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Commercial

What Statistics Tell Us About COVID Business Interruption Insurance

It’s no surprise that COVID has resulted in an influx of insurance-related litigation. Specifically—the question of whether individual commercial insurance policies cover business interruption caused by the pandemic. Burford Capital suggests that analyzing the current numbers can give us a sense of momentum—but the totality of how COVID will impact past and future insurance coverage cannot be predicted with the information available. While new cases are being filed daily, nearly 2,000 COVID-centric insurance cases are either pending or resolved. About 85% of concluded cases have favored insurers. Insurers are moving cases from state to federal courts when possible—despite the fact that insurance policy interpretation is governed by contract law—a state issue. Federal courts thus far have been more likely to favor insurers. As the virus continues to cause damages totaling trillions, business interruption claims will no doubt be a significant part of the legal landscape for years to come. 
Announcements Fundraising

BCCE Announces $12 Million Funding Round

Bank Cartel Claims Europe (BCCE), a joint-venture of law firm Grantley Sinclair LLP and litigation finance firm Commercial Damages Claims Limited today announced a $12M funding round for its dedicated litigation finance fund, the Bank Cartel Claims Fund (BCCF), providing institutional and individual investors the ability to access a portfolio of litigation-related assets through a single fund allocation. BCCE has identified three recently decided EU antitrust cases that it believes are highly suitable for follow-on antitrust litigation: the European Government Bonds Case, the Sovereign, Supra-Sovereign & Agency Bonds Case, and the Foreign Exchange Case. In each of these cases, investment banks participated in a cartel through a group of traders. Cartel behaviour between competitors is the most serious form of anti-competitive behaviour and carries the highest level of penalties. Fines totaling €1.47 billion ($1.73 billion) were imposed on the investment banks by the European Commission. “Companies are liable for violations of antitrust law and victims are entitled to full compensation for the actual losses and lost profits that they have suffered,” BCCE Director Kees Arnaud said. “In these three cases, for example, the pension and hedge funds that lost millions of dollars because of these illegal cartels can effectively claim their damages through actions before a national court. A national court cannot overrule the European Commission on the issue of liability, so in most cases, the only remaining question to be decided is the amount of the damages. This makes antitrust litigation very attractive for investors.” “Investments in litigation financing generally offer high yields,” said Frank Mulder, COO of litigation finance firm Commercial Damages Claims Limited. “The key to higher returns is selecting lawsuit investments with key characteristics that mark them as effective investments. And thanks to a variety of modern innovations in finance and the law, investors can access litigation markets in ways that were not possible even a decade ago.” BCCE plans to use the capital to hire leading barristers, solicitors, and economic experts to pursue these claims against the banks. Damages are expected to exceed $1 billion. Find out more at https://bankclaimsfunding.com About Grantley Sinclair Grantley Sinclair is a leading law firm with more than 25 dedicated lawyers and public affairs experts. Clients big and small, from some of the world’s largest multinationals to small tech start-ups, trust Grantley Sinclair to solve their most challenging and business-critical problems. We provide insight at the point where law, business, and government meet, giving clients a voice and achieving successful outcomes. For more information, please visit: https://grantleysinclair.com About CDC CDC is a premier litigation finance firm that helps corporations exercise their right to full compensation for harms caused by e.g., breach of contract, business torts, or illegal cartels. CDC can arrange for the coverage of all the ongoing risks and expenses of litigation, including any adverse cost risk. It aims to deliver an arrangement that works for the client; therefore it operates in both the insurance and funding markets. For more information, please visit https://commercialdamagesclaims.com
Regulatory Issues

Kosovo Welcomes Third-Party Legal Funding

In recent years, Kosovo has taken a number of steps to promote foreign investments. Among these is the ratification of bilateral investment treaties with Switzerland, Luxembourg, Austria, and Belgium, among others. In 2014, a Law on Foreign Investment was adopted, which outlines the use of arbitration for investor-related disputes. Michelman & Robinson LLP, along with Bench Walk Advisors, explains that while Kosovo has not adopted the full measures of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, its Laws on Arbitration accomplishes many of the same things. As the financial climate improves, Kosovo is taking steps to attract more foreign investors, including third-party funding. Specific criteria are utilized when evaluating risks associated with cases:
  • Merits. Obviously, cases must be meritorious in order to qualify for funding.
  • Legal Team: Funders rely on the plaintiff’s legal team to win a satisfactory result for the client. Legal teams with a strong history of success and expertise in the area of dispute are essential.
  • Dispute Forum: Funders will specialize in specific forums for disputes. Some may want to avoid jurisdictions known to be unreliable, notoriously slow, or otherwise lacking in procedural stability or predictability.
  • Budget v Damages: Generally funders will have a minimum and maximum budget limitation. This means either a limit on how much funding they will deploy on a single case, or a minimum potential recoupment before considering a case for funding.
  • Enforcement and Defendants Financial State: Winning an award doesn’t help investors if the award cannot be collected. Most funders will examine the defendant’s ability to pay, as well as consider other potential enforcement issues such as hidden assets, or cross-jurisdictional issues.
Kosovo has taken some excellent first steps toward encouraging outside investment—with litigation funding strengthening investor confidence.
Announcements Fundraising

Liti Capital Token wLITI Lists on HitBTC, Bringing Litigation Financing to the Masses

Liti Capital, the Swiss-based litigation financing company that has made private equity investing accessible to everyone through blockchain technology, has listed its wLITI token for the first time on a centralized exchange (CEX) - HitBTC. wLITI’s first CEX listing follows its recent listings on decentralized exchanges (DEXes) Uniswap and 1Inch Exchange. Having launched earlier this year, Liti Capital is already making waves in traditional investing by bringing litigation financing — an investment practice traditionally monopolized by hedge fund heavyweights and elite investors — to the masses. “We are very excited to list on HitBTC,” said Liti Capital CEO Jonas Rey. “This represents a major milestone toward our goal of leveling the playing field for litigation finance. Legal claims are an extremely appealing asset class because they can be so lucrative, and we provide a means for anyone to get in on this exciting investment opportunity.” Founded in 2013, HitBTC is one of the oldest and largest spot-trading cryptocurrency exchanges in the world. It is well-known for its state-of-the-art matching engine, high security measures and low trading fees. With a trading robot-friendly API and 24-hour customer service, HitBTC is a popular exchange with over 800 trading pairs and more than 400 spot instruments. Putting traditional investing on the blockchain Litigation financing is the practice of bringing in investors to cover the cost of a lawsuit or arbitration in exchange for a portion of the profit. Litigation financing specialists, such as Liti Capital, purchase litigation assets for cases they deem to have a high chance of winning. While litigation financing often requires an initial investment of USD 500 K to USD 1 million from an investor, Liti Capital makes it accessible for anyone with as little as USD 50. They do this by tokenizing shares in LitiCapital, and paying out dividends to LITI equity token holders when a case in Liti Capital’s portfolio is won. wLITI, or “Wrapped LITI” — the token listed on HitBTC today — is Liti Capital’s ERC-20 liquidity token. It doesn’t provide access to dividends like LITI does, but wLITI can be exchanged for LITI tokens at a 5000 to 1 ratio. However, both tokens give holders the power to vote on how Liti Capital assets are used to finance crypto fraud cases that affect Liti Capital community members, an initiative that the company is dedicated to allocating between five and ten percent of their yearly investment budget for. Boasting a billion-dollar case portfolio Liti Capital has already secured a healthy case portfolio, with their largest case potentially worth more than USD 1 billion when it finally settles. Cases like these, which tend to be commercial rather than consumer or personal lawsuits, usually target large-scale corporate disputes valued at more than USD 10 million. While they could take years before a settlement is reached, successful litigation funders can expect to pocket between three and five times their initial investments, according to estimates by litigation finance expert Steven Friel (Bloomsbury, The Law and Business of Litigation Finance, 2020). To attain this goal, Liti Capital onboarded seasoned industry leader David Kay as CIO and Executive Chairman. Boasting more than a decade of experience as Funding Partner and Portfolio Manager of a billion-dollar private equity fund in the litigation financing space, Kay successfully enforced what was at the time the largest international arbitration award in history, bringing in over USD 1 billion in cash and securities. “Litigation assets generally don’t correlate with the state of the economy, allowing litigation financing to thrive even in a bear market,” Kay explained. “A relative newcomer to the modern investment ecosystem, litigation financing is expected to double in market value within the next six years. Our investment team at Liti Capital is actively seeking out the top opportunities in litigation assets, and aims to add at least five more multi-million dollar cases to our portfolio by this time next year.” Listing details Trading Date: August 17, 2021 3:00 pm UTC Deposit Opening: August 16, 2021 3:00 pm UTC Trading Pairs: wLITI / BTC wLITI / USDT About Liti Capital Switzerland-based Liti Capital is a Swiss Limited Liability Co. specializing in litigation finance and fintech. Liti Capital buys litigation assets to fund lawsuits and provide a complete strategic solution along with connections with top law firms to help clients win their cases. Tokenized shares of the company lower the barrier of entry for retail investors and give token holders a vote in the company’s decision-making process. Dividends are distributed to LITI token holders upon the success of the plaintiff. Co-Founder Jonas Rey heads one of the most successful intelligence agencies in Switzerland, Athena Intelligence. His two co-founders, Andy Christen and Jaime Delgado bring operational, innovation and technical skills together to round out the leadership team. David Kay, CIO, ran a billion-dollar NYC private equity litigation finance firm before joining Liti Capital.
Case Developments

German Asset Manager Sues Over Wirecard Bankruptcy

A lawsuit brought by Union Investment, Germany’s third-largest asset manager, is not welcome news for banks and bondholders. Wirecard is accused of making more than 70 statements, including corporate press releases, that are being described as fraudulent. FR24 News reports that Nadine Hermann of Quinn Emanuel stated that because Union Investment made decisions based on misleading statements, its claims should positioned alongside those of more senior creditors, such as banks and bondholders. This lawsuit has the potential to set precedent for other shareholders impacted by the Wirecard bankruptcy. The case is being funded by Burford Capital, a leading third-party litigation funder. So far, more than 14 billion Euros in claims have been filed against Wirecard with Michael Jaffe, the administrator. Jaffe has amassed about 600 million Euros from the sales of Wirecard assets. Should this lawsuit be successful, Union Investment would receive a share of the accumulated capital currently earmarked for Wirecard’s creditors, as would Burford. The banks and bondholders have filed multiple legal opinions rejecting Union’s claims.
Regulatory Issues

Omni Bridgeway CEO Andrew Saker Responds to Proposed Statutory Price Cap

It cannot be denied that third-party litigation funding is a boon to justice. In many instances, it’s the only way that impecunious plaintiffs can have their day in court. At the same time, legal funding is a business that depends on ROI for investors. That’s why funders have a lot to say about a proposed new regulation in Australia, legislating a standard minimum return to class members in funded class actions. Some have suggested this guaranteed percentage be as high as 70%. Is that reasonable? Omni Bridgeway CEO Andrew Saker penned his opinion on the matter, based on years of experience in the industry. Saker begins by pointing out that the 70% figure doesn’t appear to be based on any available data. It’s an arbitrary figure arrived at without input from funding groups like ILFA, nor does it factor in the significant risk undertaken by funders who deploy funding on a non-recourse basis. Since the Hilmer Review in the 1990s, it’s been established in Australia that the government should only intervene in those markets where there has been a market failure. That’s simply not true of the funding industry. While dire warnings of frivolous class actions haven’t abated, this explosion of opportunistic cases never materialized. Saker is clear in stating that funding is already subject to checks and balances, self-regulation by industry leaders, and increased court input on settlement approval and even funding agreements. The proposed allocation of 70% of awards or settlements to class members would negatively affect over 90% of cases, according to an analysis by PwC. In some instances, the remaining award funds wouldn’t be enough to cover legal expenses, or would reduce funder commission so drastically that it loses value as an investment. Leading funders like LCM, Woodsford, and Burford Capital all agree that an arbitrary price cap will hurt funders, lawyers, and potential claimants who may find themselves with no financial help when they need it most.
Fundraising

Litigation Finance Product for Retail Investors Launches in India

One Delhi-based startup has created a litigation funding platform with retail investors in mind. Investors may now fund cases as a third party for as little as 25,000 rupees, or about $335 USD. Called LegalPay, the startup is focusing on late-stage commercial arbitrations. Business Today explains that LegalPay is backed by LetsVenture and 9Unicorns, among other venture capital firms. It plans to develop an SPV of about a dozen cases to diversify risk. The focus will be on commercial B2B cases with big-ticket defendants and a predictable timeline. Investing in third-party funding is typically only available to the wealthy. LegalPay makes this opportunity more accessible to average investors. Potential investors should have a clear understanding of how third-party funding works, and especially its non-recourse model—before making an investment. Founder Kundan Shahi details that his business model is such that even winning as few as one in six cases will mean that invested capital will be secure.
Commercial

Insights Into the Energy Industry

The COVID pandemic has wreaked havoc on many industries, energy included. Energy usage fell, production disruption was rampant, regulations changed all over the world, and at least 19 energy companies filed for bankruptcy last year. Burford’s newly commissioned 2021 Asset Report explores the ways in which energy companies can use their legal assets to create revenue. Burford Capital details that while energy litigation can be costly and time-consuming, it’s also among the most lucrative. When polled, more than ¾ of senior finance professionals in the energy sector say that even extensive affirmative recovery programs aren’t meeting the needs of the company. This could be addressed by better communication between legal and financial departments. Greater reliance on quantitative analysis over qualitative analysis when vetting pending legal claims would also be helpful. Burford Capital’s recent roundtable featured some top legal minds in the energy field. Mark Baker, global co-head of international arbitration at Norton Rose Fulbright,  states that volatility in the energy sector has been the norm long before COVID. Oil and gas are constantly in a state of flux depending on investment regimes, politics that alter energy policy on a global scale, and a transition toward green energy, which all impact pricing and availability. Michelle Gray, a founding partner at Fogler, Brar, O’Neil, and Gray, speaks to the uncertainty that’s still clouding active lawsuits. There has been precious little precedent with regard to COVID-centric litigation. Until that happens, it’s impossible to predict how litigation—or even arbitration—will progress. The use of litigation funding along with quantitative financial analysis makes perfect sense. The expertise provided by experienced funders can be instrumental in identifying which litigation is worth pursuing, and then maximizing its value. Non-recourse funding can mitigate expenses and legal fees while creating untapped revenue and reducing risks--without adding costs to the balance sheet.
Regulatory Issues

Australia Eases Continuous Disclosure, Extends Virtual AGMs

While class action attorneys and litigation funders are fuming, publicly-listed companies in Australia are breathing easier after continuous disclosure laws were relaxed. This move is expected to protect company officers against liability for deceptive, misleading, or incomplete disclosure to stockholders—unless fault is proven affirmatively. Yahoo! Finance explains that the move is meant to stifle “opportunistic” shareholder class actions, according to Treasurer Josh Frydenberg. The new rules also allow annual general meetings to be held virtually rather than in-person, through March 31 of 2022. These new rules are described as ‘temporary relief,’ though Frydenberg noted that more lasting reforms are expected to be introduced before the end of 2021. There are concerns, however, that these new relaxed rules may limit shareholder’s legal options for holding executives to account.