On Wednesday October 5th, LFJ hosted a panel discussion and audience Q&A covering various aspects of ESG within a litigation funding framework, including how funders consider ESG claims, how serious LPs are when it comes to ESG-related criteria, and the backlash swirling around the topic itself. Panelists included Andrew Saker (AS), CEO of Omni Bridgeway, Neil Purslow (NP), CEO of Therium Capital Management, and Alex Garnier (AG), Founding Partner and Portfolio Manager of North Wall Capital. The event was moderated by Ana Carolina Salomao, Partner at Pogust Goodhead. Below are some key takeaways from the digital event: How do you consider ESG being relevant to litigation funding? AS: It’s a truism that litigation funding provides access to justice. By definition it’s a social benefit. Litigation acts as a deterrent, and leads to environmental, social and governance improvement. So financing that through litigation funding assists with the achievement of various ESG goals. ESG can both be a goal to be achieved through litigation funding, and also internally to be used to identify risks internally, and to inform decision-making. How do your LPs consider ESG? Is ESG part of their mandates? Is it truly something that benefits your fundraising? AG: We at North Wall are launching the third vintage of our legal assets fund, having deployed the first two vintages. There is strong investor demand for ESG-compliant and ESG-focused litigation financing. The questions asked on ESG are the same as with litigation financing – we’re asked how we screen deals, how we incentivize counter-parties to continually improve on ESG. In our partnership with Pogust Goodhead, you have given us an undertaking to pursue only ESG-compliant cases (not that that was required, because that is the whole philosophy of the firm). But we have put that in place in documents in a non-litigation financing context. For example, when investing in e-commerce businesses, we have put in place interest rate ratchets linked to measurable goals such as environmental and social factors—achieving carbon neutrality, etc. And then actively seeking cases that meet ESG criteria as well. Cases around recompense for exploited workers is an example. I think investors are also concerned about people going too far the other way—about greenwashing, tokenism, at taking positions at the expense of returns and downside protection. Do you see that because you have an ESG awareness, you are able to access different investment pools than you otherwise would? Can you use it as leverage when fundraising? NP: From Therium’s perspective, we see that some of our LPs are very focused on ESG-compliant criteria. We’ve been reporting to them for years on ESG compliance in different ways and how we think about that in our asset class. But you have to be careful here about what ESG means in the context of this particular asset class. What we’re doing is very different vs. a private equity fund or something like that. So you have to answer investor concerns very specifically for our asset class. And you also have to be careful about making ESG claims in a way that makes sure they are properly understood to our audience (particularly if you are addressing a retail audience). There is a danger there, that we all need to be very cognizant of. How do managers and investors think about supporting a case that has strong ESG components to it, but doing so for a plaintiff that is non-ESG (for example, an Oil & Gas claimant)? AS: The perception of what ESG is, needs to be taken in context of that particular case. Supporting a coal company would not be considered an ESG strategy. But if that coal is being used to provide power and heat and electricity in the middle of winter to Ukraine, then yes it could be considered a socially important strategy. So it is a challenge. In some of our funds, that decision is taken away from us – our LPs have very strict no-go zones. That does assist us in identifying those claimants we’re able to support. In other funds, we have a great degree of discretion. Generally, we try to balance what we consider to be competing ESG requirements and objectives.   Will the International Legal Finance Association look to establish ESG criteria or metrics for the industry? NP: That’s a very interesting question. I am not aware of any discussion to do that yet. I think it’s extremely important how the industry engages with this topic. There is also another side to this—the greenwashing aspect. We need to be very careful that our industry is not representing itself to be something it is not. So there is a very strong case for a strong ESG narrative here. How ILFA engages with that in best practices has not yet been discussed. What are the particular challenges or hurdles which funders, law firms or claimants might face in environmental suits specifically, in addition to the usual financing criteria? AG: You tend to have very deep-pocketed defendants, which requires a level of stamina. You also tend to have a very wide group of claimants, because so many people have been affected by the environmental disasters in question. The flipside of that of course, is that the public relations impact of a defendant digging its heels in when they’ve done something of that sort means that a settlement is much more likely, as the liability and causation is much clearer than it is in other cases.

Omni Bridgeway is pleased to announce expansion and key promotions within its U.S. team, which has grown by over 100% in the past 12 months.  In New York, Sarah Tsou has been appointed Senior Investment Manager and assumes the role of Portfolio Manager - Global Intellectual Property overseeing Omni Bridgeway’s widely recognized IP business and team of dedicated IP professionals. This portfolio role underscores Omni Bridgeway’s unique global IP capabilities and worldwide footprint spanning key IP markets. Fiona Chaney, who heads the company’s Los Angeles office, was also recently appointed to Senior Investment Manager and Legal Counsel. Fiona also serves as co-lead of the company’s insurance initiatives. We also congratulate Chris Citro (New York), who has been promoted to Investment Manager and Legal Counsel, with a focus on patents and other intellectual property matters. Further building out the company’s dynamic IP team is Phillip Goter who recently joined as Investment Manager and Legal Counsel. Phil’s arrival marks Omni Bridgeway’s continued expansion on-the-ground including new operations in the Midwest. Based in Minneapolis, Phil joins from Fish & Richardson with over a decade of experience representing plaintiffs and defendants in high-stakes disputes involving patents, trademarks, copyrights, trade secrets, antitrust and competition law, and FDA clearance. Phil is an Adjunct Professor at the University of Minnesota Law School and a member of the Expert Network for Lunar Startups, an incubator specializing in growth and innovation for diverse, high-potential entrepreneurs. In Washington D.C. we welcome Matt Leland as Investment Manager and Legal Counsel. Matt joins us from King & Spalding LLP where he was a commercial litigation partner and successfully litigated diverse legal issues for corporate plaintiffs and defendants in the energy, manufacturing, healthcare, pharmaceutical, and construction industries. Matt helped clients recover substantial damages in many of his cases, which often involved contract and commercial disputes, government reimbursement claims, unfair business practices, civil RICO, protection of trade secrets, and trademark infringement. Prior to this, Matt was a partner at McDermott Will & Emery LLP. On the business side, we welcome Joseph Cho as Corporate Counsel based in New York. Joe joins us from Weil, Gotshal & Manges LLP where he represented public and private companies in complex mergers and acquisitions. His previous experience includes private practice at Cahill Gordon & Reindel LLP and Wilson Sonsini Goodrich & Rosati PC. The U.S. team has also grown its slate of associate investment managers, legal counsel, and business support, doubling Omni Bridgeway’s U.S. headcount to over 45 in the past year.  Andrew Saker, Omni Bridgeway’s Managing Director & CEO and Chief Strategy Officer – US notes, “We are delighted to welcome Phil, Matt and Joe, and congratulate our investment team colleagues in their promotions. We are committed to attracting and retaining the top talent in the U.S. market who bring a unique combination of legal expertise and financial innovation, to result in the best outcomes for clients. Our model is more than financial – we are skills, plus capital. Companies and law firms in the U.S. are responding to our offering, and this is reflected in our continued growth.”