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Case Developments Commercial

An Alternative Perspective on the Dispute Between Burford and Sysco

The dispute between Burford Capital and Sysco Corporation has continued to dominate headlines over recent weeks, with commentators speculating on how this situation will resolve and the potential implications for the wider litigation funding industry. However, a new piece of analysis breaks down what lies at the core of this dispute, reframing the story as one about the breach of a litigation funding agreement and the ensuing consequences, rather than the supposed idea of a funder exerting undue control on settlements. Writing in an op-ed for Bloomberg Law, Dai Wai Chin Feman, director of commercial litigation strategies at Parabellum Capital, offers a comprehensive analysis of the root cause of the dispute: Sysco’s original breach of its agreement with Burford. Dai Wai traces this conflict back to Sysco’s breach of its $140 million funding agreement, by breaching the terms prohibiting ‘Sysco from divesting collateral without Burford’s consent’. Dai Wai explains that in order to maintain access to Burford’s capital, Sysco gave Burford an increased share of the claims’ proceeds and ‘agreed not to settle without Burford’s prior consent’. Having agreed to this consent right and identifying a ‘settlement floor’ for the future resolution of the claims, Sysco then sought to negotiate settlement terms below that floor and ignored Burford’s attempt to exercise ‘its consent right based on the commercial unreasonableness of the terms’. As laid out by Dai Wai, this led to Burford seeking the arbitration panel’s injunction, which was granted by the tribunal and led to Sysco’s lawsuit, along with what the author describes as ‘an aggressive public relations campaign’. Dai Wai concludes his analysis by suggesting that ‘Sysco essentially seeks to benefit from a nine-figure windfall borne out of its own breaches’ and ‘has conducted a master class on how to breach a litigation funding agreement.’
Commercial

Examining the ‘Uncorrelated’ Nature of Litigation Funding as an Asset Class

It is often said that one of the most attractive qualities of litigation funding is that it stands as an uncorrelated asset class, largely insulated from market forces and the macroeconomic situation. However, given the extremely turbulent global economic conditions, one industry leader has provided a blog post analysing whether this commonly accepted statement can be taken at face value. Writing in for Thomson Reuters’ Dispute Resolution Blog, Tets Ishikawa, managing director at Lionfish Litigation Finance, suggests that in the wake of SVB’s collapse ‘it would be a mistake to sit back and watch the mayhem with the comfort that litigation funding is uncorrelated.’  Looking at how the current market downturn could affect the litigation finance industry; Ishikawa highlights the inherent complexity of this sector that can dissuade outside investors who lack expertise in the area. This sits in contrast to some investors’ preference to return to safe and familiar investments in times of disruption. Ishikawa pairs this with the fact that in such an environment, there could be a naturally occurring ‘pinch on capital raising’ for litigation funders, which could even lead to ‘some industry consolidation’. Furthermore, Ishikawa points out the current economic environment can substantially raise the risk of litigation investments, especially where the defendants’ underlying assets could be devalued by outside pressure, and therefore impact the ability to make accurate predictions on the true return on investment. Building on his previous analysis of the ways defendants can ‘arbitrage the time value of litigation’, Ishikawa states that these same economic pressures could encourage defendants to drag out litigation rather than settle, in order to effectively manage their liquidity. However, Ishikawa suggests there are naturally positive correlations from the market downturn, such as the other commonly held belief that litigation activity increases during economic disruption. Moreover, he returns to the idea that much like how the litigation funding industry benefited from the 2008 financial crisis, there is equal potential that this period could lead to similar growth driven by corporates turning to third-party funding in order to continue to pursue meritorious litigation whilst managing their own cashflow pressures.
Announcements Case Developments

Legal-Bay Lawsuit Funding Reopens Underwriting Department for Victims of Sexual Abuse

Legal-Bay, The Pre Settlement Funding Company, announced today that they are reopening funding for victims of sexual abuse in light of recent settlements in the McLaren sports facility and multiple Los Angeles detention center lawsuits. The McLaren case centers on the alleged sexual abuse of hundreds of children by a former Olympic coach, Bahram Hojreh. Hojreh was accused of sexually abusing young female gymnasts who were under his care at the Los Angeles-based gym where he coached. The allegations of abuse first surfaced in 2017, and Hojreh was arrested in April 2018. In March 2020, the case was settled for a staggering $8.125 million, with each victim receiving $125,000 on average. According to reports, Hojreh pleaded no contest to charges of sexually abusing 13 female gymnasts, aged 7 to 14 years old, between 2014 and 2017. He was sentenced to 10 years in prison, but the sentence was later reduced to 6 years and 8 months, though he will have to register as a sex offender for life. Also in Los Angeles, probation and detention officers at various juvenile centers are being accused of sexually assaulting approximately 300 boys and girls during their incarceration. The lawsuit was filed this past December, and alleges that the minors suffered multiple incidents of sexual abuse at the hands of the very staff employed to watch over them. The abuse dates back as far as the 1970s right on up through 2018, and specifically names the following facilities: Camp Scott, Camp Kenyon Scudder, Los Padrinos, Barry J. Nidorf, and the Challenger Memorial Youth Centers. The lawsuit claims that there were times when employees were granted unsupervised access to the detainees, subjecting them to verbal as well as physical and sexual abuse. Lawyers for the plaintiffs argue that reasonable supervision should have been enacted to keep the incarcerated juveniles safe. In January 2020, a California state law opened a three-year window for victims to file suit, allowing any victim of sexual abuse to seek damages regardless of the amount of time that had passed since the assault took place. While that specific filing window has since closed, new cases have emerged similar to the ones outlined above that will need to be resolved. As it stands now, the law only allows victims to file suit prior to their 40th birthday or within five years of becoming aware of the childhood abuse if they are over 40. However, The Justice for Survivors Act is presently being debated in the state, and if passed, would end the statute of limitations to file claims of childhood sexual abuse. Legal-Bay reminds plaintiffs that the legal system is backlogged, creating an indefinite wait for sexual abuse survivors to see justice. Chris Janish, CEO of Legal-Bay, commented, "The issue of sexual abuse of minors has been an ongoing problem for years, and unfortunately, still continues today. The California sports facility and juvenile detention center cases are just two examples of the ongoing problem of sexual abuse within youth organizations. While it's encouraging to see settlements being reached, it's clear that much more needs to be done to prevent abuse from occurring in the first place. This includes greater advocacy for the children. Only by taking bold steps can we ensure that kids are kept safe and protected while in the care of youth-based institutions. In the meantime, Legal-Bay stands at the ready to assist survivors and their families with their lawsuit funding needs." If you've been a victim of any type of sexual assault and need an immediate cash advance against your impending lawsuit settlement, please visit Legal-Bay HERE or call toll-free at 877.571.0405.
Case Developments Commercial

Dispute Between Burford and Sysco Escalates, as U.S. Chamber Files Amicus Brief

Disputes between funders and their clients are uncommon occurrences, and those that spill over into public headlines are an even rarer sight. However, the ongoing dispute between Burford Capital and Sysco Corporation appears to be accelerating in magnitude, with third parties now weighing in and taking sides in this high-profile conflict. Reporting by Reuters provides the latest updates on the fight between funder and client. In a new filing to the U.S. District Court for the Northern District of Illinois, Burford accused Sysco of a ‘case of blatant forum shopping’ for attempting to ‘transfer oversight of the arbitral proceeding’ from New York to the Illinois court.  This was in response to Sysco’s attempts to have the New York arbitration tribunal’s temporary restraining order overturned, which had prohibited Sysco from settling the antitrust cases that Burford had funded. Burford is already engaged in a lawsuit in New York against Sysco, seeking to confirm the arbitration panel’s previous judgement. Meanwhile, the U.S. Chamber of Commerce has waded into the dispute by filing an amicus brief with Illinois District Court this Monday, which it also used as an opportunity to repeat its routine criticisms of third-party litigation funding. In the brief, which argued for the Court to grant Sysco’s petition, the Chamber of Commerce stated that the case demonstrated ‘how litigation funding creates conflicts of interests, interferes with attorney-client relationships, and allows opaque interests to control litigation.’
Commercial Deals

Regional UK Funder Looks to Fund Larger Claims

The UK funding market has seen continuous growth in both the demand and supply of funding, with newer market entrants seeking to serve markets outside of London. Thaxted Capital launched last July, aiming to serve the litigation funding needs across the North and Midlands, and has now expanded its services to offer financing for larger cases. An article in The Law Society Gazette details the announcement that Thaxted will be lifting its £1 million cap on funding cases, and will be looking to support commercial disputes requiring over £1 million of funding. Jack Bradley-Seddon, founder and partner at Thaxted, stated that the funder will ‘continue to serve the market for smaller claims’, but will now be able to support larger claims in these regional markets. In Bradley-Seddon’s announcement on LinkedIn, he explained that with the current economic conditions contributing to an increase in the volume of commercial disputes, it has left many businesses without the capital necessary to pursue claims. With the lifting of the £1m cap, Thaxted is looking to ‘offer businesses in this situation the funding to pursue litigation cases for these larger commercial disputes.’
Consumer

California State Senator Introduces Bill to Regulate Lawsuit Lending

2023 is shaping up to be a year in which legislation focusing on the regulation of litigation finance will become a regular feature, ranging from the potential implementation of the Voss Report’s recommendations in the EU, to state-level legislation in the United States. A new development in California has seen a State Senator introduce a bill to more closely regulate the consumer legal funding industry. Writing in Capital Weekly, California State Senator Anna M. Caballero and Linette Lomeli, executive director of Madera Coalition for Community Justice, put forward an argument in favour of a new bill that would increase consumer protections against predatory lawsuit lending practices. Senate Bill 581 (SB 581) was introduced by Senator Caballero on February 15 and aims to implement new rules around the funding of civil claims and class actions.  Among its provisions, the bill would require: litigation financiers to be registered with the Secretary of State, litigation financing agreements to be shared with ‘all parties to the litigation, without awaiting a discovery request’, and would prohibit the funder from ‘charging the consumer an annual fee of more than 36% of the original amount of money provided to the consumer for the litigation financing transaction’. In advocating for the bill, Caballero and Lomeli provide examples of predatory and malicious lawsuit lending practices, including the ongoing Girardi Keese lawsuit, and that the ‘absence of regulation enables bad actors to take advantage of borrowers’. The authors do not advocate for consumer lawsuit lending to be prohibited entirely, but instead argue for reforms which they argue ‘strike a balance between protecting vulnerable borrowers and ensuring the lawsuit lending industry can continue to serve an important role for those in financial need.’ With regards to the section of the bill requiring disclosure of litigation funding agreements to all parties in civil and class action cases, Caballero and Lomeli suggest that this will increase transparency whilst revealing any conflicts of interest between financiers and parties involved in the lawsuit.
Commercial Regulatory Issues

Augusta’s Head of Competition Discusses State of Play for Collective Actions

As we saw earlier this month at Brown Rudnick’s European Litigation Funding conference, competition litigation and collective actions are top of mind for funders in the UK and Europe. The Competition Appeal Tribunal (CAT) has become a prominent venue for claims in the UK, and with the upcoming implementation of the European Representative Actions Directive (RAD), the coming months and years are unlikely to see a slowdown in activity. In an interview with FinLegal, Augusta Ventures’ head of competition litigation funding, Simon Latham, spoke about his career in the industry and what opportunities or challenges funders will face in the near future. Speaking to the current state of third-party funding, Latham acknowledges that with so many funders competing for the best and most lucrative cases, some funders may have to implement a more agile strategy and consider claims with tighter margins or look at secondary investment opportunities. Discussing the future of class actions and group claims, Latham expects that in the next five years we will see some of the claims in the CAT reach a successful conclusion, but also that we should expect a small number not to succeed. Latham suggests that those cases which are unsuccessful will most likely come about in ‘claims with novel market definitions and/or theories of harm’, as these are ones that ‘are effectively in a 50/50 scenario at trial’, if no settlement can be reached. Speaking to the role and impact of technology on litigation funding, Latham states that data will continue to play a key role in class actions that include a large pool of potential claimants, as funders will ‘need to aggregate claims and quickly assess the quality of their evidence to reach a critical mass’. These types of claims on a ‘mass scale’ are only likely to increase in volume according to Latham, due to ongoing regulatory developments which will provide regimes for these kinds of actions.
Commercial Deals

Bespoke Capital Consulting Announces First Investment

Bespoke Capital Consulting has announced the deployment of its first investment. Bespoke provides equity investments to contingent fee law firms looking to grow their business, partnering investment funds with ongoing consultative guidance from its highly qualified and experienced management team. Bespoke’s mission, as explained by CEO Crystal Utley, “is to increase access to the justice system for underserved injured parties, and we are thrilled to invest in a law firm that embodies the spirit of Bespoke. To be able to provide capital and guidance as this firm continues its mission of representing the underrepresented is quite fulfilling.” Bespoke is the first of its kind to take a consultative approach to deploying capital in the legal field. With more than 60 years of collective industry knowledge, Bespoke’s management team leverages their expertise to provide a wide spectrum of consulting services including operational best practices, financial core competencies, and business development. Utley reports, “Contingent fee plaintiff law firms often lack access to strategic resources. As a result, these businesses face challenges, and present opportunities distinct from other industries and asset classes. Our goal is to apply quality competencies that not only drive value creation, but ultimately improve outcomes for those who are injured.” For more information about Bespoke’s services, visit www.bespokecapitalconsulting.com, or e-mail Bespoke’s team of experts at info@bespokecapitalconsulting.com Contact Information: info@bespokecapitalconsulting.com
Commercial Special Features

Key Takeaways from LFJs Special Digital Event: Mass Torts and Litigation Funding 

On Thursday March 23rd, Litigation Finance Journal hosted a special digital event: Mass Torts and Litigation Funding. Panelists included Michael Rozen (MR), Founder and Managing Partner at TRGP Investment Partners, James Romeo (JR), Managing Partner at Greenpoint Capital, Brian Roth (BR), Chief Executive Officer and Chief Investment Officer of Rocade Capital, and Michael Guzman (MG), Partner at Kellogg, Hansen, Todd, Figel and Frederick. The discussion was moderated by Ed Truant (ET), Founder of Slingshot Capital.

The panel discussion spanned a range of topics, including claims origination, financing/underwriting, plaintiff and defense-side strategies and tactics, the impact of ABS regulation and much more. 

Below are some key takeaways: 

ET: How does the industry originate claims and identify and validate claimants? And how has origination industry evolved over the years from the time of mass TV advertising to the current omni-channel world of advertising? 

MG: First, all of the old traditional methods still work.  Networking, late night TV, radio, advertising - all of that still works. But what I am seeing is a number of firms have either affiliated with or own social media marketers, who are using social media in targeted ways. It’s a lot cheaper depending on how you use it, and it can be a lot faster. So people are using the old techniques, plus a number of new ones.  I’ve had some really good success with that, because you’re not just blanketing the airwaves, the people that you get back are much more focused and more interested in what it is you’re trying to recruit them for. 

JR: I think it’s helpful to go back and think about the history of legal advertising, which started in the late 70’s when two lawyers started advertising, it led to some fighting in the state bar, but ultimately it was decided that legal ads are a form of free speech and that they provide consumers valuable information. 

We’ve now seen this huge evolution around what’s possible. There is very targeted social media and paid search advertising that is driven by analytics. At Triton we’re doing a lot of this, we’ve developed our own in-house marketing team, and we’re using things like intake forms and chatbots to help pre-screen potential claimants. We’re using different identify verification tools and we’re experimenting with different medical retrieval tools to help with the intake of potential claimants. 

ET: Describe the ‘fall-out rate’ of claimants and what are typical fall-out rates evidenced in the market and reasons therefor? Has there been an improvement in fall-out rates as a result of enhanced data analytics and technological sophistication?

MR: Access to justice is always a goal for those who think that corporate America has long gotten away with unequal justice because they have a lot of money and the individual claimants don’t. So having better ways of reaching people who may have been impacted by a drug that’s been pulled from the market or a product that didn’t work as advertised is obviously a good thing. The flip side is, in tougher economic times, you see higher claim rates from people who may not be good claimants, because there is an expectation there may be some quick money to be obtained. 

So I think the fall-out rate is really a function of whether or not you’re in the right economic time with the right kind of claim. Camp Lejeune is an example of that. 3M earplugs is an example of that. We’re talking about hundreds of thousands of claimants, whereas in an ordinary mass tort you may have tens of thousands of claimants. And this is something defendants don’t like, and they push back on litigation finance in particular, and argue that somehow specious claims are being promoted. What is really at the base of that is a desire to create an unequal footing between the haves and the have nots. If you are on the have side, it is obviously to your benefit to have either lower claim rates, fewer number of plaintiffs, and/or a higher fallout rate where you can allege later on that these were not valid claimants, that they were somehow propped by third party financing. 

Nobody who has or will speak on this panel will tell you that investing in non-meritorious claims is a good thing. Yet what the other side of this argument will claim is that somehow the fall-out rate as an individual metric is indicative of whether or not there are valid claims in a particular litigation. I would say you to it is irrelevant—the more claims you have in a litigation, the higher the fall our rate is going to be. 

ET: Given the high fall-out rates and the potential for false claimants, is this sector ripe for the application of blockchain to minimize duplication of claimants and decrease fall-out rates as well as tracking the transactions and pay-outs? 

 BR: Fall out impacts the litigation strategy and settlement strategy. When a litigation starts, nobody really knows what will be a settle-able case, so there’s always going to be some level of origination that’s not going to result in a paid claim at the end of the day. I do think the technology will help with some areas like de-duplication and dual representation, whether it’s blockchain or other smart contracts. We’re seeing billions of dollars transact in the space and there’s very little transparency across the different players in the space. I see that changing over time, and that will impact the fall out rates as well. 

ET: What is the nature of the prototypical plaintiff litigation firm? Why do so called “White Shoe” law firms not get involved in mass tort plaintiff litigation work? 

MG: When I started my career, there was this perception that there were defense-side firms and plaintiff-side firms. Lines were pretty well drawn, people crossed over from time to time. But for the most part, if you did plaintiff’s work you did plaintiff’s work, and you didn’t go back and forth. My firm and lots of others defy that model, and at this point, I’m not sure there is a prototypical plaintiff’s firm. My firm is a litigation boutique, and very early on we realized some of our clients wanted us to be plaintiffs for them, and it was enormously challenging and lucrative to play that role for them.

I think why so many of the so-called ‘white shoe’ law firms have found it difficult to be a plaintiff-side firm is because they have corporate departments or longstanding institutional clients, and some of those clients just don’t like the idea that one of those partner is representing them, but at the same time someone else is off pursuing a mass action or class action, so it gets to be an institutional conflict—it’s hard to manage from a client standpoint, and we’ve dealt with that over the years. 

ET: How has the US mass tort industry evolved in terms of the size of the industry, the quantum of cases and the number of claimants over the years? 

JR: If you look at the federal docket, it took something like 59 years to reach the first 250,000 cases in MDLs, and over the subsequent seven years, from 2007-2014, we hit a total of half a million cases, and then by 2021, we topped 1 million cases. So that’s an additional 500,000 case jump from 2014 to 2021. And there’s currently something like 360,000 cases that are still pending in the federal docket. So there’s definitely been an acceleration of cases, and that’s continued. And I don’t see that sopping any time soon. 

ET: Can you describe the various ways in which finance intersects with the mass tort industry?

BR: Financing is an ever changing landscape, but at the front end, you’re seeing it for case origination, a lot of times it’s done on a non-recourse basis. We see a lot of law firm loans, where you’re financing the whole process from origination to settlement. We’re also seeing capital enter for service providers in the space - lead origination or working up cases, ordering records on a contingent basis. We’re also starting to see some post-settlement finance develop, where firms are basically able to factor their claims. 

As we think about the space, we expect this to continue to evolve and develop, and this matures as an asset class, and we develop more data and track records, you’ll see more segmentation I think. But that should translate into more flexible options for the firm. The space currently is shaped by the rules around fee sharing and the ethical rules for law firms which prevent non-lawyers from having ownership in the firm. Obviously, Arizona and other jurisdictions are changing that, so the landscape of how finance intersects with firms is changing as well.