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Silver Bull Provides Update On Its Arbitration Case Against Mexico

By Harry Moran |

Silver Bull Resources, Inc. (OTCQB:SVBL)(TSX:SVB) ("Silver Bull" or the "Company") provides an update on the progress of its international arbitration claim against the United Mexican States ("Mexico").

Silver Bull announces that it has filed its Reply to Mexico's Counter-Memorial in the arbitration that Silver Bull initiated on 28 June 2023 under the United States-Mexico-Canada Agreement ("USMCA") and the North American Free Trade Agreement ("NAFTA") before the International Center for the Settlement of Investment Disputes ("ICSID"). Under the current schedule, Mexico now has until August 26, 2025 to file its Rejoinder before the case proceeds to a hearing, which will commence on October 6, 2025.

A summary of the key points of Silver Bull's claim is provided below:

  • The arbitration arises from Mexico's refusal to take action with respect to the illegal blockade of Silver Bull's Sierra Mojada Project, which commenced in September 2019 and remains ongoing. Mexico's actions and omissions led to the complete loss of Silver Bull's investment, and breached Mexico's obligations under the NAFTA, including the prohibition on unlawful expropriation and the duties to provide full protection and security, fair and equitable treatment, national treatment and most-favored nation treatment.
  • Silver Bull commenced the arbitration by filing a Request for Arbitration with ICSID on 28 June 2023. A three-person arbitration panel (the "Tribunal") was appointed by ICSID and they will adjudicate the case. Silver Bull filed its Memorial on 17 June 2024, setting out its claim in full and presenting supporting evidence. Mexico filed its Counter-Memorial on 23 December 2024, setting out its defence and presenting its evidence in response to the claim.
  • In the Reply filed on April 25, 2025, Silver Bull responded to Mexico's Counter-Memorial and provided further evidence to support its claim. In its Reply, Silver Bull updated its damages claim to US$374.9M (including interest), supported by the opinion of its damages expert.
  • Mexico will file its Rejoinder, responding to Silver Bull's Reply, on 26 August 2025. The hearing in the arbitration will take place from 6-10 October 2025.
  • The Company hired Boies Schiller Flexner (UK) LLP ("BSF") to act on its behalf as legal counsel for the claim. BSF is an international law firm with extensive experience in international investment arbitration concerning mining and other natural resources. The BSF team is led by Timothy L. Foden, a noted practitioner in the mining arbitration space.
  • Silver Bull is financially supported by Bench Walk Advisors LLC via a Litigation Funding Agreement for up to US$9.5 million to finance the case and the running of the Company.

Silver Bull's CEO, Mr. Tim Barry commented, "While Silver Bull had intended to continue developing the Sierra Mojada Project, an illegal blockade initiated in September 2019 by a small group of local miners - seeking to extort an unearned royalty payment from the Company has persisted to this day. Despite obtaining a favorable ruling from the Mexican courts dismissing the group's royalty claims, and despite repeated requests for the Mexican Government to enforce the law and remove the illegal blockade, the Government has continuously elected not to act. As a result, Silver Bull has been denied access to the site for more than five years, preventing the Company from conducting its lawful business activities in Mexico. This has led to the complete loss of Silver Bull's investment and the destruction of shareholder value at Sierra Mojada. The Mexican Government's actions and inactions directly drove investors away and effectively expropriated the Sierra Mojada Project.".

BACKGROUND TO THE CLAIM: The arbitration has been initiated under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States process, which falls under the auspices of the World Bank's ICSID, to which Mexico is a signatory.

Silver Bull officially notified Mexico on March 2, 2023 of its intention to initiate an arbitration owing to Mexico's breaches of NAFTA by unlawfully expropriating Silver Bull's investments without compensation, failing to provide Silver Bull and its investments with fair and equitable treatment or full protection and security, and not upholding NAFTA's national treatment standard.

Silver Bull held a meeting with Mexican government officials in Mexico City on May 30, 2023, in an attempt to explore amicable settlement options and avoid arbitration. However, the 90-day period for amicable settlement under NAFTA expired on June 2, 2023, without a resolution.

Despite repeated demands and requests for action by the Company, Mexico's governmental agencies have allowed the unlawful blockade to continue, thereby failing to protect Silver Bull's investments. Consequently, Silver Bull is seeking to recover an amount of US$374.9M (including interest) in damages that it has suffered due to Mexico's breach of its obligations under NAFTA.

THE SIERRA MOJADA DEPOSIT: Silver Bull's only asset is the Sierra Mojada deposit located in Coahuila, Mexico. Sierra Mojada is an open pittable oxide deposit with a NI 43-101 compliant Measured and Indicated "global" Mineral Resource of 70.4 million tonnes grading 3.4% zinc and 38.6 g/t silver for 5.35 billion pounds of contained zinc and 87.4 million ounces of contained silver. Included within the "global" Mineral Resource is a Measured and Indicated "high grade zinc zone" of 13.5 million tonnes with an average grade of 11.2% zinc at a 6% cutoff, for 3.336 billion pounds of contained zinc, and a Measured and Indicated "high grade silver zone" of 15.2 million tonnes with an average grade of 114.9 g/t silver at a 50 g/t cutoff for 56.3 million contained ounces of silver. Mineralization remains open in the east, west, and northerly directions.

Clover Risk Funding Appoints Lisa Brentnall as Chief Investment Office

By Harry Moran |

In a post on LinkedIn, the Australian litigation funder Clover Risk Funding announced the appointment of Lisa Brentnall as Chief Investment Officer. 

Brentnall joins Clover Risk Funding from CASL, where she served as Senior Litigation Manager since 2021, and brings a wealth of experience from her career across the legal sector. Following the start of her career at law firms Kemp Strang and Somerville & Co, Brentnall then spent 15 years at Litigation Lending Services where she rose to the position of Senior Litigation Manager.

Clover’s CEO, Stephen Humphreys, provided the following comment on the appointment: “I am delighted to welcome Lisa to Clover Risk Funding. Lisa’s appointment as Chief Investment Officer represents Clover’s first C-Suite appointment since launching in 2023 and has been made in recognition not only of Lisa’s extensive funding experience but also Clover’s rapid growth. As our portfolio of funded claims grows, Lisa’s near 20 years of litigation funding experience will be vital to both the claim selection and claim execution aspect of our business.”

Clover Risk Funding was founded in 2023 and provides financing for cases in the insolvency and commercial markets, with a focus on cases in the $1.5M to $15M value range for insolvency matters and cases valued between $5M and $25M in its commercial portfolio. The company has offices in Sydney, Melbourne, Brisbane and Perth, with Brentnall joining the funder’s office in Brisbane.

More information about Clover Risk Funding can be found on its website.

Legal Finance in Practice: Expert Perspectives on Managing Legal Risk, Cost and Uncertainty

By Harry Moran |

Burford Capital, the leading global finance and asset management firm focused on law, today releases its latest Burford Quarterly, a journal of legal finance that explores the top trends at the nexus of law and finance. As legal finance continues to be used as a transformative resource for both corporations and law firms, this edition provides data, analysis and expert commentary on industry developments.

In this edition, leading law firm attorneys explain how legal finance is reshaping traditional contingency fee models, patent lawyers discuss the first year of data from the United Patent Court (UPC) and Burford experts present new data-driven findings on the enforcement of judgments, as well as a timely analysis of the synergies between private equity and legal finance.

Articles in the Burford Quarterly No.2 2025 include:

"With every edition, the Burford Quarterly aims to provide a lens into how legal finance is shaping the business of law," said David Perla, Vice Chair of Burford Capital. "This issue combines robust data with real-world outcomes to illustrate how legal finance has become a sophisticated financial strategy for optimizing cash flow, managing legal risk and unlocking capital across geographies and sectors. By combining data with expert commentary and case-specific insights, we demonstrate the tangible impact legal finance has on today's most sophisticated legal and business decisions."

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 works with companies and law firms around the world from its global network of offices.

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

This announcement does not constitute an offer to sell or the solicitation of an offer to buy any ordinary shares or other securities of Burford.

Consumer Pre-Settlement Litigation Funding: An Emerging Asset Class 

By Joel Magerman |

The following was contributed by Joel Magerman, Managing Partner of Bryant Park Capital, a leading investment bank specializing in litigation finance, with over 35 completed transactions totaling more than $2.4 billion in this sector alone.

Executive Summary: 

  • Third-party funding for consumer litigants has been a growing industry in the U.S. since the 1980s.  
  • The need for third-party litigation funding emerged because banks do not typically provide advances to litigants whose only collateral is potential proceeds from lawsuits. 
  • Today, there are over two hundred companies providing pre-settlement and medical lien litigation funding to individual claimants. 
  • Over the past 25 years, consumer litigation finance has matured into an investment grade asset, with over 25 separate securitizations representing over $2.7 billion of invested capital since 2018. 

Why the need for litigation funding? Insurance companies have found that a plaintiff’s need for a financial settlement is often a driving force in settling a case for a lower amount than if the case runs its course to a hearing. Litigation financing provides equal footing to a plaintiff to pursue claims due to an injury they have incurred due to another party’s actions or negligence.

A recipient of litigation funding benefits from certainty and speed of funding, and the fact that the funding is non-recourse. For the attorney representing the client, litigation funding allows the legal process to play out and maximize the plaintiff’s settlement while providing some financial relief until a settlement is finalized. At the same time, third-party litigation funders see the potential upside in underwriting pending lawsuits and earning a return on non-recourse advances. Generally, third-party litigation funders have no control over the litigation they fund, allowing the plaintiff and their legal counsel to decide their legal strategy. 

Medical lien funding, which is closely related to consumer pre-settlement funding, provides funding to providers of medical services (imaging, doctors visits, physical therapy, surgery, etc.) to these same plaintiffs who cannot pay the medical provider until a claim is adjudicated and paid. Funding these liens is effectuated by buying the lien or the LOP (Letter of Protection) from the medical provider, depending upon state statutes.  

General Industry Data (Pre-Settlement Litigation Funding) 

  • Funding amount as percentage of expected case value: ~10-15% 
  • Typical funding size: $1,000-$50,000 
  • Asset-level IRR for the funder: typically 25-35%  
  • Multiple on invested capital: 1.4-2.0x 
  • Weighted average life: 1-3 years 
  • Application time to funding: typically a couple of days 
  • Number of market funders: 200+ 
  • Non-recourse to the plaintiff  

An Emerging Asset Class 

In recent years, consumer litigation financing has become more attractive to investors due to rising inflation, increasing interest rates, and volatility of many other classes of investments. The consistent robust returns that are uncorrelated with the economy make litigation funding attractive. Alternative lenders and multi-strategy funds have invested in litigation finance, with U.S. funders categorized into dedicated funders (specialize in litigation finance), multi-strategy funders (entities that have established a dedicated litigation finance strategy), and ad hoc funders (occasional participants in litigation finance). These investors have increasingly diversified their investments, by allocating funds to multi-claim portfolios and making fewer single-case investments. 

 Institutional investors have continued to enter the litigation funding industry, both through directly funding litigation and through providing billions of dollars of financing to litigation funding companies. There have been approximately $2.7 billion of securitizations of consumer pre-settlement assets since 2018, plus billions of dollars of advances to market participants from credit opportunity and hedge funds, as well as private equity firms such as Blackstone, Parthenon, Further Global, Edmond De Rothschild, and UBS. We expect that the investor sentiment of diversifying into litigation finance will continue in coming years. 

Learn More 

To uncover additional industry and investment insights, download the full BPC Litigation Finance Industry Primer. 

Manolete Partners Announces Record New Case Investments, Referrals and Completions

By Harry Moran |

Whilst current levels of global economic instability are unlikely to be celebrated by many, for litigation funders focused on the insolvency market, such economic headwinds present opportunities for strong financial returns.

In a trading update for the year ending 31 March 2025, Manolete Partners announced that its insolvency litigation financing business had achieved record results for the latest financial year. The funder revealed that it had registered a record 282 new case investments, rising from 276 in FY24. These record figures excluded cases from what Manolete described as the “one-off effect of the Barclays Bounce Back Loan Pilot”, with only two of these BBBLP cases signed in FY25 compared to the 35 that were signed in FY24.

This achievement for new investments was matched by a record number of case completions, achieving 272 completed cases in FY25 compared to 251 the previous year. In terms of the return on investment for these cases, Manolete explained that the estimated Money Multiple on these cases was 2.1x, which represented a slight dip from 2.4x in FY24. However, the average Realised Revenue per completed case this financial year hit £108k, signifying a 12.5% increase on the average of £96k for FY24.

Manolete attributed this increase to a commensurate increase in the average size of the cases it invested in, due to the volume of medium to large company insolvencies increasing following the end of financial support provided by the government during the pandemic.

In another positive sign for Manolete’s market position and opportunities for future growth, the funder also received a record 896 new case referrals, building on a total of 731 referrals in FY24.

Steven Cooklin, CEO of Manolete, provided the following comment on these record results: "The past year has seen Manolete achieve record KPIs across all key metrics of the business and outperform market forecasts. Given the strong tailwinds presented by the challenging UK and global business environments, we expect to build upon those achievements in the forthcoming year." 

The full trading update which includes more details on income, revenue and debt can be read here.

California Assembly Committee Unanimously Approves Funder Registration Bill

By Harry Moran |

Following the signing of a bill by Georgia’s Governor earlier this month on regulating litigation funding, industry observers are eyeing which state will be the next to expand its oversight of third-party funding in the United States.

At a hearing in the California State Assembly, the Committee on Banking and Finance passed a new legislative proposal designed to impose additional rules on the use of litigation funding in the state. Assembly Bill 743, the California Financing Law: lawsuit financiers, creates a new requirement for any funder operating in California to obtain a license from the Department of Financial Protection and Innovation (DFPI). 

AB 743, which had been first heard and then amended by the committee on 24 March, was passed unanimously with nine aye votes. The bill was first introduced on 18 February by Assembly Member Michelle Rodriguez, who also sits on the Committee on Banking and Finance. 

The bill includes several measures to more tightly regulate commercial litigation funding in the state, including expanding the definition of “commercial loan” to include a litigation finance arrangement. The new DFPI license will also require the funder to maintain a surety bond in a minimum amount of $250,000, with the DPFI’s commissioner to increase the bond amount based on the sum of financing originated by the funder. Finally, the bill creates penalties for any funder found to be in violation of these rules, starting with a $100,000 for a first violation and rising to a maximum of $250,000 for each subsequent violation.

Following the unanimous approval by the Committee on Banking and Finance, AB 743 will now be re-referred to the Committee on Appropriations.

The current draft text of AB 743 can be read here.

Avyana Litigation Funding Strengthens Strategic Model to Expand Access to Justice

By Harry Moran |

Legal disputes often involve not only complex legal considerations but also significant financial pressure. For many companies, asserting their rights requires substantial resources, with outcomes that are uncertain. In distressed scenarios—such as restructuring or insolvency—the burden becomes even more acute.

Avyana Litigation Funding addresses this challenge through a model that transforms legal claims into strategic assets. The company has recently been reinforced by the involvement of two experienced professionals: Dr. Tillmann Lauk (LL.M.), former global board member of Deutsche Bank, and Dr. Raphael Nagel (LL.M.), a long-standing private equity investor and entrepreneur.

A Strategic Approach to Litigation Finance

Rather than simply covering legal costs, Avyana’s model enables businesses to pursue valid claims without affecting operational liquidity. In successful cases, proceeds are shared; in unsuccessful ones, the company absorbs the loss. This shifts the litigation risk from claimant to funder, offering companies a way to enforce their rights without jeopardizing financial stability.

Beyond funding, Avyana also provides companies with the option to sell claims to a network of specialized partners. This approach can be particularly valuable in restructuring scenarios, enabling companies to unlock capital from unresolved legal positions.

“Many firms hold claims that are potentially valuable but lack the capacity or appetite to pursue them,” explains Dr. Tillmann Lauk. “Our structure allows that value to be realized more efficiently.”

Collaborative Model with Legal and Corporate Partners

A core element of Avyana’s approach is its close collaboration with law firms, corporate clients, and insolvency administrators. By aligning with experienced legal teams, the company ensures that funded claims are supported by sound legal strategies and operational execution.

Typical areas of focus include commercial disputes, contract enforcement, claims for damages and shareholder conflicts. In insolvency proceedings, litigation funding can enable administrators to pursue avoidance actions or liability claims, helping to recover value for creditors without depleting estate resources.

“Our analysis considers both legal merit and commercial logic,” says Dr. Raphael Nagel. “Each case is reviewed with the goal of turning legal exposure into financial opportunity.”

Global Scope and Investment Discipline

Avyana Litigation Funding operates internationally, with an emphasis on Europe, the Middle East, and select emerging markets. All cases undergo comprehensive due diligence, with investment decisions guided by principles applied by its leadership in corporate finance and legal risk assessment.

“We treat every claim as an investment opportunity,” adds Dr. Lauk. “This means evaluating enforceability, counterparty risk, and recovery potential before any commitment is made.”

An Evolving Role in Legal and Financial Strategy

Litigation finance and structured claim sales are increasingly integral to the legal and business environment. For companies, law firms, and administrators alike, these tools offer a way to act strategically, preserve capital, and navigate legal complexities more effectively.

“In today’s economy, access to justice should not depend on cash flow or balance sheet size,” concludes Dr. Nagel. “Avyana Litigation Funding provides a structured path forward.”

An LFJ Conversation with Stephen Kyriacou, Head of Litigation and Contingent Risk at WTW

By John Freund |
Stephen is a seasoned litigation and contingent risk insurance broker and former practicing complex commercial litigator who joined WTW in February 2025 as Head of Litigation and Contingent Risk Insurance.  In his role, Stephen evaluates litigation-related risks and structures bespoke litigation and contingent risk insurance policies for litigation finance, hedge fund, law firm, private equity, and corporate clients.  Prior to joining WTW, Stephen was a Managing Director and Senior Lawyer in Aon's Litigation Risk Group.  Stephen joined Aon in 2019, and was the first insurance industry professional dedicated solely to the litigation and contingent risk insurance market, leading the Litigation Risk Group's origination and business development work, in-house legal diligence, efforts to advocate for coverage with underwriters, and negotiation and structuring of insurance policies.  During his time at Aon, Stephen was a three-time Risk and Insurance Magazine “Power Broker” (2022, 2023, 2024); spearheaded the development of judgment preservation insurance and insurance-backed judgment monetization as well as the synergy of litigation and contingent risk insurance with litigation finance; and was responsible for placing billions of dollars in total coverage limits – including the largest ever litigation and contingent risk insurance policy, and several policies that each provided over $500 million in coverage limits – and delivering hundreds of millions of dollars in premium to insurers.  Stephen additionally provided consulting and broking services on litigation-driven, insurance capital-based investment opportunities and sales of litigation claims, insurance claims, and subrogation rights as part of the Aon Special Opportunities Group. Prior to joining the insurance industry, Stephen was a complex commercial litigator in the New York City office of Boies, Schiller & Flexner from 2011 to 2019.  While at BSF, Stephen amassed significant trial, appellate, and arbitration experience representing both plaintiffs and defendants in the U.S. and abroad across a wide array of practice areas, including securities, antitrust, constitutional, insurance, first amendment, employment, government contracting, and criminal law, as well as in multidistrict and class action litigation.  Stephen's clients included banks and other major financial institutions, private equity firms, technology companies, foreign sovereigns, professional sports teams, television networks, insurance companies, corporate executives, and other high-net-worth individuals.   Stephen earned his J.D. from the New York University School of Law in 2010, and is a member of the New York State Bar.  He also clerked for the Honorable Tanya S. Chutkan in the United States District Court for the District of Columbia. Below is our LFJ Conversation with Stephen Kyriacou:

We’ve seen increased interest in portfolio-based insurance solutions, particularly as the judgment preservation market has tightened.  What’s driving this shift, and how are clients adjusting their risk strategies in response?

When I first joined the insurance industry back in 2019, after about a decade as a trial and appellate lawyer at Boies Schiller, we were primarily insuring single-case defense-side risks with what we now call adverse judgment insurance or “AJI” policies.  Shortly after I started, the focus shifted to the plaintiff side, though most insurers still preferred insuring single cases with what came to be called judgment preservation insurance or “JPI” policies.  These policies protected plaintiffs who had already won at trial or on summary judgment against appellate risk, effectively guaranteeing a minimum recovery from their trial court judgments no matter what happened on appeal.

JPI was the driving force behind the explosive growth in the litigation and contingent risk insurance market for several years, in large part because these policies allowed plaintiffs to monetize judgments more cost-effectively than they could without insurance.  And as the market grew, so did the size of the judgments that were being insured and the amount of coverage limits that insurers were putting up, both individually and collectively, on these policies.  It got to the point where policies providing over $100 million in coverage for multi-hundred-million-dollar judgments became commonplace, and several policies were written that provided more than $500 million in coverage on billion-dollar-plus judgments.  Individual insurers were also sometimes betting tens of millions of dollars on the outcome of a single case as part of some of these JPI larger policies.

Unfortunately, while more modestly sized JPI policies on smaller judgments have generally performed as expected, with insurers not having to pay many claims, some of these larger, more high-profile JPI policies have run into significant challenges on appeal, on remand, and in places like the Patent Trial and Appeal Board.  And the nature of this insurance is such that one big loss on a multi-hundred-million-dollar policy can more than wipe out the premium gains for insurers on several smaller policies.

The JPI losses that insurers have already incurred, and those they look likely to incur in the near term, have understandably caused many of them to reassess their approach to litigation and contingent risk insurance more broadly.  For some insurers, that has meant pulling back from the space or taking a “back to basics” approach and returning to a focus on defense-side risk.  But for many insurers, it has meant mirroring the pivot that much of the litigation finance industry made several years ago away from single cases – where financial outcomes can hinge entirely on one jury, one trial court judge, or one panel of appellate court judges – and toward a portfolio-focused approach that better spreads risk across multiple diverse cases or litigation-related investments, loans, or other assets.  In fact, the insurers who have come into the market following the JPI boom, and who therefore have no exposure to any of the large JPI policies of recent years, are generally focused, at least for the time being, exclusively on providing this sort of portfolio-based coverage.

Our clients at WTW are embracing this new paradigm.  Where a client may previously have sought to insure a single large patent infringement judgment with a similarly large JPI policy, they might now seek a portfolio-based policy that guarantees a minimum recovery from the combination of that judgment, several other earlier-stage cases that are pending in different trial courts, and numerous other patents they may seek to enforce through litigation in the future.  We’re also working with litigation funders who may previously have sought to insure individual investments on a piecemeal basis once they reached the judgment stage to instead insure portfolios of diversified investments throughout all stages of the litigation lifecycle, including in some cases entire funds or designated sleeves of funds.  Patent and mass tort case aggregators are also increasingly looking to avail themselves of portfolio-based insurance solutions that can be tailored to the unique risk profiles of their businesses and used as a financial tool to spur growth and increase profitability.

Law firms are getting in on the action, as well.  We are seeing tremendous interest in “work-in-progress” or “WIP” wrappers that insure, on a cross-collateralized basis, a law firm’s anticipated contingency fee recovery across a portfolio of cases.  Many of the recent WIP insurance placements that we’ve worked on recently have involved patent infringement cases and IP litigation boutiques, but we are also seeing interest from mass tort, personal injury, and product liability law firms, as well as among AmLaw 200 firms that focus on many different categories of high-value, capital- and labor-intensive plaintiff-side commercial litigation.

Can you walk us through what a portfolio-based insurance wrapper actually looks like – both for a litigation funder and for a law firm? How do the structures differ, and what risks are typically covered?

The basic structure of a portfolio-based insurance wrapper is very straightforward.  Essentially, an insured purchases a policy with a specific amount of coverage limits that guarantees the insured will recover an amount equivalent to those coverage limits from the cases or litigation-related investments, loans, or other assets that comprise the portfolio that’s being insured.  If, at the end of the policy term – or if the policy doesn’t have a specific term, once the last of the covered cases or investments has ended – the insured’s recovery is less than the limits on the policy, the insurers will pay out a “loss” on the policy that effectively trues the insured up to policy limits.

Recovery against the policy limits is measured differently depending on who the insured is:  for litigants insuring pools of plaintiff-side litigation, insurers look to any amounts the litigant earns through damage awards and settlements on those cases; for litigation funders, hedge funds, or others insuring investments in litigation-related assets, insurers look to their returns on those investments; for lenders insuring loans to law firms or other participants in the plaintiff-side litigation ecosystem, insurers look to the amount of principal plus interest repaid on those loans; and for law firms insuring their work-in-process or “WIP”  on a group of cases, insurers look to the contingency fees that the law firm collects on those cases.

For a litigation funder, it’s as simple as identifying a set of investments, loans, or other assets to go into the portfolio, identifying the amount the funder has invested in whatever it is that collateralizes the portfolio, and then insuring a minimum recovery that is some significant percentage of the funder’s overall investment.  And as I mentioned earlier, these policies can insure an entire fund, a designated portion of a fund, a specific LP within a fund, or even a more bespoke portfolio comprised of select investments from within a given fund or from a cross-section of different funds.

As with portfolio policies for litigation funders, WIP policies can be placed on a programmatic basis across a firm’s entire contingency fee case book or on a more selective basis across certain specifically identified cases.  Here’s an example of how a WIP policy might work:  Imagine that a law firm was litigating ten cases on contingency, with an anticipated recovery of more than $100 million in contingency fees and expected WIP of $50 million across the portfolio of cases.  The firm could potentially purchase a WIP policy with a $40 million limit, equal to 80% of its expected WIP, which would provide coverage if, over what is typically a five- to seven-year policy term, the ten cases in the portfolio collectively earn the firm less than $40 million in total contingency fees.  If, at the end of the policy term, the firm had only recovered $20 million in total contingency fees, the policy would cover the $20 million shortfall against the $40 million in policy limits.

WIP policies are often used as a mechanism to attract litigation funding at a much lower cost of capital than otherwise would be available without insurance, including from sources of capital that don’t typically invest in litigation-related assets because of the high risk involved.  There are dozens of different capital sources beyond traditional litigation funders – including hedge funds, family offices, private equity firms, private credit lenders, and other alternative sources of capital – who are keenly interested in lending against WIP policies, as well as against other portfolio-based and single-case insurance policies.

WIP insurance can also be a very useful tool for lawyers within firms where the billable hour is king to get approval from executive or contingency fee committees, or from the broader partnership, to bring high-value contingency fee cases.  These policies provide the firm with a guaranteed minimum recovery from contingency fee litigation by the end of the policy’s term such that, if the cases don’t ultimately work out as planned, the financial result to the firm will be the same as if the lawyers on those cases had spent several years simply billing their time on non-contingency fee matters for clients who received a small discount on those lawyers’ hourly rates.

I should also note that, for any portfolio-based policy, as with some of the more traditional single-case policies like judgment preservation and adverse judgment insurance, premiums are generally in the form of one-time upfront payments.  But for portfolio policies more than single-case policies, there are also mechanisms like deferred and contingent or “D&C” premiums that insurers are increasingly willing to employ to bring down the upfront premium cost in exchange for a modest piece of the recovery waterfall if the cases or investments that comprise the insured portfolio are highly successful.

How are insurers underwriting these portfolio-based structures differently than single-case policies?  Are there specific underwriting thresholds, case mix requirements, or expected returns that make a portfolio “insurable”?

Most insurers define a “portfolio policy” as one that is insuring at least three to five cases, and the more the merrier.  These cases should be uncorrelated, such that they should not all rise and fall together, and the more diversity that can be introduced into the portfolio – with regard to identity of plaintiffs, identity of defendants, specific causes of action, subject matter of the litigation, etc. – the better, as well.

That being said, it is common for an insured portfolio to be comprised of cases from a single plaintiff or representing only a single subject matter area from a litigation funder, law firm, or group of lawyers within a law firm who specialize in that subject matter area – think patent infringement, antitrust, or mass tort litigation.  And of course, insurers are highly vigilant about adverse selection, and will not insure portfolios that they suspect to be comprised of a prospective insured’s cherrypicked worst or riskiest cases or investments.  The easiest way to mitigate this suspicion as a prospective insured is to insure a “complete set” – whether the entirety of a given fund from a litigation funder, a law firm’s entire contingency fee case book, a patentholder’s entire patent portfolio, or a litigant’s entire portfolio of plaintiff-side cases.

Underwriting one of these portfolios is a very different exercise than underwriting a JPI or AJI policy.  Rather than a single case with an extensive, well-developed record (including, as was often the case with JPI placements, the exact appellate record that would be put before an appellate court when they are asked to decide the case), insurers are often faced with a high number of cases and less detailed and voluminous information about each individual case.  Often, cases that are already underway will have a limited history of case filings and unfiled cases will have only a preliminary case description and damages evaluation.  Accordingly, while the number of cases increases substantially, having less information per case can result in the amount of underwriting time, and associated underwriting fees, being relatively similar to a JPI or AJI policy.

In terms of the actual underwriting process, it’s important to keep in mind that insurers do not need to put all their eggs in a single basket on portfolio polices like they do for a JPI or AJI policy.  Instead, they determine the likelihood of success for each case in the portfolio and then assign an expected return to that case.  Then, using a weighted average of all the cases, the insurer determines exactly how likely it is that the portfolio will collectively return an amount that exceeds the limits being purchased.  Insurers are also looking at other things, as well, like a law firm or litigation funder’s track record on similar cases or investments, the underwriting guidelines being used to select cases or investments, the bona fides of the key individuals involved, case budgets, and the judgment collection and enforcement risk presented by the relevant defendants.

It's also important to keep in mind that the structure of portfolio-based insurance policies makes it much less likely that a policy could suffer a full limit loss given the number of cases or investments that would need to go poorly in order for that to happen.  This is another key differentiator from JPI, where a single adverse appellate court decision or bad remand outcome can sometimes cause a full limit loss.

Lastly, as I noted earlier, insurers will often look to include a deferred and contingent or “D&C” premium in portfolio-based policies, which allow the insurer to participate in the upside of a portfolio of cases or litigation-related investments if the portfolio turns out to be highly successful.  Since a D&C premium only kicks in after the insured has recovered an amount in excess of coverage limits, underwriters of portfolio-based policies with a D&C component will also evaluate the probability that a portfolio brings in proceeds well in excess of limits, thus entitling them to that additional backend premium.

For litigation funders raising capital or structuring new vehicles, how critical is it to have an insurance solution baked in from day one? Are LPs demanding it, or is it still seen as an optional enhancement?

It ultimately depends on the type of investment capital that a funder is looking to attract.  Traditional litigation finance LPs, who seek to make high-risk, high-reward investments, often view insurance as antithetical to why they are investing in litigation finance in the first place, because the premium costs – whether upfront or D&C – cut into their returns.  These investors, and those funders who follow the same ethos, are generally not interested in wrapping their funds with any form of principal protection insurance coverage because they don’t want to forfeit any of their upside in order to do so.

On the other hand, a litigation funder who wraps a new fund with principal protection insurance can attract an entirely new class of investors that typically does not invest in litigation finance – investors who don’t need to understand litigation funding, or even litigation itself, in order to invest.  These LPs may invest in an insurance-wrapped fund precisely because their downside is de minimus or, depending on the limits of the relevant policy, essentially zero, but with a high potential upside – albeit, not as high as the upside would be without insurance.  This makes insurance-wrapped funds an ideal target for certain investment banking, pension fund, private equity, private credit, university endowment, sovereign wealth, family office, and other investors who will happily accept lower returns in exchange for lower – or, again, depending on the specific policy structure, potentially zero – risk.

So based on that, I see insurance coverage on a fund-wide basis as an optional enhancement that is very funder- and LP-dependent.  But it’s important to remember that we have a significant amount of flexibility in how we can structure these policies to best achieve our clients’ financial and risk management goals.  To give one example, there was a deal I worked on that involved a loan that a funder made to a law firm where the funds for the loan came from multiple different LPs, some of which needed principal protection coverage and some of which did not.  We were able to structure an insurance policy that only insured the portion of the loan attributable to the LPs who needed insurance coverage and effectively treated the portion of loan funds that came from the other LPs as co-insurance on the policy.  The significant co-insurance piece brought the cost of coverage down from where it would have been had we insured the entirety of the loan or a high percentage of the loan funds coming from all LPs.  So even in situations where there are distinct or even polar opposite LP needs on a single investment, loan, or other transaction, we can often create an insurance-based solution that works to deliver an optimal balance of risk and reward for everyone, enabling deals to get done that just would not have happened without insurance.

Nicholson Jones Sutton Solicitors Collapses Owing Millions to Creditors

By Harry Moran |

As LFJ covered earlier this month, concerns have been raised that law firms in the housing disrepair claims sector are operating with unsustainable business models propped up by litigation funders. New reporting on the administration of one of these claims suggests that there is a high degree of volatility in the sector, with funders acting as unpaid creditors to these same law firms.

An article in The Law Society Gazette covers the story of Nicholson Jones Sutton Solicitors Limited, a law firm that entered administration last month, with new filings suggesting that its creditors will be left without millions in unpaid debts. The Gazette’s review of Companies House records found that at the time of the law firm’s administration, it owed more than £6 million to creditors including litigation funder Fenchurch Legal.

The summary of liabilities showed that Nicholson Jones Sutton owed Fenchurch Legal more than £2.4 million, whilst the collapsed litigation funder VFS Legal was also left waiting for £196,000. According to Fenchurch Legal, the cases funded along with the security has been successfully transferred, and there has been no loss incurred by the business or its investors. As LFJ reported last month, VFS Legal has also experienced a positive outcome with its administrators able to repay millions to its own creditors. 

Unfortunately, the Gazette’s reporting suggests that the failed law firm will not be in a similar position, having reported only £159,000 of tangible assets at the time its administrators were appointed. The article explains that the liabilities summary prepared by administrators RSM and DMC Recovery revealed Nicholson Jones Sutton has ‘no assets available to unsecured creditors collectively owed more than £1.5m.’

The statement of affairs filed by the administrators can be found on Companies House here.