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Commercial Regulatory Issues

On ATE Insurance as Security for Costs

Article 6 of the European Convention on Human Rights states that every citizen has the right to unimpeded access to the courts. Citizens of modest means who cannot afford an attorney might say that principle falls short in practice. Legal Futures explains that the insurance market and third-party legal funding both have a crucial role to play in collective actions, and for individuals who cannot afford to pursue their claims. Yet, there’s an imbalance between access to justice and cost protection. This imbalance has led to claimants, particularly those in class actions, feeling frustrated. After-the-event insurance is typically used as protection against an adverse costs order, but can also be deployed for the defendant’s costs. But ATE may not always be enough to cover security for costs. So, who bears the financial risk when a David takes on a Goliath? Do the courts ultimately favor the clients with the biggest war chest? What happens when securities for costs are ordered against a third-party funder? In the so-called Ingenious litigation, a funded case with over 500 claimants sought to recover losses. Defendants filed for security against a litigation funder, requiring that Justice Nugee revisit specific legal points. He ultimately found that ATE policies, in this case, did not provide sufficient protection. Is the only option for claimants to purchase an anti-avoidance endorsement so that insurers cannot void or terminate a policy? Some say so, despite the significant financial outlay for such an endorsement. Such an expense would ultimately be counted against any future recovery.
Commercial Regulatory Issues

Calls from Reinsurers to Regulate US Litigation Funding Continues

In any discussion on rising insurance costs, fingers are sure to be pointed at Litigation Finance. LitFin is a $17+ billion industry, with more than half of assets being leveraged by US clients. Reinsurers have claimed that third-party legal funding is the catalyst for the increase in excessively large legal awards. Insurance Journal explains that litigation funding is being blamed for the increase in liability insurance premiums in a number of industries—including commercial auto, general liability, and medical malpractice. One might think the impetus would be on manufacturers and medical care providers to conduct themselves in a way that won’t attract lawsuits. The alternative is to complain about the rise in verdicts of over a million dollars—which is the path many have chosen. Still, the size of verdicts is growing. From 2010 to 2019, awards surpassing $1 million increased from 29% to 36%. During the same time frame, average awards for cases over $1 million rose from $8 million to more than $10 million. Is this just general inflation? Or is litigation funding really causing havoc among insurers and the insured? Michael McDonald of Morning Investments Consulting doesn’t agree that LitFin is the cause of high insurance prices. He explains that litigation funding makes it possible for meritorious cases to find their way to court, and this represents increased access to justice, rather than a cudgel with which to beat insurers. Indeed, insurers could benefit from some aspects of third-party legal funding, such as making their own investments or monetizing legal assets. So while funders are creating solutions that work for attorneys, clients, and investors, insurers and reinsurers are fighting for increased regulation. Is this out of an abundance of caution—or a desire to hobble a thriving industry that’s making life harder for those who aren’t meeting their obligations to customers?
Case Developments Commercial

McDonald’s Faces Class Action for Alleged Denial of Employee Breaks

Shine Lawyers, with backing from Court House Capital, has filed a class action in Federal Court alleging that McDonald’s failed to provide employees with 10-minute breaks. These are required during shifts of four hours or more. Inside Retail explains that in addition to not providing proper breaks, McDonald’s routinely misrepresented the breaks workers were entitled to. The case alleges a systemic failure. The victims of these failures are mostly minors, many working their first proper jobs. The suit alleges that the loss of breaks impacted the physical and mental well-being of employees. The blatant disregard for established rules protecting employees has been described as ‘breathtaking.’ McDonald’s gave a short statement affirming their own compliance.
Announcements Consumer Deals

Legal-Bay Lawsuit Funding Taking Applications on Astroworld and Other High Profile Personal Injury Claims

Legal-Bay, the premier Pre Settlement Funding Company, announced today that over 150 lawsuits have been filed in the Astroworld tragedy that took place at Houston's NRG Stadium last month. The event was sponsored by Live Nation and intended to be a showcase for rapper Travis Scott. Unfortunately, however, the day took a darker turn when attendees rushed the stage causing numerous injuries, and in the case of ten people, death. Over a dozen law firms representing approximately 600 plaintiffs have filed premise liability and gross negligence suits against Scott, concert promoter Live Nation, and numerous other businesses including venue staff and security of NRG, along with first-aid providers that were hired to attend to injured fans. Plaintiffs claim that security and medical services were inadequate, leading to a predictable and preventable catastrophe. Safety measures could and should have been put in place in order to avoid the carnage that occurred, but instead, numerous corners were cut at almost every step. Concertgoers soon found themselves in an environment they had no control over, leading to the hundreds of injuries and tragic deaths that took place. Plaintiffs allege that there was a lack of crowd management even though official plans stated that this was necessary, lending weight to the negligence charges being brought against the defendants. Reportedly, there wasn't even a strategy for a crowd surge, even though comparable problems had occurred during Astroworld's preceding event held in 2019. In Scott's case, it might be even more difficult for him to claim he had no idea a crowd crush would happen since his own concerts have had other similar incidents, a fact which the venue and event organizers of this year's Astroworld were most certainly already aware. In 2015, he was arrested and charged with disorderly conduct after he flay-out told a Chicago audience to ignore security and rush the stage. Chris Janish, CEO, commented on the situation, "We are expecting many more of these unfortunate large scale personal injury events in 2022 now that larger events are being planned following the Covid hiatus. To our knowledge, we are the only company funding Astroworld plaintiffs at this time. Our staff is familiar with cases of this nature and can evaluate quickly for victims who are in need of cash now." If you have an existing lawsuit and need a loan on lawsuit against your impending case settlement, Legal-Bay may be able to assist you immediately. To apply online, please visit us HERE or call the company's toll-free hotline at 877.571.0405. Even outside the Astroworld tragedy, Legal-Bay has seen a flood of new premise liability filings in 2021, and their team is prepared to keep up with the demand. They're one of the leading lawsuit loan funding companies in the industry, and offer a lightning-fast approval process. A good thing, considering there's been a noticeable backlog in the courts due to Covid delays and court closures in response to the pandemic. Rather than wait indefinitely until cases get settled, Legal-Bay believes plaintiffs shouldn't be left waiting for the money they have coming to them. They have expanded their premise liability and personal injury departments in order to accommodate litigants who would rather opt for presettlement funding. Applications are reviewed on a case-by-case basis, and funding is awarded based on the merits of your particular situation. The legal concept of premise liability is used in certain personal injury cases if the injury involved was caused by a property owner's failure to ensure his property is safe. To win a premise liability case, the injured person needs to prove that their injuries were caused by unsafe conditions as a direct result of the property owner's negligence to suitably maintain the property. However, just because you were injured on someone's property doesn't automatically mean that the property owner is liable. Proof will need to be provided showing the property owner was aware of the unsafe conditions on his premises and failed to take action to rectify an unsafe situation. That being the case, you may be entitled to compensation. If you are involved in an active personal injury or premise liability lawsuit and need an immediate cash advance against an impending lawsuit settlement, please visit Legal-Bay HERE or call toll-free at 877.571.0405. Legal-Bay is one of the market's premier funders. If you've previously been denied by other funding companies, you might want to give Legal-Bay a try. More often than not, they'll be able to refinance your rate at a lower cost than other funders, with an added bonus of getting you more money. Anyone that has an existing lawsuit and needs cash now can apply for loan settlement funding to help get through their financial crises. Legal-Bay funds all types of premise liability loans for lawsuits including personal injury, slips and falls, car accidents, construction site accidents, work-related injuries, injuries incurred due to negligent business practices or lack of maintenance on private property, and more. Legal-Bay's pre settlement funding programs are designed to provide immediate cash in advance of a plaintiff's anticipated monetary award. The non-recourse law suit loans—sometimes referred to as loans for lawsuit or loans on settlement—are risk-free, as the money doesn't need to be repaid should the recipient lose their case. Therefore, the lawsuit loans aren't really loans, but rather cash advances. To apply for lawsuit funding right now, please visit the company's website HERE or call toll-free at: 877.571.0405 where agents are standing by.
Contact:Chris Janish, CEO Email: info@Legal-Bay.com Ph.: 877.571.0405 Website: www.Legal-Bay.com
Commercial Regulatory Issues

What Claimants Need to Know About DBAs and LFAs

When surveying funding agreement options, claimants will often come across damages based agreements, or “DBAs,” and litigation funding agreements, or “LFAs.” Both DBA and LFA agreements help clients achieve the ultimate goal of winning a case, and transfer the overall cost and risk of litigation on to the representatives tasked with investing in the case.  As Temple Legal reports, the objective of a DBA or LFA is an overall shared responsibility that the litigation will be funded, and in the event of a successful outcome, the benefits shared between the parties. When organizing any deal of this nature, both parties should be careful to look after their own long term interests.   Things can get complicated when an LFA evolves into a DBA, prompting consequences which the parties may want to evaluate. Overall, DBA agreements are associated with claims management services more than traditional LFA  contracts. In fact, a recent court of appeals decision found that funders of litigation do not typically engage with claim management. Should any degree of claim management exist, the contract would therefore be considered a DBA contract. In conclusion, the differences between DBAs and LFAs are contingent on the funder providing litigation services such as advocacy and/or claims management. However, if at any time there is a question of whether the terms and conditions of an LFA are in jeopardy, either party should seek professional advice to remedy the matter.
Commercial

Reading a Legal Funding Agreement: Five Tips

Legal funding agreements are not yet standardized. Before signing, it’s essential to read a funding agreement carefully and ask questions about anything you don’t understand. Validity Finance’s Joshua Libling shares his insights for reading a term sheet for a litigation funding agreement.
  • Collateral. In this context, collateral is the case itself. Take note of any rights of refusal or mention of future litigation. The description of collateral is often broad so the funder is a party to relevant awards or settlements.
  • Budget Risk Responsibility. Funding isn’t a bottomless well. If a case goes beyond the expected budget, someone must pay the difference. It’s essential that the claimant know who that is.
  • Calculation of Return. How the division of a payout is calculated is very important and should be thoroughly understood before the deal is reached. Understand terms like waterfall, deployed vs committed capital, and net vs gross in the calculation of the funder’s return.
  • Fees. In addition to a percentage of an award, funders may charge structuring or transaction fees—usually based on a small percentage of the committed amount. Be sure you ask when fees are due and if the funder gets a return on the fee.
  • What’s Missing. Not every eventuality will be covered by the funding agreement. That’s not necessarily cause for alarm.
Commercial Deals

How LitFin Drives Profits for Investors and Lawyers

Those attorneys who represent venture capital or private equity firms understand that it’s common to make big decisions about whether or not to invest in litigation—even when the case is strong and the outcome potentially lucrative. Still, encouraging clients to pursue litigation can be a steep hill to climb. Omni Bridgeway explains that many firms are reticent to spend on litigation when their capital is needed for operating expenses, expansion, or product development. Complex litigation is risky. The timelines and outcomes are largely unpredictable. One adverse ruling could erase years of careful planning and shrewd investment. What’s the solution? Litigation Finance. Lawyers for private equity or venture capital firms greatly benefit when they offload their legal spending to a third-party. Non-recourse funding means that the risk is essentially transferred to that party in exchange for a portion of an eventual recovery in accordance with the funding agreement. Funding agreements vary depending on the case, funder, and other factors. In addition to the long-term benefits present when cases are won, legal funding carries with it several immediate financial benefits. The legal expertise funders bring to the table is substantial. Funders can vet cases and focus on which ones have the greatest probability of success. In single case funding, legal expenses can be removed from the books as soon as they’re incurred. Portfolios are typically funded with a large one-time deployment, or in several lump sum payments on a predictable schedule. This cash can be used for legal expenses, but may also fund operating expenses. The capital infusion itself is a financial asset, as is any revenue from successful claims. The process begins with selecting the right cases for the funding portfolio. Strong merits, a large expected recovery, and a defendant with the ability to make good on an award are all vital factors funders consider when vetting any portfolio of cases.
Commercial Deals

IPOs Dominate as Legal Firms Pursue Post-COVID Growth

Are we about to see a deluge of IPOs? A recent survey of 200 law firm partners in the UK suggests as much. Of those surveyed, 31% said their firm is actively considering an IPO sometime over the next year and a half. Another 44% said their firm is contemplating a stock market listing with no time frame given. Harbour Litigation Funding details that a whopping 78% of partners came from firms actively pursuing a credit infusion to supplement its own equity. The reason? For about half of respondents, ambitious plans for growth was the catalyst. Meanwhile, 86% of partners stated they felt pressure to reduce costs.
Commercial Regulatory Issues

New Possibilities in Litigation Funding

As the Litigation Finance industry grows, attorneys, insurers, corporates, and even small businesses are seeing the benefits of non-recourse third-party funding. As regulation adapts to these new realities, new opportunities are arising. Bloomberg News reports that one main driver of litigation funding growth is the search for non-correlated assets with the potential for high returns. Consumers are fueling the advancement of funding with claims portfolios, individually financed cases, class actions, and corporates reorienting legal departments as profit centers by monetizing existing legal assets. At its finest, litigation funding is a win-win proposition. Claimants receive the funding they need and could not otherwise afford. Law firms can reduce risk and add to operating budgets—allowing them to take on more contingency and even pro-bono work. Meanwhile, investors receive the large returns needed to encourage further investment, helping even more people who need assistance funding litigation. Debate about the transparency and discoverability of litigation funding agreements will continue. Courts have already explored what happens when lawyers advise clients to use legal funders, but no cross-jurisdictional consensus has been reached. So too are issues of privilege, as vetting by potential funders necessitates access to information typically held between lawyers and clients. So far, courts seem ambivalent on the common interest privilege. As more players enter the Litigation Finance space, we can expect more access to funding, a wider range of funding solutions for clients to choose from, and investment opportunities for smaller investors. As legal funding evolves, law firms are likely to rethink compensation models for partners and associates alike—especially when adopting flexible payments structures combining contingency and hourly billed models. As some jurisdictions relax restrictions on non-lawyer ownership of firms, compensation and bonus structures are likely to evolve further. Courts, financial specialists, and bar associations will have to rise to the challenges that the expansion and maturity of Litigation Finance will bring.