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Commercial

Litigation Funding in Employment Disputes

One of the most powerful uses of litigation funding is the ability to empower employees to seek legal redress from their employers, who would otherwise be shielded by the vast resources at their disposal. As a recently-settled case in Australia demonstrates, third-party funding can be the difference between these employees being left powerless, or being compensated for their employer’s misdeeds. In a recent blog post, Omni Bridgeway detailed their recent win for employees of CoreStaff who alleged they had been misled by the firm over the terms of their employment, and that CoreStaff had breached contracts by underpaying for labour. After securing the initial settlement of A$6.4 million in November of last year, a federal court ruled that the settlement and the distribution of those rewards were reasonable. Justice Bromwich’s ruling stated that the distribution was a fair division of the settlement, with group members receiving 41% of the total settlement, and Omni Bridgeway highlighting that some of these claimants would receive 80% of their claims. Justice Bromwich further ruled that Omni Bridgeway’s commission of 35% of the settlement was justified, given the risk taken by the firm to fund proceedings.
Announcements Commercial People Moves

Burford Hires Jordan Licht as CFO, Eyeing US Capital Markets Knowledge

Burford Capital Ltd on Tuesday said it hired Jordan Licht as its new chief financial officer, replacing Ken Brause. The London-based litigation finance, risk management and asset recovery company said Licht was previously the chief operating officer of both commercial finance services firm Caliber Home Loans Inc and mortgage lender Newrez LLC. The firms recently combined under the Rithm banner to form a top five non-bank residential mortgage origination and servicing business. Prior to the combination, Licht was the deputy chief financial officer at Caliber. Before this, he worked at Morgan Stanley for ten years in financial services investment banking. "As Burford looks to complete its transition to a full US SEC-registered issuer and position itself more prominently with US investors, Mr Licht brings deep US capital markets and investor experience," the company said. A date for the CFO transition has yet to be announced. Chief Executive Officer Christopher Bogart said: "Jordan brings an impressive combination of deep finance, market and strategic skills to continue elevating Burford's finance function, and we are excited to have him join the senior management team as Ken's successor." Burford said Brause will become a senior advisor to the company, as did previous CFO Jim Kilman.
Commercial Deals

The Value of Litigation Funding for Insolvency Practitioners

With the economic climate uncertain and rising inflation taking a toll on markets around the world, industry insiders are keeping a careful eye on a related spike for insolvencies. As a result, insolvency practitioners are under pressure to finance their operations, and may need to turn to litigation funders in order to successfully recover assets. In an article for LondonlovesBusiness, Lucas Arnold, Director of Litigation Funding at Harbour, makes the case for practitioners to increasingly leverage third-party funding where legal claims need to be brought. Mr Arnold argues that whether it is through individual case funding or portfolio funding, litigation finance firms can reduce financial risk for insolvency practitioners, whilst allowing them to pursue legal redress against issues such as fraudulent directors or wrongful trading. Mr Arnold highlights that with companies facing financial strain from the economic downturn and budgets being restricted or reduced across the board, litigation funding is a valuable tool in a Board’s arsenal. Beyond case and portfolio funding, he also puts forward the merits of a funding facility which will give insolvency practitioners a pool of capital to deploy in advance of any legal proceedings they may need to pursue, rather than being stuck in a reactive footing.
Commercial Regulatory Issues

Australian Government Announces Reforms to Litigation Funding Regulations

The vitality and continued growth of litigation funding is still incredibly dependent on the evolution of government policy. As a result, we have seen regulations implemented by governments in recent years that have restricted access to third-party funding. However, a recent announcement by the Australian government has indicated that regulators are open to reform and liberalisation. Reporting in LaywersWeekly highlights last week’s announcement by the Treasury to provide an exemption for litigation funders from the Managed Investment Scheme (MIS) and the Australian Financial Services License (AFSL). This would be a reversal of the previous government’s policy, which had sought to cap a funder’s return on investment to 30 per cent of any settlement. This change reflects a judicial ruling in federal court (LCM v Stanwell) that stated a litigation funding scheme should not be considered an MIS. The announcement has been welcomed by funders and law firms alike, with Jan Saddler, head of class actions at Shine Lawyers, stating that these changes will widen access to justice and provide claimants with the necessary funds to fight back against corporate wrongdoing. A statement by Omni Bridgeway suggests that the funder supported the reforms, but clarified they did believe funders should hold an AFLS.
Commercial Fundraising

Argentine Funder Receives $3 Million in Capital to Grow Operations

Despite not being seen as a traditional hub of third-party funding, South America is showing signs of a burgeoning industry as new funders are emerging to meet regional demand. This was demonstrated once again last week, with the announcement of Qanlex, a new startup receiving $3 million in outside investment to build its platform. Coverage from La República, spotlighted the Argentina-based funder’s announcement, with the firm receiving investments from private capital including The LegalTech Fund, Carao Ventures, FJ Labs and J Ventures. Qanlex’s founders, Yago Zavalía Gahan and Fernando Folgueiro, aim to provide a new avenue to access justice, and sits on a solid foundation of 40 cases having already been funded, with each arriving at a successful outcome. The firm aims to differentiate with a technology-led approach, boasting its proprietary Case Miner solution. Qanlex leverages this sourcing algorithm to select cases for funding by assessing their probability of success, with the founders claiming the technology builds its models upon the analysis of over 9 million lawsuits.
Commercial Fundraising

Omni Bridgeway Gears Up for New Investment Opportunities with $1 billion in Capital

With the litigation funding market booming across the globe, established market leaders are seeing the positive impacts on their balance sheets, and these leading funders are building significant amounts of capital ready to be deployed in future cases. Reporting by ALM International details how Omni Bridgeway is at the forefront of this kind of growth and investment, after the funder reported a return to profit and announced it had over $1 billion for new investment opportunities. This builds upon over $463 million in capital invested in the last year alone in ongoing litigation proceedings, fueled by the wider adoption of third-party funding around the world. Andrew Saker, chief executive of Omni Bridgeway, highlighted that not only does the funder have this ample war chest already established, it is not closing off the potential to raise further capital through private or public equity raises. Saker also highlighted the unique benefits of the litigation funding market, pointing out that the funder’s financial outlook is not tied to wider economic trends, and that in times of economic stress, there is even more litigation and those who pursue it must rely on outside capital.
Case Developments Commercial

Australian Small Businesses Leverage Funding to Pursue Class Action

Litigation funding allows consumers to seek legal redress against companies when their consumer rights are infringed, and is also a valuable asset for small business owners who lack the financial resources to stand up to those they enter into commercial agreements with. In the latest example of such a case, Australian businesses have launched a claim against EFTPOS systems provider, Tyro, arguing that weeks of system outages led to significant lost revenue for their companies. Reporting by news.com.au outlines how a nationwide failure of Tyro’s systems, which lasted for several weeks, resulted in around 11,000 companies being unable to process payments and thereby losing valuable business. The class action, which is being funded by Syndey-based Court House Capital, was launched last October and seeks damages from Tyro for the outlets’ lost revenue, which the claim argues ranges from $5,000 to a staggering $100,000. Bannister Law, which is leading the class action, has been working to register as many claimants as possible, as any businesses who do not register to participate in the action will not be entitled to any compensation if the claim is successful.  Charles Bannister stated that this case is particularly important, as it is intertwined with COVID business practices, given that many customers were unable or unwilling to pay in cash when the payments systems stopped functioning, resulting in an even more dire outcome for these businesses.
Commercial Legal Innovation

The Benefits of Data-Driven Litigation

Just as other industries have been enhanced by the evolution of technology and particularly data-driven processes, litigators also have the potential to benefit from drawing on a wealth of data to maximize successful outcomes in their work. In a new piece of analysis by LCM, investment manager Hugo Marshall, argues that utilizing data does not remove the importance of the individual expertise litigators bring, but rather enhances it. By using large data-sets to look at broader patterns within cases and outcomes, litigators can view each of their own individual cases through a wider lens, and gain a high degree of certainty when it comes to predicting the outcomes of future proceedings. While Mr Marshall does not disregard the clear limitations of data when viewed by itself, he highlights that it can be used by funders to more accurately assess financial risk, by law firms to define the most successful strategy, and by companies looking to decide if they want to pursue litigation and what their most secure options are. Mr Marshall also points out that while firms should leverage their own proprietary data, they should be open to taking advantage of third-party data that can inform their own risk analysis and probability forecasting. LCM works with litigation analytics platform, Solomonic, to do just that.
Commercial Regulatory Issues

Ongoing Debates around Litigation Funding Regulation in Europe

As the pace of adoption of litigation funding continues to grow across Europe, so too does the debate around the level and scope of regulation needed to ensure that this burgeoning sector is able to flourish without unethical practices becoming commonplace. Industry leaders alongside government and regulatory officials continue to work together to find a best path forward for an adequate framework across the continent. Andrina Cordina, PhD researcher at Erasmus School of Law, provided an informative update on the latest discussions and developments in an article for Conflicts of Laws. Cordina outlined the latest insights from thought-leaders at The Future Regulation of Third-Party Litigation Funding in Europe conference, where speakers discussed pressing issues for upcoming regulation including disclosure requirements, litigation costs and the purported risks of excessive litigation resulting from an increased use of third-party funding. Cordina also highlighted the recent launch of a third-party litigation funding project by the European Law Institute, which over the course of the next two years seeks to establish a core set of principles to be used when assessing the merits of engaging in a third-party funding agreement. Finally, Cordina also spotlights a recent special edition of the Erasmus Law Review dedicated to legal funding, with insights including the differing nuances of litigation funding in individual European jurisdictions versus the role of the European Union’s legal framework.