The collapse of the Woodford Equity Income Fund is still yet to be resolved. Leigh Day sent a letter-before-action to Link Fund Solutions in March, accusing the ACD of failing to maintain proper liquid asset levels, as well as general mismanagement of the fund.Portfolio Adviser details that Leigh Day has stated its readiness to take Link on in this case—including litigation funding already in place. Litigation funding is increasingly popular in shareholder actions and allows claimants to participate without any cost to them.Link refused to compensate the more than 7,000 investors who lost money in the collapse. Clifford Chance, attorney for Link, promises to vigorously defend against the claim.Meanwhile, Harcus Parker also sent Link a letter-before-action representing a further 6,500 clients impacted by the Woodford collapse. In March of this year, RGL Management began a formal proceeding connected to the Woodford collapse.
Around the world, antiquated champerty laws are being struck down in favor of allowing third-party litigation funding. In the late-1990s, litigation funding gained popularity in Australia, England, Wales, and the United States. Since then, it has grown in acceptance and familiarity—and is now a multi-billion dollar industry.Asia Business Law Journal explains that both Hong Kong and Singapore have taken steps to invite participation from the Litigation Finance industry. Both allow for third-party funding in international arbitration proceedings, including enforcement and mediation. Hong Kong later made a clarification that court approval for funding is not required for liquidators.Harbour Litigation Funding founder, Susan Dunn, has seen banks, corporations, and even governments leverage funding in order to pursue legal matters they could not otherwise afford. Some of the newfound growth of litigation funding can be traced back to COVID and the financial turmoil it caused. Cash-poor businesses are looking to free up operating funds and monetize legal or IP assets that are currently sitting dormant. Litigation Finance is also becoming commonplace for collective actions—though this practice continues to rankle detractors.Julien Chase, professor of law at City University of Hong Kong, feels that Asia should take steps to expand the scope of litigation funding. The industry, he says, is moving away from strict regulation toward flexibility and self-regulation. When legislation works with third-party funders instead of against them, the result is better for funders, lawyers, and clients alike.Several sectors have already experienced increased interest in obtaining funding--including insolvencies, intellectual property disputes, and patent law. Any jurisdiction looking to become a litigation destination would do well to welcome third-party litigation funding. Not everyone has a choice, but those who do will be more likely to choose a place that allows for multiple types of fee arrangements, including third-party Litigation Finance.
Forbes Ventures announces an update to its first Litigation Funding Securitisation. The listing and closing of the GBP 40 million two-year notes (the “First Issue”), for which Forbes Ventures’ wholly owned subsidiary, Forbes Ventures Investment Management Limited (“FVIM”), acts as Collateral Agent, has been subjected to further administrative delays. Those delays have not been within the control of the Company or FVIM. The Maltese Corporate Advisors, who are also the manager of the Securitisation Cell Company which is the issuer of the First Issue, has advised the Company that they will commence the process of listing the first issue in the forthcoming days. It is expected therefore that listing and closing will occur in the next 14 days. The Directors of the Company are frustrated at the continuing delays but have been given assurances by the Maltese Corporate Advisors that there will be no further delays in completing the listing and closing of the First Issue. The listing of the previously announced second Litigation Funding Securitisation of GBP 60 million two-year notes will commence immediately after closing of the First Issue. The Company will make a further announcement upon closing of the First Issue. At that time, the Company will also provide a Corporate Update on the progress that has been made in implementing the strategy set out in the Company’s announcement of 30 September 2020. The Directors of Forbes accept responsibility for the contents of this announcement.
Longford Capital, a leader in the commercial litigation finance industry, today announced that on May 31, 2021, Laura P. Pearl will begin her retirement and transition to a senior advisor role with the firm. Ms. Pearl has been Longford’s Managing Director and Chief Financial Officer since 2016. “Laura has made an indelible mark on our firm’s growth and progress, and the leadership role it plays in the global litigation finance industry,” said Timothy S. Farrell, Co-Founder and Managing Director of Longford Capital. “The Longford team is grateful for Laura’s financial acuity, tireless commitment, and hard work, and looks forward to continuing to benefit from her advice and friendship.” As part of its succession planning process, Longford will elevate Joshua A. Leavitt to Managing Director and Chief Financial Oofficer, also on May 31. After a national search, Longford added Mr. Leavitt late last year as Chief Accounting Officer. He has worked closely with Ms. Pearl, part of a careful predetermined plan to prepare for her retirement and transition to her new role. “It’s been a privilege to contribute to the growth of Longford Capital, and by doing so also participate in a richly innovative element of our legal system,” said Ms. Pearl. “I am particularly proud of how we’ve attracted new talent and scaled our team to accommodate the growing demand for our capital. I’m grateful to be handing the CFO title to a talented leader like Josh.” “Since joining Longford, I’ve been impressed by the sophistication of its business and strong collegiality of its team,” said Josh. “Laura’s contributions are palpable. It is an honor for me to step into her shoes, and I look forward to having her ongoing counsel.” Mr. Leavitt was CFO of Math Venture Partners Management, LLC, an early-stage venture capital firm, where he upgraded and institutionalized back-office operations and investor reporting processes. He was previously a founding member of the executive team at JHL Capital Group, where as CFO and Executive Vice President for Operations, he built the middle and back-office infrastructure needed to enable the alternative asset manager’s growth from approximately $11 million to more than $2 billion in AUM. He also co-founded Zoku Technologies, a Software-as-a-Service (SaaS) secure online vault business, where he served as CEO, and held senior positions in other high-growth ventures. Mr. Leavitt earned his MBA at the University of Chicago Booth School of Business. He is a registered CPA and has held Series 7 and 63 licenses. About Longford Capital Longford Capital is a leading private investment company that provides capital to leading law firms, public and private companies, universities, government agencies, and other entities involved in large-scale, commercial legal disputes. Longford was one of the first litigation funds in the United States and is among the world’s largest litigation finance companies with more than $1 billion in assets under management. Typically, Longford funds attorneys' fees and other costs necessary to pursue meritorious legal claims in return for a share of a favorable settlement or award. The firm manages a diversified portfolio, and considers investments in subject matter areas where it has developed considerable expertise, including, business-to-business contract claims, antitrust and trade regulation claims, intellectual property claims (including patent, trademark, copyright, and trade secret), fiduciary duty claims, fraud claims, claims in bankruptcy and liquidation, domestic and international arbitrations, claim monetizations, insurance recovery matters, and a variety of others.
Litigation Finance is a rapidly growing and evolving industry, and has been since its emergence during the last financial crisis. The practice helps law firms accept more contingency cases, allows businesses to monetize illiquid assets, and can turn existing IP into a profit center.
Asertis explains that third-party litigation funding has demonstrated its worth many times over. A Post Office scandal in the UK was finally brought to light when funders allowed 39 sub-postmasters who had been wrongfully convicted of financial crimes to seek access to justice. The Dieselgate scandal against several German automakers was also aided by third-party legal funding.
It’s expected that even more new entrants to the litigation funding market will present themselves in the near future. While this may increase competition among funders, its great news for law firms and potential claimants who need funding to pursue legal action.
Will litigation funders see an explosion of mergers the way banks have in recent years? Some say so, especially after the merger of IMF Bentham and Omni Bridgeway in 2019. In addition to mergers, many funders—both established and upcoming—are developing specialized and niche areas of focus, offering them an edge over funders with less specific knowledge.
Litigation funding has been mainstreamed and is here to stay. As the practice continues to grow and adapt, all eyes are watching how access to legal capital benefits lawyers, businesses, and clients.
In Hong Kong, attorneys are not allowed to charge fees based on the potential award for a case. Increasingly, however, some types of flexible fee arrangements are allowed. In Hong Kong’s quest to become a destination for multi-jurisdictional litigation, the Law Reform Commission of Hong Kong has developed a subcommittee that will make recommendations regarding ‘Outcome Related Fee Structures.’Omni Bridgeway explains that the purpose of the committee is to review current laws regarding ORFSs and make recommendations for reforms as needed. With that in mind, several recommendations were published by the subcommittee in December of last year. These are not final recommendations and were meant to encourage discussion in the legal community.Omni Bridgeway has had a business presence in Hong Kong since 2018. As such, they have provided a response to the subcommittee’s suggestions. The firm agrees that bans on conditional fee arrangements and damages-based agreements should be lifted. This suggestion includes the implementation of laws that, among other things, require lawyers taking on CFA or DBA cases to avoid asserting control over decision-making for issues that should be decided by the client. These lawyers should have to abide by the same standards that third-party funders do.Other client protections include:
A tribunal can order disclosure of ORFSs as pertains to conflicts of interest, security for costs, or the impartiality of counsel.
Tribunals can order costs against lawyers it believes are facilitating meritless claims.
Requirements for adequate capital, and proof therein.
Clients must be provided with clear information on ORFSs, as well as advice from those who have no financial stake in the matter.
Procedures in place for complaints and reporting non-compliance.
Omni Bridgeway joins a chorus of funders who support ORFS regimes to allow fee-sharing in single cases and portfolio agreements.
As Litigation Finance grows in popularity, questions arise as to proper use cases. For example, courts are tasked with determining how laws should apply to litigation funding transactions and the agreements that outline them.Holland & Knight detail how the Fair Debt Collection Practices Act (FDCPA) defines a debt, and how that pertains to litigation funding. Until recently, courts focused on litigation funding as pertains to disclosure, champerty, and ensuring that funders do not unduly influence case strategy or decisions best left to clients. Recently, the Third Circuit US Court of Appeals offered some guidance on how or when litigation funding is a debt under FDCPA.An early case on the enforceability of a litigation funding agreement involved Christopher Boling. Litigation went on for years, and ultimately a judge determined that the funding agreement could not be enforced. But the case didn’t end there—the funder’s legal team (Callagy Law) filed a breach of contract action against Michael Breen, the lawyer for Boling. Breen then filed suit against Callagy, accusing it of violating FDCPA law.Ultimately, the Third Circuit stated that although litigation funding obligations may constitute a debt for the client, the same does not hold true for attorneys. The FDCPA defines a debt as an obligation to pay a creditor for monies used for personal or family needs. Because the Boling family used litigation funding to cover personal living expenses, the court stated that this money ‘may’ be defined as a debt under FDCPA guidelines—but the court stopped short of declaring that the funds were a debt in this context.Litigation funding agreements are typically made between funders and clients, or funders and legal teams/firms. In agreements with clients, funds may be used for personal or legal expenses, as needed. The same is not true for funding agreements made with lawyers or law firms.
Litigation funder Asertis today announces the launch of a new commercial litigation and arbitration disputes funding division backed by a well-known fund with available capital of over €1.7bn (approx. £1.46bn), as well as their financing of the Slater & Gordon Mercedes group litigation, and their new CIO and a further lateral hire from Harbour Litigation Funding. Known for their insolvency litigation funding, Asertis’s new service will focus on funding commercial disputes, including those relating to general commercial, competition and corporate, consumer and group action litigations and infrastructure. With €1.7bn (approx. £1.46bn) of funds available through an affiliate of European fund Arrow Credit Opportunities SCSp, Asertis is able to make funding decisions quickly at its own discretion, from its own balance sheet. Led by Chief Investment Officer Harshiv Thakerar, formerly of Global Growth Capital and Augusta Ventures, Asertis is positioned to fund commercial disputes across England and Wales, offshore markets, other common law jurisdictions and the EU. J-P Pitt, formerly a Director of Litigation Funding at Harbour Litigation Funding, also recently joined Asertis as an Investment Manager. J-P brings with him extensive expertise in commercial disputes funding, asset recovery and enforcement, drawing on his previous experience at Harbour and as a qualified solicitor. Asertis also announces today that it is financing the Mercedes Group Action led by Slater and Gordon. The claim centres around allegations that Mercedes, similar to other carmakers embroiled in the dieselgate scandal, installed software in their diesel engines to cheat emissions tests. Slater and Gordon are the joint lead solicitors in the Volkswagen Emissions group action, which is thought to be the largest group action in British legal history. Mercedes owners may be eligible to join if they have purchased or leased, whether new or second hand, a diesel Mercedes made between 2008 and 2018. Harshiv will head the commercial disputes funding division, working with J-P and CEO Ian Madej to build on Asertis’s established insolvency funding division and spearhead the growth of the new commercial disputes service. Commenting on the launch of the commercial disputes funding division and his appointment, Harshiv said: “I am delighted to have joined Asertis, working with the team to develop and grow our new commercial disputes funding service. Although a relatively new entrant into the increasingly crowded commercial litigation funding market, we are in the enviable position of being nimble and able to make funding decisions with certainty, autonomy and speed.” J-P said: “I am thrilled to have joined the Asertis team at such an exciting time in their development. I look forward to using my experience in litigation funding to deliver agile funding decisions, rapidly, under this very significant credit line.” Asertis CEO Ian Madej commented: “Harshiv and J-P both have an extensive understanding of complex disputes, particularly those with a multi-jurisdictional dimension. Asertis has grown rapidly since its launch last year and we have already funded and purchased several significant cases, including the Mercedes group action litigation. Coupled with our new membership of the Association of Litigation Funders, Asertis has fast established itself in the market and we look forward to working with Harshiv and J-P to continue our rapid growth.”
Risk solutions specialist Maxima is joining forces with ATE insurance provider DAS UK to take on matters relating to personal injury and clinical negligence.Insurance Business UK details that the partnership comes after legal reforms, and is brokered by Maxima. Vanessa Andrews, head of operations, explains that smaller firms should have access to the same benefits as their larger counterparts. Andrews is confident that firms that have been rejected or have no insurer will welcome this change.John Durbin of DAS UK stated that this was the right time to help smaller firms who specialize in clinical negligence and personal injury—since insurers exiting the market has created a need.
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