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Reversal of $1.6 Billion IBM Judgement Puts Judgement Preservation Insurance in the Spotlight

By Harry Moran |

The value of litigation insurance, and the natural pairing of this coverage with litigation funding, is often highlighted as one of the core strengths of the current litigation environment. However, a significant reversal of a $1.6 billion judgement has shown that insurers must carefully balance the risks of uncertain outcomes when providing judgement preservation insurance.

Reporting by Bloomberg Law covers the ongoing impact of the decision by the US Court of Appeals for the Fifth Circuit to overturn a $1.6 billion judgement against IBM, which has left Liberty Mutual facing up to $150 million in coverage for judgement preservation insurance it provided. According to Bloomberg’s sources, Liberty Mutual has since withdrawn from “at least two potential litigation insurance deals” since the appeals court’s ruling. The $1.6 billion judgement was reportedly insured by a group of insurers to cover between $500 million and $750 million, with Liberty alone having covered between $100 million and $150 million.

Richard Angevine, a spokesperson for the insurer, said: “Liberty Mutual Insurance does not publicly discuss individual commercial insurance customers.”

Speaking to Bloomberg Law about the broader impact of this type of judgement on the litigation insurance market, Jason Goldy, a global team leader for Alliant Insurance’s Litigation & Contingent Risk Practice, said that insurers will continue to adjust their approach. Goldy said that “in the last six months you’ve seen these adjustments and I would think that you’re likely to see them accelerated if there are material losses,” but clarified that “the market will survive.” 

In a similar vein of thinking, Michael Perich, head of litigation insurance at Lockton, agreed that “the market is fluid and it's proven the ability to adapt to things.”

Federal Court of Australia Rules in Favour of CBA in Shareholder Class Action

By Harry Moran |

Shareholder claims have often been identified as lucrative opportunities for litigation funders, with class actions being brought on behalf of investors who allege that companies have failed in their disclosure and transparency obligations. However, as with all litigation investments, there can be no certainty of success as has been demonstrated in the judgement for two shareholder claims brought in Australia.

An article in The Australian Financial Review covers the judgement handed down in the Federal Court of Australia, where Justice Yates ruled in favour of Commonwealth Bank of Australia (CBA) in two shareholder class actions brought against the bank. The judgement covered the Zonia Holdings Pty Ltd v Commonwealth Bank of Australia and Philip Anthony Baron and Joanne Baron v Commonwealth Bank of Australia cases.

The class actions had been brought over allegations that CBA had failed in its disclosure obligations to shareholders over breaches of anti-money laundering and counter-terrorism financing regulations. In the summary of his judgement released today, Justice Yates concluded that information around these breaches were not “likely to, influence persons who commonly invest in securities in deciding whether to acquire or dispose of CBA shares”.

The summary of Justice Yates’ judgement can be read here, with the full judgement scheduled to be released on 15 May.

Omni Bridgeway, which provided funding for the class action through its Funds 2&3, released an announcement following the judgement and said that “the applicant’s legal team is reviewing the Judgment and assessing the prospects of an appeal.” The funder went on to provide some insight into the financials behind its investment in the case, explaining that “Funds 2&3 invested A$9.6 million in the CBA investment and sold a 20% interest for A$7.5 million in June 2022.” Omni Bridgeway stated that “there is no cash impact from any adverse costs arising from the judgement”, due to its portfolio adverse costs insurance policy.The full Omni Bridgeway announcement can be read here.

Burford Capital Announces Date for Release of 1Q24 Financial Results and Results Call Registration and Participation Details

By Harry Moran |

Burford Capital Limited ("Burford"), the leading global finance and asset management firm focused on law, today announces that it will release its financial results for the three months ended March 31, 2024 ("1Q24") on Monday, May 13, 2024, at 7.00am EDT / 12.00pm BST.

Burford will hold a conference call for investors and analysts at 8.00am EDT / 1.00pm BST on Monday, May 13, 2024. The dial-in numbers for the conference call are +1 646 307-1963 (USA) or +1 800 715-9871 (USA & Canada toll free) / +44 (0)20 3481 4247 (UK) or +44 800 260 6466 (UK toll free) and the access code is 7684047. To minimize the risk of delayed access, participants are urged to dial into the conference call by 7.40am EDT / 12.40pm BST.

A live webcast of the call will also be available at https://events.q4inc.com/attendee/323980508, and pre-registration at that link is encouraged.

An accompanying 1Q24 results presentation for investors and analysts will also be made available on Burford's website prior to the conference call at http://investors.burfordcapital.com.Following the conference call, a replay facility for this event will be accessible through the webcast at https://events.q4inc.com/attendee/323980508.

High Court Finds ‘Reasonable Cause to Suspect’ A1 is ‘Owned or Controlled’ by Sanctioned Russians

By Harry Moran |

Last month, LFJ covered the Bloomberg Law investigation into the activities of Russian billionaires who have been using litigation finance investments to avoid sanctions in the US and UK. These reports have now been further corroborated in the High Court, where a judge has ruled that litigation funder A1 is indeed still under the ownership or control of sanctioned Russian businessmen.

A new article from Bloomberg Law provides an overview of the 3 May ruling in the proceedings for Vneshprombank v Bedzhamov and Kireeva v Bedzhamov, in which Judge Sara Cockerill wrote that “there is reasonable cause to suspect that A1 is owned or controlled by a designated person or designated persons.” Focusing on the sale of A1 for the measly sum of $900, Justice Cockerill said that the financial documentation offered as evidence for the valuation “fails to provide a coherent or robust justification for that figure.” 

Justice Cockerill went on to offer a clinically robust conclusion that “the so called “verification” of the value is broad brush in the extreme and not at all what might be expected by way of professional valuation.”  The ruling did not hold back on ascribing malign intent to the sale, with Justice Cockerill highlighting that as the sale of A1 was made to an employee of the firm, “there are the bases for reasonable cause lying within the structure and timing of the disposal.”The full written ruling from Justice Cockerill can be read here.

Manolete Partners Reports Record New Case Investments as Insolvencies Soar

By Harry Moran |

Although it is often the high-profile disputes and large scale class actions that receive the majority of attention in the world of legal funding, those funders who are focusing on insolvencies are recording strong results on the back of widespread economic uncertainty.

An article in Legal Futures covers the recent trading update from Manolete Partners which shows that the insolvency litigation funder is achieving new heights, buoyed by an increase in the number of insolvencies. Manolete’s report showed that the funder had reached a new record of 418 live cases, with 311 of these cases representing new investments for the year ending 31 March 2024. This represented an increase of 18% in new case investments compared to the previous year.

The funder demonstrated that it was not only securing new case investments, but is also achieving strong results in terms of bringing these matters to a close. Manolete’s update reported a total of 251 completed cases for the year, which resulted in £24 million in settlements alongside “a small number of favourable judgments”.

Manolete’s chief executive Steven Cooklin attributed these impressive results to the “highest level of UK insolvencies for 30 years”, citing data from Insolvency Service which showed that in 2023, the volume of creditor voluntary liquidations “as at its highest level since 1960.” Cooklin also highlighted Manolete’s strong financial foundations that have been bolstered by an “amendment financing package with HSBC”, explaining that Manolete’s ability to generate liquidity “provides a strong and efficient financing platform for the business to take advantage of these attractive market conditions.”The full trading and business update can be read here.

Funder in AMP BOLR Class Action Could Receive $43M From $100M Settlement

By Harry Moran |

Following LFJ’s reporting yesterday on one Australian class action that has run into difficulties around the issues of settlement approval and a funder’s commission, we are now seeing another case moving forward with its own approval process for the funder’s significant share of a $100 million settlement.

An article in Financial Standard covers the latest developments in the AMP Buyer of Last Resort (BOLR) class action, where the notice of proposed settlement shows that the litigation funder could be entitled to a commission of nearly $43 million from the $100 million total settlement. Augusta Pool 523 (Augusta Ventures), which funded the class action against AMP, has reportedly spent over $16.7 million on legal fees and disbarments during the case. 

Equity Financial Planners, the lead applicant for the class action, has submitted a funding equalisation order that is designed to “spread the cost of the funder's entitlements equally across all group members of the lawsuit.” The order explains that this is not an attempt to “increase the amount paid to the Funder”, but rather ensure that after the funder receives its commission, “all Group Members proportionately share in the payment of the Funder's Entitlement.” 

As the Federal Court assesses the scale of the funder’s return from the $100 million settlement, it will be evaluating whether Augusta’s expenses and Equity Financial Planners’ costs are reasonable and appropriate. This evaluation will take place over the coming months, with a settlement approval hearing scheduled for August 29.

Community Spotlights

Member Spotlight: Ed Gehres

Invenio LLP Co-Founder and Managing Partner Ed Gehres has worked on all sides of the litigation finance marketplace. Ed began his career as a defense-side trial lawyer at AmLaw 100 firms, then started doing plaintiffs-side work, served as a partner and practice group leader, and then developed a transactional practice that led to his work as General Counsel of an investment platform that had multiple litigation finance and services companies.

Ed co-founded Invenio LLP to help level the playing field for civil justice. The firm works at the intersection of plaintiffs, the law firms that represent them, and the investors who see that they get their day in court. Leveraging this broad base of experience as litigator, lender, deal lawyer, and law firm leader, Ed now focuses on helping law firms and claimants navigate complex litigation finance transactions.  

Invenio LLP is a leading provider of legal services for those navigating the complexities of the litigation finance industry. We’ve represented both plaintiffs and defendants in litigation; and immersed ourselves in venture start-ups and private equity ventures catering to plaintiffs, law firms, and claims development experts. This gives us a unique blend of expertise suited to untangling the complexities of the litigation finance space and finding solutions. Invenio is committed to increasing access to civil justice by helping plaintiffs of all types access courts and level the playing field against well-resourced defendants.  We believe litigation finance can be a force multiplier for plaintiffs and the firms that represent them. We aim to make the process of exploring and obtaining litigation finance clear, fair, and straightforward.

Since Invenio LLP was founded in January of 2022, the firm has advised on nearly $500 million in credit transactions involving legal assets and has developed an emerging practice involving alternative business structures.

Company Website: inveniolaw.com

Year Founded: 2022

Headquarters: Invenio is headquartered in Washington, D.C. and has offices in Ft. Lauderdale, FL and Phoenix, AZ.

Area of Focus: Invenio LLP is fully engaged in all aspects of the rapidly emerging litigation finance industry. The firm’s founding partners have each worked on multiple claimant funding and law firm loan transactions and have themselves litigated cases where law firm portfolio funding or third-party case funding was used. Our clients are law firms borrowing for their cases or portfolios, claimants seeking traditional third-party funding, lenders and insurers seeking assistance with underwriting and servicing of cases or portfolios of cases, and parties to litigation finance-related disputes or distressed transactions. We focus on case & portfolio underwriting; borrower & claimant-side representation; alternative business structures; and pre-settlement, post-settlement & medical lien funding.

Member Quote: “I’ve shifted gears multiple times in my career. But I truly believe it was all leading to this important work in litigation finance. This is about ensuring access to the civil justice process. I view it as a life’s work.”

The Story of Sriracha: A Case Study in Legal Analytics and Litigation Funding

By Nicole Clark |

The following is a contributed piece by Nicole Clark, CEO and co-founder of Trellis. Trellis is pleased to offer LFJ members a complimentary 2 week free trial to its state trial court database.  Click here to access it today. 

Nobody knows exactly what happened. Each party has their own account of the events that unfolded. This, however, is what we do know. Jalapeno peppers were everywhere. Nestled within the rolling hills of Ventura County in Southern California, Underwood Ranches, a family farm operated by Craig Underwood, had been growing the fruit for the past three decades, serving as the sole supplier for Huy Fong Foods, the company responsible for sriracha. Business boomed. Both companies expanded. The world was their oyster.

Then, in 2016, the paradise they built crumbled. Huy Fong Foods filed a lawsuit against Underwood Ranches, accusing the farm of overcharging for growing costs. In response, Underwood Ranches countersued, claiming breach of contract and financial loss. After a three week trial, a jury for the Ventura County Superior Court found merit with both claims, awarding Huy Fong Foods $1.45 million and Underwood Ranches $23.3 million. Huy Fong Foods appealed the verdict, and, unable to claim its award, Underwood Ranches stood on the brink of financial collapse, left without the funds needed to pay its suppliers or its workers.

The Flames of Uncertainty

“The benefit you get from litigation is that litigation doesn’t fluctuate the same way that the markets do,” explains Christopher Bogart of Burford Capital. The financial service company had been called by the attorneys of Underwood Ranches to assist the farm, providing it with $4 million in non-recourse financing—enough to carry it through the appeal process. Still, according to Bogart, the comparative stability of litigation doesn’t eliminate the risks of financing a case like this. The risks, and the costs, can be big.

It’s easy to overlook the uncertainties embedded within the legal system. After all, this is a system that relies on precedents, a situation which suggests that the outcome of any future case should reflect that which came before. As Gail Gottehrer, an emerging technologies attorney based in New York City, remarks, “[i]f your case is similar and has similar facts to another case, the results shouldn’t be too surprising.” The problem, however, is that the results often are surprising. Judges aren’t computers. Neither are juries. They are people, filled with their own beliefs and their own experiences, both of which shape how they interpret laws, apply facts, and consider arguments.

Over the years, attorneys have developed their own rudimentary tools for grappling with this uncertainty. These rudimentary tools have now morphed into powerful machine learning technologies, packed with the ability to comb through millions of state trial court records in order to analyze court dockets, judicial rulings, and verdict data in ways that have rendered civil litigation more transparent and more predictable. But what does the story of sriracha mean for litigation funding teams? How can litigation finance companies use state trial court records to navigate uncertain legal terrains, not just for cases at the end of their lifecycle, but also for those that have only just begun?

Harvesting the Seeds

It could start with a ping. That’s just one way litigation funding companies can tap into new business opportunities. By registering for alerts with a legal analytics platform, litigation funding teams no longer need to source leads through collaborating attorneys. Alerts afford litigation funders with their own bird’s-eye view of the litigation landscape as it unfolds in real-time. These systems can notify users whenever a new case has been filed against a particular company, a new entry has been added to a case docket, or a new ruling has been issued on a legal claim.

To help manage the scale—and the urgency—of this reality, litigation funding teams can also turn to a different tool: the daily filings report. A daily filings report is a spreadsheet that contains detailed coverage of all new civil actions filed in a specific jurisdiction. Each report is emailed to subscribers every morning and includes all case data (i.e., judge, party, counsel, practice area) and metadata (i.e., case summary) as well as direct links to the docket and the complaint. With reliable access to daily filings reports, litigation funders can be the first to know about any new cases filed within a particular jurisdiction, pinpointing the most lucrative cases before anyone else.

Heat Indexing

What happens, then, when a litigation funding team finds a potential case? The daily filings report lets funders access the complaint within seconds, gathering all of the information they need to perform a Google-like search through the millions of state trial court records that have been curated by their preferred legal analytics provider. The goal? To quickly learn more about the litigation history of the parties that are named in the complaint (What other cases does Underwood Ranches have pending? What practice areas drain its budget? Who is its primary outside counsel?) and the law firm that has chosen to represent them (How experienced is Ferguson Case Orr Paterson with this jurisdiction, practice area, opposing counsel? Who are its typical clients? How were those cases resolved?).

The due diligence process deepens with a look at the merits of the case. Here, a litigation funding team can use legal analytics to follow the logics of conventional legal research. With access to a searchable database of prior decisional law, funders can conduct element-focused analyses of each asserted cause of action in the case, identifying the ways in which judges in the county have ruled on similar actions in the past. And, if a judge has already been assigned to the case, these funders can take their due diligence even further, turning their eyes to a judge analytics dashboard—an interactive interface developed by legal analytics platforms to highlight the patterns, the inclinations, and the past experiences of specific judicial officers.

Consider the dispute between Underwood Ranches and Huy Fong Foods, a case presided over by the Hon. Henry J. Walsh. According to Trellis, the average case length in Ventura County is 945 days. Knowing where Walsh sits in relation to this average, as well as the number of cases he has on deck, could help a litigation funder anticipate the likely pace of a case, a key piece of information to have when designing different investment portfolios. But what about juries? How might a jury respond to a breach of contract case in California? Legal analytics platforms like Trellis have also integrated verdict data into their systems, amending their archives of state trial court records to also include information related to case outcomes and settlement awards. A litigation funder conducting due diligence on Underwood Ranches could quickly pull a random sample of agricultural-related breach of contract claims in California, identifying the value range of verdict and settlement amounts (median: $5,650,798; average $9,331,712) and the frequency of plaintiff verdicts (62.5 percent). Litigation funders no longer need to wonder how much a case might be worth. The numbers are there.

The Spiciest Pepper

“There is idiosyncratic risk in the court system that can’t be anticipated,” begins Eva Shang, the co-founder of Legalist. It is widely known that predicting the outcome of litigation can be a risky business. Yet, there is something to be said about the magic of big numbers. Whenever we feed our computers the (meta)data of thousands of cases, deviations get smoothed out and patterns begin to emerge. By shifting our thinking away from stories about individual lawsuits, we can redirect our attention towards that which is frequent, recurrent, predictable. As a case study, the story of sriracha opens the door to a more predictable world, a world where the outcomes of litigation don’t have to fluctuate the way that markets do, not because the courtroom is inherently less uncertain than a stock exchange, but because the magic of big numbers finds increasingly novel ways to make it that way.

By Nicole Clark

CEO and co-founder of Trellis | Business litigation and labor and employment attorney

Trellis is an AI-powered legal research and analytics platform that gives state court litigators a competitive advantage by making trial court rulings searchable, and providing insights into the patterns and tendencies of your opposing counsel, and your state court judges.

Trellis is pleased to offer LFJ members a complimentary 2 week free trial to its state trial court database.  Click here to access it today. 

Group Members in Merivale Class Action Withdraw Approval Application for $18 Million Settlement

The announcement of a settlement being reached is often viewed as the point at which a class action arrives at its preferred destination. However, in the case of the Merivale class action in Australia, it has taken only two months since the announcement of the settlement for the mood to sour and fresh obstacles to arise.

Reporting by the Sydney Morning Herald reveals that the $18 million settlement agreed in the class action brought against hospitality company, Merivale, is now under threat. Whilst a Federal Court hearing to review the settlement had been set for May 7, the law firm representing the applicants is now seeking to renegotiate the settlement, after there was a significant increase in the number of members registering for the settlement.

Adero Law’s Rory Markham stated that during the December mediation hearing, the total number of group members had risen to 788, and therefore the $18 million settlement figure now represented “a poor deal that has been substantially diluted by the additional registrations.” As a result, Adero has withdrawn its approval application and has been ordered by the court to provide further information and financial modelling to explain the group members’ decision to withdraw.

Richard McHugh, SC, who acts as counsel for Merivale, suggested that rather than increase the total settlement figure, “an obvious way through is for the funding commission or legal costs to be reduced”.

As LFJ reported in March, the without-admission settlement would have seen Merivale pay $18 million, with $8.6 million set to be distributed to cover legal costs and the litigation funder’s commission. According to the terms of the original agreement, Investor Claim Partner would have received approximately 25% of the settlement whilst Adero would have received approximately $1.75 million, including administration costs for settlement distribution.

In court, Justice Tom Thawley emphasised that regardless of whether or not “the lawyers for the applicants were grossly incompetent” in miscalculating the number of registrants, “the court isn’t going to approve a settlement which isn’t fair and reasonable.”