Defunct New Zealand firm Felted Carpets - which collapsed just two years after its IPO - is being sued on behalf of over 3,000 investors. Harbour Litigation Funding had funded the claim up through 2015, with 'Stage 2 Funding' coming from a group of investors including Joint Action Funding. Now, the Supreme Court has ordered a $1.65MM security for costs order, which the plaintiffs are contesting. As reported in Share Chat, former Fay Richwhite banker Tony Gavigan, who is organizing the funding, has contested the need to pay security for costs. Gavigan also claims insurance is on the way - though none has been procured as of yet. Gavigan claims that his Stage 2 Funding is coming from a quintet of Auckland businessmen. The claim, meanwhile is headed for the Court of Appeal next month in regard to witness testimony. Gavigan wants more time to secure both funding and insurance, even through the claim is more than a decade old, and Feltex collapsed nearly 14 years ago.
UK law firm Rosenblatt announced the formation of a litigation funding arm when the firm went public last year. Now, in the firm's half-year report, CEO Nicola Foulston announced that Rosenblatt will be treating all un-concluded claims as costs, eschewing any potential concern over its accounting methodology. As reported in the Financial Times, Rosenblatt's announcement comes on the heels of the Muddy Waters allegations against Burford Capital. The core allegation is that Burford inflates its balance sheet by accounting for profits from cases that haven't been concluded yet. Foulston said her company will only account revenue/earnings from concluded claims, and not those that reach certain benchmarks and achieve a likely probability of payout. Both Rosenblatt and Burford adhere to IFRS 9 accounting standards, but those standards allow for some wiggle room when it comes to investment valuation. Burford's accounting is audited by Big-4 accounting firm EY, but that hasn't stopped some in the investment community from questioning its use of fair value accounting for inherently risky financial products. Clearly, Rosenblatt is distancing its own accounting practices from those of Burford. In the six months ending June 30th, Rosenblatt realized £10.2MM in firm revenue and £3.2MM in pre-tax profit. The company has invested £1.5MM in four claims, none of which have concluded yet. The firm also sold off its stake in a separate claim as a secondary for £2MM.
The latest issue of Harvard Law School's Center on the Legal Profession's 'The Practice' magazine features a robust examination of the litigation finance industry, including how the industry operates, who the major players are, how deals get done, and what law students should do to secure a career in legal finance. Selvyn Seidel of litigation funding broker Fulbrook Capital Management, and Elizabeth Korchin of Therium Capital Management cogently explain the diligence process, including both case examination and financial analysis. Korchin points out that her firm typically doesn't fund for anything less than $1MM, looks for a 10:1 multiple on damages/budget (which is the industry standard). Therium looks for their investment back, plus a 3x multiple. So if they finance a $10MM claim for $1MM, they'll accept a $4MM return, leaving the claimant and their law firm with the rest. Of course, there is an alignment of interests issue. If the claimant is mandated to pay out that $4MM to the funder, he or she is not going to settle for anything close to $4MM (in order to maximize his/her own return). In order to better align their interests with those of their clients, funders often tranche their funding structures, establishing benchmarks whereby their return escalates as a claim continues. That way, funders accept a smaller return for an early settlement, which better aligns all parties' interests. Should a case drag on, both the risk and cost of capital for a funder increase, so their payout ratio should as well. The article is very informative and worth a read. One interesting tidbit comes as advice to future litigation funders - those currently in law school. Seidel urges anyone seeking a career in funding to first enter the legal practice and gain expertise in a desired field - preferably one that frequently engages with funding (IP, trade secrets, insolvency). Once you've gained the requisite legal expertise and established a strong network from which you can source case investments, then consider transitioning into litigation funding.
Woodstock, NY—September 24, 2019 — Multi Funding USA, a leading pre-settlement funding provider serving law firms and attorneys, announced that it has received NMLS (Nationwide Mortgage Licensing System and Registry) certification, indicating that the company has the financial resources and security protocols to satisfy the needs of lawyers and plaintiffs. Applying for NMLS certification is completely voluntary. Only a select group of litigation finance providers have applied and received NMLS designation. During the NMLS evaluation process, applicants undergo comprehensive business and personal background checks, financial audits, and a review of corporate documentation, including business plans, shareholder agreements, and financial statements. Applicants must also demonstrate compliance in safeguarding personal data and financial transactions. “We’re extremely proud to have earned this certification, which is certainly unique in the litigation finance sector. This designation demonstrates that our company has the financial resources, expertise, and technology to properly serve the attorneys and their clients that rely on pre-settlement funding to manage their daily living expenses,” said Michelle Fuoco, chief financial officer of Multi Funding USA. “Pursuing NMLS certification is complex, however. We felt this designation was essential to assure our customers that Multi Funding is a reliable, secure, and stable company that can fulfill all their pre-settlement funding needs.” Multi Funding USA invests in litigations for attorneys and their clients. The company has developed a system that can place funds into the hands of plaintiffs and attorneys in less than 24 hours, providing financial security in the often-lengthy pre-settlement period. About Multi Funding USA Headquartered in Woodstock, New York, Multi Funding USA is a major provider of specialized legal funding, attorney funding, and law firm funding services. With decades of lawsuit funding, business, and legal experience, the company’s founders have made it their focus to provide simple and fast services while maintaining a high standard of excellence. Multi Funding USA has provided millions of dollars of legal funding to plaintiffs and attorneys across the United States. www.multifundingusa.com
In response to investor inquiries, Burford Capital Limited (“Burford Capital” or “Burford” or “the Company”), the leading global finance and investment management firm focused on law, has today uploaded to the investor relations section of its website a briefing of the Company’s investment fair value and return computations.
Robert Bailhache, Head of Investor Relations – email
+44 (0)20 3530 2023
Macquarie Capital (Europe) Limited – NOMAD and Joint Broker
+44 (0)20 3037 2000
Jonny Allison
Alex Reynolds
Jefferies International Limited – Joint Broker
+44 (0)20 7029 8000
Graham Davidson
Tony White
Numis Securities Limited – Joint Broker
+44 (0)20 7260 1000
Charlie Farquhar
Jonathan Abbott
About Burford Capital Burford Capital is the leading global finance and investment management firm focused on law. Its businesses include litigation finance and risk management, asset recovery and a wide range of legal finance and advisory activities. Burford is publicly traded on the London Stock Exchange, and it works with law firms and clients around the world from its principal offices in New York, London, Chicago, Washington, Singapore and Sydney. For more information about Burford: www.burfordcapital.comThis release does not constitute an offer of any Burford fund. Burford Capital Investment Management LLC (“BCIM”), which acts as the fund manager of all Burford funds, is registered as an investment adviser with the U.S. Securities and Exchange Commission. The information provided herein is for informational purposes only. Past performance is not indicative of future results. The information contained herein is not, and should not be construed as, an offer to sell or the solicitation of an offer to buy any securities (including, without limitation, interests or shares in the funds). Any such offer or solicitation may be made only by means of a final confidential Private Placement Memorandum and other offering documents.
Well, how often does this happen? A government agency officially declares itself unconstitutional. That's what the Consumer Financial Protection Bureau (CFPB) just did, as director Kraninger sent letters to House Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell, stating in no uncertain terms that the agency is unconstitutional given the single-director-removable-only-by-POTUS structure. According to JD Supra, the CFPB has formally agreed with its numerous critics, which have moved that its actions against them be dropped because the agency is unconstitutional. Several courts have agreed, and currently there are two appeals courts - the 5th and 2nd circuits - hearing those cases. One of those involves RD Legal, the consumer legal funder being sued by the CFPB for alleged 'predatory lending' tactics. In the letters, Kraninger suggest simply removing the for-cause-removal provision, and letting the CFPB get on with business as usual. However, it is possible the end result here is a termination of the CFPBs enforcement activities entirely. For now at least, it seems the CFPBs claim against RD Legal is going nowhere. We'll have to wait and see if the CFPB will continue to be an enforcement entity at all.
LCM has been funding a class action against the Gladstone Ports Corporation (GPC) on behalf of local fisheries and fishermen, who claim that GPCs port expansion project led to the collapse of the fishing market there. GPC had been arguing that LCMs funding agreement is unenforceable on the basis of champerty and maintenance, but the court just upheld the agreement as not champertous. As reported in Mondaq, the plaintiffs applied for a declaration by the court that their funding agreement is enforceable. LCMs counsel went so far as to argue that maintenance and champerty are essentially obsolete, and requested 'a decent common law burial' for the pair of torts. Plaintiff's counsel was a bit less aggressive, arguing that even if maintenance and champerty are enforceable, they do not apply to the enforceability of a funding agreement in a class action regime, which essentially carries with it the understanding that litigation funding will be part and parcel of the action. Courts have upheld funding agreements on such grounds in the past, so GPC had an uphill battle to climb here. They argued that LCM's funding agreements ceded too much control to the funder, and was therefore contrary to public policy. The court ultimately found in LCMs favor, ruling that too much control was not ceded, and that ultimately the court maintains the authority to determine what percentage of a settlement a funder is to receive. This essentially negates any argument of control on LCMs part, despite that certain mandates in the funding agreement appear to give the funder some sway over decisions which are made during the case. In the end, the Gladstone claim will go down as yet another brick in the now formidable wall which supports litigation funding agreements as enforceable in regard to maintenance and champerty.
This past Wednesday and Thursday saw New York City play host to the 2nd annual LF Dealmakers Forum. Hosted by Wendy Chou, whose popular IP Dealmakers Forum served as a launchpad for a similar conference aimed at the litigation funding market, the sold out two-day event brought together industry experts and novices alike. Keynote Address The event kicked off with a keynote address from Stephen Susman, founding partner of Susman Godfrey, and one of most successful plaintiffs lawyers in US. Susman recounted his early days as essentially one of the first litigation funders, having formed his contingency-only plaintiff-side law firm in the late 70s, back when the notion of contingency-only raised more than a few eyebrows. Susman saw himself filling a need in the marketplace, and indeed by the end of the decade had grown so popular that in 1981 he landed the cover of American Lawyer, which itself founded the legal journalism market. In the process of running his contingency-fee practice, Susman learned how to construct fee agreements that provide the right incentives, how to handle cases efficiently, how to compensate associates and partners properly, and how to teach younger lawyers to be effective at their trade. These are all ideals that Susman continues to preach. The theme of Susman's speech was how contingency leads to efficiency. The more skin in the game that attorneys have, the more likely they are to question the efficacy of their discovery motions, and reconsider or reevaluate their overall case strategy with an eye towards efficiency over simply a 'more is better' approach. "Lawyers who are paid by the hour have no incentive to be efficient," Susman said. "Even if they give you a discount. It’s like buying a suit at Barney’s half price. It’s already been marked up four-times." To that end, Susman advocates funders adopt a 50/50 fee model with the law firms they partner with. He recommends funders insist that law firms also maintain skin in the game. Susman further encouraged the industry to play an active role in reducing the cost of litigation. He advocates for public jury trials, as opposed to private dispute resolution. Susman ended his address by suggesting that funders have a role to play in terms of advising their clients on how best to negotiate with their law firms. While acknowledging that this advice goes against his own best interests, Susman stated unequivocally that litigation funders - with their legal expertise, and the fact that they are no longer lawyers and are therefore operating as advisors - can guide clients on how best to negotiate with law firms on fee arrangements. This is an area where funders can provide value to the client, outside of pure financing. Panel Discussions Panels ranged from a broad overview of the funding industry, to coverage of specific sector topics. In the first panel of the day, which provided a bird's eye view on the state of the industry, panelists highlighted the industry's monumental growth, both in single-case and portfolio funding, and within boutique and AmLaw 200 law firms alike. Of course, as firms become more knowledgeable, they are becoming more sophisticated. Five years ago many law firms hadn't even heard of litigation funding, whereas now they are experts; some even holding auction processes for funding, and others entertaining offers from funders as a source of leverage for settlement negotiations. In the latter example, a law firm will receive an offer from a funder with no intention of accepting. They simply approach the counterparty in the claim and ask for a higher settlement figure than what the funder is willing to invest. Clearly, the marketplace is growing more sophisticated. What's more, law firms are negotiating better fee splits on their behalf. Years ago, a funder would receive 100-150% of their investment recouped on first-money back. Today, law firms are negotiating a chunk of that first money, and even integrating success fees (usually in the 20% range) to secure their spot at the front of the line. On a CIO-specific panel, the panelists discussed their preferences for types of cases to fund. Obviously, IP topped the list, given the lengthy time-to-settlements and high upfront costs. International arbitration was also mentioned, yet most funders broaden their scope to include any commercial litigation opportunities. To keynote speaker Susman's point, panelists did point out that they prefer to get law firms on board with fee sharing, via 50/50 splits, yet they noted how some law firms simply aren't comfortable with risk. Therefore, if a case is right, the funder will cover 100% of fees if necessary. When asked about the biggest threats to funding, panelists agreed that all of the overly optimistic or naïve capital coming into the space could lead to some negative outcomes, like funder misbehavior which may incur negative headlines. These could then be seized upon by regulators in a bid to exert broad industry oversight. Allison Chock of Bentham IMF noted that the Chamber of Commerce is now approaching state legislatures, and none of them know what litigation finance is or how it works. So they are ramming through legislation with people who don’t understand the industry. This is a cause for concern. And to the point of 'dumb money' in the space, Chock illustrated an example of how an influx of capital into a growing sector can lead to extremely bad decision-making. She told of receiving an email from a claimant in a case they had looked at that another funder had heard that Bentham was interested, so they simply threw money at the claimant. Chock's firm signed an NDA, but that didn't mean they were interested. They simply wanted to diligence the claim. Chock noted how this was the third such instance she heard about, where another funder jumped into a claim simply because her firm had been looking at it. “A fool and his money are soon parted," warned Chock. A Case Study Perhaps the most interesting panel of the day centered around a case study of how litigation finance literally saved a business' life. Business Logic (BL) had a trade secrets misappropriation and breach of contract claim against a subsidiary of Morningstar. At the time, BL was a 20-person firm with annual revenue of $4MM. All of its margin and savings were tied up in the litigation. The case had been in the works for a few years, and BL was so confident in their claim they committed much time and money to fighting it. Yet they reached a breaking point. The company was going to have to reduce its workforce to continue the claim, unless it found outside financing. They reached out to a trio of funders, and Lake Whillans responded. The funder provided fee coverage and even working capital to BL. Now, as the trial approached, law firm Yetter Coleman could find top experts and formulate a robust case. Suddenly, Morningstar got nervous. No longer could they threaten the small Business Logic by bleeding them dry pre-trial. The trial was approaching, and BL had a strong case, and was well-capitalized. The damages claim was for $65MM, and Morningstar was so concerned about a multiple of that number being rewarded, they settled for nearly the full value of the claim - $61MM. It was the 9th largest trade secrets settlement at the time, and to this day remains the largest in the state of Illinois. BL has since grown its business to 150 employees, and changed its name to NextCapital. The story illustrates the quintessential David v. Goliath dynamic that litigation funding facilitates, and highlights how funding can not only save a company from going under, but help it thrive well into the future. Final Thoughts Given the packed house, it's safe to say there will likely be a third annual conference next year. The growing popularity of conferences like LF Dealmakers underscores the mainstream acceptance of litigation finance. I personally noticed the diversity of attendees at this conference compared to the initial installment. There were more lawyers, in-house counsel and academics this time around, and I expect that will continue into next year and beyond.
Legalist, the San Francisco-based AI-driven litigation funding platform, has landed a $100MM funding round. The firm will deploy the capital into 100-200 cases of at most $1MM each. As reported in TechCrunch, Legalist was founded in 2016 by a pair of 20-something Harvard dropouts, Eva Shang and Christian Haigh. The firm graduated from the prestigious Y Combinator school, and received financing from Peter Thiel, as part of its $10.2MM initial funding round. Legalist is an AI-driven funding platform that uses machine learning to source and diligence claims. The firm claims to have funded 38 cases thus far, of which half have resolved. 80% of those were successful. Because of the firm's leverage of AI, they are able to keep costs low and therefore fund smaller cases that much larger funders tend to eschew (Despite its reliance on AI, Legalst is an 11-person firm). The latest fundraise was sourced from non-profit endowments, family offices, and institutional investors, including an insurance company. Legalist is organized like a traditional private equity fund, with management fees and a carry structure. The total life of the fund is five years, but Shang expects to deploy all capital within two years, over 100-200 claims.
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