The future growth and potential scope of the litigation finance market is often discussed in the context of specific sectors or geographic markets in which third-party funding could see increased adoption. However, an important dimension that is on the mind of many industry leaders is the potential for a strong secondary market to take shape, which could act as a catalyst for further growth.In an article for Sentry Funding, Rachel Rothwell examines how a secondary market could transform litigation funding into ‘a well-established asset class’, providing benefits for funders, law firms, and their clients. Rothwell points out that this development would be a key step for investors by offering an alternative exit route without waiting for litigation to reach a conclusion, whilst also improving the levels of liquidity available for funders to access.Rothwell also suggests that a mature secondary market would provide avenues for new types of investors to engage with litigation finance, as it could alleviate the concerns of those investors who recoil at the excessively long durations that initial investors in litigation must endure. This is also a benefit for those investors who are more hesitant about engaging in litigation funding before a case has begun, when despite the normal levels of due diligence being applied, there are significantly more unknowns about the outcome.Rothwell references comments from leading funders at ILFA’s European Conference who broadly expressed support and suggested that the foundations for a real secondary market are already emerging. However, Rothwell also highlighted concerns raised by Christopher Bogart, chief executive of Burford Capital, who emphasised the need for funders to ensure that legal privilege and confidentiality are maintained in any such secondary market where funders are discussing ongoing cases with secondary buyers or investors.
2023 continues to be a strong growth year for the market’s leading litigation funders, as the established industry names continue to record impressive results and grow their footprints in target locations.Continuing this trend, Deminor has announced its expansion into the Nordic region, opening its first office in Stockholm and appointing Mats Geijer as Counsel Scandinavia, leading Deminor’s funding activities across Sweden, Norway, Denmark, and Finland. Geijer joins Deminor from Therium in Sweden, where he acted as Investment Manager from 2019, having previously served as Managing Director at Mainpro AB. In the announcement, Deminor’s chief investment officer, Charles Demoulin highlighted the skills and experience that Geijer would bring to the funder’s Nordic operations:“Mats arrives at Deminor with the combined expertise of being both a Swedish legal expert and an experienced litigation funder. Having worked on a broad range of domestic and multi-national disputes with a particular focus on management liability, post-M&A-litigation and insurance disputes, we have confidence in his ability to strengthen our position as a leading litigation funder on the European market.”Geijer also expressed his enthusiasm on joining Deminor and continuing to expand the presence of litigation financing in the Nordic region:“I am happy to join one of the oldest and most recognised players in the field. Litigation funding is now at a mature state in Scandinavia, so it’s a perfect match. I look forward to promoting the benefits of third-party funding and especially the opportunities Deminor has to offer in the Swedish, Norwegian, Danish and Finnish markets.”
The benefits of litigation funding are often discussed in singular terms, such as how outside capital can benefit a corporate legal department or how it can act as a powerful tool for law firms. However, it is also important to consider how third-party funders can benefit multiple parties at once and create a more mutually beneficial relationship between client and law firm.An insights article by Ryan Schultz, vice president of business development at Woodsford, highlights a 2022 survey from the Association of Corporate Counsel that indicated legal departments have faced up to a 20% reduction in their budgets. Coupled with the lengthy timelines for litigation, Schultz argues for a more holistic approach which could allow litigation funders to bridge the gap between these two parties to support a strong litigation strategy.Schultz offers the example of a client with a limited budget bringing a matter to outside counsel, who feel pressured to either offer a painfully high discount on their services or refuse the matter. In such a situation, Schultz suggests that a funder’s provision of capital can both ensure that the in-house counsel are able to select their firm of choice, whilst allowing that outside counsel to still take on the matter without negatively impacting their own firm’s financials.Looking beyond the pure financial benefits, Schultz points out that by providing the capital required, a funder can preemptively dispel any tensions that may arise between in-house and outside counsel over the cost or discount of the legal services provided. For law firms, this has the added benefit of allowing their litigation teams to pursue clients that ordinarily wouldn’t be able to afford such high legal fees, thereby further buttressing the firm’s revenue streams.
Litigation funding is useful for both claimants and law firms who wish to offset the financial cost and associated risks of pursuing meritorious lawsuits. However, it can also provide added benefits for, as illustrated by a new set of claims in the UK where the funded law firm has stated its intention to donate part of its fees to charity.Reporting by Charity Today reveals the rather unique situation in which law firm Harcus Parker has stated its intention to donate a portion of its fees to charities, should the claims reach a successful resolution. The claims are being brought on behalf of energy customers who were allegedly saddled with inflated bills, as utility companies allegedly added broker fees to the unit cost for non-domestic energy consumers.Harcus Parker is able to pursue this plan to donate a percentage of fees to charity, partly because the firm has received over £10 million in litigation funding, which has allowed it to offer claimants its services on a no-win no-fee basis. Damon Parker, senior partner at the law firm, stated: “For many of these organizations and their dependents, the high price of energy has had particularly detrimental effects. With this in mind, we thought it would be appropriate to give part of our fees to charities.”Harcus Parker has selected 10 charities that the funds would go towards, which include Mummy’s Star, The Loss Foundation, and Support Through Court. Damon Parker explained that if the claims are as successful as they expect, the firm is “confident each charity will receive a six-figure sum.”
Missouri Governor Michael Parson signed an omnibus bill, SB 103, containing sweeping new regulations for the growing industry of consumer legal funding—bringing meaningful oversight of provider companies for the first time in the state’s history.Missouri now joins several states, like Oklahoma, Nebraska, Ohio, Utah, Nevada, Vermont, Tennessee, Indiana, and Maine, who have acted to enact consumer protections while preserving consumer choice.Consumer legal funding—also known as pre-settlement funding—is a specialty financial service that allows plaintiffs pursuing a legal claim to sell part of the potential proceeds of the claim for cash now. Unlike a loan, there is no obligation to the funding company if the consumer does not have a successful outcome in their claim. And because it's the sale of an asset, it can't affect a person's credit or put them into collections. This legislation ensured that it will be treated as a consumer asset.“Consumer legal funding is a financial lifeline to those engaged in civil litigation who lack savings. Governor Parson giving his approval to this legislation is a win for robust consumer protections and protecting access to legal funding in Missouri.” Stated Missouri State Representative Phil ChristofanelliMissouri State Senator Sandy Crawford stated "I am pleased that we were finally able to take the Consumer Legal Funding legislation across the finish line. Although this process has taken several years, I am confident the finished product was worth the time it took. I was happy to play a role in passing this important legislation."“Consumer legal funding is different from a lot of other financial products. It allows a consumer to get the financial assistance they need while their claim is making its way through the legal system.” said Eric Schuller, President Alliance for Responsible Consumer Legal Funding, the Trade Association that represents the companies that offer Consumer Legal Funding.Missouri State Senator Curtis Trent stated: “I appreciate the Governor’s support. This measure will ensure that Missourians have better access to the financial resources they need to protect their rights in Court.”Schuller said, “this is some of the most well-researched legislation we’ve seen come out in the last few years. It’s sure to serve as a model for other states in the years to come. This is good lawmaking in action—a trend which should continue.”
Calls for an increase in the levels of regulation and oversight of litigation finance across the United States have intensified in recent months, with states throughout the country introducing or passing legislation to enact stricter guidelines. However, in California where the proposed legislation has been put on hold for now, one business owner explains how third-party funding provided an invaluable lifeline for his business.An article in the San Fernando Valley Business Journal provides an account from Craig Underwood of Underwood Ranches, whose jalapeno pepper business had almost failed after a lengthy and costly dispute with a hot sauce manufacturer, Huy Fong Foods Inc. Viewers of the 60 Minutes piece on the Litigation Finance industry will remember the coverage of this case, which LFJ covered back in December of 2022. A protracted lawsuit that began in 2017 saw Underwood awarded $23.3 million by a jury, only to be stymied by an appeal from Huy Fong. It was at this point where Underwood engaged Burford Capital for a $4 million loan that allowed the business to keep operating and fight the appeal, which resulted in the Second Appellate District Court affirming the award.Whilst Burford Capital doubled its money, taking $8 million from the final award, Underwood emphasized the vital role that the funder played in keeping his small business alive, and continues to argue against the proposed regulation in the California legislature. Underwood particularly opposes the disclosure requirements for plaintiffs using litigation funding, as it can disadvantage them against larger and wealthier defendants, stating that ““I wouldn’t want our opposition to know the position that we were in.”Andrew Cohen, director at Burford, explained the funder’s perspective on the case and why its return was so high, emphasizing that “there were real risks in the case,” and once due diligence had been completed, Burford had “negotiated terms with Craig based on that assessment.” Cohen echoed Underwood’s opposition to these enhanced regulatory measures, and pointed out that most arguments against litigation funding “are usually being put forth by folks who are upset that legal finance helps claimants get the result that they should be able to get.”
Although last week seemed to put the dispute between Burford Capital and Sysco Corp to bed, with both firms agreeing to drop all claims, it seems there may yet be another twist before the story reaches its end. Following Sysco’s resolution with Burford, the company had requested to transfer ownership of several antitrust claims to a Burford affiliate; a move which is now being questioned by more than one of the defendants.An article in Bloomberg Law provides an update on the ongoing saga that has kept Burford’s name in the headlines, as defendants including Tyson Fresh Meats Inc, JBS USA Food Co., and Triumph Foods stated that the proposed move by Sysco to substitute Carina Ventures LLC as the plaintiff needed more inspection. The defendants for the antitrust lawsuits have told the federal court that before the case can move forward, they require more information about this transfer of ownership, with Triumph Foods stating that Burford’s role is “shrouded in mystery.”Judge John F. Docherty in Minnesota has informed all parties that he will review Sysco’s plan to place two of the lawsuits under Carina Ventures’ ownership and hold hearings on the matter. Boies Schiller Flexner, the law firm that had originally represented Sysco until the dispute broke out with Burford, is set to return to lead the cases and represent Carina Ventures in the lawsuits.
In the dynamic landscape of litigation finance, funders are constantly navigating various challenges that impact their operations and profitability. This article delves into three key challenges faced by litigation funders today: high interest rates, the potential of a global recession, and the geopolitical issues stemming from escalating tensions between Western countries and Russia and/or China.Challenges from High Interest RatesOne of the primary challenges faced by litigation funders is the impact of high interest rates. Litigation finance involves providing funding to claimants in exchange for a share of the potential settlement or award. The return on investment for funders largely depends on the successful outcome of the litigation. However, high interest rates can erode the profitability of these investments, especially in cases with prolonged litigation timelines.Litigation funders have benefits from a climate of low interest rates for years now. However those days are long gone. When interest rates are high, funders face the dilemma of balancing their desire for a reasonable return with the affordability of financing for claimants. Excessive interest rates can discourage claimants from seeking litigation finance, thereby reducing the pool of potential cases for funders to consider. Striking the right balance becomes crucial to maintaining a sustainable business model.Challenges from a Potential Global RecessionThe specter of a global recession poses significant challenges for litigation funders. During economic downturns, businesses and individuals often face financial constraints, leading to a surge in legal disputes. While this surge may present an opportunity for litigation funders to invest in potential claims, it also exposes them to increased risk.In a recessionary environment, the financial viability of potential defendants may be compromised, impacting the recoverability of potential judgments or settlements. Moreover, increased financial distress can lead to a rise in opportunistic claims or frivolous litigation, requiring thorough due diligence by litigation funders to identify viable cases.Furthermore, in times of economic uncertainty, funding sources for litigation finance may become scarcer and more expensive. This scarcity can limit the availability of capital for funders and make it harder for them to maintain a diversified portfolio of investments. Effective risk management and careful selection of cases become vital in navigating the challenges posed by a potential global recession.Challenges from Geopolitical Issues Caused by Increasing TensionsThe escalating tensions between Western countries and Russia and China present unique challenges for litigation funders. Geopolitical issues, such as trade disputes, sanctions, or diplomatic conflicts, can directly impact the outcome of cross-border litigation cases, potentially hindering the enforcement of judgments or settlements.Litigation funders must navigate the complexities of different legal systems, regulatory frameworks, and political dynamics when investing in international cases. Tensions between countries can result in uncertainties and delays in the resolution of disputes, affecting the potential return on investment for funders.Additionally, geopolitical tensions can influence the perception of risk associated with investing in certain jurisdictions. Investors may become hesitant to finance litigation in regions where the rule of law is perceived to be weak or where political volatility raises concerns about the enforceability of judgments. Litigation funders must carefully assess these risks and employ robust risk mitigation strategies when considering international investments.ConclusionLitigation funders face a myriad of challenges in today's evolving landscape. High interest rates, the potential of a global recession, and geopolitical issues arising from escalating tensions between Western countries and Russia / China all pose significant obstacles to the success of litigation finance. To overcome these challenges, funders must exercise prudence in their investment strategies, diligently assess risks, and adapt to the changing dynamics of the legal and geopolitical environments. By doing so, litigation funders can navigate these challenges and continue to play a crucial role in supporting access to justice and driving the growth of the litigation finance industry.
Last week saw the return of ILFA’s annual litigation finance conference, as leaders from the top funders, law firms, investors and insurers gathered to discuss the most-pressing issues in the industry.An article from CDR provides a recap of some of the key takeaways from the conference, particularly highlighting comments from Chris Bogart, Burford Capital’s chief executive, who criticized the Solicitors Regulation Authority (SRA) for hindering efforts by funders to take a more active stake the ownership of law firms. Bogart offered a scorching rebuke of the UK’s inability to adapt following the passage of the Legal Services Act in 2007, arguing that any progress “has been completely stymied by the bureaucratic ineptitude of the regulators here.”Neil Purslow spoke to the current environment of a stagnant economy and high inflation, Therium’s chief investment officer pointed out that the funding industry had previously benefited from “historically low interest rates” and must now adapt to the new normal.. Omni Bridgeway’s Andrew Saker argued that there were both benefits and risks in the current market, suggesting that whilst defendants may look at “the possibility of resolving measures more expeditiously”, funders would still be faced with the rising cost of capital impacting their business models.Meanwhile, independent litigation funding adviser Mikołaj Burzec provided insights on a new paper published by ILFA: “Resourcing the Rule of Law in Europe”, which analyses and critiques the European Union’s proposed regulations for the litigation finance industry. Burzec highlighted ILFA’s argument that the EU should wait for the full implementation of the Representative Actions Directive (RAD) and assess the resulting impact, before imposing further regulations on third-party funding.
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