First I'll tell you what I'm asking for, read the whole note for background.
How you can help
We need to hear from you, the class members. Please read, comment and share this as widely as possible.
How do you feel about Andrew's work on the case so far?
Do you consider that his interests in winning the case do not align with your interests?
The court identified specific areas where it feels Andrew's interests are in conflict with class members. The section in the judgement Overview of Mr Hamilton’s involvement and interest in the proceeding paragraphs 16 to 27 which are also below at the end of this post. If you can, review those and give us your opinion.
Please try to read those sections and say in your comment how you feel about them.
Tell us in the comments here (or email support @ jpbliberty dot com if you want it to be private) what you think about this judgement and how it protects YOU and helps secure YOUR interests.
In the last few days @apshamilton has posted two important posts about the case and the result of the court hearing he and I flew to Australia for in Februrary. The first official announcement was actually mandated by the court and we had to agree the content and the ways in which it was posted out with the other sides' lawyers and the court.
The short summary is Meta and Google won this round: they got the court to order that the case be stopped ("permanently stayed" in legal speak).
Legal speak
This is the summary of the reasons why we lost this round.
12 For the reasons which follow, I am satisfied that this proceeding should be permanently stayed for the first reason advanced by the respondents. To permit the proceeding to continue in the current form would bring the administration of justice into disrepute. Although Mr Hamilton sought to advance a number of ways in which the proceeding may be managed so as to mitigate the issues identified by the respondents, I am not satisfied that the conflicts inherent in Mr Hamilton’s multi-faceted interests in the proceeding are capable of being appropriately managed, including by the means he has put forward in his submissions on this application.
English
The court is stopping the case because the court thinks Andrew has "conflicts" of interest with the class members. Class members are anybody who was hurt by Meta and Google banning crypto advertising in 2018. That's you people here on Hive for example.
The court believes that these conflicts of interest between Andrew, the class members and funders of the case are so severe that if the court allows the case to continue it will "bring the administration of justice into disrepute".
My Opinon
The court doesn't seem to think that taking more than three years to stop the case for conflicts of interest that aren't actually real areas of conflict doesn't bring the administration of justice in Australia into disrepute.
Andrew's primary interest is proving the other side did the crime: i.e. a finding of liability. After that we get to argue over the damages and at that point we'd certainly be using a big, expensive law firm because that firm would already know the money would be paid by the other side!
The court, in my opinion, is taking the absolutely worst view possible of @apshamilton's motives in bringing the case. It is almost treating him as if he wants to swindle class members. Remember this: the vast majority of the class members claims are way too small for them to consider bringing the case on their own, class members have promised to give 25% of anything that is won to the people who fund the case and to Andrew who has worked on this for years with no compensation.
If Andrew can't win, both Andrew and the class members get nothing but additionally class members are NOT liable for anything.
Right now Andrew is liable for paying Meta and Google's legal fees: that is the risk he personally took on to bring this case. This is being fought over obviously.
The court said one of the reasons there was a conflict with the class holders was that the case should only be brought by a big expensive law firm with huge resources to match those of Meta and Google. Andrew might not have the resources to win so it is better if the case is not brought at all!
Appeal
Andrew has already filed an appeal.
How you can help
We need to hear from you, the class members. Please read, comment and share this as widely as possible.
How do you feel about Andrew's work on the case so far?
Do you consider that his interests in winning the case do not align with your interests?
The court identified specific areas where it feels Andrew's interests are in conflict with class members. The section in the judgement Overview of Mr Hamilton’s involvement and interest in the proceeding paragraphs 16 to 27 which are also below at the end of this post. If you can, review those and give us your opinion.
Please try to read those sections and say in your comment how you feel about them.
Tell us in the comments here (or email support @ jpbliberty dot com if you want it to be private) what you think about this judgement and how it protects YOU and helps secure YOUR interests.
Funding
And additionally: Andrew needs financial support for this case. We have not raised funds for a long time, funds raised so far have paid for our flights to Australia earlier this year (I paid for my own accommodation in Australia) and other incidental costs, but because Andrew does all the legal work himself, this represents a huge contribution.
If the court is to be believed through this ruling: you the class action members who have not had to pay a penny, need to be represented by a top law firm and paying (out of any future damages you might receive) top legal fees. The court believes this would be better for you than Andrew working on this case because he solidly believes it to be just.
SUFB tokens represent a chance to fund this fight to continue. If you are interested in making a significant contribution, please get in touch to discuss.
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From the Judgement
Notes:
- Respondents means Meta and Google.
- LFA is the Litigation Funding Agreement which is the document that class members "signed" or clicked accept for when joining the suit.
- CCA is the specific Australian Competition Law which we are saying Meta and Google broke.
Overview of Mr Hamilton’s involvement and interest in the proceeding
16 - At the heart of this application is the respondents’ attack on Mr Hamilton’s pervasive conflicts arising from his numerous duties and interests. To elucidate the nature and extent of the conflicts it is useful to begin by enumerating the various roles Mr Hamilton has in, or in connection with, the proceeding.
17 - First, Mr Hamilton is the representative applicant, he is referred to as the Representative in the LFA. He resides in Israel. It is convenient to extract the broad description of Mr Hamilton’s claims from Hamilton (Service Out) at [22]:
22 Mr Hamilton’s overarching contention is that the Ad Ban Provisions caused a substantial reduction in advertising opportunities for cryptocurrency-related goods and services which resulted in a substantial reduction in demand for those goods and services. Mr Hamilton contends that the operation of the Ad Ban Provisions has resulted in the loss of a “substantial economic benefit” from the cryptocurrency industry, which has in turn caused group members to suffer loss or damage, of which his personal claim is an example. Broadly, and without being exhaustive, Mr Hamilton claims he suffered loss occasioned by: (1) a reduction in the profitability of cryptocurrency mining, which was the primary business of Green Freedom Limited (Israel), a company wholly owned by Mr Hamilton; (2) diminution in the value of his investment in STEEM, a cryptocurrency, which Mr Hamilton contends experienced severe decline following the introduction of the Ad Ban Provisions; (3) loss of the business opportunity to operate a successful cryptocurrency consulting practice specialising in investment in the cryptocurrency industry which Mr Hamilton says he established with his wife under the name, Grant Hamilton Crypto Advisory, before introduction of the Ad Ban Provisions; and (4) a reduction in the value of his unsold cryptocurrency holdings.
18 - Mr Hamilton frames his claim as a claim for damages, including aggravated damages and exemplary damages, under s 82(1) of the CCA and s 22 of the Act respectively, declaratory relief under s 163A of the CCA and/or s 21 of the Act, a permanent injunction under s 80 of the CCA requiring the respondents to cease the alleged contravening conduct and other relief under s 87(1) of the CCA including a public apology and the provision of certain services to group members at no cost, and without restriction, for a period of time equal to the period of the alleged contravening conduct. An asserted source of loss included in the [FASOC] is a claim for “loss of amenity for users of blockchain based social media platforms”. Mr Hamilton submits that his cryptocurrency holdings were relatively small (under A$10,000) compared to other Funded Class Member who had holdings in the US$1 to 10 million range in the early 2018 period for which the majority of market based causation damages are claimed. This submission is advanced by Mr Hamilton in the context of seeking to justify his various interest in any litigation proceeding derived from the funding arrangements in place.
19 - Secondly, Mr Hamilton appears as a litigant in person, that is, a self-represented litigant. Although Mr Hamilton was admitted as a solicitor of the Supreme Court of New South Wales in 1996 and entered the register of legal practitioners of the High Court of Australia in 2005, Mr Hamilton is not the solicitor on the record in this proceeding. He describes himself as a litigant in person who happens to have legal experience and is adamant that he is not acting as a solicitor or barrister for anyone in this proceeding. As mentioned, there is no solicitor on the record. Despite the fact that the LFA and the JPB Liberty Conflicts of Interest Policy (CMP) both refer to the role that “Lawyers” are intended to play in relation to the arrangements between Mr Hamilton, JPB Liberty, and others interested in the litigation on the applicant’s side of the record, no lawyers are presently retained to perform the role(s) allocated to the “Lawyers” under the LFA and CMP. Mr Hamilton is controlling and directing the way in which the proceeding is conducted on the applicant’s side of the record.
20 - Thirdly, as mentioned, Mr Hamilton is the sole shareholder of the Funder and as such has a financial interest in the Funder and through the Funder in the Funder’s interest in any litigation proceeds.
21 - Fourthly, in addition to being the sole shareholder of the Funder, Mr Hamilton is one of two directors of the Funder. He is also the Funder’s Chief Executive Officer. As mentioned, the other director is a non-executive director and is his mother. The Funder is under Mr Hamilton’s control.
22 - Fifthly, Mr Hamilton controls JPB Liberty’s Hive accounts “@jpbliberty” and “@jpbliberty1”. Mr Hamilton describes Hive as a decentralised, blockchain based content sharing platform, akin to a social media network. The Hive platform is the one of the main ways in which Mr Hamilton communicates with Group Members and others about this proceeding, amongst other things. Mr Hamilton thus controls communication in relation to the proceeding with Group Members through his control of JPB Liberty and his operation of the relevant Hive accounts.
23 - Sixthly, Mr Hamilton is the “Representative” under the LFA. “Representative” is defined as a Funded Class Member who is a representative applicant or plaintiff in the Class Action. In addition to the control he has over the conduct of the proceeding by virtue of his status as representative applicant, as the Representative under the LFA, Mr Hamilton is given express authority to control the conduct and direction of the proceeding in a number of ways including authority to determine which claims will be pursued in the proceeding at any stage.
24 - As the Representative, he is responsible in consultation with JPB Liberty, the Lawyers and Counsel, to determine whether an application for a Common Fund Order will be made: cl 4.1, LFA. As mentioned, this proceeding is brought on behalf of Group Members who are part of an “open class” as defined in the further amended originating application dated 26 November 2021. Clause 4.3.1 of the LFA provides a mechanism for automatically amending the LFA to avoid conflict with any Common Fund Order made. Common Fund Order is defined to mean where the Class Action is pursued on an “open class” basis, and in the course of those proceedings the Court makes orders requiring all Class Members (whether Funded Class Members or not) to pay to JPB Liberty a percentage of a common fund comprising any amounts they may receive in any settlement or judgment in the proceeding (including any Litigation Proceeds) or any other amount, as approved by the Court.
25 - Seventhly, Mr Hamilton is the sole arbiter in relation to the issue of SUFB Tokens. The number of SUFB Tokens to which a person is entitled by reason of their financial or non-financial contribution to the litigation is at Mr Hamilton’s “sole discretion as sole shareholder of JPB Liberty”. In response to questions posed by the respondents, Mr Hamilton confirmed that where the relevant contribution is financial, SUFB Tokens are “issued or sold at a price determined by [Mr Hamilton] reflecting the stage of preparation for proceedings and progress of proceedings.” Mr Hamilton has further confirmed that where the relevant contribution is not financial, SUFB Tokens “issued or transferred for non-financial contributions were assessed by [Mr Hamilton] on a discretionary basis according to [his] determination of value of each contribution and sometimes with input from the recipient.” MrHamilton is frank in acknowledging that to date, his decisions to issue SUFB Tokens for financial or non-financial contributions have been “made on a purely discretionary basis, without documenting the basis or the policies and procedures”. He says that as sole shareholder and director of JPB Liberty he made these decisions “on a discretionary basis to advance the proceedings.” Mr Hamilton’s control over the terms on which the proceeding is funded is both through his control over JPB Liberty and his oversight of the issuance of SUFB Tokens.
26 - Relatedly, Mr Hamilton, or persons associated with him, hold a substantial number of the SUFB Tokens currently on issue. In correspondence Mr Hamilton asserts that as at 23 October 2022, approximately 48% of the SUFB Tokens on issue were held by him or persons associated with him. There was some debate about the accuracy of this figure. It was common ground that Mr Hamilton, or persons associated with him, hold a substantial number of the SUFB Tokens currently on issue. I have approached my consideration of the present applications on that basis. As a consequence of his control over the issuance of SUFB Tokens, Mr Hamilton has caused JPB Liberty to issue a substantial number of SUFB Tokens to himself for what he describes as the financial and non-financial contributions he has made to the litigation.
27 - Based on the above analysis, it is plain that Mr Hamilton, has a financial interest in the litigation that significantly exceeds his own claim for relief in the proceeding. It is also plain that Mr Hamilton is able to exert control over the way in which the claims pursued in the proceeding are framed and resourced, and whether individual categories of claims are pursued or continued in the proceeding. Finally, MrHamilton also has significant control over the ultimate distribution of a substantial proportion of any litigation proceeds because he has complete control over the issuance of SUFB Tokens and the terms on which the tokens are issued for financial and non-financial contributions.