The phrase “new normal” can be unsettling, especially when it foretells an unwelcome change. Will rampant class actions lead to a glut of insolvency cases levied by shareholders? Some are predicting that as many as 50 new claims each year could be the new normal.Financial Review details that between 2019-2020, at least 35 class-action cases were settled, which is more than $1 billion in settlement funds. Does this indicate that class action numbers have leveled off? Or will they continue to rise as the pandemic continues impacting consumer spending?This year has seen 28 class actions filed in the time period between July 1st-October 31, 2020. These included financial products, securities, consumer claims, claims against governments, and a few employment claims as well. Some have speculated that new restrictions and requirements impacting litigation funders would lead to fewer class action filings. So far, this has not come to pass.An impending ruling on competing class actions is expected early next year. That may also impact class action filings since courts have long held that all class actions are harmed by multiple class actions for the same offense. This is being meted out in a trio of cases filed against RCR Tomlinson—with Burford Capital and Omni Bridgeway not backing down.
Security for costs is frequently asked for in international arbitration cases, but almost never granted. In fact, the common thinking is that security for costs should only be granted in certain rare and specific instances. Notably, one of the main things spurring requests for security for costs is litigation funding. Many defendants are more likely to ask for this when plaintiffs utilize third-party-funding.Burford Capital explains that granting security for costs carries specific risks that are best avoided. These include the possibility of reducing access to justice and the risk of making determinations on a case’s merit before adjudication can begin. Reimbursement rights depend on who wins the case, and who will be asked to cover legal costs. Those things cannot be known with certainty until the case is over. Further, mandating upfront security may disallow plaintiffs from filing their case at all. Ideally, there should be no financial barriers to the pursuit of justice. At least, courts can ensure that they aren’t a party to putting up financial barriers.In the case of Eugene Kazmin v Republic of Latvia, security for costs was granted upon request by the state. This happened because the claimant was under criminal investigation and their assets had been seized. Accusations of tax evasion and money-laundering factored in as well. The court determined that the claimant’s behavior reasonably predicted the potential for non-compliance. A key point here is that the claimant did demonstrate that he had the means to cover costs—but past deeds suggested a propensity to leave financial obligations unfulfilled.Courts seem to have decided that the use of third-party litigation funding is not reason enough to grant an order of security for costs. But there may always be exceptions. If you have concerns about such requests, discussing them with an experienced funder is a good place to start.
Economic uncertainty is plaguing industries around the globe. Between the COVID pandemic, bizarre political circumstances, and ongoing international market turbulence—unpredictability is everywhere. Investors are seeking new investment types that are uncorrelated with the rest of the marketplace. For some, third-party legal funding meets all the requirements.Omni Bridgeway explains that Litigation Finance can be a key factor in reducing risk, pursuing expensive litigation, or keeping balance sheets in line. How? There are three main ways:--Enforcement. Monetizing judgments that have not yet been collected can be an excellent way to utilize litigation funding. When a case is successful, but funds haven’t been fully recovered, some firms merely accept it as a loss. Pursuing the funds might require asset tracing, seizure across international lines, or could involve complications like state-owned companies or multinationals. Even defendants with large bank accounts may prove themselves immune to collections. But a litigation funder can pursue collection of awards in exchange for a share. --Portfolio funding. Often times, third-party litigation involves one large case, such as a class action or a case against a huge company or government. But portfolio funding—providing funds for an array of smaller cases—is gaining in popularity. This funding style diversifies risk while allowing for partial contingency funding. This increases access to justice for plaintiffs while keeping the risk for investors low. Portfolio funding is a boon to investors, and also to law firms.--Monetizing claims. We know that many companies choose not to pursue litigation even when its merits are obvious. It can simply cost too much and take too long. But what if firms could finance litigation without adding pressure to balance sheets or risking the expense? That’s what litigation funding accomplishes. It can allow firms to free up assets, adding liquidity when it’s needed, all for the promise of a share of future recovery.
In its most recent general meeting, Bronwyn Brown’s chairman’s address laid out the most noteworthy actions and accomplishments of the year. The talk was attended by non-executive directors, the company secretary, several auditors, and of course, the Executive Chair.Market Screener details the contents of the address, which begins with an explanation of a case involving the Tanzanian government and arrangements for the Ntaka Nickel Project. This action centered around the lapse of retention rights caused by unexpected changes in legislation and exacerbated by the pandemic. Compensation of nearly $100 million is being sought over what’s being called the illegal expropriation of the Ntaka Hill Nickel Project.In January of this year, a six-month time frame was initiated in which the involved parties could reach an amicable agreement. However, the Tanzanian government declined to participate. This led to an international arbitration firm taking on the case. Lalive is an experienced investment firm now taking over the case against the Tanzanian government. Legal funds are being covered to the tune of over $4.5 million by noted funders Litigation Capital Management.The non-recourse funding arrangement with LCM is expected to cover all legal costs associated with taking the case to completion. Much like the projects in question, the case is experiencing disruption and delay due to COVID.Also mentioned in the address were plans to acquire two Patron Resources subsidiaries. These are expected to further gold mining interests in Australia. While global deals are especially challenging now, Brown expresses confidence in these future exploration opportunities. Drilling is also expected to commence in South Australia before the end of the year--even as Indiana Resources Limited continues to pursue compensation for damages relating to the Tanzanian mine deal collapse.Brown concluded by thanking the board and the company shareholders. Directors at IRL have deferred fees this year, though the firm is still confident in its current slate of projects.
A record-setting divorce settlement is still in contention as Google is ordered to turn over the emails of a private citizen. Temur Akhmedov, son of a late oligarch Farkhad Akhmedov, has been fighting the release of funds from his step-mother’s divorce settlement of about $600 million. Her case is being funded by Burford Capital.Bloomberg News explains that Akhmedova, the ex-wife of the late Akhmedov, has alleged that her ex-husband illegally transferred assets to the son in order to avoid paying a judgment made by a London divorce court. US Magistrate Judge DeMarchi agreed to comply with the ruling, while stipulating that any information released should be directly related to the litigation at hand.Google fought the release of the emails, saying that US law does not allow them to release email contents without the express consent of the user. Lawyers for the younger Akhmedov accuse Akhmedova of seeking evidence that does not exist. Meanwhile, some allege that Google may face legal liability if they disclose the information—and that the implications brought up by this case will have far-reaching consequences for anyone who relies on email privacy.
Geraldine Clark, former president of the Law Society in Ireland, has a lot to say about navigating the professional ethics of litigation funding. Referring to the resurgence and growth of the practice as “the wild west,” Clark focuses on the obligations of those attorneys who would encourage or facilitate utilizing the practice.Law Society details the various aspects to consider according to Ms. Clark. First and foremost is the duty to one’s client. Obviously, a lawyer is responsible to the client before anyone else—including third parties who put up funding in support of a case. This can mean assuring transparency of funding terms, preventing funders from attempts to influence decisions, or allowing clients to seek out independent advice. It may also mean assuaging a funder who is opposed to settling even though a client is ready to do so.Contingency fees are often a sticking point, and Irish law requires that assessed fees be commensurate with hours spent and case difficulty or complexity. Also required in Ireland are claimants putting their own name on a writ—thus taking responsibility for claims made. Because third-party funding is not yet permitted in Ireland, contingency arrangements are sought by clients of modest means. This is even more true in class action cases, which can be costly and time-consuming.Australia’s more progressive take on litigation funding may be influencing other countries—including Ireland. While some in Ireland express concern about conflicts of interest or ethical quandaries presented by the use of third-party funding—others, like Geraldine Clark, are coming around to the realization that access to justice is a fundamental human right. Australia allows litigation funding, but has enacted strict guidelines and requirements for its practice.Ultimately, legal professionals agree that people should be able to bring meritorious lawsuits without financial barriers. This is especially true in the US where litigation funding is booming.
The recent Bluberi decision regarding litigation funding arrangements is still making news. The decision, which approved the use of litigation finance in a Canadian insolvency case, was appealed after a reversal by the Quebec Court of Appeal. In May of this year, the reversal was rescinded and the lower court ruling was upheld.Mondaq Canada details that the Supreme Court of Canada decision was unanimous. This is a vital ruling for Litigation Finance in Canada. It affirms the discretion of the insolvency court to approve litigation funding agreements—and to prevent creditors from subverting that. In this case, the court affirmed that the conduct of Callidus Capital, who had offered a plan for restructuring, was not in keeping with principles of food faith and due diligence.The court found that, in general, litigation funding arrangements should be approved in insolvency cases. But there are some stipulations:--As is typically the case, the litigation funding must be used in a way that provides reasonable access to justice plaintiffs could not have gotten without the funds.--Third-party funders may not supersede decisions made by plaintiffs.--Funders have a duty to maintain confidentiality.--Third-party funders must be compensated in a manner deemed fair and reasonable.In the case of the Bluberi decision, the nature of non-recourse funding agreements figured heavily in the ruling. Because the funder provided significant cash without charging fees or interest, it was determined that pursuing litigation was the only means of recovering money owed to creditors.In the aftermath of COVID, liquidations and reorganizations will no doubt increase significantly. This brings with it the expectation of economic uncertainty and uneven access to liquidity. This ruling is expected to impact the perception as well as the increased role of litigation finance in insolvency matters.
LexFinance announced a favorable partial award in a US$ 28 billion arbitration against Brazil and for the benefit of Petrobras.
The claim has been filed by a minority shareholder of Petrobras against the Brazilian Government for the economic losses suffered by Petrobras due to corruption practices disclosed in the Car Wash investigation and caused by the abuse of power of the Brazilian Government as controlling shareholder of Petrobras. The partial award recognized the arbitrability of the dispute, that the Brazilian Government is subject to the arbitration clause and the standing of the claimant funded by LexFinance to act on behalf and for the benefit of Petrobras. If the damages are confirmed in the last phase of the arbitration expected to conclude during 2021, the Brazilian Government will have to compensate Petrobras for losses currently estimated at US$ 28 billion. In addition, according to article 246 of the Brazilian Corporate Law, it will have to pay to the claimant funded by LexFinance 5% of any compensation received by Petrobras, plus attorney’s fees to the law firms in charge of the claim, which may increase the total amount to be paid to US$ 35 billion. The arbitration is being conducted before the Arbitration Chamber of the Brazilian Stock Exchange (BM&F-BOVESPA). TozziniFreire and Barbosa, Müssnich & Aragão are the two Brazilian law firms representing the claimant in the legal procedures related to the claim. Berkeley Research Group (BRG) is the international damages expert firm that estimated the damages suffered by Petrobras. About LexFinance LexFinance is an asset manager specialized in structuring and funding arbitration claims in Iberoamerica and worldwide. Founded in 2015, LexFinance offers financing solutions to the arbitration market using equity, debt and special situations strategies both in the primary and secondary market of legal claims. www.lex-finance.com
Phi Finney McDonald, a specialist collective action law firm, are launching an office in London. With offices currently in Melbourne and Sydney, Australia, Phi Finney McDonald has an unparalleled reputation for driving competition and innovation in the Australian class action and litigation funding markets. Its repeat clients include some of the largest and most influential pension schemes, private investors, sovereign wealth funds, and investment platforms across the Asia Pacific, North America and Europe. The London office will open in November 2020. Led by Head of UK Chris Haan and Directors Odette McDonald and Tim Finney, the London office will bring to the UK not only the wealth of experience Phi Finney McDonald have in collective action litigation but also their unique ethos and strong social conscience that influences every aspect of the practice. In addition to securities claims, PFM has deep experience in institutional abuse claims, product liability litigation, and data protection and privacy. It also has in-house forensic accounting and data science capabilities, providing an innovative and cost-effective approach to legal problem solving. Phi Finney McDonald UK will be headed by Chris Haan, a collective actions specialist formerly of Leigh Day. Dual qualified as a solicitor in England and Wales and Australia, Chris has over 15 years of litigation experience, over 10 of which are which have been in London focusing on collective redress. His wide experience includes collective actions in the areas of investment and financial product fraud and mis-selling, competition and cartels, mass torts, product liability, employment, building and construction, environmental and human rights. He conducted the first opt-out competition law class action in the UK and his cases have included some of the most significant group actions in the UK. Chris Haan, Head of PFM UK comments, “PFM will perform top-quality legal work for our clients on cases that hold powerful interests to account. We will distinguish ourselves in London through our use of technology and innovative litigation funding structures, offering clients higher quality, more efficient and cost-effective legal services.” “Institutional investors who have experienced our strong track record will see the strengths we will bring to the London market,” he added. In addition to offering the opportunity to work on high profile and cutting-edge litigation, PFM will also distinguish itself as an employer of choice. Odette McDonald, PFM UK Director comments, “We want to build a vibrant and diverse team of brilliant lawyers who have business acumen, but who are also committed to making the world a better place. Our values and our culture are at the heart of our success. That means a fun and dynamic working environment that encourages autonomy and creativity, one that is unshackled by billed hours targets.”
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