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Commercial

Will the ABA’s Litigation Funding Guidelines Do More Harm Than Good?

This week, the ABA’s House of Delegates approved new best practices guidelines for litigation funders. The ABA’s inclusion of third-party funding in their guidelines is a necessary step, given the increasing popularity of the practice. Some say, however, that these new guidelines are not an accurate reflection of how Litigation Finance works.   Burford Capital details proposed revisions to the policy, which they claim will add clarity and context. Still, it’s important to keep in mind that ABA guidelines are merely that - a set of guidelines. They aren’t meant to be the basis for disciplining firms or individual attorneys. According to Burford, context should be added. It should be noted that third-party funding is widely accepted and endorsed by legal communities all over the world. Next, commercial litigation and consumer litigation should be addressed separately. It’s not logical to apply the same guidelines to two such different practices. The same applies to lawyer-directed funding versus that directed by the client. The ABA guidelines do begin by pointing out that these are separate practices with their own issues, yet they don’t seem to recognize common exceptions to this—such as what occurs when an entire portfolio of cases is funded. There’s also a suggestion that paragraphs should be devoted to the NYCBA Committee on Professional Ethics. This is a non-binding opinion from 2018, which was released without an opportunity for public comment. It has widely criticized by legal professionals, and is best left out of new guidelines. Finally, Burford suggests removing or editing any recommendations that do not practically serve clients or attorneys. In particular, amending the idea that funders having oversight of litigation is tantamount to undue influence.
Commercial

Taking a Look at Security for Costs

Over the last 10 years, provisional measures such as security for costs have been requested in progressively higher numbers. In fact, of all the provisional measures asked for, roughly 20% have included security for costs. These requests are rarely granted, however. As it stands, most courts feel that requests for security for costs can only be granted under unusual and specific circumstances.  Burford Capital explains that courts have determined that simply receiving third-party funding does not demonstrate a need for security for costs. That may be even more true now that it’s established that Litigation Finance isn’t just for those in financial peril. Funding is now commonplace, even among well-capitalized firms, since it provides financial flexibility and enables investments in growth. A case from 2019 sheds light on this, as a tribunal rejected a request by the Republic of Panama to secure costs in a funded claim. In their rejection, the tribunal questioned whether or not Panama even had the right to make such an ask. A survey conducted by the ICSID addressed compliance with cost awards, and found that most awards in favor of states were indeed paid. Of those that weren’t, the state tended not to enforce payment orders. The evidence suggests that security for costs requires that the filing party show need, timeliness, and unusual circumstances. In reality, though, many cases funded by third parties automatically request security for costs. Those applications are typically rejected. According to Burford’s 2019 Legal Finance Report, 67% of in-house counsel agree that litigation funding is a good way to reduce the impact of litigation costs. 72% see value in the practice of litigation funding overall. Where once third-party funding was a market of financial instability, it is now indicative of strategic planning and savvy money management.
Commercial Covid-19

What’s Causing the Rise in Trade Secret Litigation?

Intellectual property can become a valuable asset, especially during an economic downturn. That may be why new patent lawsuits have increased over 15% in recent months. Trade secret litigation is likely to follow—which may be encouraged by the overwhelming availability of third-party litigation funding. Therium details that the five most prominent patent litigation plaintiffs in 2020 are non-practicing. Many take this to mean that these companies are using their patent portfolios to finance their claims. When budgets are tight, patent and other types of IP litigation may be pursued, and meritorious claims that might otherwise be discarded can in fact see the light of day.  Experts suggest that several specific factors are driving the increase in trade secret actions. The Defend Trade Secrets Act, signed by President Obama in 2016, makes trade secret law more favorable to plaintiffs. The definition of ‘trade secrets’ has become broader in recent years, and some sizable awards have been issued as a result. Companies are also avoiding the patent process in favor of listing innovations as trade secrets instead. The shift to work-from-home and widespread employee furloughs may cause an increase in trade secret cases—simply because they make trade secret violations more likely. People who are out of work and desperate may be more likely to use an employer’s trade secrets for their own gain. Remote working can also lead to unsecure video chats, while important documents being left unsecured in communal work or living spaces, and a lack of proper encryption, can all lead to a loss of IP. Security overall is down during COVID, as the emphasis is placed on the safety of workers and slowing/negating virus transmission. Anyone pursuing a case involving trade secrets should move quickly. Urgency is of the essence, especially since the loss of IP can be lead to swift and crippling impacts. Trade secret litigation can lead to monetary damages or injunctive relief, either of which would be welcome during these uncertain times.
Consumer

How Did a $440K Law Firm Loan Balloon to $18MM?

Sean Callagy's law firm, Callagy Law, has been involved in several contentious lawsuits in recent months, in part due to defaulting on loans from Legal Capital Group. The LCG agreement was made with George Prussin, an old friend of Callagy. Their friendship fell apart after several professional differences that became litigious. Legal Newsline reports that Callagy borrowed nearly $600,000 to pursue routine medical malpractice claims, and other cases. One case in particular descended into legal chaos when Callagy sued his co-counsel. Another case involved international litigation for the proceeds of the lawsuit in a 2006 plane crash that killed more than a hundred people. That case was the stuff of tabloid news—also involving a Mexican firm owned by a non-lawyer, legal legend Benton Musselwhite, and the IRS. Callagy now claims he owes $18MM to LCG, with an effective interest rate of 90% per year. LCG has taken legal action against Callagy.  While regulations regarding litigation funding can vary from state-to-state, on the federal level, funding is treated differently than loans. The main difference is that funding is non-recourse, and therefore only repaid when the case yields a payout.
Announcements Commercial

District Court in Poznań Grants Third Injunction against Mariusz Świtalski to Secure Forteam Investments’ Claims

WARSAW, Poland, August 5, 2020 -- Forteam Investments Ltd., an investment company controlled by U.S. private equity firm Delta Capital Partners Management LLC (“Delta”), which is seeking over PLN 300 million from Mariusz Świtalski and companies he controls, has secured a third court injunction.

The District Court in Poznań granted the injunction against Druga-Sowiniec Capital sp. z o.o. S.K.A., a company controlled by Mariusz Świtalski, and Krzysztof Belcarz.

The injunction secured by Forteam concerns a claim that seeks to declare as invalid agreements to sell stakes in Czerwona Torebka S.A. (24,758,600 and 9,707,588 shares, respectively), executed in March 2020 between Świtalski FIZ and the entities facing this injunction.

Under the injunction, Forteam has secured another Czerwona Torebka shares. In total, by force of the first (granted in February 2020) and third injunction, 48.44% of the Czerwona Torebka shares have been secured. Currently, 35.5% of the Czerwona Torebka's shares have been already seized by a bailiff, while the procedure is on-going for the remaining 12,94% of shares.

Christopher DeLise, CEO of Delta, said, “We will make full use of the latest injunction issued by the court that enables us to participate in the oversight of Czerwona Torebka. We have already begun such involvement by exercising our rights to safeguard the interests of the shareholders and to protect the company’s commercial interests and assets.This includes an extensive review of the price, trading volume, and history of Czerwona Torebka’s securities. We also intend to exercise our rights to meet with and hold fully accountable the Management Board and to obtain all essential information and detailed plans concerning the company’s future. We also intend to express our concerns regarding the way the company appears to be mismanaged for the benefit of certain parties rather than as required by law and consistent with the fiduciary duties of the Board”

The transactions between Świtalski FIZ, Druga-Sowiniec Capital and Krzysztof Belcarz took place in March 2020 after the District Court in Poznań’s February 21, 2020 decision that granted Forteam an injunction against Mariusz Świtalski and companies from Sowiniec Group under his controls (with the exception of Druga-Sowiniec).

As a result of that ruling, Mariusz Świtalski’s assets are frozen until the case is concluded. These share sale transactions illustrate Mariusz Świtalski’s attempts to sell and conceal his assets to make it more difficult for Forteam to satisfy its claims.

This newest injunction is yet another positive court ruling for Forteam, following the court’s June 25, 2020 dismissal of an appeal lodged by Mariusz Świtalski on February 21, 2020. Moreover, Mariusz Świtalski previously failed in his attempt to exclude all judges working at Poznań-based courts from all cases between him and Forteam.

At the end of April 2020, the court, in connection with potential detriment being suffered by Forteam as a creditor, decided to secure Forteam’s claims on parts of the assets of Mariusz Światalski’s children: Mikołaj, Marcin, Mateusz (President of the Management Board at Czerwona Torebka S.A.) and Natasza (Proxy at Czerwona Torebka S.A.). The court’s decision concerns investment certificates in fund Świtalski FIZ, which Mariusz Świtalski had transferred to his children.

All three injunctions were obtained in anticipation of a conclusion in a civil proceeding against Mariusz Świtalski that relates to his breach of a guarantee agreement executed with Forteam Investments in 2015.

Reminder: On May 8, 2015, Forteam purchased a 100% stake in Małpka S.A. from Czerwona Torebka. Małpka was the owner of the Małpka Express chain. In settling the transaction, Forteam sold its stake (16.18%) in Czerwona Torebka. Upon signing the sale agreement, the parties were aware of Małpka’s difficult situation. The agreement, itself, noted that the parties realize that further considerable financing would be needed for the company to reach the break-even point.

Because of this, Mariusz Świtalski and Sowiniec Group also executed a Guarantee Agreement with Forteam, which provided Forteam with a guaranteed return on the Małpka investment if the Małpka Express store chain was later sold to a third party. Mariusz Świtalski submitted a written declaration that his personal assets were sufficient to perform the Guarantee Agreement.

When Forteam attempted to sell Małpka Express in 2018, it was unable to obtain consideration at or above the minimum sale price, despite engaging a respected independent investment bank to run a robust sales process. Mariusz Świtalski has not exercised his preemptive rights and did not buy Małpka for the guaranteed amount.

Accordingly, Forteam notified Świtalski on December 28, 2018, of his obligations to remit the monies owed to Forteam pursuant to the Guarantee Agreement. Notwithstanding, Świtalski and the companies have failed to pay any amounts due and owed to Forteam, which, in turn, necessitated the filing of the injunction and civil lawsuits. As a result of Mariusz Świtalski’s actions, Forteam was forced to take additional steps to secure part of his children's property and other entities to which Świtalski transferred owned assets.

Krzysztof Belcarz has been affiliated with Mariusz Świtalski's various businesses for years. In the course of his career, he has served as Development Director at Świtalski FIZ, Management Board Representative for Commercial Affairs in Czerwona Torebka and Expansion Partner at Świtalski & Synowie S.A.

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Announcements Consumer

KBRA Assigns Preliminary Rating to TVEST 2020A, LLC Note

NEW YORK--(BUSINESS WIRE)--Kroll Bond Rating Agency (KBRA) assigns a preliminary rating to one class of notes from TVEST 2020A, LLC, a $123 million securitization collateralized by litigation finance and medical receivables serviced by Experity Ventures LLC (“Experity”). The TVEST 2020A, LLC notes (“Notes”) represents Experity’s first ABS securitization collateralized by litigation finance and medical receivables. Experity, formed in April, 2019, is the parent company of the various receivable originators including Thrivest Legal Funding LLC (“Thrivest”), a direct to market pre-settlement legal funding company with a history of originations dating back to 2009 and ProMed Capital Venture LLC (“ProMed”), a recently acquired leading medical lien funding company that has been originating since 2017. Experity is also the parent of four other litigation finance receivable originators that were formed in connection with strategic financing and operational partnerships with third parties. The portfolio securing the transaction has an aggregate discounted receivable balance (“ADPB”), including assumed prefunding, of approximately $160 million as of the May 31, 2020 cutoff date. The ADPB is the aggregate discounted cash flows of the collections associated with the TVEST 2020A, LLC portfolio’s litigation funding receivables (“Litigation Receivables”) and medical receivables (“Medical Receivables” and, collectively, “Receivables”). The discount rate used to calculate the ADPB is a percentage equal to the sum of the assumed interest rate on the Notes, the servicing fee rate of 1.00%, and an additional 0.10%. As of the cutoff date, Medical Receivables comprise 83.20% of the portfolio by count and 67.44% by advance amount and have an average advance to expected settlement case value (“Expected Case Worth Ratio”) of 22.06%. Litigation Receivables comprise the remaining 16.80% of the portfolio by count and 32.56% by advance amount and have and Expected Case Worth Ratio of 8.77%. The Notes benefit from credit enhancement in the form of overcollateralization, a cash reserve account and a capitalized interest account. The transaction also features a $20 million prefunding account that may be used to purchase additional Receivables during the three months after closing, subject to certain eligibility criteria. Click here to view the report. To access ratings and relevant documents, click here Disclosures Further information on key credit considerations, sensitivity analyses that consider what factors can affect these credit ratings and how they could lead to an upgrade or a downgrade, and ESG factors (where they are a key driver behind the change to the credit rating or rating outlook) can be found in the full rating report referenced above. A description of all substantially material sources that were used to prepare the credit rating and information on the methodology(ies) (inclusive of any material models and sensitivity analyses of the relevant key rating assumptions, as applicable) used in determining the credit rating is available in the U.S. Information Disclosure Form located here. Information on the meaning of each rating category can be located here. Further disclosures relating to this rating action are available in the U.S. Information Disclosure Form referenced above. Additional information regarding KBRA policies, methodologies, rating scales and disclosures are available at www.kbra.com. About KBRA KBRA is a full-service credit rating agency registered as an NRSRO with the U.S. Securities and Exchange Commission. In addition, KBRA is designated as a designated rating organization by the Ontario Securities Commission for issuers of asset-backed securities to file a short form prospectus or shelf prospectus. KBRA is also recognized by the National Association of Insurance Commissioners as a Credit Rating Provider and is a certified Credit Rating Agency (CRA) with the European Securities and Markets Authority (ESMA). Kroll Bond Rating Agency Europe is registered with ESMA as a CRA.
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Consumer Special Features

ABA Adopts Guidance in Third-Party Litigation Funding

This article was contributed by Eric Schuller, President of the Alliance for Responsible Consumer Legal Funding (ARC). On August 3, 2020, The American Bar Association (ABA) House of Delegates, by a vote of 366-10, voted to adopt the resolution for “Best Practices for Third-Party Litigation Funding”. This established a slew of national guidelines that law firms, consumers and legal funding companies should follow. We applaud the ABA in setting these standards that ARC and its members already follow. Some of the items that they highlight are:
  • The arrangement should be spelled out in writing.
  • The writing should make clear the non-recourse nature of the investment the funder is making in the claim; how the funder will be compensated
  • Who is responsible for paying the funder, from what source (g., the recovery after trial or settlement) and when (e.g., time period after receipt of judgment or settlement funds)
  • The arrangement should be structured so that the client retains control of the litigation, and not the funder.
  • Lawyers should be cautious in making case-related reports or predictions.
  • Funding agreements should state the amount of funding to be provided, the amount or method of calculating the return to the third-party funder, and how and when the proceeds of the party’s recovery are to be distributed among Funding agreements should provide a fair, transparent, and independent dispute resolution process.
  • Funding agreements also should include a recommendation that a party obtain independent legal advice as to whether to enter into the proposed There should also be a confidentiality obligation for the funder that survives termination of the agreement
  • In client-funder financing, the third-party funder and the party should be the sole parties to the funding agreement, in order to avoid any potential attorney conflicts of interest, should the party and the funder disagree on a material issue during the course of the litigation. Many non-recourse finance agreements ask the attorney to promise the funder that the attorney will notify the funder when the case is resolved.
  • Limitations on a third-party funder’s involvement in, or direct or indirect control of, or input into (or receipt of notice of), either day-to-day or broader litigation management and on all key issues (such as strategy and settlement), should be addressed in the funding agreement.
  • Lawyers may want to obtain written acknowledgement that the funder will not seek to control the litigation or the expense.
These items are consistent with the statutes that ARC and its members support in legislation. ARC fully supports proper regulation of the Consumer Legal Funding Industry across the country. Eric Schuller President
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Commercial

Class Action Accuses Banks of $500MM in Overcharges

UK Litigation Finance firm Woodsford is funding a class action against BT, AMP, and Commonwealth Bank. If successful, the case could bring the funder as much as 25% of any potential reward. Craig Allsopp, class action leader at Shine, who has taken on the case, has said that funders generally receive between 20-30% of awards from successful cases. The News Daily explains that the class action suit against Commonwealth Bank, BT, and AMP alleges that the banks improperly signed members up for a superannuation fund at a higher rate than is appropriate. A claim has already been lodged against AMP, with BT and Commonwealth Bank claims to follow. Allsopp stated that Shine law firm is confident that the evidence shows overcharges of more than $500MM. Essentially, the banks are accused of vertical integration—which includes the practice of selling in-house products at artificially inflated prices. Allsopp calls this practice both “illegal” and “unfair” to clients. The difference in policy costs varied, but BT and CBA are accused of charging 10-30% more for comparable services. AMP was even more aggressive, charging between 30-50% more. The claimants assert that this isn’t representative of an error or two—but that the evidence is indicative of systemic misconduct by the banks. While signups to the claim are still ongoing, Shine law firm suggests a possible membership class of half a million people. Shine is expected to contact bank members past and present to inform them of the claim.
Announcements Commercial

Pravati Capital Completes Expansion to Key Markets and Adds Accomplished New Hires to its Distinguished Leadership Team

NEW YORK, July 29, 2020 — Pravati Capital, leading litigation finance pioneer and consulting firm, today announced four new members to its esteemed leadership team, each complementing the firm’s outstanding services and legal insight. Joining Pravati Capital, Bruce Cohen, Douglas Smith, Scott Potter and Shane Ham will bolster the company’s litigation practice with specialized experience to better serve clients. Pravati Capital announced four new members to its esteemed leadership team, each complementing the firm’s outstanding services and legal insight. Joining Pravati Capital, Bruce Cohen, Douglas Smith, Scott Potter and Shane Ham will bolster the company’s litigation practice with specialized experience to better serve clients. The accomplished new additions bring a wealth of knowledge in areas such as debtor-in-possession financing, complex litigation and commercial litigation, and will help steer and strengthen the firm’s plans for growth, while expanding its footprint to key markets including New York, Los Angeles and Dallas. As Pravati Capital continues to grow and scale, the strategy will remain on developing attractive alternative investment funds that offer solid returns at a low risk given that assets are not related to the economic cycle. The established focus combined with the specialized experience will allow the industry leader to explore new and existing opportunities within the dynamic and growing field. “We are thrilled to welcome these accomplished individuals and look forward to the value they will add to our insight and practice,” said Alex Chucri, CEO at Pravati Capital. “Our clients are our top priority and we are confident these additions will enhance our company as we continue to grow and offer exceptional service as we expand our practice of finance litigation.” New additions to Pravati Capital’s leadership includes: Pravati Capital welcomes Bruce Cohen as Director of Business Development in the Dallas office. Cohen’s 30 years of well-rounded background add extreme value to the firm and his past positions include Senior Legal Director at PepsiCo, Inc., where he was responsible for sales and antitrust matters in its Frito-Lay subsidiary and Associate General Counsel of Verizon Communications Inc. A former U.S. Army Field Artillery Officer, he is a Distinguished Graduate with Honors of the Virginia Military Institute and received his Juris Doctor summa cum laude from the University of Georgia School of Law. Cohen was a litigation partner at a prominent Atlanta law firm and has appeared in trials, regulatory proceedings and appeals in over three dozen states. He holds advanced degrees in history and law from Michigan State, the University of North Texas, and King’s College London. He previously served as a Special Assistant to the Attorney General of Texas, and as a judicial law clerk for a judge of the United States Court of Appeals for the Fifth Circuit. “I’ve really enjoyed the challenge of learning about litigation finance and explaining it to law firms and legal departments, many of whom really didn’t know it existed, let alone the ways it could help their practice and their teams,” said Cohen. “It’s still a nascent business in many respects, and I look forward to helping it grow.” Doug Smith serves as Senior Commercial Lending Advisor in the Scottsdale, AZ office. With a 30-year background managing corporate and commercial real estate lending, Smith focused primarily on structured finance transactions, Debtor-In-Possession bankruptcy restructuring, and distressed loan portfolios. Prior to the private sector, he worked for Congressman John Rhodes, Minority Leader of the U.S. House of Representatives during the Carter and Reagan administrations. Currently, he is a member of the Arizona board of directors for a commercial bank and President of the private non-profit Phoenician II Foundation. In the past, he has served as a member of the Board of Directors for the Maricopa County Industrial Development Authority, the Board of Directors for the Arizona Chamber of Commerce, the Maricopa County Community Development Advisory Committee and the Arizona Republican Party Finance Committee. “The economy is experiencing major dislocation and businesses will need debtor-in-possession and debt restructuring services for some time to come,” said Smith. “Pravati is uniquely positioned to provide these financial services in an efficient and creative manner to middle market enterprises.” Scott Potter joins as Director of Business Development in Pravati Capital’s home office in Scottsdale, AZ. Potter honed both his legal and client relations skills through a decade long commercial litigation career and an additional four years of in-house counsel experience. He was the corporate counsel and global client relations manager for an international manufacturing firm and the vice president of legal affairs for a national lien company. Scott is a graduate of both the Marriott School of Management and the J. Reuben Clark Law School at Brigham Young University. He has practiced at the administrative, trial and appellate levels in both real estate and commercial litigation and represented both billion-dollar corporations and impoverished individuals. Scott has served on the Arizona State Bar’s alternative Dispute Resolution committee and been named a Southwest Super Lawyer Rising Star. “My parents always said I could excel at anything that I wanted to do.  What I always wanted to do was help people to be happy,” said Potter. “Pravati gives me the chance to lift financial burdens from others as they seek greater peace in their lives.” Shane Ham joins as a Legal Investment Analyst in Pravati Capital’s home office in Scottsdale, Arizona. Formerly a litigation partner at Osborn Maledon, he focused on complex commercial and personal injury matters. His practice spanned a broad variety of topic areas, from constitutional law to medical marijuana compliance. Prior to attending law school, Shane spent nearly a decade in Washington, D.C. where he worked as a producer on a political talk show and a technology policy analyst for a prominent think tank. Shane received both his Bachelor of Arts degree in Political Science and Juris Doctorate (magna cum laude) from the University of Arizona, and he clerked for then-Vice Chief Justice Andrew D. Hurwitz at the Arizona Supreme Court. “As a litigator I saw too many cases that were strong on the merits but had to be abandoned because the plaintiff did not have the funds to fight for years against a deep-pocket defendant,” said Ham. “At Pravati I get to help level the playing field, and give people who have been wronged a chance to have their day in court.” “The new additions to our leadership team will continue to support our vision of transformation and innovation, which together with leading and breakthrough insight and practices within our industry, will allow us to continue serving our clients as we grow in the future,” added Pravati Capital’s CEO Chucri. About Pravati Capital As a leader in the litigation financing field, Pravati Capital has changed how companies and law firms envision their future. For more than a decade, we have been at the forefront of litigation financing solutions, creating innovative sources for bridge capital. It is our mission to provide innovative, efficient capital solutions for law firms, compassionate assistance to plaintiffs, and a secure alternative investment option for accredited investors.
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