Trending Now
Commercial Special Features

Key Takeaways from LFJs Special Event: How Investors Approach Litigation Finance

July 26, 2022

Key Takeaways from LFJs Special Event: How Investors Approach Litigation Finance

On Thursday, July 14th, Litigation Finance Journal hosted a digital event, “How Investors Approach Litigation Finance.” The event featured a unique cross-section of investor types, including David Gallagher, Co-Head of Litigation Investing at The D.E. Shaw Group, CJ Wei, Vice President of Private Credit at Northleaf Capital, Benjamin Blum, Managing Director at Flexpoint Ford, LLC, David Demeter, Director of Investment at Davidson College, and Kendra Corbett, Partner at Cloverlay. The event was moderated by Ed Truant, Founder of Slingshot Capital. Below are some key highlights from the discussion: ET: How did you start investing in Litigation Finance? What types of results did you focus on, and how has your strategy changed over time? DG: It takes time to obtain a meaningful number of results from litigation finance investments, and you can learn a lot along the way, even before the results come in. And because you invest in such a small proportion of the opportunities you look at, you try to learn from the investments you don’t make, as well as the investments you do make. And one of the lessons I’ve learned as it relates to deployment strategy, is that good deals are so hard to come by, and are a product of so many variables outside of your control, that it’s better to be responsive to the opportunity set in front of you, than to be wedded to the abstract ideas of portfolio construction or deal structuring. I think adaptiveness is key. KC: We’ve been active in deploying capital in litigation finance for over six years now, and I wouldn’t say our approach has changed dramatically. We’ve been laser-focused on maintaining diversification across cases to avoid binary risks, and finding alignment across all of the involved parties. I think we’ve looked for market specialists, and we haven’t necessarily tried to find litigation finance beta, and instead we’ve looked for partners with a demonstrable value-add and strategic advantage. ET:  For those panelists more interested in credit opportunities in the legal finance space, why did you decide to focus on credit? DG: At the D.E. Shaw Group, the litigation investing team works closely with the Private Credit group, which I like to think broadens the types of deals we do. So, in addition to investing in litigation finance deals with a more typical risk/reward profile, we also invest in less volatile opportunities that are less about litigation risk, and more about timing risk and basic credit risk. BB: There are a few ways to create a credit-like opportunity in litigation finance. In addition, the way David was describing, the other way is to create a credit-like product by lending against a diverse portfolio of individual case fundings. So the asset is a little bit less credit-like, but the investment structure creates a credit-like investment. Both areas are of interest to us, especially when there is strong alignment with the borrower and downside protection through underwriting, to justify accepting a return profile that is either capped or has limited upside. CW: At Northleaf, we have many different funds with many different return hurdles, so we view ourselves as a capital solutions provider to litigation finance businesses. That being said, our thesis around the asset class is akin to a type of Private Credit approach strategy. Principal protection is our priority. We not only have asset coverage of the legal assets, but additional covenants and protections, and bespoke structures where we have guardrails against any downside scenario. ET: From an equity perspective, how is litigation finance the same as, or different from, other equity assets in which you invest? DD: If you suspend disbelief a bit, I would equate it with early venture investing. Liquidity cycles tend to be uncorrelated in the long run, you’re generally creating milestones for capital, outcomes can be pretty skewed, where large winners make up the majority of profit (although it’s certainly more skewed in venture than in litigation finance), and the investment strategy isn’t all that scalable—managers have to be cognizant of all that they’re trying to deploy. DG: I’ll focus on some of the differences. First, a litigation finance investor has no control over the litigation, while an equity investor or investors that own the majority of the company—they do control the company. So the closest analogy is to a class of shares that has no voting rights. Second, LitFin investments are typically illiquid. Equity investments are typically liquid. Another difference is that case outcomes are typically more binary than business outcomes.  And one last difference is that a company you might invest in can pivot and respond as needed to market opportunities, a case you invest in—it pretty much is what it is, and there’s only so much that even the most talented lawyers can do, with the facts and the law involved. ET: One of the common criticisms I hear from fund managers, at least early on in the life cycle, is that investors are not willing to pay management fees to fund their operations. How does the panel respond to this criticism, given that the average litigation finance claim is small—around $3-5MM—and there is a lot of relatively sophisticated operations needed to be conducted by investment managers?   DD: I think there are ways of paying someone a full fee and making sure deployment is there. And that is my primary concern, and I think most LPs primary concern, when it comes to paying a management fee. We’re also concerned about misalignment. At the fund level, people should really be making a large amount of their compensation from performance fees, not salary. KC: It’s definitely a difficult issue. The fee drag that comes with charging investors on committed capital becomes pretty untenable when you’re comparing gross returns to net returns. So from our perspective, at a minimum, fees need to be on an as-committed basis. We’ve also seen scenarios where there is a lower management fee on committed capital that steps up once it’s drawn. It’s just really difficult with some of the commercial litigation strategies to have a full freight fee—2%–committed from investors.

Commercial

View All
Commercial

Academics Fact-Check German Business Lobby’s Case for Restricting Litigation Funding

Two competition law academics have published a point-by-point examination of the German Chamber of Commerce and Industry's position on collective redress and litigation funding, concluding that several of the central claims advanced in support of tighter restrictions are false, misleading or unsupported.

As set out in a Kluwer Competition Law Blog analysis by Eduardo Silva de Freitas of the Asser Institute and Lena Hornkohl of the University of Vienna, the DIHK statement calls for litigation funders to be brought under supervision comparable to financial market regulation and for funding agreements to be disclosed in full. The authors test five of its underlying assertions.

The DIHK's claim that transparency requirements are lacking is assessed as false: Article 10 of the Representative Actions Directive already establishes disclosure obligations for litigation funding arrangements. The assertion that funders operate in a "nearly unregulated space" is described as misleading, the authors pointing to a European Commission study finding that third-party funding legislation exists in the vast majority of EU member states.

The claim of a widespread consensus that the Directive requires significant improvement is treated as unsupported, with the authors finding no sufficient body of independent studies behind it. The criticism that no minimum registration period applies to qualified entities is called misleading, since Article 4(3)(a) requires 12 months of actual public activity before designation.

The analysis reserves particular attention for the DIHK's figure that funders typically take 20% to 50% of damages. The authors describe this as misleading, noting that German law caps funder remuneration at 10% and that differentiated models operate below that level.

Commercial

Law Firms Turn to MSO Structures to Access Outside Capital and Partner Liquidity

Management services organisations have become a leading route for outside investors to participate in the economics of US law firms without breaching the prohibition on non-lawyer ownership, and the structure is drawing sustained interest from private capital.

As explained in a Nixon Peabody analysis by Allan H. Cohen and Samantha R. Barbere, an MSO is a non-professional entity that provides administrative and support services to a professional practice. The arrangement separates professional ownership from administrative infrastructure: non-licensed investors may own the MSO, while licensed attorneys retain exclusive control of the law firm and all legal work.

The authors identify two principal motivations driving adoption. The first is access to capital, giving firms resources to invest in technology such as artificial intelligence and cybersecurity at a time of escalating client demands for efficiency. The second is partner liquidity — the bifurcated structure allows partners to monetise the value of their ownership through a sale to non-professional investors, expanding options beyond traditional buyouts and transactions between lawyers.

Execution requires care. Firms must transfer non-professional assets to the MSO and enter into an administrative services agreement governing the relationship. Critically, fees paid to the MSO must reflect fair market value for the services provided, rather than a percentage of revenue, in order to comply with the fee-splitting prohibition in ABA Model Rule 5.4(a).

For the litigation finance market, the structure matters because it represents a parallel channel for outside capital to reach the legal services sector — one that competes with, and in some cases complements, case-level and portfolio funding as a means of financing law firm growth.

Commercial

Govia Thameslink Class Action Collapses After Funding and Insurance Fall Through

A long-running opt-out collective action against Govia Thameslink Railway has come to an end after the claim failed to secure a replacement class representative backed by adequate funding and insurance, marking one of the more consequential funding-driven failures in the Competition Appeal Tribunal's collective proceedings regime.

As reported by Global Competition Review, the claim has collapsed as a result of funding problems. The proceedings, certified in October 2022, alleged pricing discrimination in the operator's fare structure on behalf of rail passengers.

The claim was left without a class representative following the death of David Boyle, who had brought the action. Walter Merricks, best known for leading the Mastercard collective action, applied to take over the role but withdrew in January 2026 after being unable to obtain after-the-event insurance for the proceedings.

That withdrawal carried its own consequences. As reported by the Law Society Gazette, the Tribunal ordered interim payments totalling £70,000 — £45,000 to the defendants and £25,000 to the estate — finding it "beyond argument" that reasonable costs incurred should be borne by Merricks and his funder, Litigation Capital Management. The Tribunal considered the £337,695 originally claimed to be excessive.

With the proceedings stayed, the Tribunal set a deadline of 4pm on 24 July for an application to approve a suitable replacement class representative, failing which the collective proceedings order would be revoked and the claim decertified.

The outcome underscores how tightly the viability of UK collective proceedings is bound to the availability of funding and ATE cover, and how quickly a certified claim can unravel when either becomes unobtainable.