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Judge Shira A. Scheindlin Delivers the Keynote Address at LF Dealmakers

The LF Dealmakers conference kicked off this morning with a keynote address from Judge Shira A. Scheindlin. The address was titled "Litigation Finance: Survey of a Shifting Landscape," and covered four main issues: ethics, fee sharing, disclosure regulations and privileged communications between funder and attorneys. Judge Scheindlin began on the topic of ethical issues, the three most common of which boil down to competence, confidentiality and truthfulness. She explained the common pitfalls that funders need to be aware of, including how different states treat confidentiality issues, for example. Scheindlin asserted that the ethical concerns most have about the industry do not pose any serious threat to its future growth potential. In terms of fee sharing, Scheindlin pointed out how bar associations play a critical role in drafting and interpreting codes of conduct, which are then adopted by the states. She noted the New York bar's opinion on Rule 5.4, which found that litigation funding violates the fee sharing restriction. This was a controversial opinion, for obvious reasons. In fact, there was such an outcry, that the city bar created a working group around litigation funding, to make recommendations around ethics and principles. The working group addressed the realities of litigation funding, and whether disclosure of funding should be required in litigation and arbitration. In the end, the working group offered two proposals. The first being that the funder can share fees with the client, provided that the funder remains independent and does not influence case decisions by participating in the claim. The second being that the funder can participate in the claim, if it benefits the client. And the client can provide informed consent to disclose confidential information to the funder (Scheindlin noted that she favors the second proposal). Neither proposal has yet been adopted, though Judge Scheindlin believes Rule 5.4 regarding fee sharing will be modified in NY, based on these recommendations. It remains to be seen which proposal will win out. On the issue of control, which is related to fee sharing, Scheindlin explained that many funding agreements give the funder the right to approve the selection of counsel.  Some may view this as control, but really the funders just want to ensure the counsel is adequate to handle the claim. In terms of disclosure, Scheindlin pointed out how 12 states have passed legislation on litigation funding, with another 11 proposing legislation. Most involve consumer funding. Only Wisconsin specifically includes financing of commercial claims. So it's clear the focus is on consumer cases, but no one knows where this will go.  There is a robust debate on the subject of disclosure, with many industry opponents pushing to reveal the identity of the funder, as well as the terms of the funding agreement. There is a lot of disagreement on the various avenues that can be taken regarding the issue of disclosure, so it will be interesting to see how this issue will develop. On privilege, Scheindlin noted the common interest exception in regard to sharing privileged information, and how courts are split as to whether this applies to litigation funders. Is a shared commercial interest the same as a common legal interest? This is the question at hand.  However, most courts have found that privileged documents are protected by work product, where a funder is concerned. Ultimately, though, an NDA or confidentiality agreement is likely needed here to ensure that work product applies. So while there are plenty of minefields, in terms of issues that could upend TPLF, Judge Scheindlin feels confident that funding will prevail in the end. To quote Judge Scheindlin: "There are always those who will oppose new ways of doing things.  Those who seek to restrict TPLF… are in my opinion, merely afraid of the level playing field that such funding creates. I don’t think they will succeed. TPLF is now an accepted part of the legal landscape, and is here to stay."
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LegalPay’s First LitFin SPV Oversubscribed—Second SPV Announced

New-Delhi based start-up LegalPay has announced the closing of its first special purpose vehicle. The arbitration-focused SPV, which involved a pool of 8-12 cases that would diversify investment risk, was oversubscribed in record time, according to a recent statement from the company. Live Mint details that LegalPay went on to announce a second SPV that will focus on commercial disputes. LegalPay, founded in 2020 by Kundan Shahi, maintains a focus on B2B disputes with the potential for high payouts. The LegalPay SPV structure involves investors putting money into a pool of cases, which generates a pre-tax IRR of as much as 25%. An entirely digital investment process also offers claims tracking along with portfolio monitoring. Within this framework of taking on mid and late-stage cases, investors realize returns as the pool of cases are resolved. These SPVs represent new opportunities to upper-retail category investors who were previously shut out. Many more such SPVs are expected.

Liti Capital Launches Scambusters to tackle Crypto Fraud

Liti Capital SA, the Swiss-based litigation funding provider disrupting private equity investing with blockchain technology, is launching Scambusters (https://liticapital.com/scambuster/), a revolutionary new tool that allows users to vote for which crypto-focused cases the company should pursue next. 
Fraud within cryptocurrency and blockchain is rife. This year will be a record for investment fraud: 14,079 investment scams were reported to the FTC in the first quarter of 2021, and victims lost $215 million in this quarter alone. Liti Capital is bringing its expertise in picking, funding and winning court cases and inviting consumers to vote on which scams it should pursue in court next.
“The idea that scammers can freely operate in the crypto sphere without facing the consequences of their actions must end to bring trust and change the perception blockchain and crypto projects have in our society”, says Andy Christen, CVO/COO at Liti Capital.
Liti Capital commits to allocate between 5% and 10% of its yearly investment budget to finance cases that have affected its community members. Any LITI or wLITI token holder can report a purported fraud to the company.
Scambusters is a community voting event to select crypto scam cases going to be sued by Liti Capital. LITI and wLITI token holders can use their tokens without spending them to vote for the case(s) they think have the most merit. The more tokens they have the more voting power they can exercise. Voters of the winning case will share an award up to 250,000 wLITI, distributed pro-rata to their votes.
Once members of the community have submitted cases on the Scambusters website, Liti Capital instructs its team of legal experts based in 140 countries across the world to explore details of the case.
A selection of cases are then presented back to community members, with the case collecting the highest number of votes being added to Liti Capital’s portfolio. Community voting begins on 23 September 2021, with the winning case announced on 15 October 2021.
“If cryptocurrency is going to become the defacto way people take part in the Web3 world, trust, regulation and a robust legal system are all parts of that puzzle,” says Jonas Rey, CEO at Liti Capital.
About Liti Capital 
Liti Capital is bringing the litigation asset class to everyone through Blockchain technology with LITI tokens, an equity token that is a share of stock in Liti Capital SA. The launch of LITI and wLITI tokens allows any investor to engage in the high-performing litigation finance market previously only available to elite investors.
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GetSwift Discloses Details of Proposed Settlement of Australian Class Action

GetSwift Technologies Limited (NEO:GSW) ("GetSwift" or the "Company"), a leading provider of last mile SaaS logistics technology, today as a result of market regulatory requirements announced that has disclosed details of its previously announced Heads of Agreement (HOA) for a settlement with law firm Phi Finney McDonald and Therium Capital Management (Australia) Pty Ltd. and Mr. Raffaele Webb (the "Applicant") in connection with the class action proceedings before the Federal Court of Australia (the "Court"). GetSwift’s Board of Directors, including each independent director, believe the terms of the proposed settlement under the HOA are in the best interests of The Company and its shareholders. The HOA contains no admission of liability or wrongdoing by GetSwift Limited or Mr. Joel Macdonald, a President and Director of The Company, and neither GetSwift Limited nor Mr. Macdonald or any of its executives acknowledges any liability or wrongdoing by entering into the HOA. GetSwift expects that the HOA and the final settlement will enable The Company and its current management to focus on growth, innovation, product launches, and market capture. The terms of the proposed settlement are expected to eliminate uncertainty and expense associated with this litigation matter and ideally realize an appropriate market capitalization for The Company, enabling it to use resources that would otherwise have been devoted to litigation for continued expansion, benefitting all stakeholders including shareholders, clients, partners, the class and employees. Terms of the settlement are as follows: The Settlement Sum to be paid by The Company is the aggregate amount derived from the following Settlement Formula, with each component amount ("settlement payment"), if payable, to be paid at or by the dates and times set out below. A reference in this Schedule to an event occurring on or by a particular date means on or by 5pm in New York, New York, United States of America, on that day.
  1. A first settlement payment of AU$1.5m, to be paid in instalments as follows:
    1. AU$500,000 within 7 days of the date of execution of the Deed;
    2. AU$500,000 due by 7 October 2021; and
    3. AU$500,000 due by 7 January 2022.
  2. During the term of 3 years from the date of the parties executing a Deed of Settlement ("Fundraising Term"), settlement payments equaling 8% of any funds raised by The Company by way of capital raising, with each such amount to be paid within 6 weeks of the amount being collected by The Company.
  3. During the Fundraising Term, The Company is to raise capital equivalent to 10% to 20% of its pre-raising market capitalisation at the point in time that:
    1. it first hits any of the following market capitalisation levels (in CAD):
      1. $100m;
      2. $250m;
      3. $400m; and
    2. the market capitalisation remains at the level in 3.a.i – iii (as applicable) on average for 4 weeks following the date it first hit that market capitalization.
  4. In any of the three 12-month periods comprising the Fundraising Term, if no funds are raised by capital raising:
    1. the Respondents and/or The Company will be required to make a settlement payment equal to 5% of The Company Group’s revenue from contracts with customers ("revenue") during the 12- month period ending on the most recent quarterly reporting date prior to the conclusion of the relevant 12-month period ("revenue percentage") within 4 weeks of expiry of the period; however
    2. if 4(a) applies in respect of the first year of the Fundraising Term, the required settlement payment under 4(a) will be not be payable until the conclusion of the second year of the Fundraising Term.
  5. Subject to clause 6 below, during any of the three 12-month periods comprising the Fundraising Term, for any capital raising undertaken by The Company where the amount of funds raised is less than 20% of The Company’s pre-raising market capitalisation, then:
    1. the Respondents and/or The Company will be required to make a settlement payment calculated on the same revenue percentage basis as clause 4 above within 4 weeks of expiry of the relevant 12-month period; however
    2. the amount payable will be discounted based on the amount of funds raised applying the following formula:
      1. the revenue percentage payable will be the percentage equivalent to 25% of the percentage amount by which the relevant capital raising is less than 20% of The Company’s market capitalisation; such that (by way of example);
      2. if the capital raising is 10% of The Company’s market capitalisation, the revenue percentage payable is 2.5%; whereas
      3. if the capital raising is 15% of The Company’s market capitalisation, the revenue percentage payable is 1.25%.
  6. If The Company conducts more than one capital raising during any of the 3 twelve-month periods comprising the Fundraising Term, then for the purpose of the calculation of any revenue percentage settlement payment for that period, the two or more capital raisings will be treated as one capital raising. For instance, if:
    1. The Company conducted two capital raisings during a single 12-month period for amounts of 5% and 10% of The Company’s market capitalisation at the relevant times;
    2. The Company’s market capitalisation was CAD200m at the time of the first capital raising and CAD250m at the time of the second capital raising; and
    3. this resulted in raisings of CAD10m and CAD25m respectively; then
    4. the weighted average revenue payment would be calculated premised on the extent to which CAD35m (the combined amount raised) fell short of being 20% of CAD225m (the weighted average market capitalisation); and
    5. the relevant percentage per (d) would be about 15.5%, such that the revenue percentage payment for that 12-month period would be a single payment of about 1.11% of annual revenue.
  7. All payments are to be made in Australian dollars. The rate of exchange to be used in calculating the amount of currency equivalent in Australian dollars is the closing exchange rate reported in The Australian Financial Review on the preceding Business Day before payment is made.
Forward-Looking Statements Certain statements contained in this news release constitute forward-looking information within the meaning of Canadian securities laws. Forward-looking information may relate to matters disclosed in this news release and to other matters identified in public filings relating to the Corporation, to the future outlook of the Corporation and anticipated events or results and may include statements regarding the future financial performance of the Corporation. In some cases, forward-looking information can be identified by terms such as "may", "will", "should", "expect", "plan", "anticipate", "believe", "intend", "estimate", "predict", "potential", "continue" or other similar expressions concerning matters that are not historical facts. Forward-looking Statements in this press release include statements related to the process of obtaining Court approval of the terms of the Settlement, the likelihood of entering into the Deed on terms acceptable to the parties, and the impact of the proposed settlement on the Corporation. Forward-looking Statements involve various risks and uncertainties and are based on certain factors and assumptions. There can be no assurance that such statements will prove to be accurate, and actual results and future events could differ materially from those anticipated in such statements. Important factors that could cause actual results to differ materially from the Corporation's expectations include, without limitation, the availability of the Court to approve the terms of the settlement, the determination by the Court or any party to the HOA that the terms of the settlement are not acceptable, the ability of the Corporation to negotiate the final terms of the settlement with the parties to the HOA, and certain other risk factors set forth in the Prospectus under the heading "Risk Factors". The Corporation undertakes no obligation to update or revise any Forward-looking Statements, whether as a result of new information, future events or otherwise, except as may be required by law. New factors emerge from time to time, and it is not possible for the Corporation to predict all of them, or assess the impact of each such factor or the extent to which any factor, or combination of factors, may cause results to differ materially from those contained in any Forward-looking Statement. Any Forward-looking Statements contained in this press release are expressly qualified in their entirety by this cautionary statement. About GetSwift Technologies Limited Technology to Optimize Global Delivery Logistics GetSwift is a technology and services company that offers a suite of software products and services focused on business and logistics automation, data management and analysis, communications, information security, and infrastructure optimization and also includes ecommerce and marketplace ordering, workforce management, data analytics and augmentation, business intelligence, route optimization, cash management, task management shift management, asset tracking, real-time alerts, cloud communications, and communications infrastructure (collectively, the "GetSwift Offering"). The GetSwift Offering is used by public and private sector clients across industries and jurisdictions for their respective logistics, communications, information security, and infrastructure projects and operations. GSW is headquartered in New York and its common shares are listed for trading on the NEO Exchange under the symbol "GSW". For further background, please visit www.getswift.co.
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Update on Australia’s AFSL Requirement for Litigation Funders

Australia’s requirement for third-party legal funders to hold an Australian Financial Services License took effect in August of last year. From that point forward, funders were subject to rules regarding managed investment schemes under the Corporations Act. HFW explains that of the ten leading funders in the country, only six have obtained the AFSL. This may indicate that funders are joining forces to form joint ventures, or that some have left the space altogether. No conclusions can be drawn about the impact of MIS laws, as none have yet been brought to court. In the meantime, several relief instruments are in place to help funders transition to the new regime. This includes relief from some product disclosure requirements and the release of a consulting paper implying that further relief is coming. One significant impact of the new requirements is a sharp reduction in the number of class actions supported by third-party funding. In 2019, nearly 60% of collective actions received some funding. Last year, less than a third of cases did. The decrease in funded class actions may be offset by funded cases in Victoria—where contingency fees are legal. It’s safe to say that Australian legal requirements for funders are still in a state of flux.

Boutique Firm Kaye Spiegler Breaks Out from Big Law

Two of the most prominent art lawyers are departing their New York law firm to open a boutique firm. The founders of the new firm, Larry Kaye and Howard Spiegler, announced their intent to focus solely on matters involving art law. Those involved have called the split “friendly,” and say it’s largely about Kaye Spiegler embracing higher levels of risk. The Art Newspaper details that the firm plans to utilize litigation funding to take on more contingency cases. The founders’ previous NY firm, Herrick Feinstein, was more reticent to take cases on contingency---still a common attitude among many larger firms. Howard Spiegler explains that he and his new partner are far less risk-averse than their previous firm. The expertise he and Larry Kaye have developed over the last 30 years has given the men unparalleled insights into matters involving art law. Art restitution is a newer forum for third-party litigation funders. Like many funded cases, art restitution claims are complex and can take years to resolve. Herrick Feinstein has led several high-profile art cases, including a 2010 case involving art stolen by Nazis during WWII. The case eventually reached a settlement with the Rudolph Leopold Foundation after more than 10 years of litigation.   Competition will be one focus of Kaye Spiegler, as art lawyers are already plentiful in New York. The firm will continue its focus on the recovery of art looted by Nazis. Spiegler asserts, based on experts, that there are at least 100,000 unrecovered artworks from that era. Larry Kaye stated that he routinely gets calls from possessors of questionably sourced art, wanting legal advice.

Litigation Funding Matures as an Industry

The litigation funding landscape is expanding to accommodate an ever-increasing number of players. Increased regulation, professional organizations, and a push for standardized funding agreements indicate a maturing industry that’s become an integral part of the legal world. Law Gazette details how capital is rushing into litigation funding. This has prompted funders to become more proactive in instigating new litigation—class action cases in particular. Funders are in stiff competition with each other for valuable claimant groups and actions against deep pockets. Legal funding is an attractive investment due to its reputation for high payouts and a lack of correlation with larger economic conditions. Investment funds that once focused on real estate or other more tangible investments are now moving their money to legal funding. Augusta Ventures raised GBP 250 million in its new fund—and now has assets under management totaling GBP 585 million. Opt-out class action regimes are a key factor in many funded collective cases. A case with millions of potential claimants can be represented by a single individual. Claimants and funders form a symbiotic relationship—this according to Neil Purslow, CIO of Therium Capital Management. Still, collective actions are expensive, often complex, and take years to reach a conclusion. If successful, they can mean a big payday for funders, and justice for those impacted. If not, losses to funders and investors can be significant. Addleshaw Goddard partner Richard Wise explains a new tactic picking up steam among funders. It regards issues-based cases and involves highlighting a legal trend and then seeking out clients who are impacted by it. This could be an investor action related to share prices, environmental or sustainability issues, or other ESG matters.

Enforcement in Maritime Cases: There are Options

Last year, London saw an unprecedented 1,775 maritime arbitration cases. As the city is the accepted center for this type of dispute, that number indicates that maritime arbitration is on the rise around the globe. Arbitration can take years to resolve—allowing time for debtors to move assets around and make eventual enforcement more difficult. With arbitration funding and the expertise that accompanies it, arbitration can be the best option. Burford Capital explains that maritime vessels often prove to be an essential part of enforcement strategy in maritime cases. Understanding the options and moving quickly can reduce the risk of debtors selling off assets before a judgment can be made. Having an enforcement specialist on your side can also make a profound difference in the outcome of recovery. A ship arrest can sometimes be used by those with an existing claim in their favor in a pending case. The arrest secures a vessel and its contents pending action by the court. However, ship arrests can only be made when the vessel is currently in the jurisdiction where the case was initiated—which is limiting. Conversely, a flag injunction disallows a vessel from being sold, gifted, deregistered, or transferred. This offers security to claimants and avoids draining funds from the debtor. Only a few jurisdictions allow flag injunctions, including Malta, the Bahamas, Cyprus, and Panama—which is currently the number one flag register on the globe. Are there benefits to using legal financing in maritime arbitration? Yes! In many instances, arbitration offers a simpler process than going through the courts. But the time and risks involved may not be tenable in every case type. The use of arbitration finance comes with expertise that significantly reduces the odds of a negative outcome. Funders provide capital that mitigates claimant risk so that pursuing a maritime claim becomes more reasonable for non-wealthy claimants.

Shavelogic Topples Gillette Complaint with Burford Capital Funding

When a few Gillette executives left the company to set up shop on their own, Gillette was quick to file multiple complaints against the new company, Shavelogic.   Exaltip reports on a claim from a while back, which involves litigation that impeded the launch of Shavelogic, yet didn’t stop it entirely. After numerous claims from Gillette, Shavelogic filed a counterclaim asserting that Gillette sought to sabotage their business with a spate of lawsuits. The various suits alleged misappropriation of trade secrets, unfair competition, and breach of NDAs. The good news? Shavelogic obtained funding from Burford Capital. This enabled the startup to have Gillette’s claims dismissed without merit. Ten years later, Shavelogic has become a major player in the razor game. Shavelogic has also taken advantage of IP financing via Aon’s Intellectual Property Solutions. The company provides a stellar example of how legal and IP funding offers startups a fighting chance.