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A Snapshot of ESG in Litigation Funding

August 18, 2022

A Snapshot of ESG in Litigation Funding

As the litigation funding market continues to grow and evolve, funders are placing a higher value on environmental, social and governance (ESG) issues. This development raises questions about the connection between ESG and litigation funding, how litigation funders are currently addressing ESG, and what the future of ESG in litigation funding will look like. The following article will offer answers to those questions and act as a general overview of the state of ESG in litigation funding.

What is ESG and Why Does it Matter?

ESG encompasses environmental issues like air or water pollution, social issues such as customer privacy and data security, and governance issues like transparency. ESG pursuits have come to the forefront of many corporate agendas over the last decade. In some cases, this focus may be self-imposed, but it’s often a legal requirement as well. Even as companies champion ESG to satisfy customers and shareholders, they don’t always stay in compliance with those values and/or laws. As the number of ESG-related laws and regulations increases, compliance will become a greater focus for companies and investors alike. Litigation exists as both a deterrent to, and a regulator of, ESG non-compliance. ESG cases in response to corporate non-compliance create the connection between ESG and litigation funding. As Tets Ishikawa, Managing Director at LionFish Litigation Finance stated, litigation funding of ESG cases has a key role to play in helping businesses meet their ESG goals. Corporate executives aren’t the only ones concerned about ESG issues, however; savvy investors also recognize the importance of ESG. Responsible investing in ESG causes is often an obligation for pension fund managers and other asset allocators. Even when that is not the case, investors increasingly see ESG as a priority, with 85 percent of investors interested in sustainable investing.

Litigation Funders Pursuing ESG Cases

Major players in the litigation funding arena are already talking about or pursuing ESG investments. Funders like Therium, Woodsfood, North Wall Capital, and Litigation Lending Services have prioritized ESG cases, and more funders will likely join them in the coming years. One leading litigation funder, Therium, emphasizes the importance of ESG as part of broader responsible investing efforts. Funding ESG legal action, the funder states, makes justice more accessible for those harmed in ESG breaches. Litigation funding helps those claims be brought, even when the claimants don’t have the resources to fund extensive legal battles. Woodsford is another litigation funder touting the value of ESG litigation. Bob Koneck, Director of LitFin and legal counsel at Woodsford, emphasized the potential of ESG litigation as a reputation-enhancing tool for companies. He claims that companies can position themselves as ESG leaders through litigation, while also recovering money to use toward additional ESG initiatives. This is a unique view on the value of ESG litigation that speaks to the potential these cases have for corporations. This past week’s news cycle illustrates how cemented the concept of ESG litigation has become within the litigation funding ecosystem, as both new entrants and entrenched players are making waves on the topic. North Wall Capital recently announced a $100 million investment into law firm Pogust Goodhead, with the aim of funding ESG cases specifically. Fabian Chrobog, Chief Investment Officer of North Wall, argues that ESG investment makes practical sense, as these cases maintain a higher probability of settlement than most other claim types. And Paul Rand, Chief Investment Officer of Omni Bridgeway, recently revealed that the longtime funder is planning the launch of an ESG Finance fund. According to Rand, Omni is currently testing bespoke techniques for valuing and assessing ESG risk management.

ESG Cases Funded by Litigation Funders

Airbus Case Funded by Woodsford One prominent ESG case organized and funded by a litigation funder, is the Airbus case financed by Woodsford. Investigations by international authorities including the US Department of Justice revealed that Airbus SE, a manufacturer of military and civilian aerospace products headquartered in Europe, had participated in a widescale bribery and corruption scheme. In 2020, the company was forced to pay billions of dollars of fines to resolve these bribery charges, causing a major dip in its share price. Airbus investors incurred serious losses due to these violations of ESG principles and Airbus’ failure to inform the public in a timely manner about its conduct. That’s where litigation funder Woodsford got involved. Woodsford organized the affected investors into a special purpose entity, Airbus Investors Recovery Limited (AIRL), which is currently pursuing legal action against Airbus in Amsterdam to recover losses. The ESG team at Woodsford is funding and organizing this action. Without such involvement, the claimants may not have been able to pursue action against a large company with such deep pockets. Being able to hold major corporations like Airbus accountable for their egregious ESG breaches is one of the most significant benefits of litigation funding. Litigation Lending Services’ “Stolen Wages” Claim Litigation Lending Services, an Australian litigation funder, funded another notable ESG case related to stolen wages. This class action began in September of 2016, and was a lawsuit on behalf of Aboriginal and Torres Strait Islander workers in Australia. The workers had been subject to ‘protection’ legislation from the late 1800s up to the 1970s. This wage control legislation led to tens of thousands of indigenous workers across a variety of industries never receiving their full wages, estimated to be millions of Australian dollars in total. Wage violations like these fall under the governance portion of ESG. Litigation Lending Services offered its support to the case, which reached a settlement of $190 million in December, 2019. To date, the case is the largest human rights case in Australian history. The settlement brought resolution to more than ten thousand First Nations people. Both of these cases illustrate the potential of ESG, and the possibilities for more ESG cases and litigation funder involvement in the future. In Conclusion Global legal actions related to ESG issues like climate change are increasing, and the targets of these lawsuits are shifting to include more corporations over time, rather than just governments. It’s worth noting that environmental issues often get the most attention, but ESG litigation goes beyond just environmental claims. Lawsuits involving fraud, disclosure rule breaches, diversity and equity, misrepresentation, and health and safety issues all fall under the category of ESG litigation. Environmental claims have seen the largest growth in the last few years, but we can expect other types of ESG lawsuits to increase as well. Another factor driving additional ESG litigation is the lack of clarity surrounding what exactly constitutes ESG. The intense focus on ESG is fairly new, meaning parties are not in complete agreement on the definition of ESG and how it should be measured and reported. As the number of ESG group claims increases, there’s room for growth in the litigation funding market. This industry is constantly evolving to keep up with broader trends in litigation, including the evolution of ESG claims. For now, it’s clear ESG will have a key role to play in the future of litigation funding.

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U.S. Treasury Reverses Course, Permits Venezuela to Fund Maduro’s Legal Defense

By John Freund |

The U.S. Treasury has amended an OFAC sanctions license to permit the Venezuelan government to finance the legal representation of Nicolás Maduro and his wife Cilia Flores, reversing an earlier position that had blocked such payments and threatened to derail the federal narcoterrorism case against them in New York.

As reported by Latin Times, the amended license, disclosed in a joint letter submitted to U.S. District Judge Alvin Hellerstein on April 25, allows Maduro's defense team, led by Barry Pollack, to receive payment from Venezuelan state funds, subject to strict conditions including a requirement that the funds originate from sources available after March 5, 2026. The reversal comes after OFAC briefly authorized the same payments in January, only to revoke that license within hours, prompting Pollack to argue that the restriction effectively denied Maduro his Sixth Amendment right to counsel.

The development is a notable update to the story LFJ covered in February, when the Treasury's initial blocking position raised novel questions at the intersection of sanctions law, third-party defense funding, and constitutional rights. The new license effectively resolves the dispute, removing what prosecutors had attributed to an "administrative error" and clearing the way for the case to proceed without further litigation over funding access.

For the litigation finance community, the reversal underscores how sanctions law can intersect with the practical realities of who pays for litigation — particularly in cases involving sovereigns, sanctioned entities, or politically exposed individuals. While the Maduro matter sits well outside the commercial litigation funding mainstream, the OFAC framework that governs these payments is the same regime funders must navigate when financing claims involving sanctioned counterparties, foreign state defendants, or assets subject to enforcement holds.

Maduro and Flores remain in federal custody at the Metropolitan Detention Center in Brooklyn and have pleaded not guilty to charges including narcoterrorism conspiracy, drug trafficking, and weapons offenses.

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‘PPI 2.0’: Claims Firms and Funded CMCs Move to Capture Up to 40% of UK Car Finance Redress Pots

By John Freund |

Law firms and claims management companies are positioning to extract up to 40% of consumer payouts under the FCA's £9.1 billion car finance redress scheme, drawing comparisons to the PPI mis-selling era and prompting unprecedented regulatory enforcement against firms targeting motorists.

As reported by The Telegraph (via Yahoo Finance), the FCA's free redress scheme would deliver an average payout of £830 directly to consumers, but a parallel ecosystem of CMCs and law firms is aggressively soliciting drivers and offering to handle claims in exchange for substantial cuts of any recovery. Named firms include Barings Law — reported to be projecting up to £300 million in motor finance revenue — alongside Sentinel Legal, Consumer Rights Solicitors, and The Claims Protection Agency (TCPA). The Solicitors Regulation Authority is currently investigating 71 law firms, the FCA has forced three CMCs to reduce fees and blocked four others from taking new clients, and regulators have removed more than 800 misleading adverts, including unauthorized uses of Martin Lewis's likeness.

For the litigation finance community, the most notable disclosure in the reporting is the involvement of institutional capital behind the claims machine. Katch Investment Group is identified as a funder of TCPA and Consumer Rights Solicitors, with reported 19.1% returns in 2023 — a data point that underscores the increasingly direct role specialist credit and litigation funders are playing in financing UK consumer claims operations.

The Telegraph piece flags a series of consumer protection concerns: one customer reportedly had 21 different firms simultaneously claiming to represent them, multiple firms have failed to disclose the existence of the free FCA scheme, and several CMCs have advertised average payouts of £5,318 — more than six times the FCA's own £830 estimate. The FCA has emphasized that consumers using law firms or CMCs "must be able to trust those firms to act in their best interests."

The dynamic illustrates the dual-edged nature of mass consumer redress in markets where claims fee economics support a parallel commercial ecosystem. As the FCA scheme rolls out across roughly 12.1 million eligible finance agreements, with most claims expected to settle by end-2027, regulatory scrutiny of the claims-handling tier — and the funders financing it — is likely to intensify.

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UK Motor Lenders Step Aside on FCA’s £9.1 Billion Redress Scheme

By John Freund |

Major UK car finance lenders, including Santander, Barclays, and Lloyds Banking Group's Black Horse division, have signalled they will not legally challenge the FCA's £9.1 billion motor finance redress scheme, removing a significant barrier to one of the largest consumer remediation programs in UK financial services history.

As reported by Times & Star, the Finance and Leasing Association (FLA) confirmed it would not mount a legal challenge despite continued industry concerns about the scheme's design. The decision clears the path for the FCA to begin issuing payments later this year, with most of the roughly 12.1 million eligible finance agreements expected to be settled by the end of 2027. The scheme provides for an average payout of £829 per driver, with £7.5 billion flowing directly to consumers and the balance covering administration and claims handling.

The lenders' stand-down comes as the redress program faces a separate legal challenge from Consumer Voice, the consumer advocacy group preparing to argue the scheme will significantly underpay drivers relative to common-law damages. That challenge runs alongside parallel group litigation in the Court of Appeal — covered separately by LFJ — where lenders are seeking to dismantle a 5,000-claimant group motor finance case in the courts.

For litigation funders, the lenders' acceptance of the FCA scheme structure has mixed implications. On one hand, the regulatory channel reduces the need for individual or grouped court proceedings on the underlying mis-selling claims, potentially shrinking the addressable market for funded litigation in the motor finance space. On the other, the scheme's perceived inadequacy — central to Consumer Voice's challenge and to the parallel group litigation — preserves a meaningful tail of funded claims pursuing damages outside the regulator's framework.

The FCA scheme also sits alongside an active claims management ecosystem in which CMCs, law firms, and their backers are positioning to capture sizable shares of consumer payouts, a dynamic that has drawn intensified regulatory scrutiny in recent weeks.