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Key Takeaways from LFJ’s Special Digital Event “Litigation Finance: Investor Perspectives”

Key Takeaways from LFJ’s Special Digital Event “Litigation Finance: Investor Perspectives”

On Thursday April 4th, 2024, Litigation Finance Journal hosted a special digital event titled “Litigation Finance: Investor Perspectives.” The panel discussion featured Bobby Curtis (BC), Principal at Cloverlay, Cesar Bello (CB), Partner at Corbin Capital, and Zachary Krug (ZK), Managing Director at NorthWall Capital. The event was moderated by Ed Truant, Founder of Slingshot Capital. Below are some key takeaways from the event: If you were to pinpoint some factors that you pay particular attention to when analyzing managers & their track records, what would those be? BC: It’s a similar setup to any strategy that you’re looking at–you want to slice and dice a track record as much as possible, to try to get to the answer of what’s driving returns. Within litigation finance, that could be what sub-sectors are they focused on, is it intellectual property? Is it ex-US deals? What’s the sourcing been? How has deployment been historically relative to the capital they’re looking to raise now? It’s an industry that is starting to become data rich. You have publicly-listed companies that have some pretty interesting track record that’s available. I’m constantly consuming track record data and we’re building our internal database to be able to comp against. Within PE broadly, a lot of people are talking about DPI is the new IRR, and I think that’s particularly true in litigation finance. If I’m opening a new investment with a fund I’ve never partnered with before, my eyes are going to ‘how long have they been at it, and what’s the realization activity?’ There is also a qualitative aspect to this–has the team been together for a while, do they have a nice mix of legal acumen, investment and structuring acumen, what’s the overall firm look like? It’s a little bit art and science, but not too dissimilar from any track record analysis with alternative investment opportunities. Zach, you’ve got a bit more of a credit-focus. What are you looking for in your opportunities?  ZK: We want to understand where the realizations are coming from. So if I’m looking at a track record, I want to understand if these realizations are coming through settlements or late-stage trial events. From my perspective as an investor, I’d be more attracted to those late-stage settlements, even if the returns were a little bit lower than a track record that had several large trial wins. And I say that because when you’re looking at the types of cases that you’ll be investing in, you want to invest in cases that will resolve before trial and get away from that binary risk. You want cases that have good merit, make economic sense, and have alignment between claimant and law firm, and ultimately are settleable by defendants. That type of track record is much more replicable than if you have a few outsized trial wins. What are things that managers generally do particularly well in this asset class, and particularly poorly?  CB: I don’t want to paint with a broad brush here. With managers it can be idiosyncratic, but there can be structuring mistakes – not getting paid for extension risks, not putting in IRR provisions. Portfolio construction mistakes like not deploying enough and being undercommitted, which is a killer. Conversely, on the good side, we’ve seen a ton of activity around insurance, which seems to be a bigger part of the landscape. We also welcome risk management optionality with secondaries. Some folks are clearly skating to where the puck is going and doing more innovative things, so it really depends who you’re dealing with. But on the fundamental underwriting, you rarely see a consistent train wreck – it’s more on the other stuff where people get tripped up. How do you approach valuation of litigation finance portfolios? What I’m more specifically interested in is (i) do you rely on manager portfolio valuations, (ii) do you apply rules of thumb to determine valuations, (iii) do you focus your diligence efforts on a few meaningful cases or review & value the entire portfolio, and (iv) do you use third parties to assist in valuations?  CB: If you’re in a fund, you’re relying on the manager’s marks. What we do is not that – we own the assets directly or make co-investments. We see a lot of people approach this differently. Sometimes we have the same underlying exposure as partners and they’re marking it differently. Not to say that one party is rational and the other is not, it’s just hard to do. So this is one we struggle with. I don’t love mark-to-motion. I know there’s a tug toward trying to fair value things more, but as we’ve experienced in the venture space, you can put a lot of valuations in DPI, but I like to keep it at cost unless there is a material event. Check out the full 1-hour discussion here.
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ISO Approves New Litigation Funding Disclosure Endorsement

By John Freund |

A new endorsement from the Insurance Services Office (ISO) introduces a disclosure requirement that could reshape how litigation funding is handled in insurance claims. The endorsement mandates that policyholders pursuing coverage must disclose any third-party litigation funding agreements related to the claim or suit. The condition applies broadly and includes the obligation to reveal details such as the identity of funders, the scope of their involvement, and any financial interest or control they may exert over the litigation process.

According to National Law Review, the move reflects growing concern among insurers about the influence and potential risks posed by undisclosed funding arrangements. Insurers argue that such agreements can materially affect the dynamics of a claim, especially if the funder holds veto rights over settlements or expects a large portion of any recovery.

The endorsement gives insurers a clearer path to scrutinize and potentially contest claims that are influenced by outside funding, thereby shifting how policyholders must prepare their claims and structure litigation financing.

More broadly, this endorsement may signal a new phase in the regulatory landscape for litigation finance—one in which transparency becomes not just a courtroom issue, but a contractual one as well.

Innsworth Penalized for Challenge to Mastercard Settlement

By John Freund |

A major ruling by the Competition Appeal Tribunal (CAT) has delivered a setback to litigation funder Innsworth Advisors, which unsuccessfully opposed the settlement in the landmark Mastercard consumer class action. Innsworth has been ordered to pay the additional legal costs incurred by class representative Walter Merricks, marking a clear message from the tribunal on the risks of funder-led challenges to settlements.

As reported in the Law Gazette, the underlying class action, one of the largest in UK legal history, involved claims that Mastercard’s interchange fees resulted in inflated prices passed on to nearly 46 million consumers. The case was brought under the collective proceedings regime, and a proposed £200 million settlement was ultimately agreed between the class representative and Mastercard. Innsworth, a funder involved in backing the litigation, challenged the terms of the settlement, arguing that it was disproportionately low given the scope and scale of the claim.

The CAT, however, rejected Innsworth’s arguments and sided with Merricks, concluding that the settlement was reasonable and had been reached through an appropriate process. Moreover, the tribunal found that Innsworth’s intervention had caused additional work and expense for the class representative team—justifying the imposition of cost penalties on the funder.

For the litigation funding sector, this ruling is a cautionary tale. It underscores the importance of funder alignment with claimants throughout the litigation and settlement process, particularly in collective actions where public interest and judicial scrutiny are high.

Court Dismisses RTA‑Client Case

By John Freund |

Law firm Harrison Bryce Solicitors Limited had attempted a counterclaim against its client following the dismissal of a negligence claim against the firm. First the counterclaim was dismissed, and now the appeal against the counterclaim's dismissal has also been dismissed.

According to the Law Society Gazette, Harrison Bryce argued that it had been misled by its client, Abdul Shamaj, who had claimed to have sustained injuries in a road traffic accident (RTA) and instructed the firm accordingly.

Shamaj retained Harrison Bryce on the basis of a purported RTA injury claim, and the firm later brought professional negligence proceedings against the client, alleging that the claim lacked credibility. Shamaj, in turn, mounted a counterclaim against the firm.

Both the negligence claim and the counterclaim were dismissed at first instance, and the Harrison Bryce's appeal of the dismissal of the counterclaim has now been refused.

The key legal takeaway, as highlighted by the judge, is that simply pleading that the client misled the firm is not sufficient to make out a viable counterclaim. The firm needed to advance clear and compelling evidence of the client’s misrepresentation, rather than relying on allegations of general misled conduct.