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Commercial

Examining Litigation Funding Models

Managing Director of Bench Walk Advisors, Adrian Chopin, makes it his business to dissect and quantify different aspects of the litigation funding market. Recently, Chopin examined the impact of operating costs by comparing two hypothetical cost structures used by funders. Dispute Resolution Blog details Chopin’s analysis as it focuses on hypothetical Funder 1 and Funder 2. F1 has high operating costs. Over a year, it deploys a total of $250 million into various single case investments. This winds up making $150 million in net profits, minus $100 million in annual operating costs—leaving the funder with a profit of $50 million. Presuming the funder wins 2/3 of all funded cases, it needs to charge just over two times the invested capital just to break even. Meanwhile, Funder 2 has lower operating costs and according to Chopin, only needs to charge 1.77 times the invested amount in order to cover costs—again, presuming a 2/3 win rate. Obviously, these numbers are simplified. Most firms don’t take on solely single-case investments, for example. But they do illustrate that when it comes to price, there are many factors that must be considered, and even the most careful planning can be upset by one negative outcome. Does it make sense to carry high operating costs? Some funders say yes—that the extra investment required to keep due diligence in-house nets better results and a higher percentage of wins than outsourcing. There’s no definitive answer to be found, since adequate statistics aren’t available to determine whether keeping vetting and due diligence in-house is worth the extra expense. The results a funder produces can snowball over time. A funder with a higher win rate will attract more client interest than a smaller firm with a lower win rate. More client applicants mean funders can be more discerning, leading to better case selection and more wins.
Announcements Commercial

Delta Capital Partners Management Announces New Hire and Promotions

Delta Capital Partners Management LLC, a global private equity firm specializing in litigation and legal finance, is pleased to announce a new senior executive hire and promotions within the firm. Todd Schneider has joined Delta as Chief Financial Officer and Chief Compliance Officer; and Gabriel Olearnik and Daniel Bond have been promoted to Director of Investor Relations and Director of Underwriting, respectively.

Todd Schneider Hired as CFO and CCO.

Mr. Schneider will oversee the implementation and management of all financial activities for Delta and also will work closely with Delta’s senior management and investment committee. Mr. Schneider has served as the Chief Financial Officer and Chief Compliance Officer of Shorehill Capital LLC, a private equity firm focused on investing in middle market industrial products, industrial services, and distribution businesses. Mr. Schneider also served as the Chief Financial Officer and Chief Compliance Officer of CHS Capital LLC, the precursor firm of Shorehill Capital. Throughout their histories, CHS Capital and Shorehill Capital made investments in more than 400 businesses and invested over $3 billion of capital. Prior to CHS Capital, Mr. Schneider was the Chief Financial Officer of Conversus Asset Management, the asset manager for Conversus Capital L.P., formerly the world’s largest publicly traded private equity fund of funds designed to provide investors liquidity in a historically illiquid asset class. Mr. Schneider has also held positions as a Senior Vice President and Chief Accounting Officer of FBOP Corporation, as well as a senior manager at KPMG, where Mr. Schneider began his professional career.

Christopher DeLise, Delta’s Founder, CEO and CO-CIO, stated, “Delta is pleased to have Todd join our team as Chief Financial Officer and Chief Compliance Officer. Todd’s extensive background as a senior financial professional and organizational leader, knowledge of various asset classes, and intimate familiarity with all aspects of operating, financing, and successfully scaling private equity firms, will enable Delta to continue its remarkable growth and position the firm to be a funder of choice for sophisticated claimants and respondents across the globe.”

Gabriel Oleanrik Promoted to Managing Director and Director of Investor Relations.

Mr. Olearnik is currently a Managing Director overseeing international deal origination, operations, and strategic alliances and ventures for Delta. Now, Mr. Olearnik also will serve as Director of Investor Relations, where he will be responsible for overseeing global investor relations for Delta. Prior to joining Delta, Mr. Olearnik was the General Counsel of a major private equity firm in London and a Partner and Chair of the Private Equity Practice Group at Kochanski & Partners, a leading independent European law firm. Prior to those roles, Mr. Olearnik was a corporate finance attorney at Clifford Chance, Mayer Brown and at Dentons.

DeLise noted, “Gabriel has done a tremendous job representing Delta as a litigation funder throughout Europe. Gabriel’s experience with Delta and many successes since joining the firm, his prior experience as the General Counsel of a private equity firm, and his intimate knowledge and familiarity with all legal and operational facets of private investment funds, makes him the perfect choice to serve as Delta’s Director of Investor Relations. In that role, Gabriel will materially contribute to the firm’s growth plans by expanding and enhancing Delta’s relationships with its existing investors.”

Daniel Bond Promoted to Managing Director and Director of Underwriting.

Mr. Bond is currently a Managing Director for Delta, where he oversees intake, evaluation, due diligence, and monitoring efforts in connection with new equity investment opportunities. Now, Mr. Bond also will also serve as Director of Underwriting, where he will be responsible for overseeing all facets of litigation and arbitration underwriting for Delta across all of its product and service offerings worldwide, including equity and credit solutions for plaintiffs and defendants. Prior to joining Delta, Mr. Bond was a Partner at Kirkland Ellis and had an over-10-year law firm career with experience in the conduct, management, and planning of commercial litigation and dispute resolution. Mr. Bond’s experience encompasses a range of intellectual property and complex civil litigation matters and he has successfully litigated numerous high-profile lawsuits for blue chip clients in a variety of fields.

DeLise remarked, “Daniel’s tremendous success managing litigation and arbitration underwriting for Delta’s equity-oriented investments makes him the ideal choice to serve as worldwide Director of Underwriting across all of Delta’s product and services offerings as Delta continues to expand its platform to include litigation finance solutions for defendants, municipalities and governments; managed solutions for businesses; and credit-based products.  With these new offerings all coming online within the next several weeks, and with Daniel at the helm of our underwriting process, Delta expects to be able to significantly increase deal capacity while diminishing throughput time.”

About Delta

Delta Capital Partners Management LLC is a global private equity firm specializing in litigation and legal finance, judgment enforcement, asset recovery, and related strategies. Delta provides capital and related services to individuals, businesses, private investment funds, law firms and other professional service firms across the world that seek to hedge their financial exposure, reduce legal spending, enhance the probability of a successful and timely resolution of claims, and maximize the effectiveness of their core businesses.

Commercial

Insights from Emily Tillett: VP at Burford Capital

Emily Tillett is a Vice President at Burford Capital and leads investment activity and operations in Hong Kong. She recently sat down to answer questions about her career trajectory and the litigation funding industry. Burford Capital details that Tillett joined Burford after more than ten years in private practice, where she handled contentious insolvencies and cross-border litigation among other specialties. The litigation finance market in Hong Kong is still developing, and Tillett finds herself in a unique position to educate the public about the practice and its benefits. Hong Kong’s legal system is unique in that it maintains its own common law jurisdiction, apart from the Chinese government. Hong Kong is friendly toward arbitration and is well-situated both economically and geographically for cross-border litigation. The financial upheaval brought about by COVID is likely to lead to a rise in demand for claim monetization as companies struggle to stretch operating funds. Meanwhile, impending changes in laws surrounding success fees for lawyers have people talking. Some say the law should be amended to allow outcome-related fee agreements—which would enable firms to take on more risky cases, as they share costs and risks with third-party funders. How does one promote legal funding in areas where it’s not commonly in use? The first step is educating the legal and business communities about the practice and its inherent benefits. While Hong Kong lawyers may have a passing familiarity with litigation funding, many have not made use of it themselves. Opportunities for industry growth abound in Hong Kong. It’s expected that as lawyers and businesses come to understand the value and versatility of legal funding, the practice will flourish in Hong Kong, as it has in the rest of the world.
Commercial

No More Patent Reviews Means Spike in Lawsuits Against Banks

Until last September, the US Patent and Trademark Office ran a review program when financial services companies are accused of infringing patents. The program was developed to adjudicate IP violation cases in less time and with more cost-effective conditions. That program has since expired—exposing banks and other financial service providers to a greater danger of lawsuits. As Bloomberg Law explains, almost three times the typical average for patent lawsuits have been filed against banks in recent months. This includes Bank of America Corp, Bank NA, and JPMorgan Chase among others. Many banks, including the National Retail Federation, believe the program should be reinstated. Legislators seem in no hurry to do so, however. Meanwhile, the US engineer group IEEE-USA is fighting the renewal of the program, saying it has outlived its usefulness. Since August, nearly 100 suits have been filed against large companies or banks. This includes retail giant Walmart—sued for infringing multiple patents for its mobile payment app. Healthie, a telehealth app, was sued over its internet billing app. Software company ShopKeep had been sued over a patent involving secure customer transactions. Interestingly, what has been bad news for banks is good news for litigation funders. When the review program was live, portfolios of patent cases appeared less profitable to funders—which may have contributed to the dearth of patent litigation while the program was in place. The current influx in new cases should keep funders busy for a while. Overall, patent litigation increased 11% in 2020. This rise is likely to continue, and may be fueled by companies selling off patents amid financial turmoil. One study from Richardson Oliver Law Group showed a huge spike in patents being bought by non-practicing entities. That’s a trend likely to inspire even more litigation in what some are referring to as a ‘feeding frenzy.’
Commercial

IP Law Firm Faces Claim of ‘Secret Commissions’

A collective action has been filed against IP law firm Marks & Clerk. The suit alleges that the firm overcharged multiple small businesses—possibly thousands—by engaging in a scheme with CPA Global, an IP management firm. Legal Futures reports that the action is being brought by CRL, Commission Recovery Ltd. This company was founded by Peter Rouse, a former lawyer and IP specialist with the intent to help wronged businesses seeking compensation and justice. The case is being funded by a third-party legal funder whose identity has not been disclosed, and is led by Signature Litigation. The case alleges decades of overcharging businesses, and of referring clients to CPA global in exchange for commissions clients were unaware of. Existing evidence appears to suggest that more than 20% of what clients paid were related to CPA Global, and that Marks & Clerk may have made more than GBP 50 million during the time in which they ran the scheme. CRL asserts that the scheme began around 1969, when various partners from a handful of professional service companies formed a new company that eventually became CPA Global. In time, they allegedly began a system of clandestine commissions funded by clients. While the CRL remains certain that the parties concealed their scheme and commissions from clients, Marks & Clerk as well as CPA Global deny wrongdoing and plan to defend themselves vigorously.
Announcements Commercial

Launching of new specialist legal finance investment firm, Orington Capital

Legal finance investment professional, Wei-Khing Seow, today launched Orington Capital (“Orington”), a specialist legal finance investment firm with globally first attributes. 
Making Orington distinctively different from traditional litigation funders is the ability to invest holistically in the sector globally across the entire capital and investment structure, both in public and private markets. This provides the opportunity to back industry participants with bespoke capital solutions. The launch of the new firm combines Wei-Khing’s deep expertise in legal finance, having been a successful investor in the asset class over the last 6 years. His 20 years of experience in global equities,REITs, private credit, managed funds and parts of the derivative markets provides significant broader investment knowledge. This includes assisting in the portfolio management of an A$1.5bn global investment fund. In addition, Wei-Khing will draw from his broad commercial acumen developed as an executive in commerce and as a management consultant to analyse the commerciality of individual cases and funders’ business models. Commenting on the formation of Orington, Mr Seow said: “I am extremely pleased to be bringing a unique offering to market that provides smart and dedicated capital to this rapidly growing and exciting asset class. Orington has the ability to invest holistically and unconstrained across the entire sector, partnering with litigation funders by co-investing in cases and in their capital structure. In addition, we provide law firms, which services clients on contingent basis, working capital.”  Mr Seow said the sector is growing quickly and as it is a capital intense industry, participants like Orington will aid the maturity and profile of the industry. “Orington’s underlying goal is to back meritorious claims, either directly or indirectly. Additionally, the firm will operate as a social enterprise with a strong and positive environmental, societal, governance(ESG) philosophy. Our investments aid access to justice, enforce rule of law and provide both a deterrent, as well as outcomes to environmental and societal damages.” Mr Seow said. Lastly, Orington is investigating ways to bring its intellectual property through a product offering to market for external investors to participate.
About Orington Capital
 Orington Capital (Orington) is an Australian private investment firm established in 2021 specialising in the global legal finance industry. The firm participates as a dedicated capital provider to litigation funders and law firms working on contingent cases. Uniquely, Orington invests holistically and unconstrained across the entire capital and investment structure in both public and private markets. Orington provides the most comprehensive, dedicated and bespoke capital solutions. Visit orington.com for further details. About Wei-Khing Seow Wei-Khing Seow (Managing Director & Portfolio Manager), has 20-years of experience in global equities,REITs, private credit, managed funds and parts of the derivative markets. Additionally he has established a successful 6-year track record in the legal finance industry. Wei-Khing combines deep legal finance knowledge with unique capability to access, create and execute opportunities across the entire capital and investment structure in both private and public markets. Wei-Khing's career spans assisting the portfolio management of A$1.5bn global fund, executive roles in multi-national companies, as well as management consulting. He has a strong philosophy in allocating capital and living in a sustainable manner, with his goal of leaving this planet, from all angles of ESG, in a better position than when he entered. Orington is a key contributor to him reaching his goal.
Consumer Special Features

Key Takeaways from LFJ’s Special Digital Event: “Investor Insights into Consumer Legal Funding”

This past Tuesday, Litigation Finance Journal hosted a special digital event, "Investor Insights into Consumer Legal Funding." The panel discussion featured a trio of institutional investors, including Ben Kaplan (BK), co-founder of C9 Partners, Don Plotsky (DP), co-founder of Uinta Investments, and Michael Morris (MM), Managing Director of Northleaf Capital. Dan Avnir (DA), Managing Director of Bryant Park Capital moderated the discussion.  The panel covered a wide range of ground on Consumer Legal Funding as an asset class. Below are some key takeaways from the event:             DA: What types of investments do you target across the legal funding marketplace? BK: We target investments in operating companies. Operating companies with direct or indirect exposure to underlying consumer litigation assets which can include funded assets, with medical liens being the core focus. DP: We’re looking to basically get investment exposure to the asset—the way we do it is typically in some sort of structured transaction where we’re providing liquidity to the funding company. We’re definitely not plaintiff-facing...we’ll also buy cases directly and partner with funding companies that might be too large for their balance sheets. MM: We’re about a 15 billion dollar AUM, operating a range of strategies across the credit to equity continuum to get exposure to underlying assets. Generally, we’re looking to deploy $25-200 million or so, in some sort of partnership form with the funder.  DA: What can you say about your experience with collections these days? Have there been any variants, as compared to pre-COVID levels? BK: Interesting questions, pre-COVID versus post-COVID. Again, what I’m sharing is from the viewpoint of medical liens where there’s probably more volatility in and around that asset class depending on geography and a myriad of other circumstances—the nature of the treatment whether it’s surgery or MRI. To summarize, when COVID hit, there was actually, we experienced across a few different areas, a massive acceleration. At the outset of COVID, the takeaway is that there was an acceleration of collections. What I would say is that COVID has advanced...what we’re starting to see now is a backlog of cases attributable to court closures and other issues, that I would say at the beginning of 2021 has started to slow down collections a bit. Insurance companies have taken more of an aggressive posture with respect to litigation and they’re fighting those a little bit more aggressively. So I think we’ve seen an acceleration early on in COVID, and a bit of a slowdown in early 2021. DA: Don, what are you seeing out there from the funders you’ve been partnering with? Are trials in most states delayed? DP: In many cases, if not most typically, there’s some sort of settlement involved, rather than necessarily a trial verdict. But we’ve definitely noted an extension of maturity of the assets in the portfolio. Statistically, we would look at an 18-month duration to a three-year final type of profile on the assets that we buy, and we’re seeing things really creep out there beyond three years. Some of the assets that we own, we expected to have gotten greater cash flows than we received so far. We hear from the funding companies that business has definitely slowed down 20 or 30%, and we’re noting the extension of the portfolio. That certainly seems to be COVID-related. DA: What are your current return expectations across these assets that you’re investing in? Have the results lived up to the expectations you had? MM: There are two different lenses through which to look at it. I think in the space overall, in the two primary areas of the US...I do think over the last several years going back even before COVID, you seen some return compression at the asset level. As more money has come into the space, the search for yield that you can’t help but read about, it has made its way into the space a bit. DA: Are you seeing origination levels still down across the board as compared to pre-COVID levels, or are we beginning to see an uptick as of late? DP: Again, we’re not plaintiff-facing, so we don’t have people coming through the door. What we do see is fairly steady activity from the funding companies we deal with. What I’ll point out, is that more so than the actual volume of cases, it’s the condition of the financial markets surrounding this asset that are really driving supply. DA: What is the typical ROI target for a facility to a pre-settlement funding company? What information would you look to review in consideration of a facility? DP: From an investment perspective, we’re looking for a low-to-mid teen preferred rate of return...so in terms of total return on investment, we would hope to get perhaps slightly higher than that. When you look at all the components of the net return to investors, you also have to take into account that there are enormous cash flows here. We look to deliver 10-12% net annual return to our investors, and after that, 15% IRR. MM: For us, we’re sort of looking for kind of the best run cleanest plain vanilla senior debt, to make high single digits, and go up from there. DA: On pre-settlement funding side, if a group starting an origination platform today, what would you say would be the biggest challenges and opportunities? BK: I think the greatest opportunity is probably that there exists enough people who have been involved with businesses that have become institutional at this point, that there’s some good talent out there in terms of people who really know how to run a business and manage balance sheets and understand the industry. I think it’s an opportunity as the industry has grown...there’s better human capital out there.
Consumer

Law Finance Raises $20 Million in Capital

Law Finance is currently raising capital for growth and debt restructuring. This includes a $3 million debt facility and a $17.2 million placement. Placement shares were sold at 1.3 cents each—a discount of almost 40%. Financial Review details that the lead managers on the deal, MST Financial and Conrad Capital Investments, were seeking bids into the placement. Law Finance has stated its intention to convert existing corporate debt to equity at 3.7 cents per share—reducing corporate debt by 92%.
Commercial

Funders Seize on Bankruptcies for Big Returns

Business bankruptcy filings were up 29% in 2020 from the previous year. These numbers dipped slightly in 2021 thanks to government stimulus measures like PPP. However, as financial help from the government winds down—financial experts anticipate bankruptcy filings to spike again. Business Insider explains that bankruptcies are an opportunity for litigation funders, who profit by investing in recoveries and receive a portion of recovered assets. Last year, Burford Capital, the largest funding firm, invested nearly $100 million in bankruptcy and insolvency cases—up from $83 million the previous year. Similarly, LexShares, Legalist, and others, report more requests for funding than in previous years. Consider that a company in financial distress may be unable to pursue its most valuable assets—pending litigation claims. By providing businesses the funds needed to pursue valid claims, opportunities for returns increase for the business and funders. Rather than forgoing the case or accepting a small settlement, businesses can hire a quality legal team and pursue claims with vigor. Litigation funders are poised for a spike in bankruptcy filings and litigation as financial markets settle into a new normal. Some firms, like Legalist, are preparing to provide DIP loans to small businesses. These low-risk bankruptcy loans are typically not available to the small businesses Legalist serves. No doubt, litigation funding is here to stay. The pandemic and ensuing financial upheaval have prompted the conditions that enable this practice to achieve relevance on a global scale.