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Commercial

Law Firms and In-House Counsel Predict Spike in Litigation Funding

A recent study of in-house counsel and private attorneys affirms that the use of litigation funding is up more than 100% since 2017. Burford Capital released the study of roughly 500 legal professionals, which confirms the explosive popularity of the practice. Law.com explains that in-house counsel respondents are reporting tens of millions in unenforced judgments. Using legal finance to turn dormant value into liquid assets makes sense, especially when economic conditions necessitate savvy bookkeeping. Strikingly, over half of lawyers surveyed stated that their companies have abandoned solid claims because of potential litigation costs. This means that a need for third-party funding is widespread and ongoing, especially as pricing options dwindle in the wake of COVID. In the coming months, it’s clear that risk-sharing will be the order of the day.
Commercial

Burford Capital Makes NYSE Debut

Law firms and businesses alike are making even greater use of Litigation Finance in the wake of COVID. That’s good news for Burford Capital, whose listing on the New York Stock Exchange went live this week. Recent reporting on the popularity of the practice, combined with this new NYSE listing and the formation of the ILFA, makes it clear that litigation funding is on the rise. Westlaw explains that the NYSE listing represents an important milestone for Burford, indicating a company that has grown by leaps and bounds in the last decade. The industry is growing and adapting as well. The International Legal Finance Association is a newly formed coalition of funders that now has over a dozen members. David Perla, co-COO at Burford, explains that the term ‘legal finance’ might be more accurate than ‘litigation finance,’ as the practice has become more versatile in recent years. When asked about the Muddy Waters short-selling attack, Perla affirmed that a listing on the NYSE was the best answer to that question.
Commercial

Stolen Wages Lawsuit Filed by Indigenous Workers in Western Australia

As many as 8,000 people are believed to have been directly impacted by Western Australia’s practice of kidnapping and enslaving children in the 1940s and beyond. A class action has been filed to collect wages that were never paid to the workers. So far, at least 1,000 of those affected have registered their intent to seek remuneration. News.com AU explains that the stolen children were forced to work the mines in unbearable conditions, without proper equipment, wages, or proper food. Workers are represented in the case by Shine Lawyers, who received litigation funding from Litigation Lending Services. Litigation Lending funded a similar case in 2019 that settled for $190 million. Jan Sadler, head of class actions at Shine, explains that while the harm done cannot be erased with money, workers deserve compensation for the inhumane treatment they endured. The case is expected to go through mediation. The WA government appears to appreciate and acknowledge the effect that government policies have had on Aboriginal people.
Commercial

Maximizing Liquidity Through Litigation Portfolios

The COVID pandemic has led to the need for creativity, quick thinking, and adaptability for many legal firms. Roughly half of all firms and in-house counsel alike are expecting drops in revenues (and consequently, budgets) within the next year. But this doesn’t have to be dire news. Burford Capital explains that while things may look bleak, many firms and companies have legal assets that they aren’t looking at. Savvy GCs know to identify assets and find ways to maximize their value. Legal finance is one way to heighten liquidity while reducing the risk associated with taking on new cases in uncertain times. A recent legal finance report shows that more than half of in-house counsel affirms that their companies have ignored meritorious claims for financial reasons. Some GCs even support this. But offloading both costs and risks onto a third-party funder can transform a struggling legal department into a profit generator. Monetizing pending claims to generate liquidity is a smart move for businesses and law firms alike. As many as ¾ of in-house counsel cite liquidity as one of the main benefits of using legal funding. Other benefits include: --Non-recourse nature of the funds. This eliminates risk and adds certainty to budgets. --Accelerate incoming cashflow. Rather than waiting years for a case to be resolved, legal funding brings cash in without delay. --Experienced legal funders can help assess risk and pinpoint the most profitable cases and highest potential returns. --Maintaining control of cases can be a worry to those who are new to Litigation Finance. But third-party funders do not supersede the client or attorneys when it comes to making decisions about the case at hand. --Options. Funding allows clients to choose from a wider pool of attorneys without worrying about who is willing to work on contingency—or about cost in general.
Announcements Consumer

CONSUMER LITIGATION FUNDING: THE BASICS, CURRENT REGULATORY, ETHICAL, AND CONFIDENTIALITY ISSUES.

On November 16, 2020 at 1 PM Eastern, the American Bar Association’s Center for Professional Responsibility will present a 60-minute CLE webinar on consumer litigation funding. The presenters are Anthony Sebok, Professor of Law, Benjamin N. Cardozo School of Law; Ronnie Mabra, the Mabra Firm; and Eric Schuller, President, Alliance For Responsible Consumer Legal Funding (ARC). They will discuss the history and structure of the market and the ethical rules at issue with moderator Lucian T. Pera, a partner in Adams and Reese LLP. The conversation will also explore ABA Resolution 111A addressing best practices for third-party litigation funding.  ARC has separately adopted their own best practices some of which mirror the ABA’s Resolution 111A. To find out more and how to register click here
Commercial Covid-19

COVID Litigation in Europe

Even before the pandemic gained a foothold, European courts felt the impact of COVID. Litigation over insurance, safety precautions, employment, and business interruption was rampant. Such litigation is only expected to grow—even after COVID is under control. Law.com International explains that disputes in France, Netherlands, and Germany all bear close examination. In France, for example, businesses were besieged by lawsuits almost immediately. Amazon, Airbus, and multiple companies that stayed open during lockdown were accused of not properly protecting employees’ safety. In France, employers are under more pressure to treat employees fairly. Parisian employment partner Emmanuelle Rivez-Domont explains that at the end of the day, it’s simply not feasible to keep everyone happy. But employers should still be held to the highest standards. Shockingly, many parties in France decided to remove COVID-related effects from the legal definition of force majeure. This is a heavy blow to those impacted, who were counting on their insurers to make good. In the Netherlands, everyone from insurers to event organizers are taking steps to test the waters. One hospitality industry group sought to vacate or relax social distancing in restaurants and bars. A judge denied the request, affirming that the government is allowed to make even drastic choices in the public’s best interests. Insurance had been a straight-forward matter in the Netherlands until COVID. Now cases are plentiful, leading to four insurers losing a claim over cancellation payouts due to COVID. As in the rest of the world, insurers may need to brace for impact as claimants use legal means to seek what they’re owed. In Germany, a “klagewelle” or ‘litigation wave’ is on the horizon. Germany’s lockdowns included bars and restaurants, hotels, clubs, and theaters—all of which led to industry-wide losses in the tens of billions. It’s only now that these businesses are learning that their insurance doesn’t cover loss of business due to a pandemic.
Commercial

Eni Attacks Third Party Funders in Nigerian Oil Claim

Italian energy giant Eni has requested documents relating to a $1 billion case involving the government of Nigeria and investment firm Drumcliffe—the principles of which are still involved in a corruption trial. Bloomberg News details that this is just the latest facet of an ongoing dispute which puts two prominent energy companies against Africa’s largest producer of crude oil. In this most recent claim, Eni holds that the Nigerian government is influenced by interests that they have not publicly disclosed. To support this claim, Eni is seeking documents from Drumcliffe Partners LLC. Eni now claims that the Nigerian government is in league with third parties who are attempting to reap “illicit” profits. This is a common complaint against third-party litigation funders and is often brought up by parties who have much to lose if the opposition is well-funded. Jim Little of Drumcliffe was unimpressed by the accusations, saying that Drumcliffe looks forward to discrediting the accusations, which he called ‘wild innuendo.’ Nigerian media published the funding agreement with Drumcliffe, which revealed Drumcliffe taking a potential share of 35%. Not uncommon in non-recourse funding agreements. Nigeria has joined the case as a civil party. They are also asserting that both Eni and Shell owe a penalty of $1.1 billion. Still, both companies have denied the charges, affirming that their agreements with the government of Nigeria are legitimate. Also denying wrongdoing are Eni CEOs Claudio Descalzi and Paolo Scaroni. The court is expected to rule later this year.
Commercial

Third-Party Funding Disclosures in Court—What’s at Stake?

As Litigation Finance permeates the mainstream and regulation catches up, the issue of disclosure remains contentious. At the time that a funding deal is created, there’s no real way to know whether or not courts will require disclosure of the agreement. Bloomberg Law explains that typically, this type of disclosure is not required by the courts. Funding, most judges rule, is not materially relevant. That said, determinations regarding disclosure are decided on a case-by-case basis. A recent survey on Litigation Finance shows that while legal professionals are feeling unsure—there’s nothing to suggest that disclosure will not be compelled in most instances. Recently, there have been several cases requiring disclosure of funding terms, but so far they’re few and far between.
Commercial

The Rush to Secure Funding by Year’s End

As 2020 nears its end, firms are straining to reduce the impact of Coronavirus on earnings—which for some means cutting staff even as they ensure that their best players won’t be recruited by other firms. Given that, it makes sense that firms holding strong litigation portfolios would want to consider dispute financing. Omni Bridgeway details that those who want to monetize their portfolio should not wait to get started. Portfolio funding arrangements are often large, detailed, and complex. Doing them well takes time. Waiting until December is risky, and can result in deals not being finalized by year’s end. However, beginning the process a few weeks earlier allows time to conduct due diligence, allowing funders to examine the cases in the portfolio while assessing risks against potential rewards. For many firms, portfolio funding carries less risk than funding individual cases. Overall, it allows firms to take more risks in terms of contingency casework—because the firm shares risk with funders. Non-recourse capital is provided and used to cover costs and fees, and can even be used to cover operational expenses in some circumstances. Awards are shared among plaintiffs, firms, and funders. The non-recourse nature of funding means that even if the entire portfolio is resolved unsuccessfully, the firm is not obligated to repay the funding. Dispute funding has many benefits to firms and partners—such as providing firms the ability to pay partner draws despite COVID-related losses. Funding can offer immediate cash flow when it’s needed most. Funding also gives firms more leeway in client selection and agreements. Contingency cases in particular become more viable with the inclusion of litigation funding. This means a larger pool of potential clients and cases. The advantages brought by funding provide an edge that could be used to expand staff and even recruit a rainmaker or two.