Trending Now

All Articles

3313 Articles
Commercial Regulatory Issues

Proposals for an ‘Ethically Sound And Financially Robust’ Future of Litigation Funding

As we look forward to the next decade of litigation funding, it appears that the loudest voices discussing what the industry might look like are coming from outside the sector. However, a new article from a European funder argues that the industry’s own leaders should take a proactive stance towards shaping the future of litigation finance. In a blog post on LinkedIn, Gabriel Olearnik, partner and head of special situations at LitFin, offers his thoughts on the future of litigation funding, and how the industry can continue to grow. Olearnik frames the article from his own personal perspective, suggesting that his views on the subject may be considered ‘heretical’ to some. He argues that in order for the funding industry to grow in a sustainable manner, ‘we must address the inherent challenges and ethical dilemmas it presents with clarity and dynamism.’ In the first of four proposals that Olearnik puts forward, he suggests that there should be a cap on funders’ returns that is equal to 50% of the total awarded damages. He argues that this is not suggested to stifle growth, but rather ‘ensure that the primary beneficiary of litigation funding is justice itself, not profit.’ Whilst Olearnik allows for the option for the cap to be non-binding, he believes that implementing such a measure would ‘maintain the integrity of the legal process.’ Olearnik’s second proposal is ‘the creation of specialised training and education programs’ designed to increase both the awareness and understanding of third-party funding in the next generation of legal and investment professionals. Moving beyond education for the existing legal industry workforce, he argues that these programs could ‘attract a new generation of ethical, socially conscious professionals to this vital industry.’ Moving from education to oversight, Olearnik recommends that the industry introduce ‘regulation of the senior management suite of litigation funders is crucial’, with these regulations being aligned ‘with the Approved Persons Regime under the Financial Services and Markets Act (FSMA)’. He points out that by adopting these standards, litigation funders can ‘safeguard the industry from potential abuses and foster a culture of integrity and accountability.’  Finally, Olearnik proposes the introduction of measures that would ‘avoid conflicts of interest and ensure capital adequacy’, arguing that these rules can not only ‘protect the interests of those seeking justice but also maintain the stability and reputation of the litigation funding sector.’
Commercial Legal Innovation

A Funder’s Perspective on Climate Litigation 

Although ESG investing is often viewed as a buzzword that lacks specificity and defined guidelines, it is clear that litigation funders have a growing appetite for lawsuits that tackle climate change and environmental impact issues. In a post on LinkedIn, Nivalion highlights the investor’s perspective on funding climate cases, examining both the challenges inherent to these lawsuits and the opportunities that they present for funders willing to back such claims. The funder begins by citing data from UNEP reporting which shows that the number of climate lawsuits being heard globally has risen from 900 in 2017, to nearly 2,200 in 2020. When it comes to jurisdiction, the majority of these cases are being brought in the United States, with less than 20% taking place in developing nations. In terms of the main challenges facing funders when assessing these cases, Nivalion states that there is often a lack of precedent for the claims being brought, especially in European courts. However, Nivalion cites a report from the London School of Economics that shows, when considered globally, ‘55% of cases brought have had a climate-positive ruling’. As a result, whilst there are plenty of cases for funders to consider, climate lawsuits in Europe represent an increased risk profile and are ‘more difficult to assess than the previous cases the Litigation Funding Industry has been funding.’ With this increased risk profile, Nivalion explains that funders may be able to commit to some of these climate lawsuits, as long as their overall portfolio structure is balanced and contains enough cases that have a higher probability of success. Similarly, funders are careful to consider the extended duration that climate litigation can entail, and may need to adjust their pricing terms when investing in these lawsuits.
Case Developments Commercial

Burford Capital Exploring Argentina’s Currency Swap Line with China to Satisfy $16 Billion Judgement

Ever since the landmark $16 billion judgement in the Argentina YPF case, the majority of commentary and discussion has focused on just one question: will it be possible to enforce a judgement of this size? With Burford Capital having previously pressured the court to begin the asset seizure process, it now appears the funder is exploring innovative routes to seeing the Argentine government satisfy its payment obligations. An article in Buenos Aires Times covers the latest developments in Burford Capital’s campaign to collect on the mammoth $16 billion judgement, as the funder is reportedly investigating using Argentina’s $18 billion currency swap line with China to satisfy the outstanding debt. No details are offered as to how this particular mechanism could be leveraged, but Burford filed an information request in federal court in New York on Tuesday, which ‘sought information on various overseas assets held by Argentina.’ Burford has reportedly filed at least 30 of these information requests and is seeking details around ‘YPF shares and dividends paid by the company, overseas commercial transactions and bank accounts, and reserves of gold and precious metals held abroad.’ Burford’s lawyers have stated that Argentina has refused to respond to any requests for information on assets held by the country’s Central Bank, with the governments stating these assets are ‘immune from attachment.’
Announcements Commercial

Omni Bridgeway Releases Interim Financial Report

The Directors present their report (referred to hereafter as the “Interim Financial Report”), together with the financial statements, on the consolidated entity (referred to hereafter as the "consolidated entity" or "the Group") consisting of Omni Bridgeway Limited (referred to hereafter as "OBL", "the Company" or "the Parent") and the entities it controlled at the end of, or during, the half year ended 31 December 2023. Directors The names of the Company's Directors in office during the half year ended 31 December 2023 and until the date of this report are as below. Unless stated otherwise, the Directors were in office for this entire period. Michael Kay - Non-Executive Chairman Andrew Saker - Managing Director & CEO (retired 26 October 2023) Raymond van Hulst - Managing Director & CEO (appointed 26 October 2023), former Executive Director and Co-Chief Investment Officer – EMEA Michael Green - Non-Executive Director Karen Phin - Non-Executive Director Christine Feldmanis - Non-Executive Director   Highlights for the half year ended 31 December 2023 Operational highlights1
  • US$485 million2 first close of Fund 4 and Fund 5 series II capital raise on improved cost coverage terms.
  • €135 million first tranche of debt capital raised for our €300 million Fund 8, focused on global enforcement investments.
  • Significant expansion of our capabilities in the UK, the world's second largest litigation finance market.
  • Investment income of $235.7 million, including income yet to be recognised, with $50.1 million provisionally attributable to OBL.
  • 12 full completions, 6 partial completions, and a secondary market transaction achieving an overall MOIC of 2.4x, and an IRR of 55%.
  • US$21.5 million cash proceeds from the sale of a 25% interest in a portfolio of 15 intellectual property (IP) investments in Fund 4.
  • $260 million of new investment commitments with 38% improved pricing on FY23.
  • $182 million strong pipeline of new investment opportunities representing a further 29% of our commitments target for the year ending 30 June 2024.
  • Possible investment completions with an estimated portfolio value (EPV) of $5.1 billion over the next 12 months (rolling period).
  • Total cash and receivables of $291.2 million; OBL only cash and receivables of $122.4 million ($80.9 million in OBL balance sheet cash and $40.1 million of OBL share of cash and receivables within Funds), plus $60 million in undrawn debt.
Financial highlights3
  • Total income of $135.8 million (including a net gain on deconsolidation of the Fund 4 IP portfolio) derived from diversified sources comprising litigation completions, a secondary market sale, management fees, and interest revenue.
  • Group profit after tax (before non-controlling interests (NCI)) of $33.4 million (1H23: $30.1 million loss after tax); with $47.6 million loss attributable to OBL (the Group’s equity holders) and $81.0 million profit attributable to NCI.
  • Employee expenses of $34.4 million decreased 12% due to team optimisation, a reduction in contractors and higher capitalised costs of investment managers.
  • Corporate overheads of $9.0 million increased 4% due mainly to the amortisation of the Fund 8 insurance premium, notwithstanding significant reductions in other corporate overhead expenses.
  • Carrying value of litigation investments of $654.7 million (30 June 2023: $596.7 million) across 285 funded litigation investments. Negative case developments including lower than anticipated income, extended duration and adverse milestones associated with a funded law firm portfolio have resulted in a $44.9 million reduction of the carrying value. 
1 Represents non-IFRS information. Here Fund 5 is presented at 100% for consistency of presentation across OBL’s Funds. 2 Inclusive of OBL’s co-funding (OBL’s commitment of US$100 million to each Series II fund is capped at 20% of the ultimate fund size (i.e. after further closings). 3 Per the Group Consolidated Financial Statements. The full Interim Financial Report can be read here. The full 1H24 results Investor Presentation can be read here.
Community Spotlights
" />

Member Spotlight: Dinesh Natarajan

Trident Strategy is a Singapore-based strategic consultancy that Dinesh Natarajan founded and leads as CEO. Dinesh have over 9 years of experience in law, management consulting, and litigation, and helps clients across various sectors and geographies to achieve their goals in the strategic partnerships and sports, media and entertainment industries. Dinesh combines his skills and knowledge in strategy, legal finance, and arbitration to deliver value-added solutions and insights.

Dinesh is also a Network Member at Lexolent, the world's first globally coordinated network for legal finance professionals. Lexolent connects him with a diverse and dynamic community of experts, investors, and innovators in the rapidly growing field of legal finance. He leverages his expertise in sports law and arbitration to advise and support clients on complex and high-stakes legal matters.

Dinesh is passionate about foreign policy, international politics, and youth leadership, and engages in various platforms and initiatives that foster dialogue, collaboration, and social impact. Dinesh serves his community in various roles, such as sitting on the Management Committee of a Hindu temple, the Legal Committee of the Football Association of Singapore, and the Disciplinary & Ethics Committee of the ASEAN Football Federation. He live by the motto: Serve. Lead. Inspire.

Company Name and Description:   Trident Strategy- a consultancy that provides services in the legal and Sports industry.

Company Website: www.trident-strategy.com

Year Founded:  2021

Headquarters:  Singapore

Area of Focus:  Law, strategy, finance, sports, media, entertainment

Member Quote: Keen to establish a Litigation Fund and interested to speak with players in the industry who could be a mentor and/or partner with.

Commercial Regulatory Issues

Lobbyist for ILFA Calls Failure to Disclose Foreign Entities ‘an Oversight’

As criticism and scrutiny of litigation funding reaches new heights, opponents of the industry will be keeping a close eye on anything that appears to show funders operating in ways that can be framed negatively. A recent article highlights that it is not just funders who are under the spotlight. A newsletter published by Politico earlier this month reported that Miller Strategies, a D.C.-based lobbying firm, said it would update its lobbying disclosures around its work for the International Legal Finance Association (ILFA). These amendments were required, as it had failed to disclose that the following five members of ILFA are foreign companies: Harbour Litigation Funding, Innsworth Advisors Limited, Nivalion AG, Omni Bridgeway and Therium Capital Management. Speaking with Politico, Miller Strategies’ founder and CEO Jeff Miller said that the failure to disclose the foreign entities “was an oversight”, and that the lobbying firm would “amend accordingly.” Miller also added that his firm had paused its work for ILFA at the end of 2023, having been paid a fee of $50,000 per quarter. According to data collated by OpenSecrets, a nonprofit that tracks lobbying spending in U.S. politics, Miller Strategies was paid a total of $110,000 by ILFA in 2023. OpenSecrets tracking also reveals that ILFA paid another lobbying firm, West Front Strategies, $120,000 for its services last year. 
Case Developments Commercial

Burford Capital and Sysco File Objections to Judge’s Denial of Substitution of Plaintiff

As LFJ reported earlier this month, the story of Burford Capital and Sysco’s antitrust lawsuits experienced a new development, with a Minnesota judge denying their joint motions for substitution of plaintiff. As was expected at the time, both the litigation funder and its client have now filed objections and asked the Court to set aside the ruling and allow Burford’s subsidiary to take over the cases. Reporting by Reuters reveals that objections have been filed by both Carina Ventures, a subsidiary of Burford Capital, and Sysco, against U.S. Magistrate Judge John Docherty’s denial of their joint motion for a substitution of plaintiff. The objections, which were filed with the United States District Court of Minnesota on 23 February, both argue that the judge’s order is based on ‘errors of law’. Carina’s filing summarised both parties’ position succinctly, stating that ‘there is no sound policy reason to require Carina to control the prosecution of its claims from the sidelines, rather than litigating them directly in its own name.’ Carina’s objection is formed around two central arguments. Firstly, that Judge Docherty’s order ‘contravenes uniform Eighth Circuit and District Court precedent, as well as the core purposes of Rule 25(c).’ Secondly, that the judge’s ‘public policy reasons for denying substitution are legally erroneous’, with Carina arguing that ‘denial of substitution does not and cannot change Carina’s legal right under the assignment agreement to control the claims.’ Sysco’s objection followed similar arguments around the court’s order running ‘contrary to Rule 25’, whilst also providing three central pillars to its argument around Judge Docherty’s public policy reasoning. Sysco argued that the ‘the public policy favoring settlement also favours substitution’, that the ‘substitution promotes antitrust policy’, and that ‘the doctrine of champerty favors substitution of the claim owner’.  Both Carina Ventures and Sysco concluded their objections by requesting that the Court grant substitution of plaintiff in the antitrust cases.
Announcements Case Developments Commercial

Silver Bull Provides Update on Its Arbitration Claim Against Mexico

Silver Bull Resources, Inc. (“Silver Bull” or the “Company”) provides an update on progress with its international arbitration claim against the United Mexican States (“Mexico”). Since our previous update on September 26, 2023, a number of important steps have been achieved in the arbitration process. These include:
  • The appointment of a three-person arbitration panel (the “Tribunal”) by the International Centre for Settlement of Investment Disputes (“ICSID”). The Tribunal convened its first session with the parties on February 13, 2024.
  • Engagement of a quantum expert by the Company to assess the Company’s claim. The evaluation is underway and will serve as the foundation for determining the value of Silver Bull’s claim against Mexico.
  • Establishment of a definitive timeline agreed upon by both parties and the ICSID Tribunal. Silver Bull anticipates filing its Memorial in May 2024, with the Arbitration hearing slated for October 2025.
  • The Company and its legal representatives at Boies Schiller Flexner continue to prepare the case. Document analysis and interviews with pertinent personnel are progressing as scheduled.
For background on the basis for the arbitration and ongoing updates with respect to the arbitration, please refer to the Company’s website www.silverbullresources.com/news. Regarding the arbitration proceedings, Silver Bull is being represented by the global law firm, Boies Schiller Flexner, and is financially supported by Bench Walk Advisors via a Litigation Funding Agreement for up to US$9.5 million to finance the case.
Announcements Commercial People Moves

RESPECTED LITIGATION FINANCIERS UNITE TO LAUNCH NEW VENTURE

An experienced and agile team today launched Winward Limited (“Winward”), a litigation finance platform focused on being a funder with a lawyer’s mindset. Winward (www.winward.uk) will be run by Jeremy Marshall, its Chief Investment Officer and Managing Director, with committed capital from Rocade Capital. Winward will initially concentrate on funding commercial litigation within Europe and common law jurisdictions although it will also look to capitalise on opportunities that are presented from other jurisdictions that have a mature litigation funding environment. Winward intends to build a balanced portfolio of investments and will aim to work with a select group of law firms and professionals. The initial investment focus is a mixture of litigation and arbitration matters in the fields of antitrust, arbitration, contract, group action, insolvency and tort. Winward’s team is efficient, experienced and is determined to provide a robust service and come to swift and decisive funding decisions, while providing enhanced transparency throughout. Its advisory committee is chaired by Stephen Auld KC, a senior silk from leading chambers One Essex Court in London, and it is comprised of a number of seasoned professionals, all of whom have significant experience of either funding cases or having cases being funded. Wayne Attrill, Arndt Eversberg and Kees Jan Kuilwijk have decades of litigation funding knowledge of, respectively, the Australian, German and Dutch markets. From the UK, Philip Young and Sean Upson, who were senior partners at market-leading litigation practices (Cooke, Young & Keidan and Stewarts Law) will provide essential risk management and litigation skills from the perspective of practising lawyers. Winward is funded by Rocade Capital, a leading litigation finance company backed by one of the world’s leading investment managers. Winward will benefit from a market leading insurance facility provided by co-insurers Arcadian Risk Capital and Litica Ltd. Brian Roth, Chief Executive Officer and Chief Investment Officer of Rocade LLC, said “We are excited to be entering the market with the leadership of a litigation finance veteran in Jeremy Marshall.  This launch is an opportunity for us to contribute to moving our industry forward, as Winward will offer market leading solutions with a streamlined process”. Shoosmiths LLP and Walkers advised Winward Limited. Nixon Peabody LLP served as legal advisor to Rocade LLC. Winward’s insurance broker is Howden Broking Group Limited.

Rocade Capital

Rocade LLC is a specialty finance company focused on litigation finance with a long-term investment approach, in partnership with one of the world’s leading investment managers. Since Rocade’s predecessor was founded in 2014, the platform has funded approximately $1.1 billion of investments in the litigation finance space, primarily consisting of loans to leading plaintiff law firms within mass tort and other complex litigation. Rocade Capital’s flexibility, industry expertise, track record and long-term focus position it to be a leader in law firm lending. Rocade has an experienced team of professionals, located in the Washington, DC area and Houston, TX, which includes both finance industry veterans as well as litigation experts. For more information, please visit www.rocadecapital.com.

Jeremy Marshall

Jeremy was formerly the Chief Investment Officer for Bentham Europe (now Innsworth Advisors), the joint venture between IMF Bentham Limited (now Omni Bridgeway) and subsidiary entities of funds managed by Elliott Management Corporation. He was also a Senior Investment Manager with Omni Bridgeway. He is an experienced litigation finance professional, having worked in litigation finance for well over a decade and, prior to that, having been a partner of a London law firm which litigated a number of funded cases. He has been involved in the funding of a wide variety of cases, including the securities case against Tesco PLC in England (which settled) and a similar case against Volkswagen AG (in Germany). He is a regular contributor and commentator in the litigation finance space.