AUTOMN INTERNATIONAL NEWSLETTER ON COLLECTIVE REDRESS
Collective Redress and Litigation Funding
Autumn 2026 | Developments from July to October
Recent developments bring funding governance, procedural design and effective compensation into sharper focus. This edition considers their implications for litigation funders, legal teams and representative organisations across jurisdictions.
Funding policy: transparency, certainty and sustainable returns
United States | A proposal for mandatory funding disclosure
On 14 September 2026, 214 companies submitted Rules Suggestion 26-CV-31, calling for a uniform third-party litigation funding disclosure requirement under Federal Rule of Civil Procedure 26. The proposal would require disclosure of funders’ identities and agreements governing their financial participation. The signatories argue that this would help identify interests and decision-making powers affecting litigation and settlement. The submission is a proposal for rule reform. For funders, it reinforces the value of anticipating disclosure requests, protecting commercially sensitive terms and documenting investment governance.
United Kingdom | The Government’s response to PACCAR
In its Commons written answer of 15 September, the Ministry of Justice reaffirmed its intention to use the earliest legislative vehicle to restore certainty to litigation funding, protect access to justice and introduce proportionate safeguards for claimants. The answer identified no particular bill or timetable. The policy commitment therefore remains relevant to investment planning, with the timing and detailed scope of legislative change still unresolved in that statement.
United Kingdom | Civitas adds to the funding debate
Danna Brown’s August report, Litigation Nation: The growth of a class action claims culture, argues for stronger beneficial ownership disclosure, sanctions screening and statutory oversight of litigation funding. Its concerns include funder influence, conflicts of interest and claimant recoveries. These are the report’s policy positions. For market participants, the publication illustrates the importance of being able to explain capital provenance, decision-making safeguards and the contribution of funding to access to justice.
Netherlands | WAMCA reform and the economics of collective enforcement
The Government’s 12 October response to the WAMCA evaluation favours further judicial development of the collective-action regime and considers broad immediate legislative reform premature. It addresses admissibility delays, representativeness and class definition, and requests further WODC research into litigation costs, financing, potential funder regulation and acceptable remuneration. For funders, this identifies an important policy agenda: the economic viability of proceedings and the relationship between commercial returns and effective collective enforcement.
Settlement economics and the delivery of compensation
Merricks v Mastercard | Implementing approved funder payments
On 31 July, the Competition Appeal Tribunal varied the collective settlement approval order and authorised payment to Innsworth of £62,560,808.40 plus accrued interest. The payment included identified funded amounts outside the outstanding costs assessment and a 50% profit return on those amounts. Its significance concerns the approved structure of this settlement. Recoverable expenditure, assessment procedures, stays, interest and payment sequencing all deserve attention when modelling investment recoveries.
Rodger v Alphabet | Allocating a £260 million settlement
The CAT’s judgment of 9 October explained its approval of a settlement allocating £160 million to the class and £100 million to litigation stakeholders, including funders, lawyers and insurers. It considered the role of commercial funding alongside the objectives of compensation and access to justice. The distribution approach simplified individual calculations, with continuing oversight of further stakeholder payments and undistributed funds. The decision underlines the importance of explaining the relationship between investment risk, the proposed return and the benefit delivered to class members.
McLaren | Distribution as a supervised stage of proceedings
The maritime car-carriers litigation has moved into the practical delivery of compensation to represented purchasers and lessees. Following the distribution ruling of 23 September, the CAT’s order of 5 October provides for publicity, a six-month distribution process, monthly reporting and a review after three months. Simplified verification and engagement with fleet and Motability claimants illustrate how distribution design can affect participation. Claims administration, outreach and reporting should be built into settlement planning and its budget.
Québec | Individual entitlement after collective success
In Masson c. Telus Mobilité, the Court of Appeal held that unsubmitted individual claims requiring determination of entitlement and damages were not liquid and enforceable debts falling within Québec’s unclaimed-property regime. It also recognised the representatives’ continuing standing to address common questions of recovery after receiving their own compensation. The decision focuses attention on the steps needed to translate a successful collective judgment into individual payment.
Trucks | Settlement within interconnected proceedings
The CAT’s 24 September consent dismissal order in M.G. Oils v DAF records the disposal of that claim with no order as to costs. The wider Trucks litigation also provides an earlier example of attention to the allocation of shared costs when parties settle. That cost-sharing discussion belongs to the earlier Edwin Coe dismissal material. Together, these developments highlight the need to address a settling party’s position within common litigation expenditure expressly.
Evidence, confidentiality and litigation control
Gutmann v Apple | Funder access to confidential material
The CAT admitted three named representatives of Balance Legal Capital to an outer confidentiality ring. It recognised the value of informed funding decisions for the class and assessed the disclosure risks as minimal in the circumstances. Restrictions on the use of disclosed material continued to apply. The ruling supports careful, case-specific planning of authorised recipients, permitted uses and reporting protocols for investment monitoring.
Newman and Ennis | Privilege and communications with class members
In Newman v Rightmove, reliance on prospective class members’ concerns about retaliation in support of opt-out proceedings resulted in waiver of privilege over the relevant communications. Disclosure was protected by a lawyers-only confidentiality ring. The ruling illustrates the disclosure consequences of deploying member communications as evidence.
In Ennis v Apple, the CAT held that Apple had not waived litigation privilege over proposed future communications seeking voluntary documents from class members. It declined advance scrutiny of their substantive content and imposed safeguards explaining voluntariness, independent advice and the absence of commercial retaliation. The two decisions show why evidence-gathering protocols and decisions to rely on communications require careful coordination.
Ireland | Pleading, disclosure and GDPR accountability
In ICCL v Microsoft, the High Court addressed representative proceedings concerning alleged GDPR infringements associated with the Xandr advertising platform. The Court held that, once a representative action has been declared admissible, a defendant has no standalone entitlement under sections 19(10) and 19(11) of the Act to compel further information concerning funding, the nature of the claim or the consumers represented. Defendants nevertheless retain the ability to challenge admissibility and seek particulars or disclosure through the ordinary procedural mechanisms.
The claimant must establish controller status and the processing engaging the relevant obligations. Where those conditions are met, the controller bears the burden of demonstrating compliance with the applicable obligations under Articles 5(1) and/or 24(1). The judgment clarifies the evidential work required on both sides.
Certification, coordination and the development of claims
ACSO v Amazon | Funding and methodology under scrutiny
The CAT’s 13 October ruling set conditions for ACSO’s proposed opt-out proceedings, including revisions to representative remuneration, the litigation budget and the funding agreement. It also identified deficiencies in the proposed methodology under the Microsoft test and required coordination with the existing Hammond and Stephan Amazon proceedings. ACSO was given four weeks to confirm whether it would proceed on that basis. For funders, the ruling demonstrates how certification can reshape expenditure, expert instructions and the organisation of a claim.
Further UK developments: Or Brook, Gormsen, Booking| Different stages, different questions
Or Brook Class Representative Ltd v Google [2026] CAT 65 (5 August) addresses certification of an opt-out advertiser claim and objections concerning funding, costs and class composition. Meta Platforms v Gormsen [2026] EWCA Civ 993 (29 July) allows the proposed user-damages theory concerning personal data to proceed to trial; ultimate entitlement to that remedy remains for determination. In Bed and Breakfast Association v Booking Holdings (18 August), the CAT permitted service outside the jurisdiction on the US and Dutch defendants. That order concerns service, with certification still a separate procedural question.
Québec | The legal foundation of a consumer claim
In Restaurant Brands International Inc. c. Deschâtelets, erroneous prize notifications sent to approximately 500,000 participants after a Tim Hortons promotion failed to support the consumer- law claims advanced. The Court of Appeal reversed authorisation because the subsequent emails fell outside the contractual conformity guarantees invoked. For claim assessment, the decision highlights the importance of connecting a uniform communication to the precise statutory obligation and legally available remedy.
Comparative developments: participation, proof and collective interests
Australia | Registration and the evidential record
In Green v Johnson and Johnson Pacific Pty Ltd (No 2) [2026] FCA 1094 (7 August), the Federal Court approved a registration and notice process intended to improve the prospects of settlement in a consumer claim concerning cold-and-flu products. The decision connects information about likely participation with the ability to negotiate a meaningful resolution.
In Donnelly v Allergan Australia Pty Ltd [2026] FCA 1148 (17 August), in the breast-implant representative proceeding, the Federal Court dismissed the claimant’s application to strike out parts of the manufacturers’ defence. The ruling permits Allergan to argue that scientific knowledge at the time of supply informs the assessment of the implants’ acceptable quality. This procedural success preserves the argument for consideration on the full evidential record, with liability remaining for determination at trial.
Brazil | Demonstrating the collective interest
In AREsp 2.765.693/SP, the Superior Tribunal de Justiça rejected the use of an ação civil pública to seek demolition of a single dwelling where no transindividual interest had been demonstrated. The property was in a Special Zone of Social Interest undergoing regularisation. The Court’s criticism of numerous essentially individual demolition proceedings connects procedural suitability with housing rights and urban regularisation. The decision calls for identification of the collective interest supporting the chosen procedure.
Portugal | Public enforcement and a separate consumer action
On 11 August, Ius Omnibus reported that the Competition, Regulation and Supervision Court had overturned the Competition Authority’s findings and fines in the Active Brands/Gestvinus matter because of issues concerning email evidence. The association stated that its separate consumer popular action would continue on its own allegations and evidence. The statement illustrates the need to assess the independent evidential foundation of private claims and their exposure to developments in parallel public enforcement.
What these developments mean for collective redress stakeholders
Taken together, these developments support a lifecycle approach to investment assessment. The
structure approved at the outset can affect the evidence available, the costs incurred, the settlement
reached and the timing of payments.
Funding governance. Document capital provenance, decision-making authority and conflicts
safeguards, and plan for disclosure and confidentiality questions.
Certification and expenditure. Test the methodology, class definition and litigation budget
together. Allow for coordination with overlapping proceedings and court-required changes to funding
terms.
Settlement and distribution. Model stakeholder payments alongside class recoveries,
administration costs, participation assumptions, interest and the treatment of residual funds.
Evidence and procedural risk. Assess the independent evidential foundation of each claim and
the consequences of relying on communications, regulatory findings or developing damages
theories.
As an advisor, I bring a comparative perspective to collective redress and litigation funding. To
discuss how these developments may affect a funding strategy, a collective claim or a proposed
settlement, please get in touch through the website.
María José Azar-Baud
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