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Commercial Regulatory Issues

Law Professors Argues Funders are Not “Passive Partners” in Mass Tort Lawsuits

Critiques of third-party litigation funding tend to focus on two main issues: the perceived lack of transparency around funders’ involvement, and the potential for these funders to unduly influence the litigation process. A new academic paper suggests that a major issue is the involvement of litigation funding in mass tort lawsuits, arguing that funders will control the litigation in order to drive up their own financial returns whilst leaving the actual victims worse off. An article by Bloomberg Law features an interview with Samir Parikh of Lewis & Clark Law School, who recently published a paper entitled ‘Opaque Capital and Mass Tort Financing’ on the Yale Law Journal Forum.  In the interview, Parikh claims that there are no real restrictions on outside capital taking control of mass tort lawsuits, despite the fact that litigation funders almost unanimously assert that they do have control over the litigation process or on settlement decisions. Parikh’s essay states that funders are never “passive partners” and that the reason these investors are pursuing mass tort cases so actively, is because they are aiming “to dictate outcomes.” Parikh compares the situation to other investment markets, claiming that “it’s a playbook we’ve seen private equity funds run in distressed debt situations all the time. And the truth is it could be happening in cases that we don’t know about.” Parikh’s theory centers around his concept of “the Alchemist’s Inversion”, where funders will look to create mass tort cases without doing proper due diligence on all the claimants, then they will look to increase the value of the claims before dictating the timing and details of any settlement. Parikh believes that these kinds of situations already exist, but with the alleged danger posed to the actual claimants in mass torts, he argues that “even if it’s happening on a small scale, the point is the explosion of the practice should be anticipated.”
Announcements Commercial

Manolete Partners Releases Audited Results for FY23

Manolete (AIM:MANO), the leading UK-listed insolvency litigation financing company, today announces its audited results for the year ended 31 March 2023.  Steven Cooklin, Chief Executive Officer, commented: "The annual results for FY23 mask a picture of two very different six-month periods for the Company: the first half of the trading year was subdued, as the Company had only just begun to emerge from the ending, in April 2022, of the temporary suspension of certain important insolvency laws that the UK Government had instigated in June 2020 in response to the COVID-19 pandemic. While normal insolvency laws resumed at the start of the financial year, there is always a natural time lag between insolvencies commencing and the associated litigation claims being referred to Manolete, as Liquidators and Administrators need time to conduct their regulatory investigations before they can assemble cases for consideration by us. The second half saw a strong resumption of the growth that the Company had exhibited prior to the pandemic, as the UK Insolvency Market returned to normal operations with a strong recovery in cases being referred to us.  Given the fact that we enjoyed only the latter six months of more "normal" trading, the results are highly commendable given the loss made in H1 and recovery in H2. We had a record number of 798 new case enquiries and a record number of 263 new case investments; gross cash receipts from completed cases were at a record level of £26.7m and a new record was also set with 193 cases being legally completed in the 12-month period. We ended the year with another record number of 351 live cases in progress and the Company returning to profitability in the second half. These positive KPIs have continued into the current FY24 - with signed cases for the first two months of FY24 being 154% higher than the first two trading months of the FY23. Consequently, we have added, and continue to add, to our expert in-house legal and financial analyst teams to address the increased level of demand for our insolvency litigation solutions. With prevalent headwinds of inflation and significantly higher interest rates facing the UK economy, the Company is well set for continued growth over the foreseeable future". Financial (statutory and non-statutory) highlights:
  •     Realised revenues on completed cases were £26.8m, an increase of 76% (FY22: £15.2m) although FY23 contained an exceptionally large funded case completion of which £4.9m was recorded in realised revenue (total settlement £9.5m).
  •     129% of total revenues represented by realised revenues on fully completed cases (FY22: 77%) offset by negative unrealised revenues.
  •     Increase in the valuation of the cartel cases contributed £1.2m to gross profit in FY23 (FY22: £5.1m).
  •     EBIT reduced by 159% to a loss of £(3.1)m (FY22: £5.3m) a result of pressure on valuations in H1 FY23 on existing cases and a single rare larger case loss at trial.
  •     The Company made a loss before tax of £(4.0)m (FY22: £4.5m profit).
  •     Gross cash receipts from completed cases were £26.7m, an increase of 72% (FY22: £15.5m).
  •     The Company's retained share of gross cash receipts from completed cases (after all legal costs and payments to Insolvent Estates) was £13.1m, an increase of 47% (FY22: £8.9m).
  •     Cash generated from operations (after all completed case costs and all overheads but before new case investments and taxation) was £8.0m (FY22: £4.4m).
  •     Gross cash of £0.6m and borrowings of £10.5m (FY22: £2.2m and £13.5m) as at 31 March 2023 and £14.5m unutilised funds available on the Revolving Credit Facility with HSBC.
  •     Final dividend of nil per share. 
Operational highlights:
  •     New case investments in UK insolvency cases, an increase of 65%: 263 in FY23 (FY22: 159).
  •     Based on unaudited internal management information: ROI of 125% and Money Multiple of 2.2x from 689 completed cases since inception
  •     Based on unaudited internal management information: 193 cases were completed in FY23 (FY22: 139 cases), with an average duration per case of 15.5 months (FY22: 13.2 months), generating a Money Multiple of 1.9x (FY22: 1.87) and an IRR of 131% (FY22: 132%)
  •     Average case duration across the full portfolio of 689 completed cases is 12.8 months
  •     29% increase in live cases: 351 in process as at 31 March 2023 (272 as at 31 March 2022)
A copy of the annual report and accounts will be available on the Company's website shortly and will be posted to shareholders in due course.
Consumer

Supporters of Louisiana Litigation Finance Disclosure Bill Discuss Route Forward After Governor’s Veto

Efforts to increase the amount of regulation around litigation financing within individual states has been on the rise throughout the last year, with state legislatures across the US introducing new legislation. A recent attempt in Louisiana, which placed a large emphasis on increasing transparency requirements for third-party funding, suffered a major setback as the Governor vetoed the bill which had been approved by the legislature. Reporting by the Louisiana Record provides an update on efforts by supporters of Senate Bill 196 to push forward with seeing these increased disclosure measures implemented. Lauren Hadden, general counsel for the Louisiana Association of Business and Industry (LABI), stated that if the state legislature is able to reconvene later in June, “we would obviously love to see SB 196 among the list of bills taken up.”  However, as it is currently uncertain whether the legislature will come back for a veto-override session, Hadden suggested that the bill’s supporters “stand ready to work with all interested parties to once again develop legislation that addresses this issue during next year’s legislative session.” Hadden argued that SB-196 was not an attempt to outlaw or restrict third-party litigation funding, instead it was designed to be “a balanced transparency measure that would have simply balanced the ledger in litigation.” The decision as to whether or not the legislature will hold a veto-override session will likely not be motivated by the litigation financing bill itself, as Republican lawmakers in the legislature have discussed it primarily in relation to the Governor’s plans to veto a more contentious bill passed by House Republicans.
Announcements Commercial

New research offers inside look at how businesses are managing litigation in uncertain economy

Burford Capital, the leading global finance and asset management firm focused on law, today releases new independent research on how in-house lawyers are adjusting their strategies in a period of sustained uncertainty. Businesses are seeking to manage risks and costs, and in turn, legal departments—and the outside law firms that work with them—have the opportunity to position themselves as part of the solution, with legal finance expected to play a role.

To better understand how macroeconomic trends impact senior in-house lawyers’ thinking about litigation, managing risk and their expectations for their law firm partners, Burford commissioned independent research that was conducted via extensive one-on-one interviews with 66 GCs, heads of litigation and other senior lawyers responsible for litigation at companies in the US, Europe, Asia and Australia.

Nearly three in four (74%) senior in-house lawyers expect to see an increase in the volume of disputes over the next two years due to the current geopolitical, economic and regulatory environment. Four in five (80%) say the current economic uncertainty will have knock-on effects for the legal department. Not surprisingly, a solid majority (62%) expect their law firms to offer more cost and risk-sharing solutions, and over half (51%) expect their firms to be knowledgeable about legal finance.

Christopher Bogart, CEO of Burford Capital, said: “We at Burford have been at the forefront of legal finance since 2009, working with lawyers in good and bad economic times. What remains constant is that in-house lawyers are always looking for ways to maximize corporate value and share risk. Burford’s latest research confirms that legal finance has taken on greater importance for businesses, especially as uncertainty in the global economy remains. We stand ready to partner with clients to solve their pressing needs, and to equip their outside counsel to be as nimble and innovative as their clients expect.”

Key findings from the research include:

  • The economy is increasing the volume and potential budget challenges of commercial litigation and arbitration.
    • Senior in-house lawyers expect to see an increase in the frequency of commercial disputes in the next two years, and the economy is exacerbating the challenges in-house lawyers face in paying for litigation and arbitration.
    • Cost causes some businesses to forgo meritorious claims and awards, while others are becoming more proactive in safeguarding claims as valuable business assets.
      • “[I]n an economic downturn, we may not be as motivated to pursue some litigation or transactional matters without creative billing options. Law firms want to be sticky with their clients, and companies are increasingly narrowing down who they work with to add more favorable terms with a select group of firms,” said an associate general counsel of a media and entertainment corporation.
  • GCs believe it is important for the legal department to show it can not only manage costs, but also add value to the business.
    • Cash flow and liquidity remain very important factors for GCs when they consider pursuing meritorious claims.
    • While GCs don’t use quantitative financial modeling of commercial claims, most say it would be valuable to be able to predict potential returns.
    • The availability of legal finance increasingly plays a role in deciding whether or not to pursue meritorious litigation or arbitration claims.
      • “[Legal finance] gave the CFO the opportunity to time recoveries as he needed them and use that funding to invest in the company,” said a general counsel of a global food and beverage company.
      • “I have explored the use of legal finance and would do so again. The liquidity aspect is a big needle-mover for many companies, especially because it could provoke a settlement earlier, bring in money earlier and de-risk litigation,” said corporate counsel and director of a global retail corporation.
  • GCs expect more financial innovation from outside counsel.
    • GCs expect their law firms to offer more cost and risk-sharing solutions, particularly in a down economy, which also means that law firms are expected to be knowledgeable about legal finance.
      • “I want my outside counsel to be aware of and advise on every option available to us in setting a strategy,” said a chief litigation counsel of a manufacturing corporation.

The 2023 GC Survey can be downloaded on Burford’s website. Extensive one-on-one interviews were conducted by phone between March and May 2023 by Ari Kaplan Advisors.

About Burford Capital

Burford Capital is the leading global finance and asset management firm focused on law. Its businesses include litigation finance and risk management, asset recovery and a wide range of legal finance and advisory activities. Burford is publicly traded on the New York Stock Exchange (NYSE: BUR) and the London Stock Exchange (LSE: BUR), and it works with companies and law firms around the world from its offices in New York, London, Chicago, Washington, DC, Singapore, Dubai, Sydney and Hong Kong.

For more information, please visit www.burfordcapital.com.

Case Developments Commercial

Dieselgate Claims Demonstrate Power of Litigation Financing

Consumers who have been the victim of corporate negligence or fraudulent practices by large multinationals have always been at a disadvantage when it comes to seeking justice, overwhelmed by the sheer scale of legal and financial resources that companies have in reserve. However, recent years have demonstrated that litigation funding can make a significant impact in leveling the playing field between consumers and corporations. In a blog post on LinkedIn by Sparkle Capital Limited, a UK litigation funder, this exact dynamic is explored in relation to the ‘Dieselgate’ emissions scandal which has illustrated the power of litigation financing. The article highlights the staggering number of consumers that approached law firms in the UK to pursue claims against vehicle manufacturers, noting that without third-party funding, very few of these claims against well-resourced companies could have been pursued.  Sparkle Capital goes on to point out that these partnerships between funders, law firms and claimants has achieved notable progress in securing compensation for consumers, with manufacturers forced to reach significant settlement agreements in the face of these funded claims. They also suggest that the successes of the Dieselgate claims lay out a perfect example for how litigation funding can be used in future situations where a very high volume of consumers are looking to bring claims against multiple large corporations.
Commercial Legal Innovation

Using Litigation Funding to Protect Company Value

Undertaking litigation poses many risks for small and medium-sized companies that are publicly traded, not only from the specific financial risk that comes from the costly litigation process, but also the impact it can have on the business’ reputation and the knock-on effects on the share price. However, one law firm argues that litigation funding may be able to offer remedial support when it comes to the share price, and offer value to a company beyond the simple provision of capital to fight any lawsuit. In a piece of analysis on The Financial Times, Gowling WLG looks at the ways litigation financing may be able to support growing companies that are concerned about the impact of litigation on company value. Highlighting its recent study conducted in partnership with Scott Evans of London Business School: ‘Taking AIM: how litigation can strike company value’, Gowling WLG states that even the announcement of litigation negatively affects a company’s share price by -5% on average. Whilst the average negative decline is highest for defendants at -6.1%, claimants are not immune to this effect and also suffer, with an average decline of -3.5%. The article goes on to explain that litigation funding can be a very useful tool to alleviate these negative effects, as third-party financing ensures that businesses can pursue meritorious litigation to completion. Most importantly, the securing of litigation financing can demonstrate to the market that the litigation being undertaken is worthy of outside backing, as the third-party funder will have completed due diligence to ensure legal merit, and has a viable financial resolution.  Behind these specific benefits, Emma Carr, commercial litigation and litigation funding partner at Gowling WLG, reinforces the principle that third-party funding is “a useful tool in helping to alleviate the pressures that businesses are now under, to try and shore up their legal expenditure.”
Announcements Consumer

Golden Pear Upsizes Corporate Note to $67.2 Million

Golden Pear Funding (Golden Pear), a national leader in pre-settlement legal funding, announced the upsizing to $67.2 million of its existing corporate notes. The incremental capital raise was assigned a BBB rating by a nationally recognized statistical ratings organization (NRSRO) and follows the Company's successful corporate note issuance announced in January 2022. Proceeds from the upsize will be used to repay subordinated debt and support additional growth of the business. Since inception, Golden Pear has funded nearly $1 billion in aggregate to more than 70,000 clients nationwide. "Golden Pear continues to demonstrate significant momentum and has completed this transaction to further our ability to serve the consumer litigation marketplace," said Gary Amos, Chief Executive Officer of Golden Pear. "We greatly appreciate the continued support of our institutional investor base, which recognizes the resilience of our business and our strong financial position." Daniel Amsellem, Chief Financial Officer of Golden Pear, added, "Our demonstrated access to institutional capital in a difficult credit environment is a strategic advantage, as we further pursue market opportunities in a disciplined and profitable manner. These notes complement our asset-backed debt to provide us with an efficient capital structure at a competitive cost of capital." Brean Capital, LLC served as the Company's exclusive financial advisor and sole placement agent in connection with the transaction. About Golden Pear Funding Founded in 2008, Golden Pear is one of the largest specialty finance companies in the United States funding legal matters and purchasing medical receivables from physicians and medical centers. The Company empowers its clients to navigate the legal system and provides them with financial solutions that work. Golden Pear is backed by a partnership of several private equity firms that allow for the stability and continued institutional growth of the firm. For additional information about the Company, visit https://goldenpearfunding.com.
Announcements Commercial People Moves

Apex Litigation Finance appoint Chris Thenabadu and Stephen Caldecott

Litigation funding specialists Apex Litigation Finance have announced the appointment of two new Legal team members: Chris Thenabadu joining as Senior Case Underwriter, and Stephen Caldecott joining as a Case Underwriter. Chris and Stephen joined the Apex team this month. Chris brings many years of experience in the after-the-event insurance and litigation funding markets and will lead the team focused on reviewing new cases and the management of existing risks. Stephen has an insolvency litigation background and will further strengthen Apex’s ability to support the litigation funding needs of the insolvency sector.

Chris Thenabadu

Since 2007, Chris has dedicated his professional career to becoming an expert underwriter in ATE insurance. After qualifying as a solicitor and gaining experience in litigation funding and brokerage for ATE and M&A markets, he was appointed to high-level positions within two of the most prominent ATE insurers. This has allowed Chris to create strong relationships with many UK-based brokers, barristers, and law firms. Chris Thenabadu says: “I specialise in various commercial litigation cases and am known as one of the most competent underwriters in the UK for insolvency and professional negligence cases. I pride myself on being able to apply my considerable market experience to take a pragmatic and commercial approach to the structure of litigation finance risks. I look forward to leading the team at Apex Litigation Finance.”

Stephen Caldecott

Stephen has worked within the insolvency profession since 2000; as an experienced insolvency investigator, Stephen is trained in identifying, assessing, and pursuing potential legal claims in all forms of formal insolvency cases. Stephen’s experience in insolvency litigation is a significant asset to Apex, as it furthers its ability to meet the litigation funding needs of the insolvency market. Stephen Caldecott says: “I bring a wealth of knowledge and experience in all areas of insolvency litigation and will aid Apex in delivering excellent litigation funding solutions to the insolvency sector. My litigation experience, coupled with the gut instinct of a born investigator, will help me to understand and support the needs of Apex clients. I am looking forward to working with the team at Apex”. Apex CEO Maurice Power says: “It’s a pleasure to have Chris and Stephen joining our team. Both their experience and expertise are perfect for their roles, and we know that they will add huge value to our business and our clients. With Apex’s focus of providing litigation funding solutions to small/mid-size commercial claims, the addition of Chris and Stephen will further enhance Apex’s ability to provide access to justice to many more meritorious claimants.” Head of Legal, Stephen Allinson added “I am delighted to welcome Chris and Stephen to our business and very much look forward to working with them. The litigation funding market is developing apace, and I really believe Apex is in an excellent position to build on its already well-established reputation. With Chris and Stephen, we shall be able to respond even more quickly to all enquiries and work very positively with all professional sectors.” Apex is constantly looking to expand its team and is open to hearing from candidates with diverse expertise, from legal to insolvency, litigation funding, AI development, and business development. Having previous experience with litigation funding is optional, as Apex will evaluate an individual’s skillset to see if they can benefit. Interested applicants are asked to contact Apex via enquiries@apexlitigationfinance.com by sending a current cv and details of why they would be ideal for Apex.
Commercial Regulatory Issues

Insurance Broker Argues for Reform of ‘Largely Unregulated’ Funding Industry

Proposals for increased regulatory measures on litigation finance have become a more common sight in state legislatures across the United States, with such a bill being vetoed by the Louisiana governor last week. Among those calling for an increase in oversight of the practice, are members of the insurance industry. In an interview with Insurance Business, Casey Petersen, head of US casualty at McGill and Partners, explains the main concerns that insurers have around the growing influence of litigation funding in America. Petersen highlights that insurers perceive it to be “a largely unregulated industry that is growing at a rapid pace and is driving verdicts at trial”, and when combined with the wider inflationary pressures in the economy, is creating “a problem within the insurance industry that is unsustainable without regulation.” Petersen suggests that the main issue is the increasing regularity of so-called ‘nuclear verdicts’, which is in turn forcing carriers to accept costly settlements to avoid going to trial and facing such a verdict. He argues that whilst legislative attempts to impose tighter controls are encouraging, “none of these states are where they have the most verdict award issues.” Petersen emphasizes that a desire for increased regulation is not aimed at outlawing litigation funding, but instead these are measures which would create “a sound business practice for all.” Until such reforms are implemented, Petersen states that it’s imperative for insurers to educate their buyers and provide “risk management policies and procedures in order to create safe working environments for employees and to the general population.”