the House.