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Commercial

Frank DeCosta Interview: Litigation Leader in International IP

Patent litigation cases have soared dramatically since the beginning of the pandemic. Frank DeCosta of Finnegan, Henderson, Farabow, Garrett & Dunner, knows that companies are leveraging IP assets with strategic litigation—which is more valuable now than ever before. Bloomberg Law recently spoke with DeCosta about how third-party litigation funding drives IP litigation, hiring a niche attorney, and more. DeCosta begins by explaining that while remote hearings and depositions have been common since COVID, jury trials are still at a dead stop. DeCosta explains that his firm was already set up for remote meetings before COVID hit, which gave them an edge while others were left updating their tech. Remote meetings also allow for more staff involvement and education because travel expenses are no longer required to bring low-level staffers into a meeting. When asked what causes the COVID-related spike in IP litigation, DeCosta explained that patent litigation is cyclical. Typically, trying economic times lead to an increase in patent filings and IP cases. Reasons to initiate IP cases vary, and might include generating revenue, leveraging assets, or justifying a previous investment in a patent. Some credit the availability of litigation funding in fueling new IP suits. Indeed, some prominent funders report a nearly untenable downpour of requests for funding. Attracting new clients is an important aspect of any legal firm. DeCosta explains that the best way to find and keep clients is to serve as a reliable, trustworthy advisor. Anticipating issues before they arise, understanding goals and caveats, and truly knowing a company and staff are all crucial—and more difficult than ever because interactions must now be scheduled and handled remotely. On the subject of diversity, DeCosta recommends seeking talent from STEM-related undergrad or graduate programs. Like many firms, Finnegan’s mission is to be intentional and fervent in seeking out a diverse and talented team.
Commercial

Indiana Resources Ups the Anti in Tanzanian Government Action

Indiana Resources is still pursuing its case against the government of Tanzania. The case deals with the alleged expropriation of the southern African Ntaka nickel project. Indiana’s claim now exceeds $95 million, with the first hearing scheduled for next month. Business News explains that the International Center for the Settlement of Investment Disputes (ICSID), a part of the World Bank, has formed an Arbitral Panel that will hear the first procedural hearing on April 22. Panel members include representatives from Singapore, the US, Botswana, and Tanzania. Chairman of Indiana Resources, Bronwyn Barnes, stated that the company is glad to hear that the panel has been formed and that Indiana is well prepared to move forward with the claim. She goes on to explain that the case is being funded with non-recourse litigation funding, so shareholders will not have to bear the cost of pursuing the case. The case itself revolves around the Tanzanian government changing mining laws in 2018. Despite assurances to the contrary, Ntaka Hill was expropriated in 2019, leading to IR requesting arbitration the following year. Indiana asserts that the Tanzanian government was obligated to compensate companies for any investments that were nationalized or expropriated. The value of the mining project is about $212 million, though recent rises in metals pricing suggest that estimates may be on the low side. Nickel, copper, and cobalt have all risen in value in recent years. Litigation Capital Management, a London-based legal funder, is footing the bill for the arbitration costs with a cap of nearly $5 million. Indiana Resources is being represented by LALIVE, a Europe-based specialist international arbitrator.
Commercial

PGMBM Raises Over GBP 100 Million to Fund Litigation

International firm PGMBM has formed a partnership with alternative investment firm North Wall Capital. This brings PGMBM’s total capital raised to more than GBP 100 million. Law Gazette asserts that the money raised will be used to fund alternative dispute resolution, antitrust litigation, and class-action suits. This is good news for PGMBM, whose class action was thrown out by the High Court last year. The court called the action an ‘abuse of process.’ PGMBM Chairman Harris Pogus stated that the firm's goal is to keep fighting for those who were wronged by large corporations. The firm continues to grow and attract top talent from around the world.
Commercial

Woodford Equity Class Action Moves Forward

Law firm Leigh Day is on its way to getting justice for the roughly 4,000 investors in the now-defunct Woodford Equity Income Fund against Link Fund Solutions. In fact, the corporate directors could find themselves in High Court within the next few months. Portfolio Adviser explains that Leigh Day sent an LBA to Link on behalf of investors who lost money due to the Woodford Equity collapse. The letter asserts that the fund was mismanaged, and that Link did not maintain reasonable levels of liquidity. It went on to say that the failure was avoidable had proper diligence taken place. Link has been given three months to respond to charges that they used shady tactics to circumvent rules meant to prevent this type of failure. These include listing unquoted securities on the ISE in Guernsey, improper trades with other funds managed by Woodford, and unquoted companies canceling and then reissuing shares. Leigh Day is using third-party litigation funding, which means claimants won’t have to foot the bill for legal representation. This is precisely the sort of case litigation funding is meant to aid. Ordinary citizens defrauded by Link will now see their day in court. Leigh Day spokesman Boz Michalowska stated that Link failed to take the steps needed to protect investor interest.
Commercial

Does Third-Party Legal Funding Carry National Security Risks?

Influence. It’s one of the key concerns that lawmakers have about third-party litigation funding. The fear is that funders, who do not have a direct connection to a legal dispute, yet fund it in the hopes of earning a share of the award, may unduly influence decisions about the case that may adversely impact courts, plaintiffs, or defendants. So what happens when funded cases involve one or more federal governments? Defense One details that in some instances, litigation isn’t used strictly to address grievances. Litigation can also be used unscrupulously to cause delays, for harassment, to publicly humiliate someone, or to gain access to confidential information that can’t be obtained by other means. There are laws against malicious litigation, but some say that the increase in access to the global legal theater may render these laws insufficient to prevent grievous harm. As litigation funding grows in popularity, so do the cries to regulate and control the practice. Some say it’s time to look at the impact this practice can have on national security. For example, as transparency laws come into effect, disclosures once kept private may now be widely shared. These waters are murky, as jurisdictional inconsistencies lead to confusion on a global scale. While the legal funding industry has done a commendable job of self-regulating, their guidelines for conduct and best practices are not legally binding, nor are they accepted industry-wide or worldwide. Now, industry and government leaders are questioning how transparency provisions should be altered in order to protect national security interests. Therein lies the issue. We cannot know if foreign or malicious interference is happening without meaningful transparency laws. Foreign lobbying, global connections, and jurisdictional discrepancies all engender the need to amass data, as well as gain input from industry leaders, and find ways to mitigate the risks inherent to disclosures and transparency among third-party funders in multinational cases.
Commercial

Adam Silverman Joins Omni Bridgeway Singapore

A new, Singapore-based Investment Manager has joined Omni Bridgeway.  Omni Bridgeway details that Adam Silverman is a former dispute resolution lawyer with global expertise. His solicitor qualifications span England, Wales, and Hong Kong. Silverman spent six years on the dispute resolution team of Freshfields Bruckhaus Deringer and in the Litigation and Regulatory Department of Bank of American Merrill Lynch. Silverman is expected to be responsible for sourcing and vetting investment opportunities and overseeing cases funded by Omni Bridgeway. His experience with arbitration, insolvency, litigation, claims monetization, and portfolio funding makes him a valued addition to the team. As global demand for legal funding grows, Omni Bridgeway remains an industry leader, having funded the first financed insolvency claim in Hong Kong. The Aussie-based funder was an early supporter of arbitration cases in Singapore and Japan, and also helped found the Indian Association for Litigation Finance.
Commercial

Enhanced Damages Award Granted in IP Case

Treble damages have been called the white whale of IP and patent law. For contingency lawyers, treble damages—an award where the damages are multiplied by three because of willful infringement—can be a dream come true.  Above the Law details that in reality, only a tiny percentage of patent cases end with an enhanced damages award. When one does, it’s generally of interest to the entire legal community. Sometimes, the details are entertaining as well. A patent case involving EagleView and Xactware Solutions is one such example. Both tech companies compete with similar products and an overlapping customer base. EagleView amassed a large portfolio of patents, and in late 2019, was awarded a $125 million verdict in a case involving five different patents. Rather than taking the money and running, EagleView noted the discovery of willful infringement and used that to try to secure treble damages. The trial judge agreed, awarding damages in the maximum allowable amount. In the end, EagleView wound up with the original award, incidentals, costs, and an additional $375 million in enhanced damages. It is possible that this number will be reduced on appeal, or perhaps via settlement. While the court decision is long, it can be boiled down to a few points:
  • Defendants acted with the express intent to lure EagleView’s customers and decrease their reach.
  • Enhanced damages in this case are a punitive measure, meant to chastise and to dissuade others from similar tactics.
  • The court was put off by the acrimonious and borderline underhanded nature of the trial itself, and the unnecessarily nasty discovery process.
Given the conduct described, it’s understandable how the court could make the enhanced damages award. If the award survives a Federal Circuit court appeal, it could set a precedent that’s likely to be repeated.
Commercial

Burford Roundtable: COVID-Inspired Changes in Litigation Finance

Burford Capital is in the midst of assembling a study of how CFOs can make better use of legal funding. Finance professionals Amanda Parness, Michael Curran, and Jim Kilman lend their thoughts to the discussion. Burford Capital begins by gauging the interest in financial products that mitigate risk from claims that might not otherwise be litigated. Parness: CFOs and corporate advisors have a responsibility to look into innovative alternate sources of monetization. Looking at the value of pending litigation or awards should be standard. Curran: Lending certainty to cost estimates is a big deal, and can have a direct and immediate impact on the finances of a business. When operating funds are low or COVID has taken a toll, legal funding becomes even more attractive. Burford: Is COVID spurring the changes we’re seeing now in terms of legal departments thinking more commercially? Kilman: While COVID is accelerating the momentum of these changes, many were already underway long before. Legal departments are generally a cost center for businesses. But funding can reduce cost, lower risk, and bring in spendable income at a time when funds are low. Curran: The changes we’re seeing now will likely be long-lasting, and will almost certainly be more creative and commercially minded for the foreseeable future.
Commercial

A New Resource for Litigation Funding Fundamentals

Litigation Finance began as a way to expand access to the legal system for those who could not otherwise afford it. Funders could provide non-recourse cash to a promising case in exchange for a percentage of any award. If the case fails, the funder loses its investment. Third-party legal funding is still used this way, but has also expanded to portfolio funding, claims monetization, and more. Omni Bridgeway explains that once legal and business professionals understand the basics of legal funding, they’re more likely to see the many possible benefits. With this in mind, the firm has developed a primer on the industry. The resource material includes a brief history of litigation funding and its relation to champerty laws that may still impact its implementation in some jurisdictions—though that’s becoming rarer by the year. It goes on to discuss how legal funding is defined, and the various forms it can take. Benefits discussed include the flexibility of legal funding, and how it can level the playing field between ordinary claimants or plaintiffs versus huge corporations or even governments. Explanations of non-recourse funding, risk-sharing, and what one should expect when inquiring about funding for a case are all detailed. Ultimately, Omni Bridgeway is committed to ensuring that the public and private sector grow mindful of the benefits that can be realized through the use of Litigation Funding.