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Implications of Portfolio Financings on Litigation Finance Returns

The following article is the first in an ongoing column titled ‘Investor Insights.’ 

Brought to you by Ed Truant, founder and content manager of Slingshot Capital, ‘Investor Insights’ will provide thoughtful and engaging perspectives on all aspects of investing in litigation finance. 

Executive Summary

  • Portfolio financings represent as much as 62% of all US commercial litigation finance investments
  • Strong growth trend for Law Firm and Corporate portfolios
  • Law firms recognize the inherent value in incubating portfolios
  • Not prevalent in non-contingent fee jurisdictions

Investor Insights

  • Potential effect of reducing overall investor returns relative to a portfolio of single case risks
  • Investors benefit from better risk-adjusted returns than single case investing
  • Cross-collateralized nature significantly reduces risk & shifts value to law firm
  • Portfolio financings may limit upside potential for investors
  • Review the portfolio composition (single vs. portfolio), past and future, to set return expectations.

One of the most significant trends in litigation finance for fund managers over the last few years has been the strong trend toward “portfolio financings”. Litigation finance can be broadly segmented between single case investments and portfolio financing investments. Single case is a reference to the provision of litigation finance to a single litigation, the outcome of which is completely dependent on the idiosyncratic case risk and binary litigation process risk.  Portfolio financing is a reference to the aggregation and cross-collateralization (typically) of a portfolio of cases, whether Law Firm or Corporate, whereby the results are determined by the performance of the portfolio as opposed to a single case. The trend has been so significant, that according to WestFleet’s 2019 Buyer’s Guide, Law Firm portfolio financings now account for 47% of capital commitments and Corporate portfolios account for 15% of commitments, for an aggregate of 62% of the commitments of the US industry.

Why is Portfolio Financing Growing So Quickly? 

  1. The primary growth driver of portfolio financings is that the industry, arguably, started in the area of single case financings and is now evolving its offerings into a more complex and larger area of litigation finance. It is typical for an industry to begin with the financings of single exposures, and then as the industry gets more comfortable and gains deeper experience, it evolves into other larger applications like portfolio financing.
  2. The second driver is that as litigation funders have expanded their capital base, they have had to look further afield in terms of where they can effectively invest their capital at scale. To this end, portfolio financings are an ideal way for litigation funders to put large amounts of capital to work quickly and in a better risk-adjusted way than undertaking the laborious task of assembling a series of single case investments into a portfolio.
  3. One of the knocks against litigation finance is a low degree of capital deployment. Managers are motivated to reduce risk by slowly investing capital into the case in a measured way so as to mitigate loss of capital. Unfortunately, this negatively impacts the amount of capital they deploy and is inversely proportional to the effect their management fees have on returns. Portfolio financings, on the other hand, allow litigation funders to commit large amounts of capital and also expedite the deployment of capital, as they typically replace dollars that have been deployed (actual or notional) previously by the law firm. One could view a portfolio as a series of cases that have been ‘incubated’ by the law firm, and are now ready to be invested in by a litigation funder.
  4. Law firms have, astutely, come to realize there is value in (i) originating cases, arguably one of the most difficult and expensive services litigation funders provide, and (ii) applying modern portfolio theory to a series of cases and cross-collateralizing the pool, both to the benefit of the law firm. Progressive law firms married the new availability of large amounts of capital with the value inherent in their incubated portfolios and parlayed that into significant portfolio financings at a reasonable cost of capital, thereby capturing some of the economics for themselves.
  5. As awareness for litigation finance has grown throughout the legal community, awareness has also grown for plaintiff bar firms with large portfolios of cases. This market has also evolved and extended into corporate portfolios (LCM, an Australian litigation finance manager, is actively pursuing corporate portfolios). Accordingly, the increased awareness of the industry in general has also increased awareness for portfolio financing opportunities.

What Does it All Mean for Investors in the Asset Class?

The following quote from Burford’s 2018 capital markets event sums it up nicely:

“When we moved from single cases to portfolio investments, people wondered whether returns would decline, but they went up”

This statement suggests that on a risk-adjusted basis, portfolio financings deliver superior outcomes. However, when you look at Burford’s return profile over a long period of time, you will see that relatively few single case investments contributed to their overall multiple of capital, with the Pedersen & Teinver claims being considerable contributors. In fact, the size of the gross dollar returns of these single case investments dwarfs the rest of the portfolio and skews the overall results. Burford makes the point in their disclosures that removing these outliers disrupts the core of their strategy, which is more akin to venture capital. As with all portfolios, one needs to assess the outliers. Yet having witnessed a large number of portfolio results, I would suggest the return profile of a portfolio is more aligned to the approach, strategy, size and nature of cases in which the manager has chosen to invest, as opposed to the notion that portfolio financings produce inherently superior results than investing in a cross-section of single cases. Some funders produce very consistent results in terms of returns and duration, whereas other strategies are more volatile; it just depends on what risk profile you are willing to accept (i.e. are you looking for venture capital or leveraged buy-out type returns).

I think it is fair to say that the public domain lacks enough data to determine whether portfolio financings are better risk-adjusted returns than a diversified portfolio of single cases. However, when you consider that most portfolio financings are cross-collateralized, this single feature does have a significant impact on risk. The question then becomes how much return does the Law Firm or Corporation extract for delivering a fully originated portfolio with cross-collateralization features.

I would expect that over a large portfolio of transactions, portfolio financings will outperform in terms of returns in relation to volatility, and that single cases will outperform in terms of returns, but at the expense of higher volatility. The other aspect that is difficult to control in comparing results of two sets of portfolios is whether the nature of the cases (case type, life cycle, jurisdiction, size, etc.) are common across the single case control group and the portfolio financings group.

We may never know the answer, but logic dictates that portfolio financings should be lower returning, lower volatility investments, as compared to a portfolio of single cases – the key difference being the cross-collateralization feature.

Investor Insights

When reviewing fund manager results one should look closely at the composition of the portfolio to understand what portion is being derived from portfolios compared to single cases.  It will also be important to note the trending in these case types.  If the manager is scaling its operations, as many currently are, their motivations are to deploy large amounts of capital quickly in large portfolios with lower risk.  While this is a prudent approach for the manager, one then has to determine whether the historic return profile based on a portfolio of single case exposures is indicative of a future portfolio which will be mainly comprised of portfolio financings.  The portfolio financings will have a different risk-reward dynamic and so investors will need to model their return expectations accordingly.  Either way, I expect the return profile for litigation finance to remain robust both in the areas of single cases and portfolios and continue to believe that diversification is a key success factor to prudent investing in the commercial litigation finance asset class.

Edward Truant is the founder of Slingshot Capital Inc. and an investor in the consumer and commercial litigation finance industry.

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Commercial Special Features

“Show Me the Money” – Diverse Teams are a Revenue Driver and Not Just the Right Thing to Do

By Molly Pease and 4 others |

The following article was contributed by Kirstine Rogers, Legal Director at Certum Group, and Molly Pease, Managing Director at Curiam Capital.

Both are also on the steering committee for Women of Litigation Finance (WOLF). WOLF is an organization intended to give women in and around the litigation finance field a space for support, mentorship and connections. WOLF holds quarterly zoom meetings focused on specific relevant topics and hosts various networking events throughout the year.  Please find out more through our LinkedIn page or by contacting any member of the steering committee. WOLF welcomes the support and participation of all industry members. 

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As our country continues to debate the pros and cons of diversity, equity, and inclusion programs in the government and private sectors, the litigation finance industry would be well served by remembering that diverse teams make companies better.  Indeed, several studies have explored the link between diversity initiatives and increased profitability in organizations and found that a more diverse workforce can positively impact business performance, innovation, and profitability.

There are many reasons for this.  First, representation matters.  Whether it is getting a phone call for a potential new investment opportunity from a female general counsel who wants to see diversity in the team she might be working with or being able to hire top talent who want to work with a diverse team, better opportunities present themselves to litigation finance market participants when those firms present a diverse and capable team.  Second, a diverse team allows for more diverse networking opportunities, which encourages investment opportunities from a wide variety of sources.  And finally, and potentially most importantly, diversity of backgrounds, skills, and expertise allows for a risk assessment in underwriting investment opportunities that is less likely to miss potential risks or pitfalls that a more narrow-minded team might not see.  Better underwriting decisions result in better investments, which results in more revenue for the company.

Diversity need not be a mandate for it to be an intentional and profitable choice.

“If you build it, they will come.” 

Does your company reflect the world of your counterparty or their counsel?  

Research has shown that consumers are more likely to buy from or engage with businesses that appear to understand their specific needs, often through shared demographic traits like race, gender, or age.  Businesses that reflect their target consumers' characteristics and values are more likely to foster trust and client loyalty.   The same is true in commercial transactions with counterparties and their counsel.  In entering into a funding agreement, you are forming a potentially long-term partnership.  Communication and trust are essential to the success of that relationship.  You only maximize the likelihood of that success with the diversity of the decision makers on your team.   

Companies with inclusive environments are also more likely to attract top talent and retain employees.  Why wouldn’t a firm cast the widest net possible?

“Nobody puts baby in a corner.” 

Having a diverse workforce also increases opportunities for connection and visibility in the market.  It provides a vehicle for commonality – a shared experience, history, or perspective.  This is because similar backgrounds make it easier to communicate, share common goals, and find mutual interests, which in turn can lead to individual career opportunities and company-wide growth.

Diversity-based industry groups like the Women of Litigation Finance (WOLF) facilitate interaction between market peers, provide leadership and speaking opportunities, and lead to collaboration between companies seeking to work together.  Bar associations also frequently have smaller diversity-based committees that provide a smaller community from which to network and form connections.  Bigger fish. Smaller pond.  Stronger bond.  And these genuine connections formed on shared experiences can lead to exponential networking growth.  A familiar face at one industry event only leads to more familiar faces at the next one.  

This is true for thought leadership too.  If every member of a panel of speakers looks the same and does not reflect the different faces in the audience, there are people in that audience your panel is not reaching.  If every article is written from the same perspective, there are readers who are not listening.  

“You’re gonna need a bigger boat.” 

At its core, the litigation finance industry assesses risk.  The better a firm can do that – whether it is a funder, a broker, or an insurer – the more profitable it will be.  Risk assessment involves seeing things that others might miss and making sure no stone gets left unturned.  

There are many components of a due diligence risk assessment, including reviewing the strength of the legal merits of the claims, assessing the credibility and testifying potential of key witnesses, and predicting what arguments or defenses will be presented by opposing counsel.  A diligence team with diverse backgrounds, experiences, and perspectives will be better at identifying risks and assessing the value of potential claims.  For example, a funder will often speak extensively with key witnesses to assess how they would present testimony at trial and whether a jury would find that testimony credible and persuasive.  If a trial team were conducting a mock jury to test these points, it would assemble a diverse panel of men and women from different ages and backgrounds to get various views on the testimony.  Similarly, a funder trying to make its own internal assessment will be better served by a diverse team with a variety of perspectives.  If everyone in the room has the same basic background, characteristics, and experiences, they are likely to see things similarly and thus miss key factors that could be important in determining the impact of the testimony.  And this is only one aspect of a risk assessment.  Each step of the diligence and risk assessment process would benefit from analysis by a diverse team.  The biggest concern in the litigation finance industry is that a funder, broker, or insurer misses a significant risk in their assessment of a legal asset and finds themselves funding an investment that has a low chance of success in hindsight.  A diverse team will protect against this outcome and therefore drive revenue for industry participants.

"You talkin' to me?" 

At the end of the day, the value of meaningfully implemented diversity initiatives is clear.  Having the benefit of differing experiences and perspectives makes companies better.  And, as to litigation finance in particular, diversity without question strengthens the return on investments. 

But just having a diverse workforce does not necessarily result in a better company or improved profitability.  The company needs to foster an inclusive environment where diverse perspectives are valued and integrated into decision-making processes and where those selected as thought leaders demonstrate how diversity is implemented, prioritized, and integrated into company culture.

In honor of International Women’s Day, make this a call to action – what can you do at your company to ensure you have the broadest perspectives represented?  Ask yourself, does the panel you are sponsoring completely reflect your target client base?  Does your leadership team include those with different perspectives?  Does your company provide women with networking and mentoring opportunities? 

After all, diversity presents an opportunity for someone at your company to collaborate with other market participants to write an article just like this.  

About the authors:

Molly Pease is Managing Director and Chief Compliance Officer at Curiam Capital, and Kirstine Rogers is Legal Director at Certum Group. They both serve on the Steering Committee for WOLF, the Women of Litigation Finance.  They can be reached at molly.pease@curiam.com and krogers@certumgroup.com. 

Community Spotlights

Community Spotlight: Caroline Taylor, Founding Partner, Ignitis

By John Freund and 4 others |

Caroline Taylor is a Founding Partner of Ignitis, an early-stage litigation funder focused on developing cases to assess viability and prepare them for full litigation. With over a decade of litigation experience, Caroline brings a unique blend of funding expertise and strategic legal insight, leveraging an extensive professional network to support cases from inception to resolution. Ignitis partners with claimants, foundations, corporate clients, lawyers, experts, funders, and other legal professionals to ensure that each case has what it needs to maximize its chance of success.

Before founding Ignitis, Caroline was a partner at a leading international collective redress firm. She played a key role in expanding the firm’s European operations, including opening offices across several countries, assembling and leading teams, and driving case development and management. Her work in securing litigation funding helped support the development of over 30 cases across Europe and the UK. Caroline’s ability to seamlessly integrate operations between U.S. and European offices proved instrumental in advancing initiatives on both sides of the Atlantic. Her deep understanding of collective redress procedures in multiple European jurisdictions, combined with her experience taking cases from concept to resolution, makes her well-suited for her role at Ignitis.

During her time in private practice, Caroline specialized in class actions, complex litigation, and personal injury cases, gaining firsthand experience of the impact corporate misconduct can have on individuals. This exposure sharpened her litigation skills and solidified her commitment to justice. Caroline also served in several leadership roles, including as a Board Member of the American Association for Justice, Chair of its Railroad Section, and as a Board and Executive Committee Member of the Tennessee Trial Lawyers Association. She has received numerous accolades, including recognition by The National Trial Lawyers, Best Lawyers in America, and Super Lawyers. Caroline is a frequent speaker at international legal conferences.

She is admitted to practice in Tennessee, Florida, and Kentucky state courts, as well as in numerous federal and appellate courts in the United States and England and Wales.

Company Name and Description: Ignitis AG is an early-stage funding company. Ignitis was founded to solve a critical challenge: parties often need initial capital to develop the case into something viable to attract larger litigation funders. Essentially, to secure funding, one must first invest capital. Drawing on decades of experience in litigation and institutional investment, we are uniquely positioned to provide the capital and expertise needed to kickstart cases and drive them toward resolution. We focus solely on early-stage funding, ensuring that quality cases get the financing they need to be successful while increasing access to justice.

Company Website: www.ignitisag.com

Year Founded: 2024

Headquarters: Zug, Switzerland

Area of Focus: We focus specifically on initial case development and early-stage funding. We put our money in at initial, risky stages, to develop the case and prepare it for full funding and filing. We not only inject capital, but we also provide expertise and advice along the way to ensure that the case has the greatest opportunity for success.

Member Quote: "Too many meritorious cases never make it to court, not because they lack merit, but because the injured parties lack the financial resources or the know-how to move forward. At Ignitis, we are committed to improving access to justice by investing in cases that other funders might overlook and offering the expertise needed for thorough case development—ensuring more individuals have their day in court."

Case Developments Commercial

Administrators for VFS Legal Repay Millions to Creditors

By Harry Moran and 4 others |

For those litigation funders who achieve great success with their investments in meritorious claims, the financial returns can create the foundation for a long-term strategic growth. However, with the inherent risk at play in any legal funding enterprise, there will always be funders who do not survive in the market.

Reporting by The Law Society Gazette provides an update on the status of the collapsed litigation funder, VFS Legal, with administrators having reportedly been able to pay back millions of pounds to the company’s creditors by recovering loans taken out by law firms. 

In the last six months, administrators have reportedly been able to return £3.9m to VFS’ one secured creditor, resulting in a total of £22.2m in payments made to investor OBS. In addition to these sums paid to the creditor, administrators have also fully repaid £74,000 to preferential creditors. Finally, unsecured creditors who were owed a total of £9m have been given a final dividend of 5.34p on the pound.

Alvarez & Marsal Europe LLP, as the firm appointed to handle the administration of VFS, have reportedly accumulated £284,000 in time costs, with their final fees expected to exceed the starting estimate of £1.5 million.

As LFJ covered in August 2023 when VFS Legal had confirmed the appointment of administrators, the funder had reportedly provided £150 million in funding to support over 25,000 cases across the last eight years, with law firms including Slater and Gordon having previously received funding. However, by 30 June 2022, VFS reportedly owed £38.7 million in repayments within the following year, primarily comprised of a bank loan for £35.6 million.