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Consumer

Colorado Court Unseals Litigation Funding Agreement, Orders Mediation Between Parties

In List Interactive, Ltd. v. Knights of Columbus, Judge R. Brooke Jackson denied a motion to restrict public access to litigation funding agreements, finding that the content of the agreements are in the public interest. Judge Jackson confirmed that dollar amounts and specific terms may constitute trade secrets, but ruled that restricting access to the entire agreement is 'grossly overbroad.' As reported in Reason.com, consumer litigation funders Theano Ventures, LLC and Themistius Ventures, LLC, are claiming that they are entitled to a portion of funds deposited withe court. Yet the law firm in the case is claiming first lien position. The funders have argued that the law firm subordinated its position in a letter that was issued to the plaintiff. That letter, along with the litigation funding agreement, have been entered into evidence as Exhibits B and C, as part of an effort to compel arbitration in New York. The court has now found that those exhibits must be unsealed for the public to view. The underlying claim alleges that the funders breached Colorado state usury laws, which cap interest rates on loans at 45%. The effective interest rate of the funding is over 90%, according to the law firm, which cites Oasis Legal Fin. Group v. Coffman, 361 P.3d 400 (Colo. 2015). In that case, the Colorado Supreme Court asserted that loans from litigation funders are subject to the state's lending statutes (the court characterized these transactions as loans, despite Oasis' argument that their funding amounts to an investment). The plaintiff, all three of the plaintiff's counsel, and the litigation funders are claiming entitlement to the over $750,000 in funds on deposit at the court registry. The court is suggesting mediation, and currently awaiting response from the parties if that is an acceptable path forward.
Commercial

Litigation Funding in India is Growing

According to the Amendments to the Code of Civil Procedure, 1908, (Order XXV Rule 3), litigation funding in India is permissible, in that non-lawyers are not restricted from accepting remuneration upon a completed claim. With recent litigation funding partnerships in the engineering and construction sectors, it seems litigation funding in India is poised for growth. As reported in Mondaq, litigation in India is often costly and time-consuming. Many in the world's second-most populous nation have called for reforms to the justice system, chief among those is the continued expansion of litigation funding to provide access to justice. Currently, lawyers are restricted from taking cases on contingency, which limits the options for an impecunious plaintiff. As LFJ has reported, large construction firms like Hindustan Construction Company Limited and Patel Engineering have kicked off the litigation funding renaissance in India by assigning their claims to investors. Construction and engineering firms are ripe for funding, because many are at or near insolvency, and burdened by the prospect of excess litigation. And when the claims are against government entities (as is the case in the aforementioned examples), the prospect of a payout should the claims succeed is virtually guaranteed. Based on the above trends, it's likely we will see continued growth of litigation funding in the Indian market. How much growth and to what extent funding penetrates the total addressable litigation market in India is anyone's guess. But for now at least, India is certainly worth keeping an eye on.
Commercial

Should Lawyers Partnering with Funders Have Skin in the Game?

Among the chief concerns over the rise of litigation funding are the potential growth of frivolous lawsuits, and funder control over case decisions. While those worries haven't exactly panned out as many industry skeptics had imagined, they remain nagging concerns as the funding industry continues to expand with new entrants and capital sources. One unifying solution to both of these ethical problems is to mandate that lawyers who partner with litigation funders operate on success-based fee arrangements. As reported in Bloomberg Law, When funders compensate the law firm regardless of case outcome, incentives become mis-aligned, which can lead to dubious ethical practices. It stands to reason then, that forcing a lawyer to have 'skin in the game' when partnering with a funder solves many an ethical quandary. First, the prospect of a frivolous lawsuit grows far less likely, given that the attorney must operate on a contingency basis (of course, the funder is already operating on such a basis, which makes the likelihood of a funded frivolous suit extremely low in the first place). Secondly, if lawyers operate on success-based fee arrangements when partnering with funders, they are less likely to permit a funder to control case decisions, as that would conceivably impact their likelihood of success. The broader ethical debate around litigation funding has largely been resolved (the Chamber of Commerce's efforts notwithstanding). Yet nuts-and-bolts ethical questions still remain, and those must be addressed if litigation funding is to really become a mainstream asset class.
Announcements Commercial

Harbour Litigation Funding expands European team with hire of Theo Paeffgen

Theo Paeffgen joins Harbour Litigation Funding today as a Director of Litigation Funding focusing on Continental Europe. Prior to joining Harbour, Theo was Regional Managing Director (DACH) at Vannin Capital, having acted as CEO of FORIS, a German focused litigation funder.

Before moving into litigation funding, Theo qualified as German Rechtsanwalt and solicitor and advised clients in his practice for more than 20 years as well as worked in a number of senior corporate roles.

Theo is based in Harbour’s London office but will travel regularly to Europe to meet law firms and clients. Theo’s hire underscores Harbour’s commitment to growth and serving its clients across Europe.

Ellora MacPherson, Chief Investment Officer commented: “Theo joining the team is really exciting news. We have made investments in Continental Europe in the past and have a good network across the region, but Theo can help take us to the next level. It will allow us to build our relationships across the continent and create funding solutions to support our clients in their pursuit of justice.”

Theo added: “I am delighted to be joining Harbour. I look forward to building on Harbour’s already excellent reputation in Continental Europe and working with the team. I am excited to grow this already market leading litigation funder.”

Announcements Commercial

Delta Capital Partners Management LLC, Chicago-Based Litigation Finance Firm, Announces New Offices and Hires

CHICAGO, Jan. 8, 2020 --Delta Capital Partners Management LLC, a private equity and advisory firm specializing in litigation finance, today announced major milestones in its growth.

Christopher DeLise, Delta’s Managing Principal, CEO and CO-CIO, stated, “Delta has met its key business objectives for 2019 by hiring top-tier professionals, building out our geographic footprint, and joining forces with a top-tier global financial partner.  These developments have strengthened Delta’s AUM and the successful completion of recoveries for claimants, Delta and the firm’s investors. We look forward to continuing to provide world-class services to our investors and clients in 2020.”

Delta’s Geographic Reach and Team Expansion

In 2019, Delta increased its presence in several geographies where it had historically done business, by opening offices in Madrid, Prague, Warsaw and Hong Kong.

New Management Team Members 

Daniel Bond, Esq., Managing Director

Daniel Bond has been hired to lead Delta’s intake, evaluation, due diligence, and monitoring efforts to support new investment opportunities. Mr. Bond was previously a Partner at Kirkland Ellis LLP. Mr. Bond has had a 10+ year law firm career with extensive experience in the planning and management of commercial litigation and dispute resolution.

Since 2015, Mr. Bond has been named by Leading Lawyers as an “Emerging Lawyer in Illinois,” an honor given to the top 2% of lawyers who are 40 years old or younger or practicing law 10 years or less, who have proven themselves professional, ethical and experienced at an early point in their legal career.

Michael Makridakis, Esq., Managing Director – Asia, Australia and Offshore Jurisdictions

Michael Makridakis has been hired to lead Delta’s business in Asia, Australia, and in the Offshore Jurisdictions including the Cayman Islands, BVI and the Channel Islands. Mr. Makridakis works out of the firm’s Hong Kong office.

Prior to joining Delta, Mr. Makridakis was Managing Partner and Head of Dispute Resolution & Insolvency of the Hong-Kong office of Carey Olsen. Mr. Makridakis has a broad range of experience with investment funds, both offshore and domestically. Mr. Makridakis has worked extensively with distressed investment funds and has been a commercial litigator for over 15 years with extensive global litigation and arbitration expertise. Prior to launching the Hong-Kong office of Carey Olsen, Mr. Makridakis practiced law in the Cayman Islands, starting his career with Walkers Global in 2008.

Petr Malecek, Esq., Managing Director – Central & Eastern Europe

Petr Malecek has been hired to lead Delta’s business in Central and Eastern Europe. Mr. Malecek works out of the firm’s Warsaw and Prague offices. Mr. Malecek has over 20 years of experience advising corporate and sovereign entities on banking, finance and dispute-related matters in jurisdictions across Central and Eastern Europe and the Middle East.

Prior to joining Delta, Mr. Malecek co-founded a multi-disciplinary advisory practice where his areas of expertise included litigation management, dispute resolution, asset recovery, cross-border leveraged finance and the coordination of the company’s  advisors/practices and external contractors. Previously, Mr. Malecek was a Partner at CMS Cameron Mckenna and ran the banking and finance practices in Warsaw and Kyiv during that time.

Joseph Drozd, Jr., Director – Strategic Initiatives & Investor Relations

Joseph Drozd brings over ten years of experience in investment management and specializes in fundraising and managing a fund’s entire investment process. Before joining Delta, Mr. Drozd was the director of strategy and marketing with a major Chicago-based investment management company.    Joe formerly was a portfolio manager and director of research for a multi-family office in Chicago and previously worked in the alternatives group at Mercer Investments.

Jennifer Conley, Director – Marketing & Communications

Jennifer Conley has been hired to lead Delta’s marketing and communications efforts. Ms. Conley has worked in marketing and business development across the legal and financial services industries for over 13 years. Ms. Conley is responsible for developing marketing and branding strategies, client pitches and proposals, social media initiatives, competitive intelligence research, national conference sponsorships, and client socials.  Prior to joining Delta, Ms. Conley was a Global Practice Development Manager at Winston & Strawn and focused on practice and client development initiatives for the firm.

In addition to the new management team members noted above, Delta also hired several support, finance, accounting, and legal professionals during 2019, including: Daniel Noonan, Alon Polischuk, and Erin Bishop, Esq.

Delta’s Institutional Financial Partner in 2019

In May 2019, Delta entered a joint venture with a prominent Chicago-based asset manager that has made more than 60 investments since 2007.  The firm has had commitments and deployments of over $5 billion since inception and has an AUM of $9 billion.  The firm manages funds with a variety of investment strategies, including private equity, venture capital, specialty financing, distressed bond and credit alternatives, and has invested extensively in litigation finance over the last decade.

About Delta Capital Partners Management LLC

Delta Capital Partners Management LLC is a US-based private equity and advisory firm specializing in litigation finance, judgment enforcement, asset recovery and related strategies serving claimants, law firms and other professional service firms, and businesses across the globe. The firm provides capital and expertise that enables their clients to de-risk, focus on their core businesses, and significantly enhance the probability of a successful and timely resolution of their and/or their clients’ claims.

Contact:

Delta Capital Partners

Jennifer Conley, 312-481-8194

jconley@deltacph.com

Commercial

Funded Class Actions Fill New Zealand’s Litigation Calendar in 2020

A bevy of funded class actions are making their way through New Zealand courts in 2020, sparking debate on issues such as opt-in/opt-out, and other procedural components of how the nascent class action regime should operate. As reported in the NZ Herald, one of the key cases to watch in 2020 is the Southern Response claim, where the Supreme Court issued a landmark ruling approving of opt-out status. Up to that point, class actions had been opt-in only. Opt-out benefits litigation funders and makes their financial projections easier, as it certifies that all potential plaintiffs are covered by the action unless they specifically opt-out. That eliminates the need for book-building which can be costly and time-consuming. But the opt-out status of the Southern Response claim isn't set in stone. The high court has asked the NZ Law Society and the NZ Bar Association for their feedback on the decision to certify the class as opt-out. Meanwhile, another big claim looms, as both LPF Group and IMF Bentham are battling to fund a class action against the now-defunct CBL Corporation. A court is expected to choose between the two funded claims, and many are curious as to how the civil case brought by the Financial Markets Authority will impact the selected claim, if at all. There is also an increase in both insolvency-related and construction-related disputes, as New Zealand's class action climate continues to surge, much akin to what neighboring Australia has been experiencing these past several years. The High Court Rules Committee is requesting feedback on procedural matters as relates to access to justice, and the Law Commission has confirmed it will make recommendations to the government by next year. On the table are a shortening of the High Court trial process, an investigative process for specific claims, and the streamlining of trial processes.
Commercial

Are Juris Capital’s Public Sector Union Lawsuits Motivated by Politics or Profit?

Jonathan Mitchell of Mitchell Law PLLC has filed 21 class actions against public sector unions over the past two years, which have been bankrolled by Chicago-based Juris Capital. Now some are questioning the motivation behind these lawsuits - if their intent is to turn a profit, or to squash public sector unions altogether. As reported in The Intercept, Mitchell filed nearly two-dozen lawsuits in various states prior to the Supreme Court ruling in Janus v. AFCSME. That ruling found that public sector unions may not collect fees from employees who do not wish to participate in the union. Previously, public sector unions charged agency fees, whereby workers were forced to pay for union representation, regardless of whether they wanted that representation or not. Mitchell's lawsuits are aimed at recouping hundreds of millions of dollars in public sector union dues paid by workers who did not wish to be represented in the first place. Thanks to the Northern District of California's mandate that all funding agreements in class actions be disclosed to the court, Mitchell was forced to disclose the fact that Juris Capital is his litigation funder. Juris is led by David Desser, and reportedly backed by a pair of hedge funds and other private investors. Thus far, public sector unions have won most of the early battles, with circuit courts finding that they acted in good faith and therefore need not repay workers for dues collected (some claims have been settled prior to a court ruling). However, the claims now move to the appellate stage, which many feel could be a stepping stone to the Supreme Court. With the lengthy time-to-conclusion, some are contending that the suits are part of an orchestrated campaign to crush public sector unions. Mitchell, however, insists that his lawsuits are part of no such campaign; that he brought them at his own behest. The extent of Juris' participation in a politically motivated anti-union campaign remains unclear, given that the firm is a litigation funder and therefore motivated by profit as opposed to politics. All of this aside, the real question here is: does it really matter? These claims are either meritorious or not, a decision which the Supreme Court will likely ultimately decide. In the meantime, public sector unions are complaining about the cost of the claims, which is a reasonable gripe. Perhaps someone should alert them to the rise in defense-side funding...
Commercial

Battle Over Common Fund Orders in Australia Highlights Changing Attitudes Towards Litigation Funding

With over 600 class actions filed in Australia since the regime was first allowed 27 years ago, litigation funders are finding the class action sector to be a wellspring of potential investment. Yet the rise and subsequent fall of common fund orders underscores the backlash that is growing against the sector. According to The Sydney Morning Herald, funders got a boost in 2016 when Australia introduced common fund orders. A common fund order mandates that all claim members pay out a share of their earnings to the funder of the claim, regardless of whether they signed on with the funder. The logic being that all claimants are benefitting from that funder’s participation. Common fund orders meant that funders no longer had to book-build, or sign up vast numbers of claimants. However, the Supreme Court of Australia has just recently ruled that the Federal Court and NSW Supreme Court cannot issue common fund orders. The ruling comes on the heels of heavy grumblings about the rise of funded class actions in Australia. Many are pointing to the excess profits earned by funders, with some taking as much as 80% per year on their invested capital. Even though the court ultimately decides the size of the funders cut, some argue judges are ill-equipped to make an informed decision, and often pull numbers out of thin air. Funders disagree, of course, citing the high level of risk their investments carry. Andrew Watson of Maurice Blackburn points out how funders were taking as much as 40% prior to the common fund order introduction in 2016, but that number has dipped to below 25%, in some cases as low as 10 or 12%. He argues that without common fund orders in place, funder rates are likely to rise. Meanwhile, there are calls for further investigations into the funding sector, with the Victoria Law Reform Commission considering whether to allow law firms to work on contingency. That would change the game entirely, as it would provide law firms many of the same tools that funders now utilize, and would likely shift most class actions to Victoria. There are certainly a lot of moving parts when it comes to litigation funding in Australia. Only time will tell how all of this plays out.
Announcements Commercial

Affiniti Finance Announces £10MM Funding Line to Royds Withy King

We are delighted to announce we have established a funding facility with major law firm, Royds Withy King. This £10 million pound innovative funding facility will allow the law firm to offer clients a competitive edge in the litigation arena where the costs of pursuing claims to trial can be prohibitively expensive. The funding will enable clients to unlock claims which they might otherwise find difficult to bring or where they wish to structure their own finances to the benefit of their business interests rather than the litigation. Funding under the facility will spread the risk for claimants and, very importantly, is provided on a ‘non-recourse’ basis which means that if, unexpectedly, the claim fails, then there is no comeback for the claimant. The facility has been tailored to support a variety of practice areas and sectors both in the UK and internationally, including Arbitration and Contentious Probate. Jamie Lester, Dispute Resolution Partner in Royds Withy King’s City Office, who has overseen the project, said: “Legal disputes are unfortunately a fact of life and the higher the stakes, the more damaging and costly they can be to parties who will not only have to shoulder legal expenses as part of their existing budgets but also suffer the opportunity costs of diverted resources.” “After extensive research of the funding market, we are extremely excited about the facility with Affiniti Finance whom we recognise as bringing a fresh and transparent approach to the market and whose proposition we believe will be of real and tangible benefit to our clients. The facility is designed to provide them with a tool to hedge risk, eliminate budget constraints and monetise pending claims to free up capital for other business needs. It also resets the bargaining position against deep pocket defendants. The facility can also be accessed within a matter of days rather than the customary lead time of two-three months.” Our CEO, Ian Cunningham, said: “Affiniti Finance is delighted to provide the funding facility to Royds Withy King, a leader in the UK and international litigation markets. Our facility will enable Royds Withy King clients further access to justice and forge a formidable relationship for both parties.” Stewart Wilkinson, London Head of Dispute Resolution at Royds Withy King, said: “We have always prided ourselves in offering our clients innovative pricing options and structures for pursuing litigation in the UK and overseas. The facility with Affiniti Finance is the logical next step in this process and forms part of a series of innovative initiatives that we are bringing to the market to assist clients in a rapidly changing environment.” About Affiniti Finance Affiniti Finance was founded in 2014 and specialises in providing financial support to individuals or companies who are pursuing meritorious legal claims. The company covers several areas of legal funding including Financial Mis-selling, Civil Litigation, Personal Injury and across the commercial spectrum. Affiniti Finance helps claimants manage the risk of litigation and empowers them to pursue claims that might not otherwise be possible. For further information, visit www.affinitifinance.co.uk or follow us on Twitter @affinitifinance.