Pogust Goodhead, a global law firm, and Gramercy Funds Management LLC (“Gramercy”), today announced that they have entered into a $552.5 million investment partnership in the form of a secured loan by Gramercy to Pogust Goodhead. This loan is the largest of its kind in a U.K. based law firm. The loan transaction strengthens the firm’s financial power, ensuring Pogust Goodhead has ample funds to continue its litigation across the world and on behalf of environmental victims of corporate giants such as: BHP Group (BHP.AX), BMW (BMWG.DE), Fiat Chrysler (STLAM.MI), Ford (F), Honda (7267.T), Hyundai (005380.KS), Jaguar/Land Rover (JLR), Mazda (7261.T), Mercedes-Benz (MBGn.DE), Peugeot/Citroen (PEUG.PA), Renault Nissan (RENA.PA), Toyota (7203.T), Vauxhall (STLAM.MI), Volkswagen AG (VOWG.DE), and Volvo AB (VOLVb.ST). The loan proceeds will fund the largest action of its kind against two of the biggest mining companies in the world – BHP Group (BHP.AX) and Vale (VALE3.SA) – for their part in the Mariana dam disaster in Brazil. Pogust Goodhead is representing over 720,000 victims of Brazil’s worst ever environmental disaster, with a trial date set for October 2024 in London. The loan proceeds will also support Pogust Goodhead’s litigation against 14 major automobile manufacturers over the Dieselgate scandal, on behalf of approximately one million U.K. consumers. Tom Goodhead, Global Managing Partner and CEO of Pogust Goodhead, said: “We are delighted to secure this major investment that will transform our business and give us the financial power to take on some of the largest companies in the world on behalf of millions of people. This landmark deal shows that global investors have good faith in the outcome of our cases. This investment will not only ensure that we bring our existing cases home, but we are putting global corporate giants on notice that we have the financial muscle to take them on for their wrongdoing. We are taking on some of the largest companies in the world. These companies have access to infinite resources to litigate against these cases. This deal levels the playing field and gives us the ability to go toe-to-toe with them. We are not trying to destroy these companies. We are taking them on for corporate misconduct, anti-competitive behaviour, corporate harm and misuse of the environment. The cases we are taking will set the bar for how serious we are, as a global society, about ensuring that big business is held accountable and upholds its obligations and responsibilities to the communities in which it operates.” Harris Pogust, Chairman of Pogust Goodhead, said: “Our mission is to defend the rights of those who have been wronged by some of the world’s largest multinational companies. In just the past two years we have secured historic settlements against British Airways and Volkswagen. We currently represent over one million individuals regarding the Dieselgate scandal. Additionally, we are handling the largest mass action in English history against the world’s two biggest mining companies. We are just beginning the journey to bring justice to those who most deserve it no matter where they reside and regardless of the size and perceived power of the corporate wrongdoer. This transaction with Gramercy, a firm with deep expertise in litigation finance and patient capital, gives us the ability to bring the fight to any wrongdoer. They are now on notice that it is in their financial interests and those of their shareholders to settle or face a firm with both the financial resources and litigation skills to obtain the justice our clients rightly deserve. We are extremely excited to have Gramercy as an investor and as a partner as we seek global justice for the millions of clients we currently represent and the millions yet to come.” Robert Koenigsberger, Managing Partner and CIO of Gramercy Funds Management, said: “We are pleased to be partnering with Pogust Goodhead. The firm has an exceptional track record and we have been impressed by the team and their approach to complex litigation. Allocating to this transaction is clearly consistent with Gramercy’s mission to positively impact the well-being of our clients, portfolio companies, and their communities. The investment materially aligns with our ESG and impact investing objectives. We are proud to play a part in helping Pogust Goodhead seek justice for some of the worst environmental actions over the past few decades.”

The panel discussion consisted of Jacob Malherbe, CEO of X Social Media, Sara Papantonio, Partner at Levin Papantonio Rafferty, and Ryan Stephen, Managing Partner of Pine Valley Capital Partners. The panel was moderated by Steve Nober, CEO of Consumer Attorney Marketing Group (CAMG), The discussion spanned the following topics:

• Who’s doing what in mass torts? How about funding?
• How funders are evaluating and working with firms
• Examples of the ABS framework in action & challenges
• Pre- and post-settlement funding and time to disbursement

The conversation began around the integration of litigation funders into the mass torts sector. There are a lot of variables to consider around mass torts which typically don’t exist in other case types. These include marketing ethics, use of proceeds, claimant access and relationship building, where the call center is located, firm operations at an administrative level, etc. These are all aspects of a law firm that litigation funders need to understand if they are going to partner with a mass torts law firm. The degree of diligence is vast, and will require a years-long commitment. What’s more, there is now a focus on unethical marketing practices, with Congress taking a look at the tactics being used. The question for funders is, how can you protect yourself from unethical marketing efforts (funders might be named in a suit against the law firm). Funders need to mitigate these risks by asking more questions at the outset: What kind of advertising is being used, where are the clients coming from, how do I know that the clients are real (ad tracking)? Too many funders are pouring money into this lucrative space, and run the risk of encountering scammers who set up a business looking to raise money for a mass torts claim, when they have no ability to secure claimants or conduct the proper marketing outreach. What this comes down to at its core is relationships—understanding and knowing who you’re working with. Funders need to feel that the law firm they partner with us trustworthy, but of course should still conduct their own diligence to verify that all activities are on the up and up. On this last point, the panel recommends creating more nuanced tracking—not just ‘cost per case.’ Track advertising costs, medical records, other marketing materials. Really understand how money is moving at a granular level. The discussion then pivoted over to the Camp Lejeune case. Sara Papantonio feels that there will be one more opportunity to make a push for cases when payouts start happening. The question is, will there be enough time to advertise and file a claim before the statute of limitations runs out? Papantonio also noted that many clients won’t qualify for the elective option, and those that do probably won’t take it because of how undervalued it is. So likely, we will see more cases move into litigation. Values are starting to be presented for Tier 1 and Tier 2 injuries, which will help push this into litigation as well. She believes around May of 2024 will be an opportunity to advertise, but the statute of limitations runs out in August. Papantonio explained that Tier 1 injuries are far less risk for funders and litigators. Tier 2s and Tier 3s will have to move through a process, and some won’t be approved, so there is more risk there. Papantonio also believes the fees will be capped at 20-25%, which was the DOJs recommendation. So funders and law firms should plan for that. One final point Papantonio made, was that these mega mass torts are sucking up all the oxygen in the space, but there are plenty of smaller torts that are very meritorious and present opportunities for funders and law firms. The panel concurred, given that $1 billion has spent on Camp Lejeune already, so any new entrants into that claim are coming in late stage. Panelists Ryan Stephen and Jacob Malherbe added that torts such as Tylenol, Roundup part two, paraquat, PFAS claim (which the panel believes might become the biggest case ever), anti-terrorism cases, and others. Malherbe even recommended ‘The Devil We Know,’ a documentary on Netflix about the PFAS claim—so anyone interested can follow up with some binge watching!

Palisade Insurance Partners, LLC (“Palisade” or the “Company”), a specialty managing general underwriter (“MGU”), today announced the appointments of two seasoned industry executives across its business geography. Scott Stevenson has joined Palisade Insurance Partners LLC in New York as Head of US Risk, from Aon Special Opportunities Group where he served as Senior Vice President. Mark de la Haye has joined Palisade Risk Solutions Ltd in London as Head of UK and Europe Risk, from Augusta Ventures Limited, where he served as Head of Resolutions. Headquartered in New York, Palisade specializes in underwriting insurance for litigation and other contingent legal risks, and transaction insurance. John McNally, President and Head of Underwriting at Palisade, said, “We are pleased to welcome Scott and Mark, two highly regarded professionals with extensive experience within the legal, litigation finance and insurance industries. For the last three years, Scott has been a leading underwriter of contingent legal risks in the insurance market, after practicing at a premier US law firm. Mark has considerable experience managing litigation investment portfolios, including a focus on insurance requirements. Scott and Mark will broaden and strengthen Palisade’s capabilities to provide comprehensive risk transfer solutions and detailed litigation underwriting for our clients and partners.” Mr. Stevenson commented, “Palisade has an impressive capability to solve complex insurance issues. I look forward to combining my litigation and insurance underwriting experience to strengthen Palisade’s unique platform and pursue creative solutions for specialized insurance matters across the legal spectrum.” Mr. de la Haye added, “Palisade has created a strong platform to deliver innovative litigation and transactional insurance solutions for a wide variety of clients. I am excited to apply my legal background together with my litigation finance experience to further develop Palisade’s offering and strategic direction during this exciting period of growth.” Mr. McNally concluded, “Palisade is ideally positioned to serve the fast-growing demand for contingent legal risk insurance, including from corporate clients, law firms, asset management funds, and specialty finance vehicles. The addition of these executives will greatly enhance operations as we continue scaling Palisade’s growing network of insurance partners.” Scott Stevenson Biography Mr. Stevenson brings more than twelve years of experience from all sides of the legal industry. Before joining Palisade, he was Senior Vice President at Aon’s Special Opportunities Group, where he led a team specializing in underwriting contingent legal and related risks. Previously, Mr. Stevenson worked at Wachtell, Lipton, Rosen & Katz, where he handled complex transactions, and advised on strategic investments and corporate governance matters. Mr. Stevenson began his career as a Law Clerk, first at The United States District Court for the Middle District of Florida and then at The United States Court of Appeals for the Eleventh Circuit. Mr. Stevenson gained a B.A. from University of Pennsylvania, a B.S. at The Wharton School of Business, and a J.D. from Stetson University College of Law. Mark de la Haye Biography Mr. de la Haye boasts almost two decades of experience of dispute resolution and litigation fund and investment management. While at Augusta Ventures Limited, he helped oversee both underwriting and insurance requirements for a range of investments, and strategically collaborated with lawyers and clients to manage legal disputes. He was a permanent member of Augusta’s New Business Committee and its Investment Committee. Previously, Mr. de la Haye served in private practice, most recently as a Solicitor at Clyde & Co. During his time in private practice, Mr. de la Haye represented clients around the world in high value, complex and often multi-jurisdictional litigation and arbitration. Mr. de la Haye received an LLB from the University of Exeter and an LPC from The University of Law. About Palisade Insurance Partners Palisade Insurance Partners (“Palisade”) is an MGU that specializes in underwriting litigation-related insurance, transaction liability products, and contingent legal risk solutions. Palisade is dedicated to providing clients with access to specialty insurance while applying the highest standards of underwriting and upholding its core values of integrity and independence. To learn more, please visit https://palisadeinsurance.com/.

The day’s featured panel included a discussion around ethical challenges and conflicts of interest, impacts on attorney-client relationships, developing a regulatory framework, and balancing the benefits vs. the risks of litigation funding. The panel consisted of Nathan Morris, SVP of Legal Reform Advocacy at the U.S. Chamber of Legal Reform, Charles Schmerler, Head of Litigation Finance at Pretium Partners, Lucian Pera, Partner at Adams and Reese, and Maya Steinitz, Professor of Law at Boston University. The panel was moderated by Michael Kelley, Partner at Parker,Poe, Adams and Bernstein, LLP. This unique panel was structured as a pair of debates (back-to-back), followed by an open forum involving panelists and audience questions. The first debate was centered around the question of ‘what is litigation finance?’ Essentially, what constitutes third-party financing, what are the key components that make up a litigation funder, and how should we define the practice? Some key takeaways from this part of the discussion:

• Insurance carriers haven’t been classified as third-party funders, but essentially that is what they are doing
• A secured bank loan to a law firm is not what we talk about when we talk about litigation funding. So, financing a litigator is not necessarily litigation finance. Litigation funders offer financing related to the litigation, making them an interested party in the litigation., in contrast to a disinterested bank
• Law firms acting on the contingency model can indeed be classified as litigation funders
• Litigation funding doesn’t even have to be for profit. Famously, Peter Thiel funded Hulk Hogan’s litigation against Gawker, and it is unclear if there was any profit participation on Thiel’s part, though his likely motivation was revenge (or perhaps justice) after Gawker previously outed him as gay
• Context matters, especially when we consider how we define litigation finance for the purpose of regulation

The question then came: Is a legal defense fund a litigation funder? It files briefs, and somebody must pay to have those briefs filed. So should their donors be identified? This question led to a robust debate between moderator Michael Kelley and Charles Schmerler over whether the Chamber of Commerce should be classified as a litigation funder. After all, the Chamber accepts donations and then uses its capital to file claims—so would donors to the Chamber be considered litigation funders? Schmerler noted that causal litigation is different from commercial litigation—especially from a public policy perspective. So conflating them under the semantic of ‘litigation funding’ isn’t as useful, even if they can each be technically classified as litigation funding. That robust discussion gave way to the second debate, which focused on disclosure, and control and conflicts in litigation finance transactions. Kelley asked Nathan Morris why he supports disclosure in litigation funding matters. Morris feels that the purpose of disclosure is to understand the nature of the involvement of the funder, and such disclosures should be made, just as they are made in the case of insurance. It’s important to gauge a funder’s measure of influence, the structures and contours of their arrangement with the plaintiff, and how that might impact case decision. Maya Steinitz added that disclosure requires a nuanced analysis, in that impact litigation is different from commercial litigation, which is different from class actions. So identifying a clear line for disclosure leads to conflicting views, because people are responding to the idea of disclosure in different scenarios. Steinitz believes in a balancing test—what is in the best interests of the public, considering variables such as the type of litigation and motive of litigation? We shouldn’t draw a general rule on disclosure, but rather have a bespoke response based on several factors. Other panelists disagreed, believing that 'disclosure is a solution in search of a problem,' and that ultimately it will serve no benefit, as it is essentially impossible to determine how much control a litigation funder has over a claim, or whether the law firm in question is in dire need of capital and must therefore cede control to the funder. Morris' position remains that disclosure is necessary, and insists his views are not predicated on the desire to see the industry regulated out of existence, but rather to protect the public interest. The open forum portion led to some interesting discussion points, including:

• Whether law firms in a funded claim have abdicated their independence to litigation funders
• How ethics rules regulate litigation funders and funding agreements
• Whether disclosure of the existence of funding can even identify any control issues in the case
• The prospect of litigation being funded for purely financial (as opposed to meritorious) reasons

In the end, this was a very unique structure for a panel discussion, which led to a passionate and spirited debate by the panelists, as well as a thorough degree of engagement from the audience.