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Make no mistake, Litigation Finance IS Impact Investing!

The following article is part of 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 SUMARY

  • Litigation finance is instrumental in driving societal, environmental and governance change
  • The industry has yet to position itself as an Impact Investing asset class
  • There are few other financial industries that drive similar societal benefits through the application of finance

INVESTOR INSIGHTS

  • When assessing portfolios, look beyond the financial returns and focus on the social impact of the various pieces of litigation supported by the manager
  • Returns can be tangible (financial) and intangible (societal) and this is an asset class that exhibits both
  • Litigation finance should be viewed and characterized as a form of Impact Investing for purposes of investors’ portfolio allocation

From the first time I was introduced to litigation finance, be it consumer or commercial, I was quite surprised by the case studies.  What surprised me was not the outcome or the quantum of damages or the amount of profit being made by lawyers or litigation funders. Not at all.  What surprised me was the behaviour of the people involved on the defense side (typically) of these cases, and how blatant some of the actions of the defendant were as it related to the damages caused to the plaintiff (some of which I have highlighted here on the Slingshot blog).  Not being a litigator and not having experienced the dark underbelly of corporate litigation, I was somewhat surprised by the cavalier attitude that some folks had as it related to breach of contract, trade secret misappropriation and similar legal issues. Yes, it was the social justice aspect of litigation finance that first appalled and then attracted me to the sector, closely followed by the return profile (I am a capitalist after all).  This article discusses the nature of litigation finance and why it is ideally suited to be considered an Impact Investing asset class.

So, what is Impact Investing? 

It seems like the financial industry is constantly trying to put new monikers on investment strategies to appeal to different segments of investors and to differentiate their products.  The term “Impact Investing” is the latest in a trend of investment branding that has had strong appeal with a segment of investors, including Foundations, Endowments, Pension Plans, Family Offices and High Net Worth individuals who traditionally focused their efforts on investments that drove strong absolute returns. Before Impact Investing, there was Socially Responsible Investing and Environmental Social Governance (“ESG”) Investing, Green investing, Social Investing and so on.  For the remainder of this article I will refer to Impact Investing as a catchall for these references, even though each have nuanced differences.

The Global Impact Investing Network (“GIIN”), a UK based non-profit organization dedicated to Impact Investing, defines the amorphous term as “any investment into companies, organizations and funds with the intention to generate social and environmental impact alongside a financial return”.  As you will see from the many examples below, the underlying investments of many funders fall squarely into the Impact Investing mandate.

The Case Studies

The first case that hit home for me was Joe Radcliff vs. State Farm, whereby Joe identified that the insurance company was not treating like claims equally, so he decided to let the state regulator know. This one action, which was pure in its purpose to protect consumers, set off a chain of events that ultimately led to fourteen felony counts laid against Joe’s roofing business and its eventual demise.  Well, almost.  While 385 of 400 jobs were ultimately eliminated in short order due to the actions of an overzealous insurer, Joe’s business was able to live another day thanks to the litigation finance provided by Bentham IMF. Ultimately, Joe was able to restart his business, and more importantly, the defendant (oddly, the plaintiff in this case) was forced to pay $17 million in damages and interest.

At a September 2019 LF Dealmakers Forum conference, Boaz Weinstein from Lake Whillans guided the audience through an interesting case involving a software company named Business Logic that was decimated by the actions of one of its former customers who decided to copy their software in contravention of their supply contract.  Business Logic ultimately settled for a reported $60MM amount. That business now lives on as Next Capital, and employs 150 people thanks to the efforts of the plaintiff, plaintiff’s counsel and litigation finance.

Then there is the case of Miller UK vs. Caterpillar, which contains a somewhat similar fact pattern to Business Logic, whereby the actions of a former customer (contract breach and trade secret misappropriation) almost led to the demise of the business resulting in 300 of 400 employees being terminated. With litigation finance provided by Juris Capital LLC, Miller fought back and ultimately won a $75 million award.  The business has gone on to rehire many of its former employees and recently celebrated its 40th anniversary. The company has set a target of £50 million in revenue over the next five years.

While these cases are poignant, one may conclude that as commercial cases, this is simply the cost of doing business (I respectfully disagree). However, to put a finer point on the social justice aspect of litigation finance, I will turn your attention to other cases which are more closely associated with Human Rights litigation.

Litigation Finance as Human Rights advocate 

Litigation Lending Services provided financing to a class action case commonly referred to as the “Stolen Wages” case in Queensland, Australia.  In brief, the Stolen Wages case involves the theft of wages from 10,000 First Nations Queenslanders who, from 1939 to 1972, had their wages withheld under discriminatory Protection legislation named the Queensland “Protections Act”.  Essentially, the indigenous community were forced to turn over their wages to the state, and in turn through a series of Superintendents, those monies were supposed to be paid to the indigenous community members.  Unfortunately, this never happened, and a significant sum of the monies were used to fund Queensland government initiatives.  Recognizing the severity of the issue, the Queensland government created a Stolen Wages Reparations Scheme which was designed to compensate its victims, but the class action argued the compensation was insufficient. The Class was ultimately awarded AU$190 million plus costs as further reparations.

Similarly, IMF Bentham is pursuing multiple class actions involving PFAS, a man-made chemical compound that was utilized in many industrial processes and products, including fire fighting foam. In these Class Actions, local residents and business owners are seeking compensation for the financial losses they have suffered as a result of the contamination, in particular (i) reduction in property values and (ii) damage to business interests such as farming, fishing, tourism and retail amongst others.

Recently there have been some more specific developments with respect to Impact Investing and litigation finance.  Burford announced its “Equity Project”, which has been “designed to close the gender gap in law by providing an economic incentive for change through a $50 million capital pool earmarked for [litigation finance matters] led by women”.

There is also at least one UK-based fund, Aristata Capital, that has a specific social impact mandate which is described as “…dedicated to driving positive social and environmental change with an attractive financial return”.

In the personal injury litigation finance market, almost every single case involves an individual who has suffered damages (typically physical) whereby their lives have been turned upside down and litigation finance has provided some semblance of normalcy while the plaintiff embarks on the long, arduous task of pursuing damages, typically from a large insurance company.

So, should litigation finance be considered “Impact Investing” 

No one likes litigation (except maybe the litigators), but litigation itself is not necessarily a bad thing.  The structural problem that most capitalist systems have, is that inevitably there are large corporations with (a) significant balance sheets and access to capital, (b) access to some of the best and brightest lawyers, and (c) time. Large corporations are also driven by shareholder returns like never before, which puts increased pressure on managers and executives to deliver shareholder value; some take that to heart by adjusting their ethical compasses accordingly.  One way to deliver shareholder value is to cut corners and hide behind balance sheets and lawyers, which is an unfortunate consequence of business in the twenty-first century.  Executives understand the power their large corporations have, and are prepared to deal with the consequences of their decisions regardless of whether those decisions are ethical. What’s more, the ultimate cost of litigation may pale in comparison to the equity value created by the decision. Accordingly, the frequency and cost of litigation has been driven upwards for decades, resulting in an unlevel playing field for large corporations. In short, the system is making the problem it created worse through compounding costs.

The concept of litigation was designed to help right wrongs, and the above examples illustrate that it has been quite effective in doing so. Litigation finance helps facilitate many of these cases through the provision of capital, albeit risky capital.  Managers and investors in the asset class can hold their heads high knowing that their investment monies are going to support cases like those mentioned above, where there has been a material and blatant decision made by one entity to damage another.  I can’t think of another asset class that is more impactful than litigation finance in terms of seeking justice and ensuring the companies and individuals that have been damaged at the expense of another’s actions are compensated.  Forget the investor returns, the societal benefits are even more compelling!

So, if you are an allocator within a pension plan, endowment, foundation, family office or high net worth individual, or a consultant to one of these investors, ask yourself if there is anything in your portfolios that even comes close to the positive societal impact provided by litigation finance (coupled with the financial returns).  I think you will be hard pressed to find many examples.  Investors need to change their attitude toward litigation finance, wipe away the negative patina associated with litigation, and start to appreciate how it is an asset class that is benefiting society – perhaps it has even benefitted someone you know.

The Life Settlements industry (i.e. the purchase of life insurance policies from beneficiaries to assist in funding healthcare costs, or simply to monetize the value of their policy) has incurred a similar struggle as that of litigation finance, because the former is considered to be in the business of “death”.  This connotation is quite misleading, as Life Settlement providers are in the business of providing financial options to policy holders that insurance companies won’t offer (little known fact – about 80% of life insurance policies lapse, which means the insurer has very little costs to apply against the decades of premiums they receive, making the provisioning of these policies very profitable).  Similarly, the litigation finance industry is also in the business of providing options in the form of capital to injured parties to allow them to pursue their meritorious claims.

If one considers the impact litigation finance has had in its first few years of existence, one can start to imagine the fundamental impact it may have on society and the way in which corporations think, act and govern themselves.  One could argue that litigation finance may even be its own worst enemy.  If litigation finance as an industry is successful, then taken to its logical conclusion, there is a scenario where litigation finance is so effective that it changes the way in which corporations make decisions, as they strive to ensure that their decisions are not adversely and illegally damaging other businesses and thereby diminishing the need for litigation finance altogether.  Call me a skeptic, but I don’t believe human behaviour, regardless of incentives, will ever change that significantly, and so I am going to continue to invest in litigation finance.

The importance of being an “Impact Investing” asset class  

Clearly, Impact Investing is a significant trend as the following statistics will attest.

  • According to GIIN – currently $228 Billion in impacting investing assets, double that of LY
  • According to RiA Canada – Impact Investing has had 81% growth over 2 years
  • JP Morgan – over the next 10 years Impact Investing will encompass $400 Billion to $1 Trillion in invested capital
  • Graystone (Morgan Stanley) has created the Investing with Impact Platform, and also has $5B in institutional assets in the non-profit area alone

Every single wealth management firm, including Blackrock, Morgan Stanley & UBS, to name a few, have recognized that making a difference is becoming increasingly important to the investor community.  So, for a nascent industry looking to ‘stand out from the crowd’, and given the demand for Impact Investing and the inherent societal benefits associated with its service offering, the industry is best served by ensuring litigation finance is included in the Impact Investing conversation, which would be a critical role for an industry association to assume.

I encourage all members of the litigation finance community to start talking about the industry in the context of an “Impact Investing” asset class, as the industry is instrumental in making positive changes for the benefit of society, the environment and governance, as the above examples strongly illustrate.

Investor Insights

There is no doubt that litigation finance, whether consumer or commercial, should clearly qualify as a form of Impact Investing.  The benefits derived from the asset class extend well beyond financial returns and allocators should assess both tangible and intangible impacts of the asset class as part of their investment review. I believe that litigation finance is an important component of an investor’s Impact Investing portfolio and investors should not be dissuaded by those who argue otherwise (like the Institute for Legal Reform), the proof is in the outcomes of the cases that litigation finance supports.

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

Commercial

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Announcements Commercial Regulatory Issues

More Than 100 Companies Sign Letter Urging Third-Party Litigation Funding Disclosure Rule for Federal Courts Ahead of October Judicial Rules Meeting

By Harry Moran |

In the most significant demonstration of concern for secretive third-party litigation funding (TPLF) to date, 124 companies, including industry leaders in healthcare, technology, financial services, insurance, energy, transportation, automotive and other sectors today sent a letter to the Advisory Committee on Civil Rules urging creation of a new rule that would require a uniform process for the disclosure of TPLF in federal cases nationwide. The Advisory Committee on Civil Rules will meet on October 10 and plans to discuss whether to move ahead with the development of a new rule addressing TPLF.

The letter, organized by Lawyers for Civil Justice (LCJ), comes at a time when TPLF has grown into a 15 billion dollar industry and invests funding in an increasing number of cases which, in turn, has triggered a growing number of requests from litigants asking courts to order the disclosure of funding agreements in their cases. The letter contends that courts are responding to these requests with a “variety of approaches and inconsistent practices [that] is creating a fragmented and incoherent procedural landscape in the federal courts.” It states that a rule is “particularly needed to supersede the misplaced reliance on ex parte conversations; ex parte communications are strongly disfavored by the Code of Conduct for U.S. Judges because they are both ineffective in educating courts and highly unfair to the parties who are excluded.”

Reflecting the growing concern with undisclosed TPLF and its impact on the justice system, LCJ and the Institute for Legal Reform (ILR) submitted a separate detailed comment letter to the Advisory Committee that also advocates for a “simple and predictable rule for TPLF disclosure.”

Alex Dahl, LCJ’s General Counsel said: “The Advisory Committee should propose a straightforward, uniform rule for TPLF disclosure. Absent such a rule, the continued uncertainty and court-endorsed secrecy of non-party funding will further unfairly skew federal civil litigation. The support from 124 companies reflects both the importance of a uniform disclosure rule and the urgent need for action.”

The corporate letter advances a number of additional reasons why TPLF disclosure is needed in federal courts:

Control: The letter argues that parties “cannot make informed decisions without knowing the stakeholders who control the litigation… and cannot understand the control features of a TPLF agreement without reading the agreement.” While many funding agreements state that the funder does not control the litigation strategy, companies are increasingly concerned that they use their growing financial leverage to exercise improper influence.

Procedural safeguards: The companies maintain that the safeguards embodied in the Federal Rules of Civil Procedure (FRCP) cannot work without disclosure of TPLF.  One example is that courts and parties today are largely unaware of and unable to address conflicts between witnesses, the court, and parties on the one hand, and non-parties on the other, when these funding agreements and the financial interests behind them remain largely secret.

Appraisal of the case: Finally, the letter reasons that the FRCP already require the disclosure of corporate insurance policies which the Advisory Committee explained in 1970 “will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation.” The companies maintain that this very same logic should also require the disclosure of TPLF given its growing role and impact on federal civil litigation.

Besides the corporate letter and joint comment, LCJ is intensifying its efforts to rally companies and practitioners to Ask About TPLF in their cases, and to press for a uniform federal rule to require disclosure. LCJ will be launching a new Ask About TPLF website that will serve as a hub for its new campaign later this month.

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Commercial People Moves

Mesh Capital Hires Augusto Delarco to Bolster Litigation Finance Practice

By Harry Moran |

In a post on LinkedIn, Mesh Capital announced the hiring of Augusto Delarco who has joined the Brazilian firm as a Senior Associate, bringing a “solid and distinguished track record in complex litigation and innovative financial solutions” to help develop Mesh Capital’s Litigation Finance and Special Situations practices. 

The announcement highlighted the experience Delarco would bring to the team, noting that throughout his career “he has advised clients, investors, and asset managers on strategic cases and the structuring of investments involving judicial assets.”

Delarco joins Mesh Capital from Padis Mattars Lawyers where he served as an associate lawyer, having previously spent six years at Tepedino, Migliore, Berezowski and Poppa Laywers.

Mesh Capital is based out of São Paulo and specialises in special situations, legal claims and distressed assets. Within litigation finance, Mesh Capital focuses on “the acquisition, sale and structuring of legal claims, covering private, public and court-ordered credit rights.”

Case Developments Commercial

Delaware Court Denies Target’s Discovery Request for Funding Documents in Copyright Infringement Case

By Harry Moran |

A recent court opinion in a copyright infringement cases has once again demonstrated that judges are hesitant to force plaintiffs and their funders to hand over information that is not relevant to the claim at hand, as the judge denied the defendant’s discovery request for documents sent by the plaintiff to its litigation funder.

In an article on E-Discovery LLC, Michael Berman analyses a ruling handed down by Judge Stephanos Bibas in the United States District Court for the District of Delaware, in the case of Design With Friends, Inc. v. Target Corporation. Design has brought a claim of copyright infringement and breach of contract, and received funding to pursue the case from Validity Finance. As part of its defense, Target had sought documents from the funder relating to its involvement in the case, but Judge Bibas ruled that Target’s request was both “too burdensome to disclose” and was seeking “information that is attorney work product”.

Target’s broad subpoena contained five requests for information including Validity’s valuations of the lawsuit, communications between the funder and plaintiff prior to the funding agreement being signed, and information about the relationship between the two parties.

With regards to the valuations, Judge Bibas wrote that “while those documents informed an investment decision, they did so by evaluating whether a lawsuit had merit and what damages it might recover,” which in the court’s opinion constitutes “legal analysis done for a legal purpose”. He went on to say that “if the work-product doctrine did not protect these records,” then the forced disclosure of these documents “would chill lawyers from discussing a pending case frankly.”

Regarding the requests for information about the relationship between Design and Validity, Judge Bibas was clear in his opinion that these requests were disproportionately burdensome. The opinion lays out clear the clear reasoning that “Target already knows that Validity is funding the suit and that it does not need to approve a settlement”, and with this information already available “Further minutiae about Validity are hardly relevant to whether Target infringed a copyright or breached a contract years before Validity entered the picture.”The full opinion from Judge Bibas can be read here.