John Freund's Posts

3077 Articles

New report warns: Restrictions on legal finance would leave EU businesses and consumers more vulnerable

European businesses and consumers could be left without access to a vital financing tool providing access to justice, experts warn today.

A report by the International Legal Finance Association (”ILFA”), which analyses proposed regulation on legal finance recently endorsed by the European Parliament, warns that if implemented, this could create a legal environment in Europe that would prevent many meritorious cases from being pursued.

This would be to the detriment of businesses — including startups and SMEs — and consumers alike, and it would only grant a licence for wrongdoers to continue to harm EU citizens and smaller, less well-resourced SMEs.

Legal finance provides the necessary resources in what are often lengthy and expensive legal endeavours, which empowers consumers and businesses, large and small, to seek the remedy they are due. Many funded matters are “David vs. Goliath” in nature, in which a smaller company is engaged in litigation against a larger well-resourced adversary. For EU citizens, it has helped bring cases in Europe on behalf of individuals and collective rights’ claims against a number of corporate entities.

However, in October 2022, an own-initiative report from Member of the European Parliament (MEP)  Axel Voss made recommendations which would significantly undermine the availability of legal finance within the EU.

The proposal put forward by Axel Voss MEP would make it more difficult for small and medium-sized enterprises (SMEs) to mitigate risk and keep capital in their business, and for consumers to have the necessary resources to seek redress and defend their rights. It includes the introduction of a fee cap for funders and a controversial forced disclosure provision for claimants, all of which would drastically reduce the economic viability of legal finance.

Now, experts in legal finance, collective redress, and consumer rights speak out about the dangers of the EU turning Voss’ recommendations into law. ILFA challenges the assumptions in the Voss proposals, as follows:

  • Lawmakers across EU member states are already struggling to implement the Representative Actions Directive (RAD) - aimed at strengthening the collective interests of consumers and ensuring a right to redress via representative actions. Limiting legal finance risks undermining the positive steps being made to create a collective redress regime that works for consumers.

  • Legislating the recommendations of the Voss Report would embolden large companies to engage in intellectual property (IP) theft from Europe’s SMEs. Without legal finance, Europe’s SMEs cannot defend themselves against malfeasance by multinational corporations or well-resourced Chinese companies.

  • Legal finance could be a vital component in the future battles on data, artificial intelligence, and new technologies involving analysis of complex issues and new legal concepts which will require resourcing to ensure that the EU’s “Brussels Effect” is realised. There are currently few, if any, resources available to fund meritorious litigation with scant evidence in the Voss Report that public funding or bank loans could assist.

  • Legal finance is an emerging market in Europe. The steady growth of legal finance in Europe is not only beneficial to European companies and consumers, but to the European economy.  Sophisticated and well-established investors, including pension funds and institutional investors, are continuing to see investments in legal finance as a worthy addition to their portfolios, driving important investment into the European economy during turbulent times.

Gary Barnett, Executive Director of ILFA, says: “Legal finance empowers businesses, large and small, to mitigate risk and maintain sufficient capital so they can grow and innovate. Without access to this financing, many meritorious claims, including those brought by small and medium-sized enterprises (SMEs) and consumers, would not go forward. Legal finance providers are experts in finding the most meritorious, and often important, cases that the courts need to hear and are willing to invest the time and money into issues that serve the public good.  The EU should be finding ways to increase access to this vital resource that benefits the EU legal system and its citizens.”

Prof. Dr. Ianika Tzankova, First European Chair of Mass Claim Dispute Resolution, partner at Birkway, says: “One of the big advantages of the Representative Actions Directive in my view, is that it explicitly recognises the importance of the principle of equality of arms, meaning a fair balance in the opportunities given to both parties. Legal finance takes seriously the idea that financial equality of arms is required for effective collective redress and consumer protection. In fact, without the availability of that funding source I doubt there would be any meaningful collective redress in the EU right now.”

Thomas Kohlmeier, Co-founder and co-CEO of Nivalion AG, a provider of Legal Finance Solutions in Europe, says: “The Rule of Law in Europe needs the support of funders who understand the law and are willing to share in the risk and invest in meritorious cases. The question that has not been answered to date is what happens to all those important cases that will go unheard in the courts if the special interests get their way? It seems almost cynical to restrict access to justice on the basis of unproven allegations and misunderstanding of key economic principles.”

The report is released as the deadline for European Member States to implement the Representative Actions Directive has passed on 25 June. The EU Commission will begin enforcement action against a number of member states given their failure to transpose the RAD after a two-year hiatus meaning important cases against corporate malfeasance could be jeopardised.

ILFA recommends that any further EU legislation should await the full implementation of RAD and comprehensive consultation with key stakeholders, such as consumer rights groups and SMEs Executive Agency, and ensure that any regulatory proposals are based on facts, data, and real-world experience.

Consumer rights experts are concerned that further legal finance regulation will affect the realisation of the Representative Actions Directive (‘RAD’), Europe’s first class action law.

The full report from ILFA, Resourcing the Rule of Law, is available here.

Read More

Law Professors Argues Funders are Not “Passive Partners” in Mass Tort Lawsuits

Critiques of third-party litigation funding tend to focus on two main issues: the perceived lack of transparency around funders’ involvement, and the potential for these funders to unduly influence the litigation process. A new academic paper suggests that a major issue is the involvement of litigation funding in mass tort lawsuits, arguing that funders will control the litigation in order to drive up their own financial returns whilst leaving the actual victims worse off. An article by Bloomberg Law features an interview with Samir Parikh of Lewis & Clark Law School, who recently published a paper entitled ‘Opaque Capital and Mass Tort Financing’ on the Yale Law Journal Forum.  In the interview, Parikh claims that there are no real restrictions on outside capital taking control of mass tort lawsuits, despite the fact that litigation funders almost unanimously assert that they do have control over the litigation process or on settlement decisions. Parikh’s essay states that funders are never “passive partners” and that the reason these investors are pursuing mass tort cases so actively, is because they are aiming “to dictate outcomes.” Parikh compares the situation to other investment markets, claiming that “it’s a playbook we’ve seen private equity funds run in distressed debt situations all the time. And the truth is it could be happening in cases that we don’t know about.” Parikh’s theory centers around his concept of “the Alchemist’s Inversion”, where funders will look to create mass tort cases without doing proper due diligence on all the claimants, then they will look to increase the value of the claims before dictating the timing and details of any settlement. Parikh believes that these kinds of situations already exist, but with the alleged danger posed to the actual claimants in mass torts, he argues that “even if it’s happening on a small scale, the point is the explosion of the practice should be anticipated.”

Manolete Partners Releases Audited Results for FY23

Manolete (AIM:MANO), the leading UK-listed insolvency litigation financing company, today announces its audited results for the year ended 31 March 2023.  Steven Cooklin, Chief Executive Officer, commented: "The annual results for FY23 mask a picture of two very different six-month periods for the Company: the first half of the trading year was subdued, as the Company had only just begun to emerge from the ending, in April 2022, of the temporary suspension of certain important insolvency laws that the UK Government had instigated in June 2020 in response to the COVID-19 pandemic. While normal insolvency laws resumed at the start of the financial year, there is always a natural time lag between insolvencies commencing and the associated litigation claims being referred to Manolete, as Liquidators and Administrators need time to conduct their regulatory investigations before they can assemble cases for consideration by us. The second half saw a strong resumption of the growth that the Company had exhibited prior to the pandemic, as the UK Insolvency Market returned to normal operations with a strong recovery in cases being referred to us.  Given the fact that we enjoyed only the latter six months of more "normal" trading, the results are highly commendable given the loss made in H1 and recovery in H2. We had a record number of 798 new case enquiries and a record number of 263 new case investments; gross cash receipts from completed cases were at a record level of £26.7m and a new record was also set with 193 cases being legally completed in the 12-month period. We ended the year with another record number of 351 live cases in progress and the Company returning to profitability in the second half. These positive KPIs have continued into the current FY24 - with signed cases for the first two months of FY24 being 154% higher than the first two trading months of the FY23. Consequently, we have added, and continue to add, to our expert in-house legal and financial analyst teams to address the increased level of demand for our insolvency litigation solutions. With prevalent headwinds of inflation and significantly higher interest rates facing the UK economy, the Company is well set for continued growth over the foreseeable future". Financial (statutory and non-statutory) highlights:
  •     Realised revenues on completed cases were £26.8m, an increase of 76% (FY22: £15.2m) although FY23 contained an exceptionally large funded case completion of which £4.9m was recorded in realised revenue (total settlement £9.5m).
  •     129% of total revenues represented by realised revenues on fully completed cases (FY22: 77%) offset by negative unrealised revenues.
  •     Increase in the valuation of the cartel cases contributed £1.2m to gross profit in FY23 (FY22: £5.1m).
  •     EBIT reduced by 159% to a loss of £(3.1)m (FY22: £5.3m) a result of pressure on valuations in H1 FY23 on existing cases and a single rare larger case loss at trial.
  •     The Company made a loss before tax of £(4.0)m (FY22: £4.5m profit).
  •     Gross cash receipts from completed cases were £26.7m, an increase of 72% (FY22: £15.5m).
  •     The Company's retained share of gross cash receipts from completed cases (after all legal costs and payments to Insolvent Estates) was £13.1m, an increase of 47% (FY22: £8.9m).
  •     Cash generated from operations (after all completed case costs and all overheads but before new case investments and taxation) was £8.0m (FY22: £4.4m).
  •     Gross cash of £0.6m and borrowings of £10.5m (FY22: £2.2m and £13.5m) as at 31 March 2023 and £14.5m unutilised funds available on the Revolving Credit Facility with HSBC.
  •     Final dividend of nil per share. 
Operational highlights:
  •     New case investments in UK insolvency cases, an increase of 65%: 263 in FY23 (FY22: 159).
  •     Based on unaudited internal management information: ROI of 125% and Money Multiple of 2.2x from 689 completed cases since inception
  •     Based on unaudited internal management information: 193 cases were completed in FY23 (FY22: 139 cases), with an average duration per case of 15.5 months (FY22: 13.2 months), generating a Money Multiple of 1.9x (FY22: 1.87) and an IRR of 131% (FY22: 132%)
  •     Average case duration across the full portfolio of 689 completed cases is 12.8 months
  •     29% increase in live cases: 351 in process as at 31 March 2023 (272 as at 31 March 2022)
A copy of the annual report and accounts will be available on the Company's website shortly and will be posted to shareholders in due course.
Read More

Supporters of Louisiana Litigation Finance Disclosure Bill Discuss Route Forward After Governor’s Veto

Efforts to increase the amount of regulation around litigation financing within individual states has been on the rise throughout the last year, with state legislatures across the US introducing new legislation. A recent attempt in Louisiana, which placed a large emphasis on increasing transparency requirements for third-party funding, suffered a major setback as the Governor vetoed the bill which had been approved by the legislature. Reporting by the Louisiana Record provides an update on efforts by supporters of Senate Bill 196 to push forward with seeing these increased disclosure measures implemented. Lauren Hadden, general counsel for the Louisiana Association of Business and Industry (LABI), stated that if the state legislature is able to reconvene later in June, “we would obviously love to see SB 196 among the list of bills taken up.”  However, as it is currently uncertain whether the legislature will come back for a veto-override session, Hadden suggested that the bill’s supporters “stand ready to work with all interested parties to once again develop legislation that addresses this issue during next year’s legislative session.” Hadden argued that SB-196 was not an attempt to outlaw or restrict third-party litigation funding, instead it was designed to be “a balanced transparency measure that would have simply balanced the ledger in litigation.” The decision as to whether or not the legislature will hold a veto-override session will likely not be motivated by the litigation financing bill itself, as Republican lawmakers in the legislature have discussed it primarily in relation to the Governor’s plans to veto a more contentious bill passed by House Republicans.

New research offers inside look at how businesses are managing litigation in uncertain economy

Burford Capital, the leading global finance and asset management firm focused on law, today releases new independent research on how in-house lawyers are adjusting their strategies in a period of sustained uncertainty. Businesses are seeking to manage risks and costs, and in turn, legal departments—and the outside law firms that work with them—have the opportunity to position themselves as part of the solution, with legal finance expected to play a role.

To better understand how macroeconomic trends impact senior in-house lawyers’ thinking about litigation, managing risk and their expectations for their law firm partners, Burford commissioned independent research that was conducted via extensive one-on-one interviews with 66 GCs, heads of litigation and other senior lawyers responsible for litigation at companies in the US, Europe, Asia and Australia.

Nearly three in four (74%) senior in-house lawyers expect to see an increase in the volume of disputes over the next two years due to the current geopolitical, economic and regulatory environment. Four in five (80%) say the current economic uncertainty will have knock-on effects for the legal department. Not surprisingly, a solid majority (62%) expect their law firms to offer more cost and risk-sharing solutions, and over half (51%) expect their firms to be knowledgeable about legal finance.

Christopher Bogart, CEO of Burford Capital, said: “We at Burford have been at the forefront of legal finance since 2009, working with lawyers in good and bad economic times. What remains constant is that in-house lawyers are always looking for ways to maximize corporate value and share risk. Burford’s latest research confirms that legal finance has taken on greater importance for businesses, especially as uncertainty in the global economy remains. We stand ready to partner with clients to solve their pressing needs, and to equip their outside counsel to be as nimble and innovative as their clients expect.”

Key findings from the research include:

  • The economy is increasing the volume and potential budget challenges of commercial litigation and arbitration.
    • Senior in-house lawyers expect to see an increase in the frequency of commercial disputes in the next two years, and the economy is exacerbating the challenges in-house lawyers face in paying for litigation and arbitration.
    • Cost causes some businesses to forgo meritorious claims and awards, while others are becoming more proactive in safeguarding claims as valuable business assets.
      • “[I]n an economic downturn, we may not be as motivated to pursue some litigation or transactional matters without creative billing options. Law firms want to be sticky with their clients, and companies are increasingly narrowing down who they work with to add more favorable terms with a select group of firms,” said an associate general counsel of a media and entertainment corporation.
  • GCs believe it is important for the legal department to show it can not only manage costs, but also add value to the business.
    • Cash flow and liquidity remain very important factors for GCs when they consider pursuing meritorious claims.
    • While GCs don’t use quantitative financial modeling of commercial claims, most say it would be valuable to be able to predict potential returns.
    • The availability of legal finance increasingly plays a role in deciding whether or not to pursue meritorious litigation or arbitration claims.
      • [Legal finance] gave the CFO the opportunity to time recoveries as he needed them and use that funding to invest in the company,” said a general counsel of a global food and beverage company.
      • “I have explored the use of legal finance and would do so again. The liquidity aspect is a big needle-mover for many companies, especially because it could provoke a settlement earlier, bring in money earlier and de-risk litigation,” said corporate counsel and director of a global retail corporation.
  • GCs expect more financial innovation from outside counsel.
    • GCs expect their law firms to offer more cost and risk-sharing solutions, particularly in a down economy, which also means that law firms are expected to be knowledgeable about legal finance.
      • “I want my outside counsel to be aware of and advise on every option available to us in setting a strategy,” said a chief litigation counsel of a manufacturing corporation.

The 2023 GC Survey can be downloaded on Burford’s website. Extensive one-on-one interviews were conducted by phone between March and May 2023 by Ari Kaplan Advisors.

About Burford Capital

Burford Capital is the leading global finance and asset management firm focused on law. Its businesses include litigation finance and risk management, asset recovery and a wide range of legal finance and advisory activities. Burford is publicly traded on the New York Stock Exchange (NYSE: BUR) and the London Stock Exchange (LSE: BUR), and it works with companies and law firms around the world from its offices in New York, London, Chicago, Washington, DC, Singapore, Dubai, Sydney and Hong Kong.

For more information, please visit www.burfordcapital.com.

Read More

Dieselgate Claims Demonstrate Power of Litigation Financing

Consumers who have been the victim of corporate negligence or fraudulent practices by large multinationals have always been at a disadvantage when it comes to seeking justice, overwhelmed by the sheer scale of legal and financial resources that companies have in reserve. However, recent years have demonstrated that litigation funding can make a significant impact in leveling the playing field between consumers and corporations. In a blog post on LinkedIn by Sparkle Capital Limited, a UK litigation funder, this exact dynamic is explored in relation to the ‘Dieselgate’ emissions scandal which has illustrated the power of litigation financing. The article highlights the staggering number of consumers that approached law firms in the UK to pursue claims against vehicle manufacturers, noting that without third-party funding, very few of these claims against well-resourced companies could have been pursued.  Sparkle Capital goes on to point out that these partnerships between funders, law firms and claimants has achieved notable progress in securing compensation for consumers, with manufacturers forced to reach significant settlement agreements in the face of these funded claims. They also suggest that the successes of the Dieselgate claims lay out a perfect example for how litigation funding can be used in future situations where a very high volume of consumers are looking to bring claims against multiple large corporations.

Using Litigation Funding to Protect Company Value

Undertaking litigation poses many risks for small and medium-sized companies that are publicly traded, not only from the specific financial risk that comes from the costly litigation process, but also the impact it can have on the business’ reputation and the knock-on effects on the share price. However, one law firm argues that litigation funding may be able to offer remedial support when it comes to the share price, and offer value to a company beyond the simple provision of capital to fight any lawsuit. In a piece of analysis on The Financial Times, Gowling WLG looks at the ways litigation financing may be able to support growing companies that are concerned about the impact of litigation on company value. Highlighting its recent study conducted in partnership with Scott Evans of London Business School: ‘Taking AIM: how litigation can strike company value’, Gowling WLG states that even the announcement of litigation negatively affects a company’s share price by -5% on average. Whilst the average negative decline is highest for defendants at -6.1%, claimants are not immune to this effect and also suffer, with an average decline of -3.5%. The article goes on to explain that litigation funding can be a very useful tool to alleviate these negative effects, as third-party financing ensures that businesses can pursue meritorious litigation to completion. Most importantly, the securing of litigation financing can demonstrate to the market that the litigation being undertaken is worthy of outside backing, as the third-party funder will have completed due diligence to ensure legal merit, and has a viable financial resolution.  Behind these specific benefits, Emma Carr, commercial litigation and litigation funding partner at Gowling WLG, reinforces the principle that third-party funding is “a useful tool in helping to alleviate the pressures that businesses are now under, to try and shore up their legal expenditure.”

Golden Pear Upsizes Corporate Note to $67.2 Million

Golden Pear Funding (Golden Pear), a national leader in pre-settlement legal funding, announced the upsizing to $67.2 million of its existing corporate notes. The incremental capital raise was assigned a BBB rating by a nationally recognized statistical ratings organization (NRSRO) and follows the Company's successful corporate note issuance announced in January 2022. Proceeds from the upsize will be used to repay subordinated debt and support additional growth of the business. Since inception, Golden Pear has funded nearly $1 billion in aggregate to more than 70,000 clients nationwide. "Golden Pear continues to demonstrate significant momentum and has completed this transaction to further our ability to serve the consumer litigation marketplace," said Gary Amos, Chief Executive Officer of Golden Pear. "We greatly appreciate the continued support of our institutional investor base, which recognizes the resilience of our business and our strong financial position." Daniel Amsellem, Chief Financial Officer of Golden Pear, added, "Our demonstrated access to institutional capital in a difficult credit environment is a strategic advantage, as we further pursue market opportunities in a disciplined and profitable manner. These notes complement our asset-backed debt to provide us with an efficient capital structure at a competitive cost of capital." Brean Capital, LLC served as the Company's exclusive financial advisor and sole placement agent in connection with the transaction. About Golden Pear Funding Founded in 2008, Golden Pear is one of the largest specialty finance companies in the United States funding legal matters and purchasing medical receivables from physicians and medical centers. The Company empowers its clients to navigate the legal system and provides them with financial solutions that work. Golden Pear is backed by a partnership of several private equity firms that allow for the stability and continued institutional growth of the firm. For additional information about the Company, visit https://goldenpearfunding.com.
Read More

Apex Litigation Finance appoint Chris Thenabadu and Stephen Caldecott

Litigation funding specialists Apex Litigation Finance have announced the appointment of two new Legal team members: Chris Thenabadu joining as Senior Case Underwriter, and Stephen Caldecott joining as a Case Underwriter. Chris and Stephen joined the Apex team this month. Chris brings many years of experience in the after-the-event insurance and litigation funding markets and will lead the team focused on reviewing new cases and the management of existing risks. Stephen has an insolvency litigation background and will further strengthen Apex’s ability to support the litigation funding needs of the insolvency sector.

Chris Thenabadu

Since 2007, Chris has dedicated his professional career to becoming an expert underwriter in ATE insurance. After qualifying as a solicitor and gaining experience in litigation funding and brokerage for ATE and M&A markets, he was appointed to high-level positions within two of the most prominent ATE insurers. This has allowed Chris to create strong relationships with many UK-based brokers, barristers, and law firms. Chris Thenabadu says: “I specialise in various commercial litigation cases and am known as one of the most competent underwriters in the UK for insolvency and professional negligence cases. I pride myself on being able to apply my considerable market experience to take a pragmatic and commercial approach to the structure of litigation finance risks. I look forward to leading the team at Apex Litigation Finance.”

Stephen Caldecott

Stephen has worked within the insolvency profession since 2000; as an experienced insolvency investigator, Stephen is trained in identifying, assessing, and pursuing potential legal claims in all forms of formal insolvency cases. Stephen’s experience in insolvency litigation is a significant asset to Apex, as it furthers its ability to meet the litigation funding needs of the insolvency market. Stephen Caldecott says: “I bring a wealth of knowledge and experience in all areas of insolvency litigation and will aid Apex in delivering excellent litigation funding solutions to the insolvency sector. My litigation experience, coupled with the gut instinct of a born investigator, will help me to understand and support the needs of Apex clients. I am looking forward to working with the team at Apex”. Apex CEO Maurice Power says: “It’s a pleasure to have Chris and Stephen joining our team. Both their experience and expertise are perfect for their roles, and we know that they will add huge value to our business and our clients. With Apex’s focus of providing litigation funding solutions to small/mid-size commercial claims, the addition of Chris and Stephen will further enhance Apex’s ability to provide access to justice to many more meritorious claimants.” Head of Legal, Stephen Allinson added “I am delighted to welcome Chris and Stephen to our business and very much look forward to working with them. The litigation funding market is developing apace, and I really believe Apex is in an excellent position to build on its already well-established reputation. With Chris and Stephen, we shall be able to respond even more quickly to all enquiries and work very positively with all professional sectors.” Apex is constantly looking to expand its team and is open to hearing from candidates with diverse expertise, from legal to insolvency, litigation funding, AI development, and business development. Having previous experience with litigation funding is optional, as Apex will evaluate an individual’s skillset to see if they can benefit. Interested applicants are asked to contact Apex via enquiries@apexlitigationfinance.com by sending a current cv and details of why they would be ideal for Apex.
Read More

Insurance Broker Argues for Reform of ‘Largely Unregulated’ Funding Industry

Proposals for increased regulatory measures on litigation finance have become a more common sight in state legislatures across the United States, with such a bill being vetoed by the Louisiana governor last week. Among those calling for an increase in oversight of the practice, are members of the insurance industry. In an interview with Insurance Business, Casey Petersen, head of US casualty at McGill and Partners, explains the main concerns that insurers have around the growing influence of litigation funding in America. Petersen highlights that insurers perceive it to be “a largely unregulated industry that is growing at a rapid pace and is driving verdicts at trial”, and when combined with the wider inflationary pressures in the economy, is creating “a problem within the insurance industry that is unsustainable without regulation.” Petersen suggests that the main issue is the increasing regularity of so-called ‘nuclear verdicts’, which is in turn forcing carriers to accept costly settlements to avoid going to trial and facing such a verdict. He argues that whilst legislative attempts to impose tighter controls are encouraging, “none of these states are where they have the most verdict award issues.” Petersen emphasizes that a desire for increased regulation is not aimed at outlawing litigation funding, but instead these are measures which would create “a sound business practice for all.” Until such reforms are implemented, Petersen states that it’s imperative for insurers to educate their buyers and provide “risk management policies and procedures in order to create safe working environments for employees and to the general population.”

Canadian Court Denies Insolvent Company’s Request for Litigation Trust and Financing

Litigation funding has regularly been put forward as a powerful tool in the area of insolvency by providing the necessary capital to pursue litigation. However, a recent ruling from a Canadian court has demonstrated the need for those seeking such relief in this jurisdiction to provide ample and appropriate evidence to support their requests. In a piece of analysis on Lexology, Kelly Bourassa, Keith Marlowe, and Tom Wagner of Blake, Cassels & Graydon LLP, provide commentary on the recent Goldenkey Oil Inc. (Re) decision from the Court of King’s Bench of Alberta. In this case, Goldenkey Oil was in insolvency, and sought court orders to create a litigation trust to transfer the rights of a lawsuit and to approve a financing arrangement to allow the litigation trustee to borrow up to C$3.2 million to finance the claim. However, after a defendant to the claim opposed these requests, Justice Michael J. Lema ruled that Goldenkey failed to present sufficient evidence to show that the requests for the litigation trust and financing were reasonable or appropriate under the remit of the Bankruptcy and Insolvency Act (BIA). The authors of the analysis note that this ruling demonstrates that parties cannot expect relief to be granted on the ‘bare assertion that the relief sought is reasonable, appropriate, and furthers the objectives of the BIA’, without providing the necessary evidence.

Binance and Coinbase vs. the SEC

On June 5, 2023, the United States Securities and Exchange Commission (SEC) sued the world's largest cryptocurrency exchange, Binance, for allegedly misleading investors and regulators while operating an unregistered exchange. One day later, the SEC sued the largest cryptocurrency exchange in the United States, Coinbase, for similar allegations. Now, litigation financiers around the globe look on as top law firms organize to defend Binance and Coinbase against the SEC.  Bloomberg Law reports that Binance and Coinbase have tapped some of the United States' top law firms to defend their future to exchange nearly $120B in cryptocurrency token assets. The SEC claims that most of these tokens sum up to unregistered securities. Binance and Coinbase deny any wrongdoing.  Agencies such as Lipton, Rosen & Katz, Milbank, Latham & Watkins, Wilmer Hale and Sullivan & Cromwell are among those said to bank upwards of $50M - $100M in legal fees for Binance's and Coinbase's defense against the SEC's recent actions. Sullivan & Cromwell is reported to have billed over $80M in fees associated with the FTX Chapter 11 bankruptcy litigation, according to court documents.    The SEC says that unregistered securities in the form of cryptocurrency violate US investor protection laws. Yet, former SEC leaders have joined Binance's defense team. Richard Grime (of Gibson Dunn & Crutcher) has been hired by Binance. Mr. Grime formerly served as assistant director of the SEC's enforcement division. William McLucas (of Wilmer Culter Pickering Hale and Dorr) formerly served as the SEC's enforcement director. Mr. McLucus has been hired by BAM Trading Services, the operator of Binance.US.  What does all of this mean for the litigation finance industry?  Experts suggest that private actions could be explored by litigation investors and their clients in the wake of the SEC's approach to cryptocurrency tokens being exchanged as unregistered securities. However, collectability remains a pertinent issue for litigation investors, as they consider whether to pursue crypto litigation funding. 

BURFORD CAPITAL ANNOUNCES PRIVATE OFFERING OF SENIOR NOTES

Burford Capital Limited ("Burford" or "Burford Capital"), the leading global finance and asset management firm focused on law, today announces the planned private offering of $400 million aggregate principal amount of senior notes due 2031 (the "Notes") by its indirect, wholly owned subsidiary, Burford Capital Global Finance LLC, subject to market and other conditions. The Notes will be guaranteed on a senior unsecured basis by Burford Capital as well as Burford Capital Finance LLC and Burford Capital PLC, both indirect, wholly owned subsidiaries of Burford Capital (such guarantees, together with the Notes, the "Securities"). Burford Capital intends to use the net proceeds from the offering of the Securities for general corporate purposes, including the potential repayment or retirement of existing indebtedness. The Securities have not been, and will not be, registered under the US Securities Act of 1933, as amended (the "Securities Act"), or the laws of any other jurisdiction and may not be offered or sold within the United States or to, or for the account or benefit of, US persons absent registration or an applicable exemption from registration under the Securities Act or any applicable state securities laws. The Securities will be offered only to persons reasonably believed to be "Qualified Institutional Buyers" within the meaning of Rule 144A under the Securities Act or non-US persons outside the United States pursuant to Regulation S under the Securities Act, in each case, who are "Qualified Purchasers" as defined in Section (2)(a)(51)(A) under the US Investment Company Act of 1940, as amended.
Read More

Louisiana Governor Vetoes Third-Party Funding Disclosure Bill

The first half of 2023 has been notable for the frequent appearance in states across the US of legislation seeking to increase the regulatory oversight and scrutiny of third-party litigation funding. Whilst some bills have found success in states like Montana, just last week, one of the most ambitious bills seeking to impose disclosure requirements was vetoed in Louisiana. Reporting in Bloomberg Law provides the details on Thursday’s announcement from Louisiana Governor John Bel Edwards, that he decided to veto Senate Bill 169. The draft bill had gone further than similar legislative attempts in other states, having required those involved in third-party funding to disclose a copy of their funding agreement. In his veto letter, Governor Edwards explained his reasoning, and stated that the bill “is clearly a pretense designed to gain a litigation advantage under the guise of promoting transparency in litigation and protecting national security.” He also highlighted that these measures would create an imbalance in the judicial system, as “the bill only requires plaintiffs to unilaterally disclose their commercial legal financing arrangements.” The bill’s sponsor, State Senator Barrow Peacock expressed disappointment that the Governor had not reached out to discuss the legislation with him, and will be considering whether to attempt to override the veto. However, Gary Barnett of the International Legal Finance Association (ILFA), praised Governor Edwards’ actions and argued the veto would protect Louisiana companies “from losing a vital financing tool used to mitigate risk and maintain sufficient operating capital in their business.”

Nivalion Receives License from Swiss Regulator

As the litigation finance market continues to grow and mature, established funders are keen to set themselves apart from newer startup funders, with recognition by official regulators playing an important role.   An article in finews.com reveals that the Swiss litigation funder Nivalion has received its license as an administrator of collective assets from the Swiss Financial Market Supervisory Authority (FINMA). This license allows Nivalion to manage these collective assets, whilst also providing risk management for investments, and being able to offer shares in litigation financing investments to both professional and institutional investors in Switzerland. Nivalion’s CEO Marcel Wegmueller stated that this was ‘an important milestone’ for the litigation finance company, as it is the first funder to receive such a license from FINMA. This new access to institutional investors in Switzerland will allow Nivalion to tap into a capital pool that other funders are not currently able to access in the country.  The article also states that Nivalion plans to obtain additional fund distribution licenses in other jurisdictions, including Germany.

Upcoming Webinar on Litigation Funding

One of the more important issues today concerning litigation in America is funding. Whether it be high verdicts, claim value drivers, or fraudulent claims, we are all affected. Vince Gerbino founding partner of Bruno, Gerbino, Soriano and Aitken, will moderate the webinar's distinguished panel that will provide insight into this important concern from a broad range of perspectives. We will hear from Dennis Kass regarding his experiences with verdicts and claim values. From Eric Schuller with his industry perspective. From Matt Lehman concerning regulatory efforts and finally from Kenneth Klein, a law professor and author with his consumer-based research perspective. Do not miss this very informative webinar, and please join us to learn and understand better the growing world of litigation funding and see the good, the bad, and the ugly side of it all. We look forward to seeing everyone on July 20, 2023, at 2 pm EST.
Here is the link to register. It is free to attend.
Read More

Resolution of Investment for LCM

Litigation Capital Management Limited (AIM:LIT), an alternative asset manager specializing in dispute financing solutions internationally, announces a successful resolution on an investment forming part of LCM’s Fund I portfolio of investments.

Successful Award in Arbitration Investment

LCM’s investment and funding related to a dispute in London Court of International Arbitration proceedings. LCM provided funding and support to the claimant in those proceedings, which recently received an award in its favor. The subject matter, findings and funding terms remain subject to confidentiality.

Initially, the investment was expected to complete within a short time frame from the commencement of funding, however, the matter was delayed due to a number of external factors. This protraction enhanced the returns to LCM and Fund I investors, details of which are highlighted in the table below:

*AUD$mInvestment performanceLCM performance metricsFund I performance metrics
Invested capital9.22.36.9
Investment return36.79.227.5
Success fee21.75.416.3
Total revenue67.616.950.7
ROIC on investment635%635%635%
Performance fee*-15.1(15.1)
Gross profit58.429.728.7
ROIC after performance fees635%1291%416%

*The investment returns are subject to change based on the prevailing FX rate and timing of distribution

Patrick Moloney, CEO of LCM, commented: “The Resolution of this investment demonstrates two important features of LCM’s business and its investment strategy.  First, it validates the skillset of our investment managers in undertaking a rigorous due diligence exercise and accurately predicting the final outcome of a large and complex commercial dispute resolved through arbitration.  Secondly, it is an example of an investment which we had originally expected to resolve in a prior financial period.  The return metrics generated by this investment clearly demonstrate how returns are enhanced notwithstanding a delayed resolution.  Not only were we extremely happy with the outstanding investment returns, but also LCM’s funded party was grateful for the financial support beyond the originally contemplated investment period.”

Enquiries

Litigation Capital Managementc/o Tavistock PR
Patrick Moloney, Chief Executive Officer
  
Canaccord (Nomad and Joint Broker) Tel: 020 7523 8000
Bobbie Hilliam
  
Investec Bank plc (Joint Broker)Tel: 020 7597 5970
David Anderson 
  
Tavistock PRTel: 020 7920 3150
Tim Pearsonlcm@tavistock.co.uk
Katie Hopkins 

About LCM

Litigation Capital Management (LCM) is an alternative asset manager specialising in disputes financing solutions internationally, which operates two business models. The first is direct investments made from LCM's permanent balance sheet capital and the second is third party fund management. Under those two business models, LCM currently pursues three investment strategies: Single-case funding, Portfolio funding and Acquisitions of claims. LCM generates its revenue from both its direct investments and also performance fees through asset management.

LCM has an unparalleled track record driven by disciplined project selection and robust risk management. Currently headquartered in Sydney, with offices in London, Singapore, Brisbane and Melbourne, LCM listed on AIM in December 2018, trading under the ticker LIT.

www.lcmfinance.com

Read More

Key Takeaways from LFJ’s Digital Event on Litigation Funding and Legal Insurance

Wednesday, June 14th, LFJ hosted a panel of Legal Insurance experts who discussed pertinent issues regarding the intersection of litigation funding and legal insurance. The expert panel included: Stephen Kyriacou, Jr. (SK), Managing Director and Senior Lawyer, Aon, Boris Ziser (BZ), Partner, Schulte Roth & Zabel LLP, Rocco Pirozzolo (RP), Managing Director and Underwriting Director,  Harbour Underwriting, and Ross Weiner (RW), Legal Director, Certum Group. The panel was moderated by Rebecca Berrebi (RB), Founder and CEO of Avenue 33, LLC. Below are some key takeaways from the digital event: RB: How has the ATE insurance market evolved over time? And what should we expect going forward? RP: When after-the-event began, it was a product of England and Wales. It is now a product used around the world. But, its origins stem from a change in the law in England and Wales, where the purpose of the legislation was to save public money on certain types of cases.  So, its origins go back to April 2000. It was originally being used for personal injury and clinical negligence cases. It then started to stem out into insolvency disputes and commercial disputes. In the early years, its limits were quite modest. RB: Let's talk about what other types of insurance have evolved and what other types of solutions we can offer litigation finance clients, including law firms, litigants and funders. SK: Aon's litigation risk group offers a number of different solutions that are of interest to litigation funders, their funded counter-parties that are actually litigating these cases, and the lawyers that are litigating funded cases as well. At the top of the call we talked about judgment preservation insurance, which I'll refer to as JPI. Essentially, JPI is taking a judgment that has already been won, either an arbitration award, a trial verdict, maybe a summary judgment award, and insuring the risk that it gets reversed on appeal or the damages get reduced on appeal, or that there is a remand for a new trial. RW: We are seeing a lot in the duration risk space. I think one of the areas it is becoming more prevalent, is mass torts. Often the biggest question is how long will the risk take to play out? How long until individuals will get paid? And so the law firms who take on those cases for a very long duration, they've got lenders that they are responding to, and they've got certain rates they are trying to reach. Insurance with a duration trigger can be very attractive in that space as well. For the lawyers here, one of the things that we have seen a fair amount of, and have been working on recently, is contingent fee, or what we call  'work in progress' or WIP insurance for lawyers. That has to do with law firms who take cases on contingency where there is a fair amount of risk involved that could be zeroed out if the case is meritorious. RB: How are law firms using these policies? And in what types of cases and portfolios and awards are you seeing these types of policies add value to the user?  BZ: We are seeing insurance for a lot of our transactions that include single event cases. It includes mass tort cases. It includes IP antitrust cases, breach of contract, trade secret theft, and others. I think we are seeing a hit on a big cross section of case types. In terms of how it is used, it actually is a very good interplay in how law firms use it. At the end of the day, having insurance on your transaction accomplishes a number of things. Number one, it covers downside risk, therefore potentially lowering the cost of funding or monetization that you might be looking at. But the other thing it does, particularly for the user of the insurance and the holder…is that it opens the universe to other lenders or investors. It not only provides protection on the downside of the investment (i.e. insurance), but it also enables you to create an instrument that benefits from a wrap from a single carrier.  RB: Let's talk about shifting risk. What steps can insurance providers take to ensure that law firms and funders are not merely shifting risk when looking to insure a claim?  RP: It's a great question. As an underwriter, adverse selection in cases is always the most critical concern for me, as I am going through it trying to discern the motive, and is it simply getting bad risk off the books and replacing it with insurance to guarantee an outcome, or is there something more going on here?  BZ: Fundamentally and obviously by definition you get a policy that covers some risk, so in that sense, you know undeniably it's risk shifting…I focus on what it's actually doing, which to me is really enabling law firms' clients, funders to finance this asset class more effectively…I look at it as financing, not necessarily just as a pure risk shifting exercise. Then, you might think about perhaps alignment of interest in some sense between funders and lawyers. RB: What are the markers of a case or portfolio that insurers look for when determining whether or not to provide insurance?  SK: We already talked about motivation and how crucially important that is. And, how we really need to kind of suss out whether there is any sort of adverse selection going on, which is usually pretty easy for our team at Aon. With respect to other considerations, on a single case judgment preservation insurance, for example, we are really looking at three things: One, likelihood of being affirmed. Two, likelihood of damage award reduction, and then if so, where damages may be reduced to. And then third, what is likely to happen in the case, both with respect to liability and with respect to damages, if the case gets remanded by the Appellate Court for a new trial. You can view the entire panel discussion here.

6th Annual LF Dealmakers Forum Announces Agenda

LF Dealmakers has announced the agenda for its 6th Annual LF Dealmakers Forum, which promises to cover all the latest developments and trends affecting the litigation finance industry. The event, which will return to NYC on September 26-28, will include topics such as ‘Rise of an Asset Class: Demystifying a Growing Secondaries Market’, ‘Opportunities at the Intersection of Funding, Mass Torts & ABS’, and ‘The Great Debate: Trust & Transparency in Litigation Finance’. Bringing together 275+ senior executives from across the litigation finance market, the LF Dealmakers Forum will include interactive sessions, a pre-event workshop on mass torts and funding, as well as a multitude of one-to-one meetings and networking events. Last year’s speaker roster included C-suite executives and thought leaders from the top funders, law firms and insurers at the heart of the US litigation funding industry. As the capacity is limited and following a sold-out 2022 event, Dealmakers encourages prospective attendees to register soon and is offering a $200 discount to those who register their place before July 18.  The sponsors of the 2023 LF Dealmakers Forum include Aon, CAC Speciality, Fabricant LLP, Longford Capital, and X Social Media.

Canadian Litigation Funding Market Has Strong Potential Despite Ongoing Challenges

Litigation funding continues to see wider adoption by claimants in a variety of disputes, however, there are jurisdictions that have yet to fully embrace third-party funding. One such country is Canada, where despite a supposedly favourable legal system and few major barriers to entry, we have not yet seen the meteoric growth visible in other jurisdictions such as the UK, US and Australia. An article in Commercial Dispute Resolution (CDR) examines Canada’s litigation funding industry, tracing its origin back to the funding of individual accident claims in the early 2000s, before the emergence of a wider market after the Hobsbawn v ATCO case in 2009. CDR notes that since then, we have seen the emergence of a small core of funders operating in Canada, including the likes of Bridgepoint, Omni Bridgeway and Nomos Capital. When looking at what factors are restricting the Canadian market’s growth, the ‘loser pays’ doctrine appears to be a prominent issue, along with the availability of public legal funding for group actions such as the Ontario Class Proceedings Fund.  Bridgepoint’s John Rossos highlights that ‘in the UK, litigation funders look for scenarios where ATE insurance is available” to offset the risk of adverse costs, compared to Canada, where such insurance products are relatively novel. Rossos suggests that there is still plenty of potential for the industry to grow, stating that “if we have a more developed ATE market and clearer rules governing litigation finance then that will stimulate greater funding.” Andrew Wilson KC of JSS Barristers highlights that due to the relative immaturity of the Canadian industry, “there is not as much competition as we would see in other jurisdictions, therefore pricing is not as efficient, and it is possible that funding for more complex and esoteric cases might not be available.” However, he believes that once more funders enter the market we will see “the cost come down, availability go up, and more tailored funding become more available.”

Plaintiff Voluntarily Reveals Third-Party Funding in Patent Lawsuit

Discussions around disclosure of litigation finance are now becoming a weekly occurrence, spurred on by developments in cases and rulings from courts across the US. However, whilst most of these discussions revolve around disclosure that is requested by defendants or ordered by the court, one patent infringement lawsuit has demonstrated that disclosure can also happen voluntarily. An article in Bloomberg Law highlights the case of SilcoTek Corporation v. Waters Corporation in Delaware, which saw the plaintiff voluntarily share the involvement of a third-party funder in its lawsuit. SilcoTek revealed that its lawsuit had received financial backing from Omni Bridgeway, but declined to specify the amount of capital provided due to its non-disclosure agreement with the funder.  Geoff White, SilcoTek’s general counsel, explained that this move is in line with SilcoTek’s business philosophy: “We are extremely open internally, and we’re frankly extremely open externally.” Despite the oft-quoted criticism that funders exert undue control on the litigation process, White rebuffed the idea that Omni Bridgeway was controlling the litigation, stating: “They are definitely not in control. They allow us to make all decisions.” Whilst Omni Bridgeway reportedly discussed the potential risks of disclosure with SilcoTek, such as the defendant exploiting it for unnecessary and costly discovery, the funder supported SilcoTek’s decision to disclose the information. Matt Harrison, co-chief investment officer at Omni Bridgeway, emphasized that the funder was not concerned about dealing with further discovery requests, as he believes that “the courts are pretty uniform in their rejection of this as discoverable information.”

Malaysian Prime Minister Threatens Legal Action Against Sulu Case Claimants, Arbitrator and Funder

As LFJ reported recently, one of the unique and high-profile cases of litigation funding being used in a case against a national government has taken another turn, as a Paris court ruled in favour of the Malaysian government and against the heirs to the Sultanate of Sulu. The ruling’s announcement was swiftly followed by rhetoric from the government that it would pursue punitive action against the plaintiffs and associated parties, which has once again increased in intensity. Reporting by The Malaysian Reserve reveals that Anwar Ibrahim, the Prime Minister of Malaysia, informed parliament that the government would take legal action against those who supported or collaborated with the Sulu claimants. Of particular note was his reference to third-party funding, stating that the government “will also continue to oppose any form of financing by third party litigation funders who support the abuse of the process initiated by those making the claims.” In his remarks, the Prime Minister explained that the Royal Malaysia Police (PDRM) were already investigating the individuals who brought the claim, the arbitrator and other parties connected to the claim ‘under Section 124K of the Penal Code for the offense of sabotage.’ Referencing the initial arbitral award that is now likely to be overturned by the Paris court, Prime Minister Ibrahim argued that all the awards had violated the core principles of ‘diplomatic immunity, jurisdictional immunity and sovereignty.’

Burford Capital Reports First Quarter 2023 Financial Results

Burford Capital Limited ("Burford"), the leading global finance and asset management firm focused on law, today announces its unaudited financial results at and for the three months ended March 31, 2023 ("1Q23").1 Burford's report on Form 6-K for 1Q23, including unaudited condensed consolidated financial statements (the "1Q23 Quarterly Report"), is available on the Burford Capital website at http://investors.burfordcapital.com. Christopher Bogart, Chief Executive Officer of Burford Capital, commented: "We saw continued positive momentum in the first quarter of 2023 in the progression of our portfolio as court activity and legal processes further normalized in the aftermath of the Covid-19 pandemic. The breadth of the case activity pick-up was reflected in capital provision income, excluding our YPF-related assets, more than doubling to $185 million compared to 1Q22, comprising almost a sixfold increase in realized gains and 41% growth in unrealized gains. Fair value gains arising from the favorable summary judgment ruling in our YPF-related assets contributed to an extraordinary first quarter for total revenues, driving growth in capital provision income of 238% to reach nearly $500 million. As an indicator of ongoing portfolio activity, an additional 12 case milestones have occurred since our May 16 update when we had observed 28 milestones and expected 61 more through the remainder of the year." 1 All 1Q23 figures in this announcement are unaudited and presented on a consolidated basis in accordance with the generally accepted accounting principles in the United States ("US GAAP"), unless otherwise stated. Definitions, reconciliations and information additional to those set forth in this announcement are available on the Burford Capital website and in the 1Q23 Quarterly Report (as defined above). In addition, Burford applied its revised valuation methodology for capital provision assets to its unaudited condensed consolidated financial statements at March 31, 2023 and for the three months ended March 31, 2023 and 2022 included in this announcement. As Burford has not previously issued quarterly financial statements, its unaudited condensed consolidated financial statements for the three months ended March 31, 2022 are not technically restated. 1Q23 highlights New business Group-wide new business
  • New commitments of $165 million, up 102% compared to 1Q22 (1Q22: $82 million)
  • Deployments of $129 million, up 1% compared to 1Q22 (1Q22: $128 million)
Burford-only capital provision-direct assets, representing assets capable of generating highest profits for our equity shareholders
  • New commitments of $101 million, up 130% compared to 1Q22 (1Q22: $44 million)
  • Deployments of $67 million, up 29% compared to 1Q22 (1Q22: $52 million)
Portfolio and liquidity
  • Group-wide portfolio grew to $6.6 billion at March 31, 2023 (December 31, 2022: $6.1 billion), due to significant fair value gains but also new deployments and undrawn commitments
  • Broad pick-up in portfolio activity, with capital provision income, excluding the YPF-related assets, more than doubling to $185 million compared to 1Q22
    • 464% increase in realized gains and 41% increase in unrealized gains compared to 1Q22
  • Fair value gains arising from the favorable summary judgment ruling in the YPF-related assets contributed to an extraordinary first quarter for total revenues
    • Burford-only carrying value of the YPF-related assets (both Petersen and Eton Park) increased to $1.0 billion at March 31, 2023 (December 31, 2022: $823 million)
  • Cumulative ROIC since inception from Burford-only capital provision-direct assets of 89% (December 31, 2022: 88%) and IRR of 29% (December 31, 2022: 29%)
  • Burford-only cash receipts of $97 million, up 66% compared to 1Q22 (1Q22: $59 million)
  • Burford-only cash and cash equivalents and marketable securities of $183 million at March 31, 2023 (December 31, 2022: $210 million)
    • Due from settlement of capital provision assets decreased 14% to $99 million at March 31, 2023 (December 31, 2022: $115 million, of which 17% was collected in cash in 1Q23)
Income
  • Total revenues increased 209% to $381 million (1Q22: $123 million), represented by a higher level of case activity and portfolio progression, including $192 million of fair value gains, net of third-party interests, in the YPF-related assets and $185 million of capital provision income excluding the YPF-related assets
  • Burford-only capital provision-direct realizations of $64 million (1Q22: $21 million) and realized gains of $36 million (1Q22: $10 million), with a single matter generating a realized gain of $27 million
  • Burford-only annualized capital provision-direct realized loss rate of 0.9% of average portfolio at cost in 1Q23 (2022: 1.0%)
  • Operating income increased 252% to $327 million (1Q22: $93 million), with significant growth in capital provision income compared to 1Q22, partially offset by third-party interests in the YPF-related assets fair value adjustments and higher total operating expenses due to increases in non-cash accruals in light of the positive performance of Burford's share price, the increase in the carrying value of the YPF-related assets and the increase in the carrying value of a legacy asset recovery matter
  • Net income attributable to Burford Capital Limited shareholders increased 361% to $259 million (1Q22: $56 million)
Net income per ordinary and diluted share of $1.17 (1Q22: $0.25)
Read More

Stonward joins The European Litigation Funding Association (ELFA)

The European Litigation Funding Association (ELFA) is very pleased to announce that Stonward, a litigation funder focusing on Spain and Latin America, has joined ELFA, as the association now builds towards becoming the collective voice of the European Litigation Funding Industry. Guido Demarco, Director and Head of Legal Assets of Stonward, explained why it was important for the funder to become part of ELFA: “we are thrilled to announce our membership in the European Litigation Funding Association (ELFA), marking a significant milestone in our journey as a litigation funder based in Spain. Joining ELFA aligns perfectly with our commitment to excellence and the pursuit of justice within the legal industry.” Demarco added, “as a member of ELFA, we are eager to collaborate with like-minded professionals and industry leaders from across Europe. By uniting our strengths and expertise, we aim to drive positive change, foster transparency, and promote the highest standards of ethical litigation funding practices. Through our membership, we seek to contribute to the development of the litigation funding ecosystem in Spain and the broader European market, while raising awareness about this legal tool among legal experts and company managers. We believe that by working closely with ELFA, we can actively shape the future of litigation funding, advocate for its recognition as a valuable tool for access to justice, and support the growth of fair and effective dispute resolution mechanisms.” Deminor Partner and ELFA Board Member, Charles Demoulin, highlighted how pleased he and the other founding members of ELFA were, to welcome Stonward to ELFA: “My co-founders and I established ELFA established to serve as the European voice of the commercial litigation funding industry and we are immensely proud to start now welcoming on board funders from around Europe who are also keen to play a part in shaping the direction of the industry. We are extremely pleased to announce that Guido Demarco and Stonward are full members of ELFA and look forward with enthusiasm to their future contributions.” ELFA was founded by three leading litigation funders with a European footprint including Deminor, Nivalion AG, and Omni Bridgeway Limited. ELFA's current directors are Charles Demoulin (Chief Investment Officer, Deminor); Marcel Wegmüller (Co-Founder and Co-CEO, Nivalion AG); and Wieger Wielinga (Managing Director EMEA Omni Bridgeway), who will serve as ELFA's inaugural Chairman. The intention of the association is to be inclusive for all professional litigation funders of larger or smaller size. Demarco further explained what he and Stonward are keen to achieve by being members of ELFA: “our core focus remains on the Spanish market, however, we recognize the importance of collaboration and exchange of knowledge at a European level. By participating in ELFA's initiatives, events, and working groups, we intend to stay at the forefront of industry trends, legislative changes, and emerging best practices. This will enable us to better serve our clients, enhance our risk management capabilities, and further strengthen our commitment to providing tailored and innovative funding solutions. We are excited about the opportunities that lie ahead and the doors that our membership in ELFA open for all of us. Together with other fellow members, we are committed to advancing the field of litigation funding, fostering a culture of integrity, and ensuring access to justice for all.”  About ELFA: ELFA was founded by three leading litigation funders with a European footprint including Deminor, Nivalion AG, and Omni Bridgeway Limited. ELFA's current directors are Charles Demoulin (Chief Investment Officer, Deminor); Marcel Wegmüller (Co-Founder and Co-CEO, Nivalion AG); and Wieger Wielinga (Managing Director EMEA Omni Bridgeway), who will serve as ELFA's inaugural Chairman. The intention of the association is to be inclusive for all professional litigation funders of larger or smaller size. About Stonward: Stonward began operations in 2020, offering bespoke solutions to access legal finance, providing clients with access to capital for commercial litigation and arbitration, focusing on Spain and Latin America. Stonward advises clients to find the angle to their legal assets so that they can capitalize on strengths, offering tailored solutions to access legal finance. Stonward manages a portfolio of claims related to commercial cases, intellectual property, restructuring and insolvency, and antitrust infringements, including the truck cartel. In addition to Guido Demarco, Director and Head of Legal Assets, other key members of Stonward include, Armando Betancor, Blas González, and Chris Garvey, [members of the Board of Investments], and Rodrigo Olivares-Caminal, and Eduardo Frutos, who are Corporate Advisors to the company.
Read More

What is a better investment, Commercial or Consumer Legal Funding? (2 of 2)

Executive Summary
  • Consumer legal funding is a much more consistent and predictable asset class
  • Headline risks, while real in the earlier days of the industry’s evolution, are now consistent with more mature consumer finance asset classes
  • Consumer legal funding has a strong ESG component through the social benefits provided to the segment of society that relies on it the most
Slingshot Insights:
  • On a risk-adjusted basis, factoring in volatility and predictability of returns, the pre-settlement advance industry outperforms the commercial legal finance industry
  • Duration predictability, return rates and loss rates are the main factors for out-performance
  • Investors would be mistaken to overlook the consumer legal finance market in assessing various non-correlated investment asset classes
  • As with any asset class, manager selection is critical to investment success
In part 1 of this article, I provided some background on the consumer litigation finance market, with a focus on the pre-settlement advances sub-sector which is the largest segment of the consumer legal finance market.  Part I also discussed how the market has regulated, evolved and bifurcated. In the second part of this two part series, I discuss the underlying economics of the pre-settlement advance subsegment, the status of regulation and some thoughts on how the market continues to evolve and why institutional investors are increasingly getting involved. Underlying Economics One of the first research reports that attracted me to the PSA market was a 2018 study that was undertaken by Professors Ronen Avraham and Anthony Sebok entitled “An Empirical Investigation of Third Party Consumer Litigant Funding”.  It was the first large scale empirical study of consumer legal funding in the United States which analyzed over 100,000 funding requests over a 12-year period provided by one of the largest consumer legal funders in the US.  While the analysis was inherently skewed because it came from a single funder, the large size of the data set is likely representative of the broader market, and hence many of the insights highlighted by the authors are likely true of the broader market to one degree or another, with certain insights being specific to the funder and its approach. Without going into the details of the report (see highlights below), suffice it to say the report demystified much of the industry and debunked many of the criticisms that were levelled at the industry by naysayers and those with an economic incentive to ensure the industry was not successful. Perhaps “lying” is a bit harsh, but there were certainly many distortions being promulgated about the industry that were neither present in the data nor a reflection of the specific funder’s business. Source: https://www.americanlegalfin.com/alfaresources/ On the plus side, the research discovered that while loss rates were relatively high at 12% (again, possibly a consequence of the risk & return threshold of this particular funder) there were numerous instances of the funder taking “hair cuts” (i.e. reducing their accepted returns to below contracted levels) for the benefit of the consumer.  In other words, the funders ‘have a heart’ and will proactively reduce their return expectations to leave the injured party in a position that is more equitable than if they stuck to their contracted terms.  On the negative side, the net return profile was 44% per annum, which suggests that even after losses and “hair cuts” this is an expensive form of financing. Keep in mind, this study was over a 12-year period prior to 2018, and the rates today are likely not as high as they were in the beginning of the industry due to competition and regulation. A second explanation for the relatively high rates is that depending on the funder’s risk profile, the funder may be willing to take on more risk (i.e. accept more losses) than another funder in return for a higher rate of interest. Whereas another funder may be more conservative and have stricter underwriting standards, accepting fewer cases and lower loss rates, but also charging lower rates of return. Also keep in mind that given how litigious a society the US has become, we must appreciate that inherent in the personal injury system is a higher level of frivolous claims than you might fund in other jurisdictions which could also explain a higher loss rate. For me, this report legitimized (i) the need for, and societal benefits of, this form of financing, (ii) the size of the total addressable market, and (iii) that the competitors in this market (while likely earning an oversized return in the early days of the industry) were flexible with consumers and willing to forego returns to make the outcome fair for all interested parties. In other words, it appeared the market was functioning similar to other consumer-facing finance markets. Benefits of Diversification, Loss Rates & Durational Certainty As I looked at the PSA market, I looked at it through the lens of both the private equity market and the commercial legal finance (CLF) market, and there a few notable differences that make this a more attractive market than commercial legal finance.  First, the portfolios inherent in many funders’ businesses are highly diversified.  With an average financing size of $3,000, there are hundreds to thousands of claims in any given portfolio.  With diversification comes stability, and with the inherent low overall loss rates comes a predictability of returns – all music to the ears of an investor. The one significant problem that appears to be persistent in the commercial legal finance market is the prevalence of overly concentrated portfolios and high concentration limits within fund documents. The consequence of high concentration is high volatility, and that is exactly what is present in most CLF portfolios, hence the increasing need to apply expensive insurance.  The other issue for most CLF investments is uncertainty about duration. The personal injury legal market is fairly predictable from a timing perspective, and because the financing is interest rate based (as opposed to tied to a fixed multiple of capital), time is not your enemy (with some exceptions) from an investor’s perspective. CLF on the other hand is very unpredictable from a duration perspective, varying from months to several years. As many commercial funding contracts cap returns to a multiple of drawn capital, time is initially your friend but ultimately your enemy. The unpredictable nature is the bane of the existence for publicly listed commercial legal finance firms, as their shareholders want predictable case outcomes generating predictable returns and cashflows, but the portfolios are inherently unpredictable, and so many times the public shareholders are disappointed. Accordingly, their inherent cashflow volatility prevents their stock prices from reflecting true value (said another way, their stock prices reflect the true value of their businesses after adjusting for the unpredictability of their cashflows). The PSA market, on the other hand, is very predictable, which is why it has been able to obtain risk ratings and thereby attract conservative institutional capital at a relatively low cost of capital.  As an investor, I would take a stable 10-15% return all day along in the face of a volatile return profile in the CLF market that can vary from -10% to +30%. They may (emphasis on “may”) both average out to the same return over the long run, one just allows you to sleep much better at night. Similarly, from a business owner’s perspective, stable and predictable returns will always be more highly valued than volatile returns, and so as a business owner, you are significantly better off aiming for predictability for a given return profile.  In addition, this will allow business owners to create equity value that they can later monetize through the sale of their business, which is something CLF managers will have difficulty doing due to the volatility of their portfolios. Regulation Another aspect of an industry’s underlying economics is the consistency of the regulatory regime and the potential impact changes in regulations could have on the industry and its economics. On this item, there was less certainty at the time I made my first investment, but as time has progressed, it is clear that more and more states are considering or implementing new regulations for the PSA industry. Legal doctrines of champerty and maintenance are generally being set aside, but not always. Some states view PSA as loans, and hence subject to usury limitations, whereas other states have determined they are not loans because they are non-recourse other than to the outcome of the case, which precludes them from the definition of loans. Some states, like West Virginia, have placed onerous interest rate limitations which have essentially decimated the industry, whereas others have put in place more reasonable limitations.  Some states have come out against PSA and others believe it is a necessary part of a functioning economy and supportive of individual rights (Minnesota is still ruling on whether funding is a loan). The Consumer Finance Protection Bureau (CFPB) has been monitoring the PSA market since 2011, but it is not quite clear whether they have the authority to regulate the industry and attempts by the CFPB to do so have been rebuffed for the most part – the key distinction seems to be whether these are recourse loans or non-recourse advances. The first is a loan product arguably under the purview of the CFPB, and the second is not contemplated under the CFPB’s mandate. It appears to date the CFBP has only pursued post-settlement lenders and structured settlement providers, which are a different part of the consumer market. Today, regulatory risk remains in the market as most states have not contemplated or implemented regulations, but no different than the payday loan market, done properly and without undue influence from interested parties but in the context of the market’s economic reality and keeping consumer rights in mind, a regulated marketplace brings stability to the market and standards that are ultimately beneficial for consumer and market participants who rely on stability. A ’Feel Good’ Asset Class Beyond the hard numbers, the risk profile and the cash-on-cash returns, lies the “feel good” nature of this asset class, which is what attracted me to the commercial legal finance market.  For all of the headline risk and the early profiteering that happens in every industry, PSA is a necessity in the market and becomes increasingly important as our societies become further economically stratified and the middle class continues to thin. Despite its costs, and there are good economic reasons for its cost (within reason), it provides a strong societal benefit to allow those whose lives have been turned upside down as a result of an accident that has had health (mental & physical), financial and personal costs that most of us cannot imagine. The industry represents a ‘ray of hope’ for someone who may have lost hope due to their circumstances.  I would posit that the industry itself is not predatory (although I will admit there are profiteers), but in fact is a tool to be used against the predatory insurance companies who are not being held accountable by state regulators because it is impossible for the regulators to respond to every single personal injury claim.  If nothing else, insurance is designed to help the injured and the remediation should be swift and commensurate with the financial damage.  Having to wait 3-4 years for a settlement outcome and pay out of pocket for hospital bills is anything but swift or commensurate, and is merely a tactic by insurance companies to benefit from the time value of money (i.e. a dollar today is worth less in a year’s time).  Investors can take comfort in the fact that funders do not pursue frivolous claims because the risk/reward of doing so upsets the predictability of the industry’s cashflows. Then there are Environmental, Social & Governance (ESG) considerations….  In a world full of ‘ESG washing’, legal finance is perhaps one of the most ESG compliant asset classes that exist.  The underlying nature of the claim is rooted in justice, and pre-settlement advances allow for justice to prevail by leveling the playing field between the impecunious injured party and the wealthy insurer with time, money and lawyers at their disposal. The social benefits of litigation are clearly in good alignment with investing in those activities that have a positive impact on society, even if imperfect.  As strong as the ESG characteristics are in the commercial legal finance markets, they are even stronger in the PSA market because the impact is measurable and directly impacts an individual’s life.  All one has to do is review some of the industry testimonials to understand the impact this form of financing can have on one’s life, and there are tens of thousands of examples of this impact occurring on a yearly basis. As investors consider the headline risk, they should also give weight to the ESG benefits of the asset class. PSA Today While many facets of the PSA market look similar today to what they were at inception, underneath the exterior is a tale of two worlds. From a competitive perspective, there is a segment of the market that has clearly positioned themselves as market leaders and have achieved a level of scale and efficiency that has allowed them to tap into the most conservative and sophisticated levels of capital, in part due to an overall low risk profile and in part due to being strong operators. From a regulatory perspective, this industry will likely be regulated at the state level and that regulation is well underway. I would expect by the end of this decade a majority of states will have some form of regulation or guidance in place and by the end of next decade most, if not all, will. From a competitive perspective, we are now seeing some level of consolidation as some of the larger players are starting to acquire competitors either to bulk up their own operations or to expand into adjacent markets like medical receivables/liens.  Regulatory standards will force all market participants to behave appropriately and will generally raise the standards in the market for the benefit of funders and consumers. From a funding perspective, we will continue to see larger funders tap the securitization market for relatively inexpensive financing, or to align themselves with captive sources of financing from institutional investors.  In other words, as much as the industry has changed in the last two decades, we should expect to see a similar level of change going forward, but we should never lose sight of the end consumer and the benefits it brings to their lives. After all, someone needs to counter the vast resources of the insurance companies, which left unchecked, will silently inflict damage upon individuals and their families. Slingshot Insights  I have often wondered why institutional investors quickly dismissed the consumer legal finance asset class solely due to headline and regulatory risk.  I came to the conclusion that the benefits of diversification are significant in legal finance, and so this factor alone makes consumer legal finance very attractive.  Digging beneath the surface you will find an industry that is predicated on social justice (hence, strong ESG characteristics), and while there has and continues to be some bad actors in the industry, there has been a clear bifurcation in the market with the ‘best-in-class’ performers having achieved a level of sophistication and size that has garnered interest from institutional capital as evidenced by the large number of securitizations that have taken place over the last few years (7 by US Claims alone).  This market has yet to experience significant consolidation, and recent interest rate increases have likely had a negative impact on smaller funders’ earnings and cashflow, which may present an impetus to accelerate consolidation in the sector. As always, I welcome your comments and counter-points to those raised in this article.  Edward Truant is the founder of Slingshot Capital Inc. and an investor in the consumer and commercial legal finance industry.  Slingshot Capital inc. is involved in the origination and design of unique opportunities in legal finance markets, globally, investing with and alongside institutional investors. Disclosure: An entity controlled by the author is an investor in the consumer legal finance sector.
Read More

California District Court Denies Funding Disclosure Request in Netflix Patent Infringement Case

The battle between disclosure and confidentiality in patent infringement litigation rumbles on, as courts across the US are now seeing frequent requests for mandated disclosure of third-party funding details, spurred on by court orders in Delaware. However, the proactive position of Judge Colm Connolly in Delaware has not automatically reshaped the landscape for all patent lawsuits in the country, as just last month a California district court denied a request for disclosure of information regarding the plaintiff’s litigation funding. In a post for Patent Lawyer Blog, Stanley M. Gibson, partner at Jeffer Mangels Butler & Mitchell, provides analysis on the recent ruling from the Central District of California in the case of GoTV Streaming, LLC v. Netflix. As the defendant in the case, Netflix had filed a motion to compel GoTV Streaming to reveal documents relating to its third-party funding, arguing that these were relevant to the case due to the potential that any funding might create conflicts of interest or affect the financial dynamics of the lawsuit and any potential damages awards. Gibson notes that the court recognized that the documents had potential relevance to the case, but emphasized that the possibility of any impact on the litigation was not enough on its own to compel disclosure, if the defendant did not have any evidence of improper conduct by the plaintiff. In its ruling, the court stated that Netflix had failed to “show that the litigation funding related materials contain relevant material” and had “not shown a substantial need for the documents.” Gibson points out that this ruling may have an impact on future rulings regarding funding disclosure in both California and potentially other jurisdictions. He concludes his analysis by stating that: “This ruling reinforces the principle that third-party funding arrangements, while potentially relevant, should not automatically lead to disclosure without a compelling justification.”

CAT Rejects Applications for CPOs in Mastercard/Visa Claims

The UK’s collective actions regime under the Competition Appeal Tribunal (CAT) has been cited as a positive catalyst for litigation funders in the UK, bringing new opportunities to fund consumer-led actions against major corporations. However, this does not mean that all claims brought before the CAT will have their requests for collective proceedings granted, as the CAT has once again demonstrated last week. In a judgement published by the CAT on June 8th, the Tribunal’s three-person panel unanimously rejected four applications for Collective Proceedings Orders (CPOs) being brought against Mastercard and Visa on behalf of businesses. The four claims, which included an opt-in and an opt-out claim against each defendant, are being led by Harcus Parker and have received litigation funding support from Bench Walk Advisors. The claims focused on allegations that Visa and Mastercard had overcharged businesses through their unlawful and anti-competitive use of Multilateral Interchange Fees (MIFs). In the CAT’s ‘conclusion and disposition’ section of the judgement, the panel stated that the claims in their current form “do not meet the requirements set out in the CA 1998, the Rules and the case law to bring forward coherent proposals and to show a practical way forward to develop evidence to take the case to trial.” Among the various reasons laid out for rejecting the CPO applications, the panel stated that “the PCRs (Proposed Class Representatives) have exhibited a casualness about the methodology requirement which is concerning.” However, despite Mastercard and Visa’s arguments that the PCRs should not be given further time to revise their proposed proceedings, the CAT has proposed an eight week extension for the PCRs to notify the Tribunal “whether they intend to attempt to address our concerns by making adjustments to any of the proposed proceedings”. In the closing statement from the judgement, the CAT emphasized that “any revised proposed proceedings which the PCRs wish to present in response to the invitation above will need to overcome a number of hurdles in order for CPOs to be granted.”

Maximizing Claimant Success: Harnessing the Synergy of Litigation Funding and Litigation Insurance

“The emergence of legal insurance products has been a game changer in allowing both clients and law firms to lock in judgments, ring fence potentially deleterious outcomes, and provide for certainty where uncertainty used to be the rule.” - Ross Weiner, Legal Director at Certum Group  Uncertainties abound in today's complex legal landscape, leaving individuals and businesses vulnerable to the high costs associated with legal disputes. A pair of innovative solutions–litigation funding and litigation insurance–have emerged as powerful tools that, when utilized in tandem, can offer peace of mind to those involved in legal proceedings. In this article, we delve into the benefits inherent in synergizing these two forms of financial assistance, exploring the various types of litigation insurance, the individuals and entities that benefit from these products, and the numerous advantages they bring to the table.  Types of Litigation Insurance Products Below are popular forms of litigation insurance: 
  • After-the-Event (ATE) Insurance: ATE insurance policies are designed to protect litigants against the opposing side’s costs and expenses, should the claimants fail to win their case. It is typically purchased by plaintiffs, though some insurers do issue ATE insurance to defendants. These policies typically cover adverse costs, including the opponent's legal fees and disbursements. ATE insurance is purchased after the event which prompts the claim, but before the legal proceeding initiates (the closer to the start of the proceeding, typically the more expensive ATE insurance becomes). As ATE insurance protects against an adverse costs award, it is not applicable in the United States, which does not have a cost-shifting regime in place (except in extremely rare circumstances). 
  • Before-the-Event (BTE) Insurance: BTE insurance, also known as legal expense insurance, offers coverage for potential legal costs before a dispute arises. This product provides coverage for legal expenses in various scenarios, such as personal injury claims or contract disputes. 
  • Judgement Preservation Insurance (JPI): JPI is exactly as it sounds–insurance that protects a claim or group of claims which have already received judgements. JPI is very straightforward, and essentially meant to be a math problem: If your judgment is X, and you receive Y, the insurer will cover the difference or a portion thereof. As such, documentation is minimal, with fraudulent activity being the primary exclusion inserted into the agreement.  According to Stephen Kyriacou, Jr., Managing Director and Senior Lawyer at Aon: “Judgment preservation insurance can be used for more than simply mitigating appellate risk. Judgment holders have used it to accelerate the recognition of judgment-related gains in their earnings, to monetize judgments while appeals are still pending, and even to convert more expensive unsecured debt into less expensive debt secured by the policy, since the policy effectively guarantees a minimum recovery so long as there is no collection or enforcement risk associated with the judgment.”
  • Litigation Funding Insurance: Litigation funding insurance is a specialized form of coverage designed to protect litigation funders, who provide financial support to claimants in exchange for a share of the proceeds, if the case is successful. This insurance safeguards funders against the risk of losing their investment in the event of an unsuccessful outcome. It provides critical protection against adverse cost orders and helps to minimize the financial risks associated with funding litigation. Stephen Kyriacou explains: “It has been a years-long challenge persuading certain insurers to consider insuring litigation finance-related risks, but we’ve seen recently that insurers have become much more willing to consider high-quality risks from funders when all parties work together to creatively structure coverage and properly align interests and incentives. As more insurers continue to come around to the idea of insuring funders over the coming years, the litigation and contingent risk insurance market will continue to grow, and even more value-creating solutions will become available to litigation finance firms.”
  • Portfolio Insurance: Portfolio insurance, also known as litigation risk portfolio insurance, is a comprehensive solution that covers multiple litigation cases within a portfolio. This type of insurance allows law firms, corporations, or litigation finance companies to spread the risk across a range of cases, reducing their exposure to any individual matter. Portfolio insurance offers cost predictability and stability, enabling stakeholders to manage their litigation risks more effectively and allocate resources strategically.
There have been other ancillary uses of insurance, such as when one firm looks to purchase the docket of another firm’s cases, or to insure a portfolio of IPs that have an associated value. As the Insurance and Litigation Funding industries continue to become intertwined, expect more bespoke products to emerge.   Users of Litigation Insurance Products There are three typical users of litigation insurance products: 
  • Individual Litigants: Individuals involved in legal disputes, such as personal injury claims or family law matters, can benefit from litigation insurance products. ATE and BTE insurance provide financial protection, enabling individuals who seek justice without the fear of exorbitant legal expenses.
  • Businesses and Corporations: Litigation can pose significant financial risks for businesses and corporations, diverting resources from core operations. Litigation insurance products help shield companies from the potentially crippling costs associated with commercial disputes, professional negligence claims, or intellectual property conflicts.
  • Law Firms: Law firms can also benefit from litigation insurance products. By offering these products to their clients, law firms enhance their value proposition, differentiate themselves in the market, and provide an additional layer of protection to their clients.
Benefits of Litigation Insurance Products The benefits of utilizing litigation insurance are clear-cut: 
  • Cost Mitigation: Litigation insurance products alleviate the financial burden associated with legal disputes. They cover legal costs, including solicitor fees, expert witness expenses, court fees, and opponent's costs, reducing the financial risks for litigants and providing access to justice for those who might not have the means otherwise.
  • Risk Management: Litigation is inherently uncertain, with outcomes dependent on various factors. Litigation insurance acts as a risk management tool, providing litigants with the confidence to pursue their case knowing that their financial interests are protected. It enables litigants to make informed decisions based on the merits of their case rather than financial constraints. 
  • Enhanced Negotiation Power: Litigation insurance empowers litigants during settlement negotiations. With insurance coverage in place, litigants can approach negotiations from a position of strength, knowing that they have the financial resources to endure protracted litigation. This can lead to more favorable settlement outcomes and increased bargaining power.
  • Access to Justice: Perhaps one of the most significant benefits of litigation insurance is its role in ensuring access to justice for individuals and businesses. By removing financial barriers, these products level the playing field and enable litigants to pursue their legal rights, even against well-funded opponents.
Litigation funders understand the ‘access to justice’ problem quite well. Litigation insurance further contributes to the democratization of our legal system by ensuring that even if the claim is unsuccessful, claimants are protected from the potentially crippling costs of litigation. This assurance encourages claimants who may be otherwise deterred by the financial risks associated with litigation to pursue their claims with confidence. Consequently, the collective impact of litigation funding and insurance is an increased participation of claimants, a broader range of cases being pursued, and a more inclusive legal system. As Rebecca Berrebi, Founder and CEO of Avenue 33 points out, "The increased availability of insurance has enhanced the options available to claimants and law firms when it comes to protecting the downside of litigation. Only time will tell whether or not the litigation-focused products offerings will remain cost-effective additives to litigation finance." Litigation Funding & Litigation Insurance Litigation insurance products have emerged as valuable tools in the legal landscape, offering financial protection and peace of mind to those navigating the complexities of litigation. Whether individuals seeking justice, businesses guarding against commercial risks, or law firms enhancing their service offerings, litigation insurance provides a range of benefits.  Similarly, litigation funding affords plaintiffs the opportunity to see their case to fruition, when there might otherwise be no avenue for remuneration. By combining litigation funding and litigation insurance, claimants gain access to a tailored financial solution that meets their specific needs. Each claim has unique financial requirements, and the flexibility of these tools allows claimants to structure a financial package that aligns with their case's dynamics. This synergy offers claimants the freedom to allocate capital as required, covering legal costs, expert fees, and other case-related expenses while safeguarding against the risk of adverse costs. As the demand for these products continues to grow, they will mature into an integral part of the litigation landscape, empowering litigants and transforming the dynamics of legal proceedings for years to come. According to Boris Ziser, Partner and Co-Head of Finance and Derivatives at Schulte Roth and Zabel: “The growth of insurance products for the litigation funding space can be a real game changer, impacting not only the cost of capital, but expanding the universe of investors able to add this sector to their portfolios.” By integrating these two solutions, claimants can significantly enhance their prospects for success while reducing financial risks. This harmonious approach not only levels the playing field between claimants and well-resourced opponents, but also promotes a fairer and more accessible legal system.
Read More

Texas Patent Infringement Defendant Requests Funding Disclosure, Citing Delaware Standing Order

For the last year, the conversation around patent litigation funding has been dominated by disputes over disclosure requirements, driven by the efforts by Delaware district judge Colm Connolly to increase transparency around third-party funding in these cases. The impact of these activities in Delaware are having a knock-on effect across the US, as demonstrated by a defendant in Texas asking the court to order the plaintiff to disclose details around its litigation funding. An article by Reuters covers the latest developments in the case of Lower48 IP LLC v. Shopify Inc in the U.S. District Court for the Western District of Texas, where Shopify has asked Judge David Ezra to force Lower48 to reveal its funding sources for the litigation. Lower48 had originally brought the lawsuit against Shopify in 2022, claiming that Shopify had infringed four patents concerned with the GraphQL query language.  Shopify’s lawyers emphasized the importance of the disclosure request, stating that unless the judge ordered the plaintiff to reveal its financial backers, “neither the court nor Shopify will know who the beneficiaries of this litigation are.” Shopify claimed that Lower48 is connected to IP Edge, an allegedly notorious non-practicing entity that has been involved in multiple patent infringement lawsuits. Shopify’s request is notable in its explicit citation of the standing order requiring disclosure of third-party funding, which was issued last year by Judge Connolly in Delaware.

Max Doyle Joins LexShares as New Chief Executive

As litigation funders continue to grow in a challenging economic environment, the importance of leadership and strategic vision for these businesses has never been more apparent. With the first half of 2023 nearing completion, one of the most established litigation finance companies has signaled its future vision with the announcement of its new chief executive. An article by Bloomberg Law shares the news that LexShares has appointed Max Doyle as its new Chief Executive Officer, with Doyle moving on from his position at Augusta Ventures where he led North American operations from Toronto. Doyle’s move to LexShares reflects his desire to focus on opportunities in North America, telling Bloomberg Law that his new position would allow him to do “something amazing”.  With LexShares reportedly hoping to close its third fund next year, Doyle emphasized the need to blend the firm’s long standing experience with a focus on the market’s evolving environment, stating that the new fund must have “enough DNA from the past, and comprise the types of cases that we’ve been known for.”  Whilst suggesting that the firm may focus on larger cases across a variety of areas in the future, Doyle suggested that mass torts would remain an active area for LexShares, stating that “it’s just one aspect of law, but it’s a particularly hot one at the moment.”