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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.
Commercial Deals

Recoverability and Enforceability are ‘Frequently Neglected’ in Funding Applications

As demand for third-party dispute funding increases, funders are keen to educate potential clients about their own processes for evaluating funding applications and what information they are looking for in these applications. An insights post from LCM’s Roger Milburn, investment manager – APAC, examines the importance of focusing on recoverability and enforceability, arguing that it is an area ‘which would benefit from further attention from those seeking funding and which is sometimes overlooked.’ He points out that, when it comes to submitting funding applications, these are the ‘frequently neglected pieces of the puzzle’ that are essential for any funder when assessing the viability of a case. Explaining the issue from a funder’s perspective, Milburn highlights that it is not enough to simply succeed in the legal action, as this alone ‘does not generally trigger obligations to reimburse the funder and make payment of the contractually agreed returns.’ For a funder to be certain that it can achieve a return on its investment, it is important that an applicant for funding has considered whether the target of the claim ‘has the means to satisfy an outcome of the magnitude contemplated’. If the opponent does not have the resources to meet those payment obligations, it is equally important to scrutinise whether ‘assets exist in jurisdictions where the judgment or award can be enforced.’ Milburn goes on to explore nuances around investor cases brought against nation states or state-controlled entities, noting that whilst it is commonly assumed these states will always have assets to satisfy an award, ‘the question for a funder is whether and how such assets may be seized.’ As a result, prospective clients should aim to provide information around the target state’s history of paying arbitral awards, or what enforcement mechanisms are available for that given jurisdiction. Milburn’s full post, which also provides insights on specific conventions and treaty instruments that manage arbitral award enforcement, can be read here.
Commercial

Aon’s Stephen Kyriacou Named 2024 Specialty Power Broker by Risk & Insurance

The Risk & Insurance 2024 Power Broker winners have been announced, with Stephen Kyriacou, managing director and senior lawyer at Aon, recognized as a ‘Speciality Power Broker’. The post highlights Kyriacou’s work in the litigation and contingent risk insurance market, and his increasing focus on portfolio-based policies over single-case insurance cover.  As part of this recognition, Risk & Insurance spoke with Kyriacou’s clients, who offered significant praise for his work delivering innovative and bespoke solutions to mitigation litigation risk.  One client, a risk manager for a private equity firm, said that the solution crafted byf Kyriacou and his team had “generated meaningful value creation for our portfolio company.” The client went on to praise Kyriacou’s depth of expertise, stating: “His knowledge of the industry market is very strong, and we would not have achieved the result that we did without his involvement and leadership.” In a post on LinkedIn celebrating the announcement, Kyriacou took the chance to give thanks to both his clients and his colleagues at Aon, describing the company’s litigation risk group as ‘the best team in the business.’ The full list of Risk & Insurance 2024 Power Broker winners can be read here. 
Case Developments Commercial

Lansdowne Appoints Lawyers, Continues Search for Funding in ECT Claim Against Ireland

The energy sector is often pinpointed by funders as one of the top targets for investments in litigation and arbitration proceedings, with mechanisms like the Energy Charter Treaty (ECT) creating high value claims that require outside financing. One such claim being brought by an oil and gas company appears to be moving forward, with the claimant still in search of third-party funding. Reporting from Alliance News, shared by Morningstar, provides an update on Lansdowne Oil & Gas efforts to bring a claim against the Irish government. The company announced that it has appointed Mantle Law to lead the legal proceedings, saying that the law firm has “the best dispute and arbitration lawyers in the construction, infrastructure and energy sectors.” The claim is focused on allegations that the Irish government failed to act in a fair and reasonable manner under the ECT when it withdrew an exploration license for the Barryroe prospect. Lansdowne had already invested $20 million in the project. Whilst the focus of the announcement is that Lansdowne has appointed lawyers for the case, it also included the detail that the oil and gas company is still ‘in the process of contacting litigation funders to finance the ECT claim and subsequent arbitration process.’ This is particularly interesting given LFJ’s reporting from July last year that Lansdowne was already in talks with litigation funders to obtain financing for the proceedings. This would suggest that Lansdowne appears to still be in the same position, with regards to securing funding, as it was over seven months ago. As part of the announcement, Lansdowne explained its reasoning for moving forward with the claim, stating: "Given the lack of engagement or any ability to have a respectful and frank conversation with the Irish Government, the company believes it now has no alternative other than to pursue vigorously its ECT claim."
Case Developments Commercial

NSW Supreme Court Rules Funder’s Commission is Not Recoverable as Damages

At the core of any litigation funding arrangement is the principle that if the funded party reaches a successful outcome, then the funder will receive a return on their investment out of whatever monetary award is given to the plaintiff. However, a recent judgement in Australia offered an interesting insight into a case where the plaintiff had attempted to argue that it was the defendant who should cover the costs of the funder’s commission. Reporting by the Australian Associated Press, and published by Yahoo News, highlights a recent judgement handed down in the Supreme Court of New South Wales, which found that a litigation funder’s commission was not ‘recoverable as damages payable to the plaintiffs.’ Justice Richard Cavanagh’s ruling in the case of Hunt Leather Pty Ltd v Transport for NSW found that there was no precedent for the court to make such a ruling, stating clearly that there has been no prior case ‘in which the funder’s commission has been allowed as a component of the damages awarded.’  The background to this latest ruling from the NSW Supreme Court is a case that saw local businesses sue Transport for NSW over its construction of the Sydney light rail project, in which they argued that they had suffered losses due to extended disruptions to the area in which the businesses are based. Last year, a court found that Transport for NSW was liable for damages, with Hunt Leather and Kensington restaurants and coffee cart being awarded $3,693,164 and $317,773 respectively. Following the award of damages, the plaintiffs argued that ‘they have suffered loss as a result of the tortious conduct of the defendant and that they are entitled to be put back into the position they would have been but for that tortious conduct.’ The plaintiffs argued that this should include the 40% funder’s commission, which the parties had agreed to when they entered into a funding agreement with International Litigation Partners (ILP). In his judgement, Justice Cavanagh reasoned that the plaintiffs had reduced the amount of profit they would see from the award, as a result of ‘the plaintiffs’ own conduct or decision to pursue the litigation on a risk free basis.’ Therefore, their claim that the defendant should cover the costs of the funder’s commission did not follow, as the plaintiffs ‘have not otherwise reduced their loss of profits flowing from the defendant’s conduct.’ Justice Cavanagh explained that if he had agreed with the plaintiffs’ reasoning, then the effect would be ‘to visit upon the defendant not just the consequences of its own conduct but the consequences of a decision taken by the plaintiffs, freely and willingly, to share the proceeds of the litigation in return for a benefit to them.’ Justice Cavanagh’s full judgement can be read here.
Commercial

Evaluating Common Criticisms of Litigation Funding

The growth of the global litigation finance industry and the success stories from market leaders continues to generate an equally prominent strain of harsh criticism. However, it is always useful to look past the bold statements and fierce condemnations to analyse whether the most frequently voiced critiques are based in reality. An article from UK law firm Shepherd and Wedderburn reviews some of the most common criticisms of third-party litigation funding, examining whether these arguments have real substance and whether critics of the industry are right to claim, ‘that litigation funding is a malign influence on litigation in this country, rather than an aid to access justice.’ The first criticism that the article addresses is the idea that litigation funding promotes meritless claims, with funders portrayed as a driving force behind frivolous lawsuits in pursuit of financial gain. The authors argue that the structure of the UK legal system provides serious disincentives to filing meritless claims, with the principles of ‘costs shifting and punitive damages’ making it a costly endeavour to back lawsuits that have little chance of success. The article acknowledges that whilst weak claims do still exist, funders have little reason to back them and cites the case of Excalibur Ventures v Texas Keystone, where the ‘funders were required to contribute over £20 million towards the defendants’ costs.’ The second argument against litigation funding that is analysed is the claim that ‘funders wrongfully gain control of the claim and that as such, the integrity of the proceedings will be threatened.’ The authors point out that although funders ‘hold the purse strings of litigation’, not only do they not have control over the litigation proceedings, it would also not even be in their interest to exert this level of control. They highlight that ‘control requires monitoring, and monitoring requires personnel’, meaning that there is little reason for funders to want to take on the burden of additional manpower and expenditure to do this, especially when the business model is based on generating solid returns on investments. Finally, the article deals with the critique that funders are profiteering off legitimate attempts to seek justice, pointing out that the scale of the funder’s return in the Post Office litigation caused many outside observers to question why the victims’ share of the award was so reduced. In response, the authors argue that ‘these figures must not be interpreted in isolation’ and must be considered in the context of the myriad of costs that funders cover during the duration of the case.   Shepherd and Wedderburn’s article concludes by arguing that despite these common criticisms, ‘litigation funding can enable voices to be heard, articulated, and judged in a way that results in a monetary pay-out for their losses, but also vindication.’
Announcements Commercial Legal Innovation

KWS Litigation Shapes The Future with Low-Risk Investments and Substantial Returns

KWS Litigation, a pioneering, British litigation funding investment company, is revolutionising the legal and investment landscape by offering a unique opportunity where justice aligns with intelligent portfolio diversification. Creating a realm where justice and investments intertwine, KWS Litigation champions the cause of consumers who have fallen victim to mis-sold loan agreements and business energy claims through deceptive and fraudulent sales practices. Their disruptive approach, rooted in fundamental legal principles upheld by the High Court, introduces innovative solutions that break new ground. Inviting individual investors to finance legal cases in exchange for a share of the proceeds and substantial pro-rata returns, investor capital with KWS Litigation is not only low-risk but also shielded by an FCA-regulated broker insurance bond. This opportunity isn't just smart; it generates a positive social impact, shaping a future where justice prevails and investments flourish. Following a recent landmark judicial review, KWS Law Limited transformed into a Special Purpose Vehicle (SPV) to facilitate the High Court verdict for mis-sold consumers. Out of this restructuring, KWS Litigation emerged as a trading style of KWS Law—an Alternative Business Structure, providing more choices, innovation and transparency. Regulated by the Solicitors Regulation Authority (SRA: 830165), KWS Litigation operates as an agile and client-centric law firm with a laser focus on identifying legitimate litigation claims. Headed by Neil Berkeley, his team of seasoned legal professionals ensures success in various fields of litigation while prioritising investor risk management. “Our commitment is unwavering—to bridge the gap between individuals and powerful entities, championing a legal system where justice is accessible to all.” — Neil Davis-Berkeley, Managing Director at KWS Law KWS Litigation's mission is to equalise the legal landscape by offering financial support and legal expertise to claimants. By rectifying the imbalance between individuals and large corporations in the courtroom, they empower individual investors to achieve outstanding returns, disrupting the dominance of major funders supporting large enterprises. In the UK consumer litigation investment market, characterised by dynamic growth and evolving regulations, KWS Litigation strategically positions itself as a formidable player. Their specialised expertise, robust track record and meticulous approach make them well-suited to attract a diverse array of litigation funders and professional investors. Furthermore, KWS Litigation recently announced a new equity partnership with a leading claims management firm. Facilitating case acquisition, Addlington-West Group seamlessly pairs its clients—everyday people with meritorious cases—for KWS Litigation. The consumer litigation investment sector has experienced significant growth, driven by increased compensation pursuits. Moreover, research conducted by law firm Reynolds Porter Chamberlain LLP reveals the top 15 UK litigation funders reported record assets of £2.2 billion on their balance sheets in 2020/21, signifying an 11% increase from the preceding year. KWS Litigation specialises in distinct categories of consumer litigation cases, including financial services mis-selling. Their rigorous risk assessment and due diligence processes, compliant with litigation and consumer protection regulations, attract investors of all scales, including individual and institutional investors seeking low-risk alternatives with exceptional returns. The innovative investment model offered by KWS Litigation provides low-risk opportunities with no direct correlation to conventional financial markets. Rigorous selection processes, compliance with regulatory requirements and unique features such as FCA-regulated broker insurance bonds, set a precedent, ensuring a higher potential for returns compared to other asset classes.