Ius Omnibus v Mastercard

Preparing an action of this nature in an adequate way, which allows for its success, is extremely costly, requiring the hiring of specialized lawyers, economists and consultants. The action’s success is dependent on suitably handling very broad and technical facts and an extremely complex area of legal-economic knowledge, as well as reacting effectively to the vast financial and human resources which will be deployed by the other side, who benefits from profound information asymmetry.

The lack of financial resources by consumer protection association is one of the, if not the main factor which accounts for why these legal mechanisms have not been more used so far. Indeed, in the absence of public funds which can be used to finance popular actions of this nature, it is impossible for an individual consumer or an association of consumers to take on the several hundreds of thousands of euros in costs which inevitably are required to pursue such an action.

The only way to pursue an action of this type it to resort to litigation funding. The practice of litigation funding is well established in other EU Member States and it is now beginning to be used in Portugal. It was litigation funding which allowed the pursuit of an opt-out consumer damages action against Mastercard in the UK. The UK’s Competition Appeal Tribunal confirmed that the action would have been impossible without that funding and that, therefore, to refuse the possibility of such funding and the remuneration of the funder would be to deny access to justice and the exercise of the rights in question.

The present action is funded by Nivalion, the leading and financially strongest litigation funder of continental Europe.

The funder assumes all of Ius Omnibus’s costs of the litigation and all its risks. It will only recoup its investment if the action is successful, if and to the extent the Court authorizes it, and if enough money remains in the global compensation fund, after distribution of compensations to consumers who request their share. Under these conditions, Ius Omnibus committed to returning to the funder the money it invested, plus a fair remuneration for the risk and time it was deprived of its capital, the proportionality of which will be assessed and controlled by the Court.

The funding agreement guarantees the prevention of money laundering and terrorism financing and the transparency of the source of funding before the Court.

This funding model ensures that consumers will not have to bear any of the costs of pursuing this action, and that any consumer who claims their share of the compensation at the end of the case will be entitled to 100% of his/her compensation.