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Commercial

Plaintiffs Settle in Kiwifruit Vine Disease Case

A settlement between kiwifruit growers and the Crown has finally been reached. Ray Smith, director of the Ministry for Primary Industries has stated that all parties agreed to move forward and bring the case—which has been running since 2014—to a close. Fresh Plaza details that the case revolves around what plaintiffs described as ‘actionable negligence’ connected to the government allowing Psa into the country in 2010. Psa is a vine disease that impacts kiwifruit. Smith went on to say that it makes sense to settle, given the claimant’s legal costs and those of litigation funders. In his opinion, the settlement does acknowledge the losses of those in the kiwifruit sector. The settlement means the planned Supreme Court trial will not take place. Since Psa was identified, New Zealand has improved its import process dramatically.
Commercial

Mastercard Class Action Back in Court in March

Roughly 45 million Mastercard holders are represented in a class action against the credit giant. Accused of using ‘interchange fees’ to charge unreasonably high prices, Mastercard faces a claim that could be worth GBP 14 billion. Law Gazette explains that a remote certification hearing is scheduled for March 25-26, and will determine whether a collective proceedings order will be granted. The case, funded by Innsworth, is the first to be brought under the collective action regime found in the Consumer Rights Act 2015.
Commercial

Funding Asia-Pacific Insolvency Claims

It’s no secret that an increase in insolvency filings looms on the horizon. Debt restructuring, government relief programs, and belt-tightening can only take a business so far. What many businesses don’t realize is that third-party legal funding can provide financial wiggle room. Omni Bridgeway shared a webinar panel discussion relating to insolvency claims across Asia-Pacific. It included Tom Glasgow and Heather Collins of Omni Bridgeway, Patrick Cowley of KPMG China, and David Walker of Allen & Overy. It was expected that an avalanche of insolvency would arrive in 2020. But thanks to government programs, that didn’t happen. However, global vaccination efforts may enable governments to scale back help to businesses—leading to more insolvencies.  Insolvency Practitioners are one group that can benefit from the use of legal funding. This can help cover legal expenses associated with recovery. Heather Collins explains that for an IP claim, a funder should be the third phone call made after the bank and lawyer. Funders can become involved at any point—but those in the know say earlier is better. Globally, the usage of third party funding will play out in different ways. In Hong Kong and Singapore, for example, lawyers are not permitted to work on contingency. This may mean that these territories will soon begin considering new types of funding.
Commercial

International Arbitration Trends

A global pandemic may have brought sweeping changes, but it hasn’t slowed the filing of new cases. Early numbers suggest that new cases are being filed at about the same levels as the previous year, or higher. ICSID reported 58 new ICSID Convention and Additional Facility arbitrations last year—the most ever. SIAC also reported a record-high number of new cases, topping 1,000 for the first time ever. Burford Capital details several new trends in international arbitration. Remote conferencing, document sharing, virtual signatures, and other tech advancements have led to challenges and even postponements. But overall, the industry has embraced technological advancements that mitigate the barriers put up by COVID. Corporate liquidity has been an ongoing concern during the pandemic. Interest in Litigation Finance, and portfolio funding, in particular, have skyrocketed since the impact of COVID. But the main source of contention with regard to third-party legal finance continues to be disclosure. ICC Rules of Arbitration went into effect in January, which will require that third-party funders be identified in the interest of avoiding conflicts of interest, or appearances thereof. Some speculate that this may lead to an uptick in frivolous applications for securities for costs. Meanwhile, the LCIAs updated rules took effect in October of last year, and do not require disclosure when third-party funding is used. An upcoming UNCITRAL Working Group is undertaking arbitration reform, with legal finance being one of several issues up for discussion. It is not expected that the Working Group recommendations will lead to new laws or reforms by the end of 2021. The Energy Charter Treaty will undergo another round of negotiations in the ongoing modernization process. After this, new provisions may be vetted to ensure that any updates comport with existing EU law. As funders continue to adapt to new circumstances, monetizations and other tools are sure to broaden their usage over the coming months.
Announcements Commercial

GLS Capital Co-Founders Named to IAM’s Strategy 300 Global Leader List for 2021 Read more: http://www.digitaljournal.com/pr/4970832#ixzz6mDg8sx9I

GLS Capital operates one of the world's largest private investment firms focused on litigation finance. The GLS team is comprised of investment professionals that provide financial solutions for complex legal matters, specializing in commercial litigation, arbitration, law firm financing and patent infringement litigation, including Hatch-Waxman litigation. Intellectual Asset Management ("IAM") is a leading publication covering intellectual property that  publishes the IAM Strategy 300 Global Leader List identifying the world's leading IP Strategists.  IAM has named GLS Capital partners Adam Gill and Jamie Lynch in their 2021 IAM Strategy 300 List of Global Leaders for Intellectual Asset Management, which is composed of leaders from the Americas, Europe, and Asia. Upon the recognition, Adam Gill, Managing Director of GLS Capital shared the following statement: "I am grateful to be named to IAM's Strategy 300 list for the 5th consecutive year. We appreciate this honor, which we view as a recognition of the entire GLS team's success in helping patent owners protect their IP and receive fair compensation for their technological contributions to the world." Adam and Jamie, along with David Spiegel are part of the founding team of GLS Capital. The partners have led and managed more than $600 million of litigation finance investments. The Team is focused on legal and regulatory risk management, and has become a trusted strategic partner and capital provider to top law firms and their corporate clients. To view IAM's 2021 Strategy 300 Global Leaders Guide, click here. For more information about GLS Capital, please visit the website, or call 312-900-0160.
Commercial

Calls Continue for Farmers to Register in Fonterra Class Action

About 350 farmers have already registered in the class action suit against Fonterra, but attorney David Burstyner, says that’s not enough. The founding partner of Adley Burstyner has expressed concern that some farmers might be hoping to benefit from the case without attending meetings or becoming involved. The Courier explains that if the case doesn’t have enough registrations, it may not be able to move forward. Burstyner claims that at least 600 total registrations would be needed. An upcoming case management conference is scheduled for later this month. In it, ‘class closure’ may be discussed—defining who is included or excluded. Litigation Lending Services is funding the case, which means there’s no upfront cost for farmers who want to sign on. Litigation funding occurs on a no recourse basis with the expectation that funders will take a portion of any award or settlement in the case. Too few class members may mean a payoff too small for funders to consider the claim a good investment. As to the facts, the action asserts that Fonterra violated its contract with farmers by unleashing a step-down in milk price, deeply impacting farmers. The case also alleges misleading conduct that hurt many suppliers. Fonterra denies all of the points in the case—pointing to the recent formation of Fonterra Australia Suppliers Council as evidence of its strong relationship with farmers. The company further notes that the ACCC declined to take action against Fonterra after an investigation into the reduction in milk prices.
Commercial

ISG Management Launches Counter-Claim in Group Action

ISGM is facing a class action, alleging that telecom workers endured financial losses stemming from a sub-contracting agreement with the company. Now, the court has approved a counter-claim against group members.  Litigation Lending, which is funding the action, details the following allegations:
  • The arrangement falsely held that employees were, in fact, subcontractors.
  • ISGM misused the Australian Apprenticeships Access Program.
The court has approved a counter-claim, alleging a bad faith action against ISGM. Meanwhile, Shine Lawyers and Litigation Lending invite those telecom workers who have endured losses to register their interests in the class action.
Commercial

Dispute Finance with In-House Counsel, Tania Sulan and Leanne Meyer

A recent survey from Omni Bridgeway and the 2020 ACC in-house Legal Virtual Conference suggests that an inability to work litigation costs into corporates' budgets is what is spurring the rising interest in litigation funding. A panel discussion at the conferenced dissected how legal finance can assist in-house legal teams to manage risk and monetize legal assets. Omni Bridgeway details that the panel discussion features Tania Sulan, CIO for Omni Bridgeway Australia and New Zealand, Tasha Smithies of Network Ten, and Paul Forbes from Baker McKenzie. Facilitated by Tania Sulan, the panelists detailed how the main challenges of in-house counsel—cost management and new revenue—can be addressed with third-party legal funding. For many companies, cost is the main factor when deciding to pursue litigation. Even when the case is strong, economic stress can cause companies to shy away from taking on what could seem like risky new expenses. The non-recourse nature of funding removes that sizable obstacle while allowing meritorious litigation to move forward. What should a business look for in a funder? Expertise and experience are obviously critical. This should include expertise in your industry and experience with the relevant case types. Flexibility in accommodating funding needs and risk tolerance is vital as well. In addition to adequate funding, pragmatism is an essential trait of a successful funder—since strategy is everything.
Commercial

Appeals Court Guidance on Litigation Funding and Securities for Costs

As commercial litigation grows in popularity, the issue of security for costs looms large. Recently, the Court of Appeals, via Rowe et al vs Ingenious Media Holdings plc et al set a precedent about providing a cross-undertaking in damages when seeking security for costs. JD Supra details that the Court of Appeal held that no cross-undertaking should have been required by the court. This, they determined, should be required only in exceptional circumstances. They went on to say that decisions suggesting otherwise should not be followed. According to the Court of Appeals, a well-run commercial funder shouldn’t need to be ordered to provide security. This decision is particularly impactful as it pertains to third-party litigation funding. The Court of Appeals stated that requiring a cross-undertaking when security is provided by a funder should be even rarer. Any funder that is properly capitalized should be able to provide evidence of their ability to meet an adverse cost order. Commercial funding is an investment, part of which includes security for costs (language to which is typically included in the funding agreement).  Before this recent Court of Appeals ruling, courts had leave to require a cross-undertaking as a condition pursuing security for costs, according to CPR 25 and CPR 3.1. This new precedent requires a “cogent and compelling” set of facts to reject the idea that costs incurred in funding claims cannot be recovered—thus laying that risk at the feet of defendants.