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Mara Abols Joins Omni Bridgeway as Corporate Counsel in Toronto

The Omni Bridgeway Toronto team grows larger with the addition of Mara Abols. She’ll be serving as a member of the Legal, Risk, and Compliance team, which handles global legal issues. Omni Bridgeway details that Abols will negotiate, advise, and draft litigation funding agreements as well as focus on corporate legal issues. Abols is an excellent fit for a company that has grown in size and number of deals in recent years. Abols is a bar member in Ontario and New York, and graduated with distinction from McGill University. She was also part of an International Exchange with the University of Copenhagen.

Blackmore Bonds Pursues Suit Against Insurers Accused of Failing to Pay Out

Two insurers have been accused of wrongdoing by Blackmore Bonds after refusing to pay out to bondholders. Bondholders are guaranteed by law to receive shortfalls if the company becomes insolvent. They have stated the likelihood of legal proceedings in order to force payment. International Adviser explains that a formal demand for payment was made in April of this year, but no payments have thus far been made. While litigation is proceeding, it’s expected to be expensive and lengthy. As such, the trustee is said to be seeking out litigation funding to finance the case. In the meantime, bondholders have been told to expect substantial shortfalls.

Ukrainian Airlines Class Action Granted Carriage

A class action brought by plaintiff Omid Arsalani has been granted carriage by the Ontario Superior Court of Justice. The case is in relation to the downing of Ukraine International Airlines Flight PS752 on January 8th. Law Times News details that two plaintiffs who filed similar but separate actions, had each tried to stay the other action—and that another action was also filed by an additional two potential plaintiffs. In determining which case would receive carriage, the judge considered the quality of counsel, the chances of success in the case, litigation funding, and proposed case theory. In addition to carriage, Arsalani’s action is being funded by Galactic Litigation Partners LLC. The funding agreement has been approved by the courts as of September of this year. Those who led the other cases were informed that they could not file for a new class action—but could pursue individual cases relating to the downed plane.

Winshear Gold Secures Funding for Legal Proceedings Against the Government of Tanzania

Winshear Gold Corp. (TSX-V: WINS) ("Winshearor the "Company") provides the following update on arbitration activities related to the expropriation of the SMP Gold Project (the “Project”) by the Government of Tanzania.

Winshear is pleased to advise that it has completed a Litigation Funding Agreement (the “Agreement”) with an affiliate of the Litigation Funder. The Agreement provides for funds to be drawn from a financing facility to meet all fees and expenses relating to the pursuit of certain claims against the Government of Tanzania for the illegal expropriation and loss of the SMP Gold Project, including all costs associated with legal proceedings, media/public relations, geopolitical efforts, and, if necessary, enforcement, of any awards.

Mark Sander, President of Winshear Gold, commented, “Winshear’s legal representatives, Lalive, backed by the financial support of the Litigation Funder, have been engaged to aggressively pursue compensation for the illegal activities of the Government of Tanzania in expropriating the SMP Gold Project. Lalive is highly experienced in arbitration cases in Tanzania with a track record of success for its clients.”

Background information on the arbitration case is contained in Winshear’s press releases of:

  • January 10, 2020, which announced delivery of the required 180-day notice of intent to file arbitration proceedings to the Attorney General of Tanzania; and
  • July 14, 2020, which announced the commencement of international arbitration proceedings after the 180-day notice period had expired without response from the Government of Tanzania.

Compensation being sought for expropriation of the SMP Gold Project may include, but will not be limited to, the value of the historic investment made by Winshear in Tanzania, the value of the project at the time that tenure was expropriated and damages the Company has suffered as a result of Tanzania’s acts and omissions.

The Company is not able to make any comment in relation to the potential quantum of any claim for compensation at this point.

ON BEHALF OF THE BOARD OF DIRECTORS “Mark Sander” Dr. Mark V. Sander President

For more information, please contact Irene Dorsman at (604) 210-8751 or visit www.winshear.com.

Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.

Cautions Regarding Forward-Looking Statements

This news release includes certain statements and information that may contain forward-looking information within the meaning of applicable Canadian securities laws.

Generally, forward-looking information can be identified by the use of forward-looking terminology such as “intends” or “anticipates”, or variations of such words and phrases or statements that certain actions, events or results “may”, “could”, “should”, “would” or “occur”. Forward-looking statements are based on the opinions and estimates of management as of the date such statements are made and they are subject to known and unknown risks, uncertainties and other factors that may cause the actual results, level of activity, performance or achievements of the Company to be materially different from those expressed or implied by such forward-looking statements or forward-looking information, including the risks normally involved in the exploration, development and mining business or as may be otherwise set out in the Company’s filings with Canadian securities regulatory agencies. Although management of the Company has attempted to identify important factors that could cause actual results to differ materially from those contained in forward-looking statements or forward-looking information, there may be other factors that cause results not to be as anticipated, estimated or intended. There can be no assurance that such statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements. Accordingly, readers should not place undue reliance on forward-looking statements and forward-looking information. The Company does not undertake to update any forward-looking statements or forward-looking information that are incorporated by reference herein, except in accordance with applicable securities laws.

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New Zealand Law Commission in Favor of Litigation Funding

Recommendations from the New Zealand Law Commission include strong support for litigation funding as well as advocating for a strong class action regime. Meanwhile, insurance companies are among those are expected to balk at any new policies making class action suits more common. Newsroom New Zealand reports that the paper released by the commission affirmed that there has not been a consensus on the desirability or use of litigation funding, or class action cases in general. In fact, existing NZ rules on class actions date back to 1882. Amokura Kawharu, president of the commission, affirms that cost is the main barrier to taking meritorious cases to court. She explains that class actions improve access to justice while setting up a mechanism that encourages companies to obey the law and treat citizens fairly. Litigation Finance helps in these endeavors by removing the obstacles that inhibit access to justice. In the absence of a statutory regime, class actions can be a difficult endeavor. Insurance companies are particularly opposed to allowing litigation funders to get involved with class action participants. According to the Law Commission papers, current shortcomings in the current class action process can be best addressed with the new legislation. At the same time, the report acknowledges that making class action suits easier is likely to create more of them. One lawyer makes the claim that US “commonplace” class actions feature claims lacking in merit. Many contest this, especially since no competent litigation funder wants to back a case without merit. Still, there is a demonstrable uptick of class actions in Australia since litigation funding became more mainstream. This is only expected to worsen due to COVID business closures, supply disruptions, and contract disputes. A final report will be given to the Minister of Justice before May of 2022. The goal is to finalize class action and litigation funding laws before the next wave of new COVID-related cases.

Dechert Report Foretells Sharp Rise in Securities Litigation

In an already difficult year for companies around the world, a new report from global firm Dechert tells us to expect even more hardship. A new report predicts that both the number of settlements and the final settlement sizes are expected to rise significantly. Global Legal Post details that as global securities litigation evolves, companies that cross borders should be ready for a rush of securities class actions—in the US and globally. Some jurisdictions, Singapore for example, are expected to be hot spots for incoming litigation. Part of what’s inspiring the rise in cases is the mainstreaming of third-party litigation funding. There’s concern about the control that funders may have over the litigation process, even though most countries specifically prohibit funders from taking control over decision making in the cases they fund. A newly formed professional group, the ILFA, intends to advocate for the industry while educating and strengthening the rules that govern the practice.

Gerchen and Hammes Seek Out Targets for Acquisition

Adam Gerchen, whose 2016 sale of his litigation finance company to Burford Capital made waves, is at it again. This time with partner Jeffrey Hammes (formerly of Kirkland & Ellis) and their special purpose acquisition company. The pair are looking for a new acquisition thanks to an IPO over-allotment of $175 million. Law.com explains that the team is looking at two dozen targets, and plans to buy one worth roughly 4-5 times the capital they’ve raised. These companies range from legal technology, governance, and risk/compliance, and are mostly located in and around Chicago. Gerchen details that the current financial instability in global markets makes this the perfect time for SPACs to facilitate consolidation in multiple industries. He describes the process as a private equity fund with a single donor. One company becomes the platform, and then after acquisition, others can be brought in. Once transactions are completed, growth is facilitated. Gerchen is clear in saying that his SPAC adds qualitative and quantitative value.

Clarifying the Ethics and Responsibilities Inherent in Litigation Funding

The following is a contributed piece from Nick Rowles-Davies, Executive Vice Chairman of Litigation Capital Management. Along with Andrew Saker, CEO of Omni Bridgeway, and Neil Purslow, Co-Founder of Therium, Nick will be a panelist on LFJ's upcoming special digital conference -- an industry roundup of the major events impacting commercial litigation funding in 2020, and what to expect in 2021.  Recently, there has been a lot of discussion around litigation finance. This is generally a good thing, as although litigation finance is no longer an unknown dark art, the industry still benefits from a heightened profile as it progresses on the journey from obscure to mainstream. That said, recent theoretical musings have concerned the ethics surrounding a funder’s involvement in a case, some funders’ closer associations with law firms and the duties of the lawyers running funded cases. These are important issues that should be discussed and debated openly, albeit more usefully by practitioners and funders who have real experience of such matters in jurisdictions where funding is permitted, so as to avoid naïve commentary that betrays a lack of practical knowledge and understanding of how these matters actually work. One issue raised recently is the concern that using funding can create a conflict between the duties of the lawyer to their client and any duty to the funder. There is a suggestion that in this regard, funders create a ‘practical difficulty’ for lawyers, who are torn between protecting the interests of their clients and pleasing investors. The only duty of the lawyers in a matter which is financed by a third-party funder is always the one to their client. Professional funders invariably include a provision within their funding agreements that requires the lawyers to act in accordance with their professional duties and any regulatory requirements. That said, the practical reality is that any professional funder will wish to ensure that the interests of the client and the funder are entirely aligned. No funder wants to create a situation where the client has little or nothing to gain from the outcome of the case. The simple reason for this is that the funder does not influence or control the decision making in the litigation or arbitration. They cannot, and attempting to do so would put the funder’s investment at risk. Funders provide passive capital and once they have decided to invest in a case there are only certain circumstances where a withdrawal from the case is permitted. In reality, given the experience of the established professional funding cohort, most clients are keen to discuss their case with the funder in a way that seeks out the funder’s views and gives the client the benefit of the many years of experience that the funders have gained. Despite the suggested concerns, funders do only have a limited and pre-agreed role in any decision making, and the funding agreements reflect that position. It has also been suggested that clients should seek independent advice on the terms of the funding agreement, namely alternative advice from the lawyers running the actual case. That does happen, although it is not mandatory given that the parties are commercial entities seeking to enter into a commercial agreement, but then neither is it mandatory for a client entering into a DBA/contingency fee agreement with their lawyers in England and Wales. It has been observed that there are law firms who are forging closer links or associations with funders and whether that, also, raises questions of duty or loyalty. The commentary above is equally applicable to this. Lawyers know where their duty lies, and professional funders have no interest in interfering in that. Perhaps a more pertinent question is to ask why these associations are happening. Since the last financial crisis, the law firm model has been changing with corporate clients insisting on higher value and better predictability on fees. In a downward trend since 2008, law firms have been losing out on collections on billable time. Moreover, the most important issue and the area that in house legal teams believe needs the most attention is the provision of more creative and alternative billing solutions.[1] One way in which law firms can offer an alternative is by the provision of litigation finance. Law firms that are forging closer associations with funders are showing that they understand their clients’ needs and are reacting to their clients’ requests by offering an alternative. The legal market is extremely competitive. It should be assumed that all the lawyers pitching commercial clients for work are very good lawyers. Law firms, particularly in the current financial climate, not only have to address the requirements of those commercial and corporate clients, but they need to set themselves apart from the competition. They need to change the narrative and distinguish themselves in a crowded market. The firms that have made such arrangements are benefitting from the ability to do this and are gaining more work from existing clients and winning new clients with the benefit of their associations with litigation funders. Used intelligently, litigation finance is an excellent business development tool for law firms. However, these associations go much further than simply being a response to in house corporate demands or the business development needs of law firms. The benefits to the law firms and to their clients are numerous, as they are of course to the funders. Nothing in these arrangements is, should be, or indeed could be, exclusive. The law firm should always act in the client’s best interests. Whilst the funder may see all of a firm’s potential funding opportunities, it is incumbent on the funder to create an arrangement that is always going to be competitive for the law firm’s clients. That is a significant benefit to all parties. The established professional funders consider every case on its own merit and risk profile and could not guarantee that they will always offer the cheapest terms – to do so would undermine one of the cardinal rules practiced by real funders, namely the pricing of risk. Accordingly, there will be occasions where the funder with whom the firm has an association cannot provide terms that meet the client’s demands for a particular case. Whilst the regular referral of cases is a benefit to the funder, there is real value to both funder and law firm in the knowledge and experience gained by working closely together, understanding the methodology and then adopting the processes and the thinking undertaken by the funders, even using similar terminology and document precedents. This exchange of information means that the law firm really understands what it takes to obtain approval for funding. That leads to a better result for clients. There is no time and money wasted in hopeless applications and cases that can be funded are executed more swiftly whilst those that cannot be funded rejected swiftly, or do not make it past the law firm’s triage process which has been honed by continued education from the funder. It is incumbent on any new industry to listen to concerns, ethical or otherwise, and respond with appropriate understanding and professionalism to address those concerns. All of the issues raised recently have been asked and answered many times before. The litigation finance industry has matured significantly in the last 10 years and is now treated, rightly, as a useful and often necessary tool in any disputes lawyer’s toolbox. The general international trend is one of growing acceptance, increasing adoption of, and accelerated adaptation to, litigation finance—particularly in sophisticated international hubs for dispute resolution.   [1] (2019 Report on the State Of The Legal Market by the Georgetown University Law Centre and Thomson Reuters Legal Executive Institute & Peer Monitor)
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ASX Trading Outage Could Spark Class Action Suits

Noted class action firm Quinn Emanual Urquhart & Sullivan is reportedly investigating a recent ASX trading outage. Could this mean a class action is forthcoming on behalf of those impacted by the glitch? ASX has accepted responsibility for the occurrence, though it’s not clear what that acceptance means in a legal context. Sydney Morning Herald suggests that the firm is engaged in due diligence research on what they’ve called ‘a potential case,’ before seeking litigation funding. One partner, Damian Scattini, has stated that he believes there’s negligence afoot and said negligence led to significant losses for market participants. The average daily turnover on the ASX is reportedly over $4.5 billion. Scattini went on to say that the issue that caused the outage was “foreseeable,” and that ASX should make good. Some traders have already voiced their willingness to join the proposed class action. Gary Henderson, a 20-year-trader, claims to have lost nearly $8,000 on trades he could not complete that day. Henderson is not alone, as many traders and brokers have stated their disappointment and dissatisfaction for the record. Damian Scattini estimates that due diligence may take a few more weeks to complete, but that ASX could be served before Christmas.