The ownership or funding of law firms by litigation funders continues to be a hot topic in the world of legal funding, with models such as alternative business structures (ABS) gaining momentum in places like Arizona. However, a complaint filed by a client in Delaware reveals a falling out due to the reverse funding model, where a law firm maintained an ownership stake in the funder.

Reporting by Bloomberg Law covers a new lawsuit brought against Burford German Funding (BGF), an affiliate of Burford Capital, by a client who claims that the funder failed to disclose the fact that BGF was partly owned by the same law firm it nominated to lead the client’s antitrust cases. Financialright Claims GMBH (FRC) alleges that when it negotiated the funding agreement with BGF for its antitrust litigation against the trucks cartel, it had no knowledge “that Hausfeld  was  also  a  part  owner  of  BGF  through  an  entity  called German Litigation Solutions LLC (“GLS”) or that one of the lead German partners at Hausfeld responsible for the firm’s representation of FRC had a personal stake.”

The complaint, filed by FRC in the Delaware Superior Court, explains that as Hausfeld is part-owner of BGF, and the funding agreement “provides for a share of FRC’s recoveries in the Trucks Litigations to flow to FRC’s lawyers”, this constitutes a contingency fee arrangement which are illegal under German law.  FRC had filed a lawsuit against Hausfeld in a German court and then applied for discovery from BGF, Burford and GLS in the Delaware District Court, which was followed by an assertion by these parties that the application for discovery “is subject to mandatory arbitration” under the terms of the funding agreement.

FRC argues that “as  a  direct  result  of  BGF’s  fraud  on  FRC,  FRC  did  agree  to  the Arbitration Agreement that—according to BGF—subsumes disputes between FRC and GLS.” However, FRC claims that it “would  never  have  agreed  to  an  arbitration  clause  requiring  it  to arbitrate claims against Hausfeld”, were it not for the concealment of Hausfeld’s ownership stake in BGF. FRC is therefore asking the Superior Court to declare that “BGF fraudulently induced  FRC  into  agreeing  to  the  Arbitration  Agreement”, and that the agreement should be declared both invalid and unenforceable.

Lisa Sharrow, spokesperson at Hausfeld LLP, provided the following statement:  “The US-based Hausfeld LLP and the UK-based Hausfeld & Co LLP hold indirect economic minority interests in Burford German Funding. These are separate legal entities from Hausfeld Rechtsanwälte LLP that do not practice law in Germany. Burford German Funding was of course developed and set up in a way that was fully compliant with all relevant regulations.”

David Helfenbein, spokesperson at Burford, also provided a response to Bloomberg via email: “There is a dispute in Germany between a client Burford has funded and its lawyers. Burford is not a party to that dispute and its outcome has no impact on us. This Delaware proceeding is a third-party discovery request to Burford for material for the German litigation, which Burford believes should be adjudicated in arbitration and not in the Delaware courts.”

The full complaint filed by FRC can be read here.

The following article was contributed by Maurice Power, Chief Executive Officer of Apex Litigation Finance. Apex is an established litigation funder providing bespoke funding solutions to small/mid-size commercial claims in the UK.

The widely reported panel session on litigation funding, at the recent London International Disputes Week, was wide ranging and thought provoking, with several insightful comments from Judge Sara Cockerill, former head of the Commercial Court, and the three senior lawyers who joined her on the panel. 

Mrs Justice Cockerill shared her concerns that whilst “sexy” cases, such as those which can be commoditised (e.g. competition or class action claims) or fit well into a funder’s portfolio, are most likely to be funded, other claims are less likely to be funded.  I think those familiar with the litigation funding market would broadly agree with those sentiments.  However,  contrary to that view, new entrants to the litigation funding market, including Apex Litigation Finance, are increasing the funding options available to litigating parties.  One off mid-sized claims by SMEs, individuals and insolvency practitioners are of interest to certain funders, even if the claims are deemed not to be “sexy”!

Apex was set up specifically to fund mid-sized claims.  One of Apex’s USPs is that we have no minimum funding need, so we are able to offer funding solutions for claims where, for example, only disbursements need funding. For a range of mid-sized claims  a cash injection from a funder can allow a case to proceed when it would otherwise be stymied.  The sort of claims Apex typically fund probably fall outside of the description of “sexy” used in the panel session due to their size and nature.

An SME (as well as individuals and insolvency practitioners), when faced with the reality of funding the costs of litigation, the delaying tactics of defendants, the adverse costs risk exposure and lengths of cases in the Commercial Courts, may simply be unable to afford the risk or cost of pursuing a meritorious case, or may prefer to spread and share some of the risks that come with all litigation in order to access justice. 

There is a gap between the sorts of cases typically brought by an SME and those of interest to the larger high profile funders.  Claims for breach of contract, business interruption cover insurance, professional negligence and shareholder disputes (to name some examples), as well as claims brought in insolvency processes, rarely involve claim values of more than £10m and yet they may not be pursued as many funders are simply not interested in supporting lower value cases. Litigation funding is just as essential in providing access to justice for these sorts of claims, as for the larger claims and class actions.  That funding gap is increasingly being addressed by funders such as Apex, who focus not on the scale of the investment but whether flexible funding, alongside a legal team working on full or partial CFAs, can enable these sorts of claims to be pursued in a cost-effective manner to deliver a decent commercial return to the funded client.

Whilst Apex bases their return on a multiple of funds deployed, as opposed to being paid a percentage of realisations, the impact of the PACCAR case on the wider litigation funding market is not helpful for the promotion of the concept of litigation funding and building confidence in the market.  The Litigation Funding Agreements Bill has been stood down for now, given the pending general election, but it is essential that it is revisited as soon after the election as possible, a sentiment we share with Mrs Justice Cockerill.

Mrs Justice Cockerill accepted that it is not feasible to have a single cap on the costs of funding and called for more transparency so both parties know what they are selling and what they are buying.  Many funders, including Apex, provide a funding facility with the funder’s fee based on a multiple of funds deployed, an approach which should be easily understood by the litigant seeking funding, and thus provides the transparency the litigant needs to calculate the costs.  I personally love a spreadsheet and am happy to set out the likely returns to the client in a series of scenarios, including an early settlement, a successful mediation, a deal done on the Court steps and (usually the worst for all parties) an outcome at trial, with some clearly set out assumptions.

The UK has a rapidly developing litigation funding market which Apex is proud to be an active part of.  That a senior Judge has endorsed the concept of litigation funding is great to hear.  The market would be wise to listen to the issues raised by commentators such as Lady Justice Cockerill, who have a deep understanding of the challenges facing litigating parties, and continue to evolve their approach and offerings to address the needs of as wide a range of litigating parties as possible.  That can and should include the “unsexy” cases.

Leading Australian litigation funder CASL today launched a $150 million fund giving local investors the opportunity to participate in funding of selected new class actions including product liability and other mass consumer claims, commercial litigation and insolvency claims. 

CASL Fund 2 is expected to appeal to Australian sophisticated investors seeking exposure to a truly alternative asset class with attractive risk-adjusted returns and a capital-protected option. The fund is well suited to high-net worth individuals, family offices and foundations seeking to diversify into uncorrelated ESG assets. 

Co-founded in 2020 by two of Australia’s most experienced litigation funders, John Walker and Stuart Price, CASL has quickly established a reputation as an astute backer of legal claims in the competitive Australian market. The two completed actions filed with the backing of CASL’s inaugural $156 million fund since 2022 have returned 165% to investors; another 11 actions are in progress. 

Considered a pioneer of litigation funding in Australia, CASL Executive Chair John Walker co-founded IMF Bentham, now Omni Bridgeway, in 1998 while CASL CEO Mr Price was CEO of Litigation Lending Services for six years prior to co-founding CASL. 

Mr Price said litigation funding had an important role to play in levelling the legal playing field for victims of corporate or government misconduct, and investors were important partners in this process. 

“In global terms Australia is a receptive jurisdiction for the filing of group claims and funded actions but there is increasingly a premium on funders with proven expertise in sourcing and qualifying claims, and managing them to a successful resolution,” Mr Price said. 

“CASL brings that – our team has a proven record for deploying funds efficiently in support of worthy claims and generating strong financial outcomes for both claimants and investors. 

“We see a healthy pipeline of potential new actions in Australia with good prospects and considerable upside for investors willing to fund them. This fund will be a rare opportunity for investors to participate in a purely domestic litigation funding play backed by an experienced local team with a proven record for generating returns for investors. Early indications are we have $30 million in investor pre-commitments so there is clearly an appetite for litigation funding as an alternative asset class.” 

The combined success rate of 183 funded claims involving Mr Walker or Mr Price since 1996 is 92%. These cases have delivered settlement proceeds of $2.6 billion with an average duration of two and half years. 

The launch of CASL Fund 2 comes amid a changing landscape for class actions in Australia, with consumer actions overtaking securities actions as the leading type of funded claim, reflecting the development of effective legislation to hold large corporates to account. 

An innovative feature of the CASL Fund 2 offer is the ability of investors to elect a capital-protected allocation option with a discounted target return.

Key features of the offer include:

Funds raised will be deployed only into new actions, with all existing funded matters funded by CASL Fund 1. No distinction will be made between Class A and B funds for the purposes of funding actions. 

An estimated $200m to $300m is deployed by litigation funders supporting legal claims in Australia, excluding law firms’ funding of actions from their own balance sheets. The most active sources of funding for Australian actions are based offshore and include hedge funds and specialist asset managers, many domiciled in tax-friendly jurisdictions such as the Cayman Islands and Channels Islands, attracted to Australia’s relatively receptive environment for group claims. 

CASL’s Fund 2 will be an Australian-domiciled unit trust. Bell Potter is lead manager for the CASL Fund 2 capital raise. 

Mr Price said: “Agility and responsiveness are important in selecting claims and bringing litigation – being based locally, CASL has the advantage of being able to move and make decisions quickly when required.” 

To coincide with the fundraise CASL announced that Ian Stone, former Group Managing Director and CEO of RAA, would join the Board of CASL’s Trustee entity CASL Funder Pty Limited. Tania Sulan, former Managing Director and Chief Investment Officer - Australia for Omni Bridgeway will also join the CASL Investment Committee. Visit www.casl.com.au for more information about CASL Fund 2.