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The LFJ Podcast
Hosted By Maurice MacSweeney |
In this episode, we sat down with Maurice MacSweeney, Director of Litigation Funding at UK-based Harbour Litigation Funding. Maurice discussed the issue of enforcement - what is enforcement, what are the inherent challenges, and what does it take to be successful? Maurice also touched on some key issues facing the enforcement sector, including enforcing against cryptocurrency and in investor-state arbitrations. He also discussed COVID-19's impact on enforcement, and explained what funders like Harbour can do to help aid enforcement efforts. [podcast_episode episode="5470" content="title,player,details"]
Commercial

Key Takeaways from the Latest Dealmakers Event

Last week, Dealmakers hosted a virtual event titled 'Law Firm-Funder Partnerships in a Time of Economic Uncertainty.' The event was sponsored by Validity Finance, and featured a panel of speakers including Alanna Clair (AC), Partner at Dentons, Jordan Goldstein (JG), Partner and GC at Selendy & Gay, Joshua Libling (JL), Portfolio Counsel at Validity, and Reed Oslan (RO), Partner at Kirkland & Ellis. The panel was hosted by Bob Robertson (BR), Strategic Advisor at Dealmakers. Below are some key takeaways from the event: BR: Let's discuss the genesis of the Working Group's report (the rebuttal to the NYC Bar's controversial opinion that litigation funding may violate fee-sharing), and what the key takeaways are.  JG: Rule 5.4 generally prohibits fee sharing between firms and non-lawyers. The purpose of the rule is to protect the professional independence of attorneys. The committee determined that litigation funding of firms or cases where fees are split might violate Rule 5.4. But this doesn’t include funders who work with the client rather than the attorney. The NYC Bar opinion is relevant in terms of persuasive authority, but not enforcement. The working group looked to see if Rule 5.4 needed to be revised. All members wanted to amend this rule to allow firms to work directly with funders. The disagreement was regarding disclosure and consent for clients, and to what degree funders could lend input to lawyers. There are two different proposals outlined—and the group was evenly split between them. Members disagreed on the exact parameters of informed consent. The consensus though, was that Litigation Finance can and should be permitted under ethical rules. The takeaway is that some disclosure will be needed, but there’s leeway in terms of when and how much information should be disclosed. BR: There’s a broad spectrum of opinions on Litigation Finance. How will the current economic climate impact those perceptions? RO: In 2008-2009, litigation funding was hard to find. At the same time, we had a significant uptick in demand in my own firm. This drove the growth of lit fin for many years. Today, I see more of the same. The US has a well-developed Litigation Finance industry. It’s a perfectly valid form of funding, and the demand for risk-sharing will be far greater than it was in 2008. Litigation funders are going to do quite well on this.  JL: If you start by looking at the problem from the client and firm perspective, they have a need for revenue, but don’t have capital for payouts. Clients pressure firms, firms look to relieve pressure. Taking that capital and shifting the risk to increase liquidity is becoming more central to a firm’s business model. RO: Litigation Funders can act in ways that law firms can’t. Example: providing capital directly to clients during a case. I see an increase in demand for that kind of financing that can happen based on the value of a case. JG: Funders can also fund just the expenses rather than the whole case. Experts, vendors, etc. Lit fin can bridge the issue for clients with complicated cases.  BR: Some funders are willing to enter into single-case transactions with law firms, as long as the return is structured as a multiple, while others are more apt to secure portfolio funding to address Rule 5.4 concerns. What is the panel's reaction?  RO: In terms of what I've seen in the market over the years, I think the funders want to get as many portfolio funding deals as they can, to get more money into a portfolio to diversify their returns. And there are times where law firms and clients prefer one-off deals. So I've seen both. There are more single-case deals than portfolio deals, because there simply aren't that many large meritorious portfolios of claims to invest in. BR: How can firms ethically secure funding for themselves and clients? What’s the road map? AC: We’re likely to see a higher number of firms and cases turn to Litigation Finance. So it’s more important than ever not to get sloppy with ethics. There’s a fairly defined roadmap now, unlike in 2008.  Work product protects materials, mental impressions of counsel etc. Sometimes work product has to be shared with funders, which carries risk. Executing an agreement to define what will be shared and with whom should be common. There should be an agreement in hand before any information is shared. Communique with the funder is essential to ensure that they can give informed advice. There’s nothing inherently unethical about this relationship. In terms of independence, those paying the lawyer’s fees aren’t allowed to influence their professional judgment—their primary duty is always to the client.   RO: We don’t share work product with funders. We’re really careful in not sharing anything that might someday come out. We just don’t do it because not every judge will rule appropriately on this. JG: This law is still developing and there are states that are outliers in terms of disclosure rules. There are proposals moving through congress that would require disclosure in a greater number of cases. Clients should be informed, though this could be more complex in a portfolio sharing situation. Shopping different funding situations is not unethical. The devil is in the details. I’d urge clients to err on the side of informing their clients.
Consumer

Easy Legal Finance Inc. acquires Seahold Investments Inc.

TORONTO, April 29, 2020 /CNW/ - Easy Legal Finance Inc. a Canadian litigation financing firm, announced today, the acquisition of Seahold Investments Inc. Based in Moncton and established in 2000, Seahold Investments Inc. is one of the first firms in the country to offer pre-settlement lending to personal injury plaintiffs. "We are pleased to add another established and successful firm to the Easy Legal Group of Companies, said Larry Herscu, President & CEO of Easy Legal Finance Inc. This strategic acquisition, in addition to acquiring Rhino Legal Finance in 2018, further demonstrates our commitment to enhance our position as a national litigation lender, with services delivered through strong regional brands, built on a coast-to-coast network of established relationships." "Over the past 20 years, we have built a firm based on the merits of access to justice - providing personal injury plaintiffs with the financial support required through the legal process, says Hubert Seamans, Founder and CEO of Seahold. Easy Legal's reputation for client service is uniquely aligned with ours and I'm pleased to have them further expand our service offering and evolve the firm, for the benefit of our clients and lawyer partners." Mr. Herscu also added that, "The Easy Legal Group of Companies will maintain its mission and remain dedicated to helping those who have been hurt, are in need financial support, in partnership with the plaintiff bar and its service providers. About the Easy Legal Group of Companies The Easy Legal Group of Companies is a Canadian litigation financing firm. Its lending solutions service the personal injury sector including plaintiffs with pending injury claims, their legal representatives and the service providers involved in their cases. The firm is registered to conduct business in Ontario, B.C., Alberta and the Atlantic provinces. Services are delivered through three brands: Easy Legal Finance Inc., Rhino Legal Finance and Seahold Investments Inc. www.easylegal.ca www.rhinofinance.com www.seahold.ca SOURCE Easy Legal Finance Inc.
Announcements Consumer

TriMark Legal Funding Announces Extension of $3,500 Automatic-Approval Pre-Settlement Funding to Aid People Impacted by Coronavirus/COVID-19

EUGENE, Ore., April 29, 2020 /PRNewswire-PRWeb/ -- TriMark Legal Funding LLC, one of the nation's leading pre-settlement funding companies since 2003, announced today that, due to overwhelming popularity, it has extended its financial relief initiative originally launched on March 24th to provide $3,500 in immediate cash assistance to people nationwide who are currently involved in civil lawsuits and have been negatively impacted by Coronavirus/COVID-19. No ending date has been set. Plaintiffs nationwide are strongly encouraged to apply for risk-free pre-settlement funding from TriMark to take advantage of this truly unprecedented, automatic-approval initiative. Tens of millions of Americans have involuntarily become unemployed due to mandatory stay-at-home quarantines and millions of business closures. TriMark Legal Funding is committed to helping every eligible person by providing $3,500 automatic-approval pre-settlement loans. There are no credit checks, no employment requirements, and no out-of-pocket expenses and lawsuit funding approval is based on the merits of an underlying lawsuit. This offer is available nationwide to plaintiffs in civil lawsuits who need cash now, before their cases settle. To apply right now, please visit https://tlfllc.com/coronavirus-pre-settlement-funding or call (877) 932-2628 and one of our friendly representatives will be happy to assist you. Due to much heavier than normal call volume, the fastest way to receive immediate approval is to apply online. How Coronavirus Lawsuit Loans Work Plaintiffs with qualifying cases* and no prior funding can apply for an immediate $3,500 no-documentation, automatic-approval lawsuit cash advance. Existing clients and anyone with prior settlement loans from any other company are ineligible for this offer. TriMark has eliminated its documentation requirements and has also waived its normal underwriting fees. Here is what TriMark needs: 1). Completed application 2). Copy of plaintiff's driver's license or state-issued ID 3). A brief conversation with plaintiff's attorney Pre-settlement funding agreements are executed electronically via DocuSign and funds can be wired directly into a plaintiff's checking account or sent FedEx Overnight in as little as 24 hours. TriMark can provide non-recourse settlement funding from $500 up to hundreds of thousands of dollars, depending on an individual's case and financial needs. For requests over $3,500, accept the $3,500 first, then request additional funding. Documentation and case evaluation are required for additional funding requests, all requests over $3,500, and all requests requiring the buyout of prior advances. T Thomas Colwell, CEO of TriMark Legal Funding commented, "Many plaintiffs involved in pending litigation were already struggling financially before the Coronavirus pandemic. Now, after nearly 6 weeks of mandatory quarantines and with no real end in sight yet, many of those same people are out of money, out of time, out of options, and they are scared. To make matters worse, months of court closures are going to cause an already lengthy legal process to take even longer. TriMark created this program to be a lifeline to plaintiffs who are in dire financial straits right now and need help immediately." TriMark Legal Funding can consider funding on most personal injury lawsuits including car, truck, motorcycle, drunk driving, and motor vehicle accidents and train, subway, and pedestrian accidents. Catastrophic injuries like crush injuries, burn injuries, spinal cord injuries, and traumatic brain injuries, medical malpractice, and wrongful death. Premises liability cases like dog bites, nursing home abuse, slip and fall accidents, and serious injuries on commercial property. Product liability includes cases like dangerous drugs and defective medical devices such as IVC filters, recalled hip replacements, and hernia mesh. Civil rights violations include police brutality, police misconduct, sexual abuse or assault, prison staff misconduct, and wrongful imprisonment. TriMark also considers employment lawsuits like discrimination, retaliation, whistleblower, wrongful termination, and sexual harassment in the workplace, plus work-related injuries like construction accidents, Jones Act maritime injuries, and FELA railroad workers injuries. Disclaimer – TriMark Legal Funding offers non-recourse lawsuit cash advances. While commonly referred to as lawsuit loans, settlement loans, lawsuit settlement loans, etc., they are not technically loans. A non-recourse lawsuit cash advance requires no monthly payments and repayment is contingent upon a successful settlement or jury verdict. If the case is lost or does not settle, the plaintiff does not repay the advance. *Residents of some states are ineligible for this offer due to state laws or internal funding restrictions. Please see https://tlfllc.com/coronavirus-pre-settlement-funding for restrictions and exclusions. URL: https://TLFLLC.com Contact Information: TriMark Legal Funding LLC 1056 Green Acres Rd #102 Eugene, OR 97408 Email: Info@TLFLLC.com Phone: (877) 932-2628 T Thomas Colwell   SOURCE TriMark Legal Funding LLC
Announcements Commercial

Lex Mundi Publishes Interactive Global Attorney-Client Privilege Guide For General Counsel

HOUSTON, April 28, 2020 /PRNewswire-PRWeb/ -- Lex Mundi, in conjunction with members of the Lex Mundi Litigation, Arbitration and Dispute Resolution Group, has published the first-of-its kind interactive guide - Lex Mundi Global Attorney-Client Privilege Guide. This one-of-a kind guide allows users to compare common and civil law attorney-client privilege information for more than 65 jurisdictions around the world -- all in a side-by-side customized report.

Attorney-client privilege differs significantly between states and countries and also between common and civil law jurisdictions. Some civil law jurisdictions do not recognize the privilege but instead protect the information through professional ethics rules or otherwise. At a time of global financial crisis, when companies are struggling to maintain operations and solvency in the wake of supply chain disruption and demand side collapse, companies know that litigation is looming. Now, more than ever, it is important for companies and their counsel to take steps to protect privileged information in anticipation of the litigation to come.

The Lex Mundi Attorney-Client Privilege Guide details what constitutes attorney-client privilege in common and civil law jurisdictions around the world. Specific topics addressed in the guide include:

  • Elements/Basics
  • Privilege in Corporations
  • Litigation Funding
  • Crime-Fraud Exception
  • Work Product Doctrine/Litigation Privilege
  • Other privileges, including accountant-client privilege, mediation privilege and settlement negotiation privilege

Lex Mundi created the guide with the help of Jenner & Block LLP, Lex Mundi member firm for USA, Illinois. David Greenwald, partner with Jenner & Block LLP, explained, "Our goal in creating this guide is to enable counsel and their clients to identify key differences among jurisdictions' laws and to provide citations to primary sources for further research." He added, "The law of privilege, and the differences between jurisdictions, is often misunderstood. This guide provides ready access to this important information."

The guide's interactive and innovative format allows users to search for and download an individual jurisdiction's report or compare multiple jurisdictions in a side-by-side customizable report. The Lex Mundi Attorney-Client Privilege Guide can be accessed free of charge on the Lex Mundi website at: https://www.lexmundi.com/lexmundi/Attorney-Client_Privilege_Guide.asp.

About Lex Mundi Lex Mundi is the world's leading network of independent law firms delivering consistent, high-quality advice that is critical to solving complex cross-border challenges. Our carefully vetted, and continuously reviewed, top-tier member firms uphold the highest-level service standards while offering preferred access to more than 22,000+ lawyers worldwide in more than 125 countries. Supported by client-focused methods, innovative technologies, joint learning and training, member firms collaborate across borders and industries to deliver joined-up solutions focused on real business results for clients.

Through our innovative service delivery model, clients have the ability to assemble an ideal international legal team, with the best lawyers in the jurisdictions that match their unique footprint, flexed to their most significant legal challenges.

Lex Mundi member law firms are located throughout Europe, the Middle East, Africa, Asia and the Pacific, Latin America and the Caribbean and North America. Through our nonprofit affiliate, the Lex Mundi Pro Bono Foundation, our members also provide pro bono legal assistance to social entrepreneurs around the globe.

For more information, please visit http://www.lexmundi.com and http://www.lexmundiprobono.org.

Announcements Consumer

USClaims Again Named Best Consumer Litigation Funding Provider

DRB Financial Solutions, LLC, is pleased to announce that its subsidiary, USClaims (www.USClaims.com), America's premier pre-settlement funding company, was recently chosen as America's Best Consumer Litigation Funding Provider by the audience of Corporate Counsel, the leading national legal and business news publication for in-house counsel at global companies. The reader ranking survey is directed by The National Law Journal, which asks its readers to help recognize the best legal service providers in the industry. This year's ballot consisted of more than 59 categories ranging from law firm marketing and communications to technology, litigation support, accounting, banking, and insurance. The landmark victory is USClaims' first with Corporate Counsel and comes as the company continues to expand its presence westward from its offices in New Jersey and Florida. USClaims has consistently been recognized as best-in-class across the nation, including California, Georgia, New York, New Jersey, Connecticut, North Carolina, Pennsylvania, Texas, and Washington DC. Thank you for your votes and confidence in USClaims as your preferred funding company. We are committed to our mission of providing necessary funds to plaintiffs so you, their attorney, has the time to pursue fair settlements, stated Donna Lee Jones, Esq., President of USClaims. USClaims, established in 1996, is the longest continuously operating pre-settlement funding firm in the United States and has been consistently voted among the best in the nation. In 2019 alone, USClaims earned first place rankings by the audience of The National Law Journal in several categories, including Best Law Firm Funding Provider, Best Case Funding [pre-settlement], Best Consumer Litigation Funding Provider and several Hall of Fame awards. In 2014, a Florida-based specialty finance company, DRB Financial Solutions, LLC, acquired the business, a move that has enabled USClaims to assist more customers than ever before. The company offers plaintiffs who are waiting on a lawsuit settlement the opportunity to receive cash before their case is resolved. There are no out of pocket cost, the transactions are non-recourse to the claimant, do not require a credit check, and - best of all - nothing is owed unless the claim is successful. For additional information on USClaims' pre-settlement funding, please call (877) 872-5246 or visit USClaims.com. Funding is subject to approval and is not available in every state.
Commercial

Is Litigation Finance the Key to Surviving an Economic Downturn?

Given that the stock market has fallen almost 20% in the last 30 days, securities claims are expected to surge. The need for increased operational funds and asset liquidity makes Litigation Finance an attractive option for companies facing such claims. Burford Capital explains that while opportunities to recover losses are plentiful—recognizing them requires an expertise not every firm is capable of. Portfolio companies that have misinformed investors may be easy to spot, but recovering those losses will require forensic follow-up, intensive research, and a keen legal mind. For asset managers, it’s essential to determine actual fraud from unlucky circumstances or simply not getting the results clients expect. If a company is not doing well financially, how much sense does it even make to sue? Asset managers must determine how long the case will take and whether the expected payout will be worth the effort. Monetizing claims, or a portion of claims, is also a good way to free up operating capital. When a firm like Burford provides monetization capital, it can only be recovered if the case is successful. This means the firm assumes the risk. Monetization can also free up funds for shareholders, or to cover unexpected expenses. Portfolio financing is also a popular solution to cash shortfalls. By funding multiple claims in an array of jurisdictions, risk is reduced for the funder while the cost is lowered for the firm. Typically, the funder provides non-recourse capital in exchange for the commitment to using that funder for all eligible claims. Under usual terms, the asset manager (along with a funding board) decides whether to pursue each claim. Litigation Finance will be key in the coming months as firms struggle with slowdowns and an influx of cases. Knowing how to use the tools at your disposal may make all the difference in the longevity of any law firm.
Commercial Covid-19

Declaratory Judgements Sought as Lawyers Prepare for COVID-19 Suits

It’s clear that insurers and policyholders are keeping a close eye on the law as it pertains to pandemics. Clauses in contracts specifically related to viral or biological agents will take center stage in new lawsuits that are sure to spring up after COVID-19 precautions have taken a heavy toll on businesses. Bloomberg Law explains that lawsuits seeking early declaratory judgements are often sought by insurers trying to determine their expected liability coverage in a given situation. In such suits, a judge determines whether or not it’s expected that an insurer should cover (or not cover) a claim. This ruling happens independently of any financial claims arising from the case. Though we’re far from opening businesses up to pre-COVID-19 levels, companies are already filing suits against their insurers. For their parts, insurers are searching frantically for escape hatches to avoid covering the myriad claims arising from COVID-19 shutdowns. Some insurers have already been pursuing the idea that business interruption policies do not cover losses related to viruses or other mass-contagions. Travelers Casualty Insurance Co of America has filed against the firm Geragos & Geragos with this argument in mind. G&G claims to welcome this case, but if Travelers wins, that may cause a ripple effect that winds up devastating policyholders relying on their policies to cover them. No doubt, all eyes will be on cases of this type.
Commercial

$350MM Claim Involving Russian Oligarchs Raises Questions

Convicted of fraud in 2007, Alexander Tugushev is now suing a former business partner. The case is being funded by 17 Arm, a firm advised by a former prosecutor and former foreign secretary, and is raising questions due to the high-profile nature of those involved, and because of the use of Litigation Finance. The Guardian reports that the plaintiff, Tugushev, was convicted of receiving a bribe—an allegation that he has consistently denied—for which he served six years. Tugushev’s assertion is that his former business partner owes him a share of their joint business, valued at $350MM. If recovered, 17 Arm would receive a significant but undisclosed portion. Given that the London case involves a man who was banned from Britain, it’s not surprising that people are paying attention. Some are also asserting that the case is an example of litigation funding inspiring litigation for the purpose of profit rather than the pursuit of justice. 17 Arm’s advisory board lends its opinion on which cases appear to be good investments based on potential recovery and likelihood of success. They defend their decision to fund Tugushev’s case despite his earlier conviction, explaining that everyone has the right to be heard in court.