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Commercial Deals

Request for Funding in Irish Breach of NDA Case

A new request for funding by an Irish law firm seeks financing for commercial proceedings in the London High Court on behalf of a private company and two of its directors. The claim is being brought against an unnamed European Union state authority in relation to the alleged breach of a non-disclosure agreement which then led to the alleged theft of the plaintiff’s intellectual property. The EU state authority is reportedly one with “delegated responsibility for motorway infrastructure”, whilst the claimant’s intellectual property is described as “a patented micropayment solution”. The proposed defendants reportedly engaged in anti-competitive behavior and abused their power with regards to the “toll road collection business”, leading to the plaintiffs losing profits whilst the defendants gained. Interested parties should contact: doran@doranwotoole.com +353 1 204 2990 Doran W. OToole & Co Solicitors Bray Office County Wicklow Ireland
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Announcements Case Developments Commercial

Winshear Gold Commences Arbitration Proceedings Against the Government of Tanzania for the Expropriation of Its SMP Gold Project

Winshear Gold Corp. (TSXV: WINS) (‘Winshear’, the ‘Company’, or the ‘Claimant’), formerly Helio Resource Corp., provides the following update on the dispute with the United Republic of Tanzania (“Tanzania”) which is the subject of arbitration through the International Centre for Settlement of Investments Disputes (“ICSID”), a member of the World Bank.

The Company reports that the evidentiary hearing commences today in Washington D.C.. A three-person tribunal panel is presiding over the court hearings, which are expected to conclude on or before the close of business on Friday February 17th, 2023.

The ICSID Convention has been ratified by 158 States, including Tanzania. An award issued by an ICSID tribunal is enforceable in any one of those 158 member States as if it were a judgment of one of their own courts.

Winshear is represented by the international law firms LALIVE and Boies Schiller Flexner in the arbitration process. Both firms specialise in international arbitration with the Claimant seeking compensation of in excess of CDN$130M for the loss of its investment in Tanzania (including interest which continues to accrue). In addition, the Claimant seeks reimbursement of its arbitration costs and fees by Tanzania.

A litigation funding facility for US$3.3M is in place with Delta Capital Partners Management (“DELTA”), a firm out of headquartered in Chicago Illinois that specializes in litigation funding. This funding facility covers all legal costs associated with arbitration and is only repayable in the event of a successful award that is recovered from the United Republic of Tanzania.

Background to Claim

In July 2017, the Government of Tanzania amended the Mining Act 2010 by, inter alia, abolishing the Retention Licence classification. The Company’s SMP Mineral Resource was wholly contained within four Retention Licences.

On 10 January 2018, Tanzania published the new Mining (Mineral Rights) Regulations 2018, which cancelled all Retention Licences at which point they ceased to have any legal effect. The rights over all areas under Retention Licences, including the Retention Licences held for the SMP Gold Project, were immediately transferred to the Government of Tanzania.

During the time from January 2018 to December 2019, the Company actively engaged with the Tanzanian Ministry for Minerals and the Mining Commission in an effort to resolve a suitable tenure mechanism for the Project Licence to be reinstated, without success.

On 19 December 2019, the Mining Commission of Tanzania announced a public invitation to tender for the joint development of areas covered previously by Retention Licences. The invitation provided that the successful bidder should compensate the previous Retention Licence holder.

On 20 December 2019, the Mining Commission of Tanzania announced a revised public invitation to tender, which removed the condition that the successful bidder compensate the previous retention licence holder.

Through the measures described above, Tanzania has removed the ownership of the Project from the Claimant, and the Claimant alleges that Tanzania, in doing so, has breached its obligations to the Claimant under the Canadian-Tanzania BIT and international law. These include, but are not limited to:

  1. Tanzania’s obligation not to nationalise or expropriate the Claimant’s investments or subject them to measures having effect equivalent to nationalisation or expropriation without prompt, adequate and effective compensation under the BIT; and
  2. Tanzania’s obligation to accord fair and equitable treatment and full protection and security to the Claimant’s investment and not to impair by unreasonable or discriminatory measures the maintenance, use, enjoyment or disposal of the Claimant’s investment under the BIT.

Under the BIT the evidentiary hearing underway in Washington is being video recorded and will be made available to the public for review. Winshear will make this available to shareholders and the public on its website when it is available.

About Winshear Gold Corp.

Winshear Gold Corp. is a Canadian-based minerals exploration company advancing the Gaban Gold Project in the Puno region of Peru. Gaban is a possible hard-rock source for the modern-day alluvial gold rush underway in the Madre de Dios basin downstream.

The Company is in the process of concluding fully funded arbitration proceedings against the Tanzanian Government to recover its investment and damages for the expropriation of its SMP Gold Project in Tanzania.

For more information, please contact Irene Dorsman at +1 (604) 200 7874 or visit www.winshear.com

ON BEHALF OF THE BOARD OF DIRECTORS

“Richard D. Williams” Richard Williams, CEO

Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.

Cautions Regarding Forward-Looking Statements

This news release includes certain statements and information that may contain forward-looking information within the meaning of applicable Canadian securities laws. All statements in this news release, other than statements of historical facts, are forward-looking statements and contain forward-looking information.

Generally, forward-looking information can be identified by the use of forward-looking terminology such as "intends" or "anticipates", or variations of such words and phrases or statements that certain actions, events or results "may", "could", "should", "would" or "occur". Forward-looking statements are based on the opinions and estimates of management as of the date such statements are made and they are subject to known and unknown risks, uncertainties and other factors that may cause the actual results, level of activity, performance or achievements of the Company to be materially different from those expressed or implied by such forward-looking statements or forward-looking information, including the risks normally associated with arbitration cases. Although management of the Company has attempted to identify important factors that could cause actual results to differ materially from those contained in forward-looking statements or forward-looking information, there may be other factors that cause results not to be as anticipated, estimated or intended. There can be no assurance that such statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements. Accordingly, readers should not place undue reliance on forward-looking statements and forward-looking information. The Company does not undertake to update any forward-looking statements or forward-looking information that are incorporated by reference herein, except in accordance with applicable securities laws.

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Commercial Deals

Harbour Survey Shows UK Lawyers Are Eager to Launch New Firms

The legal sector is undergoing a period of dynamic change, with litigation practices experiencing high demand for their services, despite the strain placed on firms’ budgets amid global economic instability. New research suggests that experienced legal practitioners in the UK are now seeing opportunities to grow outside of the traditional system of legacy firms. The Law Society Gazette reports on a new survey produced by leading litigation funder, Harbour, which revealed that 50 percent of law firm partners interviewed are “seriously considering setting up their own practice.” The research commissioned by Harbour uncovered that this consideration of breaking away from their parent firms is being driven by a desire to gain independence, improve their working conditions, and retain a higher portion of profits. Harbour’s chief investment officer, Susan Dunn, stated that partners are attracted by the “flexibility and financial benefit” that is provided by launching their own outfit. Interestingly, this trend was not just seen among partners at the large household names of the legal industry but also among “smaller firms, and across the regions” of the UK.
Commercial

UK Legal Sector Continues to Grow Despite Economic Downturn

Many industries are struggling under the current economic climate. However, new data released shows that the UK’s legal sector ended 2022 in a strong position, with sector-wide revenues continuing to grow, despite the adverse financial environment. Reporting by City A.M. highlights new data from the Office for National Statistics (ONS), which reported that between November and December of last year, the UK’s legal sector saw a six percent increase in revenue. The country’s legal industry revenues reached £4 billion in this period, with the sector defying the overarching negative trend faced by the accounting and wider professional services sectors, both of which saw revenues decline. Julie Norris, partner at Kinglsey Napley, pointed to the resilience of the legal industry during economic downturns, due to the fact that “litigation, insolvency, and employment” will remain areas of high demand during a recession. City A.M.’s article also highlights that litigation funders remain ready and waiting to invest in new lawsuits, whilst UK law firms have not yet shown an eagerness to make any significant staff redundancies.  
Commercial Deals

Woodsford and Phi Finney McDonald Partner on Australian Class Action

As class action activity continues to increase in jurisdictions across the globe, investor-led claims are becoming an increasingly frequent occurrence and funders are standing ready to provide the needed capital. The filing of a new class action in Australia looks set to continue this trend, with a claim being brought against one of the country’s largest gambling and entertainment companies. An article by Australasian Lawyer details the lawsuit brought on behalf of the shareholders of The Star Entertainment Group Ltd., alleging that the company misled and deceived investors whilst also failing to meet disclosure obligations. The case is being led by Phi Finney McDonald and is being financed by global litigation funder, Woodsford. The class action, which represents Star shareholders who owned shares between March 2016 and June 2022, claims that the business did not disclose its breaches of anti-money laundering and counter-terrorism legislation, amongst other legal violations. This is not the first time that Phi Finney McDonald and Woodsford have worked together, having led a similar class action against Westpac and having collaborated on class actions targeting ANZ, Macquarie and Nuix.
Commercial Special Features

The Secret to Success with Trade Secrets – 5 Factors That Litigation Funders Should Consider When Evaluating Trade Secrets Cases

The following article is a contribution from Ben Quarmby and Jonathan E. Barbee, Partner and Counsel at MoloLamken LLP, respectively.  Litigation funders have trade secrets on their minds.  Since the introduction of the Defend Trade Secrets Act (DTSA) in 2016, trade secrets litigation has been on the rise.  Over a thousand trade secrets cases were filed in federal court in both 2021 and 2022.  By all accounts, that trend is set to continue.  Big verdicts have followed, with some trade secrets verdicts now rivaling the biggest patent verdicts.  In the information age, a company’s most valuable intellectual property may not be its patents after all, but the wealth of non-patented, proprietary information surrounding its ideas—its trade secrets. Trade secrets cases can be more attractive to litigation funders than patent cases.  The funding of patent deals is regularly scuttled by patent expirations, validity concerns (especially Section 101 patent eligibility concerns), the threat of inter partes reviews (IPRs) at the United States Patent and Trademark Office, and the perceived focus of the Federal Circuit on reversing the largest patent verdicts that come before it.  Trade secrets side-step many of these issues.  They do not expire.  They are less likely to be sunk by an obscure prior art reference.  They are not subject to IPR proceedings.  And they are generally not subject to scrutiny by the Federal Circuit.  They also offer many of the same benefits to plaintiffs as patent cases: they too can be rooted in invention stories that will resonate with juries and lead to exemplary damages. They offer their own challenges, of course.  Unlike patent cases, there is no “innocent” misappropriation with trade secrets.  A defendant must often come into contact with the plaintiff’s trade secrets for a claim to arise.  Successful trade secret claims usually require a chain of events that put the trade secrets in the hands of the defendant.  Patent plaintiffs do not face those hurdles. Finding promising trade secrets cases requires identifying the types of companies that will regularly find themselves in situations that lead to trade secret misappropriation: joint ventures, startups seeking investment by larger industry players, acquisition targets, and companies operating in industries with high employee turnover and mobility.  And once those cases are found, performing due diligence on them requires a very specific type of focus. The following steps are critical:
  • Identify the Trade Secrets. Ensure at the outset that there are clean, concrete, and well-defined trade secrets to assert.  In some jurisdictions, plaintiffs must identify their trade secrets before proceeding with discovery—failure to do so with sufficient precision can stop the litigation dead in its tracks.  If plaintiffs can clearly identify the form of the trade secrets (e.g., scientific data, customer lists, product recipes, hard copy documents, etc.), the chain of custody for those trade secrets, and any changes made to the trade secrets over time, their case is far more likely to withstand the test of litigation.
  • Verify the Plaintiff’s Protective Measures. Defendants will generally argue that a plaintiff has not taken adequate steps to protect its trade secrets.  You need a clean and clear story to tell about the steps a plaintiff has taken to protect its intellectual property.  Tangible evidence of such steps—company policies, firewalls, passwords—is invaluable.  And there should be a narrow or controlled universe of third parties—if any—with whom the information has been shared.  Each additional third party with access to the information can increase the uncertainty surrounding the trade secrets and affect the value of the case.
  • Estimate the Value of Trade Secrets. Calculating damages in trade secrets cases can be trickier than in patent cases.  It is harder to find comparable licenses or valuations for similar types of trade secrets since trade secrets are just that—secret.  There are also fewer established damages methodologies in trade secrets cases.  While this allows for more flexibility and creativity in crafting a damages theory, it can also make trade secret damages susceptible to challenges.  The Georgia-Pacific factors used so often in patent cases can help determine reasonable royalty rates in trade secrets cases, but courts have yet to adopt those factors as the definitive standard for trade secrets.  In conducting due diligence, hire a damages expert to estimate the value of trade secrets before filing a case.
  • Assess the Value of Injunctive Relief. Trade secrets cases are often better candidates for injunctive relief than patent cases.  Determine the strength of a case’s injunctive relief prospects early on.  The likelihood of injunctive relief has to be factored into the economic value of a trade secrets case, since it will directly impact the likelihood of early settlement.
  • Determine the Narrative. Storytelling matters in every IP case.  But it perhaps matters in trade secrets cases even more so.  It is imperative to have reliable witnesses who can illustrate the plaintiff’s narrative in a compelling and clean way.  Test the potential witnesses before considering funding.  Let them tell their story—and challenge that story—under conditions that will most closely approximate those at trial.  Attractive cases should tell a persuasive story about how the trade secrets reflect plaintiffs’ know-how, experience, and competitive edge, and also expose the motives for defendants to steal those trade secrets.
These considerations are a starting point.  Due diligence should be tailored to the particular facts and nuances of each potential trade secrets case.  Careful consideration of these factors will help ensure that funders make the wisest investments, while avoiding common pitfalls in trade secrets litigation.
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Commercial

LexShares’ Fourth Quarter 2022 Highlights 

As the global litigation investment marketplace continues to mature in meaningful ways, LexShares reflects on the firm's Q4-2022 success.  According to LexShares, overall financial performance of the industry continues to advance and attract favorable attention from a variety of investors looking to profit from the increasing usage of litigation finance.   LexShares forecasts that business owners will embrace creativity in searching for capital lines, and litigation investors are targeting qualified legal funding franchises as a result. As 2022 closed, all signs pointed to legal professionals' increasing engagement with the services offered by the litigation finance industry.  LexShares reflects on the 60 Minutes expose of the industry, which snagged over 11M viewers, many of whom may have discovered litigation finance for the first time. Overall, LexShares suggests that the global litigation investment marketplace is attracting traditional money managers who are seeking to invest in uncorrelated litigation finance instruments.
Commercial Deals

Funders Predict More Partnerships With Law Firms in 2023

Whilst all signs point to litigation funding continuing its growth trend into 2023, that does not necessarily mean that it is going to be a year without challenges in the wider litigation industry. As law firms come under pressure from the sheer volume of litigation combined with the impact of the economic downturn on their own balance books, two leading funders predict that law firms will increasingly look to litigation finance companies to manage costs and risk. A recent article in Law.com features commentary on the outlook for the year ahead from David Perla, co-COO at Burford Capital, and Ralph Sutton, CEO of Validity Finance. Perla highlighted the continued uptick in litigation and the need for law firms to cut costs as a primary catalyst for increased partnerships with funders moving forward. He also reported that the law firms he is dealing with have “an increased appetite to take on risk or to increase risk,” and that Burford makes for an ideal partner to share in that risk. Validity’s CEO also reinforced the prediction that 2023 would be a strong year for funders, stating that “litigation finance always picks up in downturns because capital is short”. However, Sutton did raise the concern that there is still a lack of understanding of the funding industry, even from law firms in major markets, and that a focus on billable hours is a stumbling block for a wider adoption of these kinds of law firm-funder partnerships. On the need for wider education and understanding, Perla highlights the importance of engaging with operations and innovation executives at law firms, whom he has found to be the best ambassadors when it comes to providing a gateway of information about funding options to the wider law firm.
Commercial Fundraising

Korean Litigation Finance Startup Raises $6MM in Funding Round

As funders continue to see success in emerging markets around the world, investors are also continuing to show a willingness to provide capital to newer startup funders, who are gaining footholds in these burgeoning markets. This was demonstrated once again this week as a Korean legaltech startup announced it had raised over $10 million, following its latest funding round. An article by AsiaTechDaily details the announcement by Law&Good, which revealed the startup had raised $6 million through its Series A2 funding round. The capital raised will be used by the company to expand its remote lawyer hiring services, and further develop its litigation finance offering. Law&Good became Korea’s first native litigation funder in 2022, having funded a number of local litigation proceedings, which had been referred to the company through its own platform by consumers and small businesses. Law&Good’s founder and CEO, MK Min, highlighted the company’s focus on customer experience above all else, and its use of data to select the most suitable lawsuits to finance.
Case Developments Commercial

Omni Bridgeway and Baker McKenzie Lead Class Action Against Medibank

Class actions remain one of the most powerful tools for consumers to seek legal redress against corporate wrongdoing, with litigation funders ready and waiting to finance meritorious claims with the potential for strong financial returns. This week saw the launch of a major class action in Australia, as one of the country’s leading health insurers is facing a serious lawsuit from its consumers over a data breach. Reporting by the Australian Financial Review revealed that Baker McKenzie had filed a class action lawsuit against Medibank, with the case being financed by Omni Bridgeway. The claim is being brought on behalf of Medibank’s customers who were affected by a cybersecurity breach last October, which resulted in the sensitive personal data of millions of Australians being compromised.  Baker McKenzie’s participation is noteworthy, given the firm’s history of working with corporate clients on cybersecurity cases, including one of the partners leading the Medibank case having previously acted for telecommunications company, Optus, relating to a data breach. Omni Bridgeway, which announced its support for the class action recently, clarified that this action is “separate to representative complaints lodged by other firms with privacy regulator OAIC.”
Consumer

Litigation Funders Win Dismissal of Claims Brought in California Bankruptcy Court

Whilst litigation funders are most often the ones financing plaintiffs’ claims, occasionally they may find themselves on the receiving end of litigation and having to fight their own cases. In an update to an ongoing dispute in California, two litigation funders have successfully won a dismissal of all claims against them regarding allegations that they helped a now-defunct law firm engage in fraud. An article by Bloomberg Law outlines US Bankruptcy Judge Barry Russell’s decision to dismiss the claims brought against Counsel Financial Services and California Attorney Lending II, and their alleged part-owner Joseph D. DiNardo. The claims had been brought by Elissa D. Miller, a trustee for the bankrupt law firm Girardi Keese, alleging that the funders and DiNardo had been partners or insiders of Girardi Keese and should be held liable. Judge Russell ruled that res judicata resolved the claims and that he would not allow any additional amendments, going on to tell the claimant that, “there’s no way in the world you’re ever going to prove they’re partners. It just isn’t there.” The defendant’s counsel, Larry Hutcher, praised the judge’s decision and highlighted that the court’s ruling made it clear that Counsel Financial had acted properly.
Case Developments Commercial

Funders, Law Firms and Legal Marketers Eyeing Camp Lejeune Claims 

Many litigation funders are keeping a close watch on where the next source of mass class action claims could occur, with the potential to finance a large volume of cases and generate a lucrative return on investment. The Camp Lejeune tainted water scandal looks likely to become one of the largest sources of new claims, with law firms, legal marketers and financiers actively investing in traditional and social media marketing to engage with potential claimants. Reporting by Bloomberg Law details the immense advertising campaign that is taking place across the country to target those affected by water contamination Marine Corps Base Camp Lejeune in North Carolina, between 1953 and 1987. According to data shared by Bloomberg, advertising campaigns targeting the victims had reached over $145 million by the end of 2022, with more than $32 million spent on social media and online advertising alone. The momentum for these lawsuits has been supercharged by President Biden’s signing of the Camp Lejeune Justice Act of 2022 in August of last year, with Congress having allocated over $6 billion for payouts to claimants. Industry analysts and insiders suggest that these advertising campaigns reflect the increasingly attractive proposition of litigation financing, with Keller Postman CEO, Adam Gerchen, pointing to “innovations around digital marketing and origination, the technology to absorb that type of volume, and capital.”
Announcements Commercial People Moves

Validity Finance Announces Promotions of Michelle Eber & Sarah Williams

Validity Finance is pleased to announce the promotion of Michelle Eber to Director of Patent Investments and Sarah Williams to Director of Underwriting, effective immediately.

Michelle Eber joined Validity's Houston office in January of 2022 from Baker Botts, where she spent more than 10 years as a patent and trade secret litigator, representing plaintiffs and defendants in the energy and technology sectors in high-stakes IP cases, including disputes involving oilfield technologies, telecommunications systems, data and video compression systems and computer hardware and software. Michelle has played a key role in sourcing and evaluating patent investments since joining the Validity team, and in her new role as Director of Patent Investments, will oversee the entirety of Validity's portfolio of patent investments. She will also continue to lead Validity's due diligence of new patent litigation opportunities, and the monitoring of funded patent cases.

Sarah Williams joined Validity's Houston office in November of 2020 from Kirkland & Ellis, where she had been a Partner in the litigation practice and successfully represented both plaintiffs and defendants in high-stakes, bet-the-company litigation across the country. Her broad experience in all aspects of complex commercial litigation includes energy, contract, fraud, antitrust, and bankruptcy-related disputes. Since joining the Validity team, Sarah has worked closely with clients, law firms, and the Validity team to develop innovative solutions to meet the legal finance funding needs of companies in Texas and beyond. As Director of Underwriting, Sarah will oversee Validity’s case underwriting and diligence, including developing and implementing new policies and procedures and ensuring consistent application of Validity’s robust underwriting standards across its portfolio.

"As we approach our fifth anniversary as a company, we are proud to have grown to be the largest private funder in the U.S., and to have a team that includes so many female leaders," says Managing Director & Senior Investment Officer Laina Hammond, who leads Validity's Houston office. "Michelle and Sarah have been a key part of Validity's growth in their time here. We are so thrilled to have them step into these new roles and have the opportunity to make an even greater impact on Validity's ability to serve the law firms and clients with which we partner."

About Validity

Validity is a leading commercial litigation finance company dedicated to fair funding practices that build trust. Validity’s mission is to make a meaningful difference in our clients’ experience of the legal system. We invest in commercial, patent, bankruptcy, and breach of contract litigation, as well as international arbitration. With decades of combined experience in funding, our team of trial-tested attorneys has invested over $370 million since 2018 across more than 70 matters and portfolios. Our management team has an over 85% success rate. Clients and law firms count on Validity for reliable capital, strategic help, and risk minimization. Our focus is fairness, innovation and clarity.

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Announcements Commercial Deals

PREMIER LITIGATION FINANCE FIRM ROCADE LLC PARTNERS WITH BARINGS AND EJF CAPITAL

Rocade LLC (“Rocade” or the “Company”) today announced its launch as a specialty finance company focused on litigation finance with a long-term investment approach, in partnership with Barings LLC (“Barings”), one of the world’s leading investment managers.

Under the terms of the transaction, funds affiliated with Barings have made a significant equity investment into the Company. EJF Capital LLC (“EJF Capital”), which launched Rocade’s predecessor vehicle, Rocade Capital LLC in 2014 with a highly skilled management team, will support the platform and remain a material shareholder in the newly formed entity alongside management, which will transition to the Company.

Headquartered in the Washington, D.C. area, Rocade provides flexible law firm financing solutions, with facilities ranging in size from $10 million to over $100 million which are secured by contingent fees receivable or other litigation assets. Under this new organizational structure, Rocade will benefit from having a robust and patient capital base backed by Barings, enabling it to provide flexible, long-term capital solutions to growing law firms, while leveraging the team’s combination of deep sector expertise and financial structuring capabilities.

Brian Roth, Chief Executive Officer and Chief Investment Officer of Rocade, said, “Uniting with Barings in our vision for a permanent capital vehicle is an incredible milestone for Rocade, as this long-term investment horizon sets us apart and will meaningfully enhance our alignment with the firms in which we invest. The strength of our combined experience and expanded financial resources empowers us with scale and flexibility to continue our trajectory as a leading litigation credit provider in the rapidly evolving litigation finance industry.”

“We are thrilled to partner with Rocade to cement its status as a leading litigation finance provider,” said Bryan High, Head of Capital Solutions at Barings. “Brian and the outstanding team of professionals at Rocade have built a best-in-class, technology-enabled platform that meets the needs of many law firms as they navigate increasingly complex litigation. Rocade’s deep relationships, strong credit culture, and market-leading expertise powerfully complement Barings’ permanent capital base and long-term investment approach.”

“This expanded capital base allows us to scale our platform more quickly while maintaining our focus on asset quality,” added Jacob Cantrell, Chief Risk Officer of Rocade. “Our core team, process, and product will remain the same while we continue to invest in technology to improve our decision process and drive efficiency. Adding the strength, diversity, and scale of resources available across the Barings private credit team to these core strategies offers Rocade more long-term flexibility and reliability for our law firm partners.”

Emanuel Friedman, Co-Founder and Co-CEO of EJF Capital, commented, “We are pleased to participate in the continued success of Brian and his team, who have built a terrific platform that has differentiated itself through an institutional approach to a niche asset class and a data-driven process for understanding complex situations. I look forward to partnering with an innovative and dynamic capital partner in Barings, and I am confident that Rocade is well positioned for a highly successful next chapter with a renewed focus on becoming a dominant player in the space over the long-term.”

Fried, Frank, Harris, Shriver & Jacobson LLP served as legal advisor to EJF Capital. Dechert LLP served as legal advisor to Barings. Nixon Peabody LLP and Cooley LLP served as legal advisor to Rocade and management.

About Rocade

The Company, which operates as Rocade Capital, is a private credit firm which provides flexible growth capital for plaintiff law firms in order to finance case acquisition, manage working capital or realize settled cases.  Since Rocade’s predecessor was founded in 2014 by EJF Capital, the platform has funded approximately $900 million of loans to leading law firms within mass tort and other complex litigation, unlocking potential for dozens of growing law firms.  Its flexibility, industry expertise, track record and long-term focus position it to be a leading law firm lender.  Rocade has an experienced team of professionals, located in the Washington, DC area and Houston, TX, which includes both finance industry veterans as well as litigation experts. For more information, please visit https://rocadecapital.com/.

About Barings

Barings is a $347+ billion* global investment manager sourcing differentiated opportunities and building long-term portfolios across public and private fixed income, real estate, and specialist equity markets. With investment professionals based in North America, Europe and Asia Pacific, the firm, a subsidiary of MassMutual, aims to serve its clients, communities and employees, and is committed to sustainable practices and responsible investment.

*Assets under management as of December 31, 2022.

About EJF Capital

EJF Capital LLC is a global alternative asset management firm headquartered outside of Washington, D.C. with offices in London, England and Shanghai, China. EJF has over 70 employees, including a seasoned investment team of over 30 professionals. The firm was founded in 2005 by Manny Friedman and Neal Wilson. To learn more, please visit http://ejfcap.com.

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Commercial

Omni Bridgeway Emphasizes Funder Support for Judgement Enforcement

The mark of successful litigation is not limited to the simple terms of a favorable judgement or ruling, as plaintiffs must often measure their success by the ability to enforce a judgement and the collect on any award or damages that were ordered. However, enforcement is rarely a straightforward matter, and as litigation funders seek to provide added value to their clients, experience and expertise in judgement enforcement will be a valuable asset. In a new blog post by Omni Bridgeway, Gabe Bluestone and Jeff Newton emphasize that in the current economic climate, plaintiffs are likely to find it increasingly challenging to enforce judgements and secure the financial awards they are owed. In order to navigate these difficult circumstances, the authors argue that utilizing a funder with a dedicated enforcement team or even seeking specialist enforcement funding will be a useful tool for claimants dealing with resistant debtors. Bluestone and Newton state that while this should always be considered at the start of any litigation, enforcement expertise and specialist funding can be incredibly useful at any stage of the litigation process. This kind of support can range from enforcement planning that seeks to proactively prevent issues with collection, funding for plaintiffs that are in financial difficulty during the enforcement process, or insolvency funding where debtors take advantage of bankruptcy protections.
Commercial People Moves

Lionfish’s Owner Replaces Chief Executive

As LFJ reported in December, the prominent UK funder Lionfish is facing a challenging road ahead as its owner, RBG Holdings, announced that it would be reviewing the strategy for its litigation finance arm. Outlined by reporting in City A.M., RBG recently announced the firing of chief executive Nicola Fouston, who is being replaced by chief operating officer, John Divers. RBG stated that it had fired Foulston due to “cultural concerns and the execution of the group’s strategy”, and that the board had “lost confidence” in her leadership. With the company’s share price continuing to suffer after this latest announcement, RBG has maintained that it would continue with a strategy to limit its exposure to funding commitments through Lionfish.
Announcements Commercial People Moves

Omni Bridgeway continues US expansion with new operations in Miami and Chicago

Omni Bridgeway is delighted to announce the expansion of its operations into Chicago and Miami with the additions of investment managers and office heads, Maryanne Woo in Chicago and Lauren Alexander in Miami. We also welcome Enrique Molina, who joins Omni Bridgeway as an Investment Manager in Miami.

Maryanne joins Omni Bridgeway to continue building out the company's Midwest presence. She has over two decades of experience as a trial attorney in Chicago, handling complex disputes in state and federal courts involving product liability, multi-district litigation, mass tort, and shareholder derivatives issues. Prior to joining Omni Bridgeway, she was a litigation partner at Reed Smith LLP, where she focused on issues surrounding disruptive technology and artificial intelligence.

In Miami, Lauren brings local market knowledge and subject matter expertise in key areas such as bankruptcy, restructuring, multidistrict litigation, and commercial disputes. She has nearly 15 years of litigation experience in the Miami office of Weil Gotshal & Manges LLP, where she represented clients in a range of matters relating to contract disputes, business torts, antitrust, fraud, and asset valuation disputes.

Enrique joins Omni Bridgeway from King & Spalding in Miami, where he focused on international arbitration and litigation. With more than 6 years of experience, Enrique has handled numerous investor-state disputes involving Latin American parties in a broad range of industries including energy, mining, banking, and transportation.

"We are thrilled to continue our nationwide growth in Chicago and Miami, two of the fastest growing litigation markets in the US," said Jim Batson, Omni Bridgeway Managing Director and co-Chief Investment Officer for the US. "With Lauren and Enrique on board, we are excited to become one of the first commercial litigation funders to provide on-the-ground resources and expertise for law firms and corporations in Miami."

Managing Director and co-Chief Investment Officer for the US, Matt Harrison, added, "Maryanne's wide-ranging litigation experience and deep market knowledge are the perfect match for the dynamic Chicago market. Both Miami and Chicago are known for their sophisticated litigators and corporations who need an experienced risk management partner to navigate the financial complexities of high-stakes disputes. Omni Bridgeway is ideally situated to be that partner."

ABOUT OMNI BRIDGEWAY

Omni Bridgeway is the global leader in legal finance and risk management, including dispute and litigation finance from case inception to post-judgment enforcement and recovery. Listed on the ASX, Omni Bridgeway operates from 25 international locations.

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Announcements Commercial People Moves

Burford Capital Opens Dubai Office

Burford Capital, the leading global finance and asset management firm focused on law, today announces that it is opening its first Middle East office in Dubai, UAE, to meet increased client demand for legal finance in the region. With the addition of Dubai, Burford now has eight offices in North America, Europe, the Middle East, Asia and Australia.

Managing Director Daniel Hall will lead Burford’s Dubai team in addition to his ongoing co-leadership of Burford’s global asset recovery business. Previously based in Burford’s London office, Hall has relocated to Dubai and leads a team there that includes Joseph Durkin, Senior Vice President, an arbitration specialist and legal finance veteran in the Middle East, and Sylvia Chandel, Vice President, an experienced Middle East banker.

Burford’s Dubai office will provide a full range of legal finance, risk management and asset recovery services to companies, law firms and financial institutions throughout the Middle East.

Christopher Bogart, CEO of Burford Capital, said: “Burford continues to see growing demand for our legal finance capital globally, including in the Middle East. Our new office in Dubai will add a needed Middle East presence to meet client demand. We are pleased to open a physical office with senior-level experts in a region that offers even greater opportunities for the continued global growth of our business.”

Daniel Hall, Burford’s Managing Director in Dubai, said: “We are excited to formally begin our on-the-ground operations in Dubai and the Middle East. After eight years at Burford in London, I am eager to build upon our existing industry-leading work in the region that was previously on a fly-in basis. The team and I look forward to meeting with new potential clients in addition to existing ones as we continue to serve their various needs in arbitration, litigation and recoveries for non-performing loans. We have hit the ground running in the Middle East and Dubai, and I look forward to what’s ahead for us as the top regional and premier global provider of commercial legal finance and asset recovery expertise.” 

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 principal offices in New York, London, Chicago, Washington, DC, Singapore, Sydney, Hong Kong and Dubai.

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

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Commercial

LegalPay CEO Talks Opportunities and Challenges for Litigation Funding in India

As the global litigation funding market continues to grow, investors are looking to emerging markets and jurisdictions with a high potential for growth in the uptake of third-party funding. Looking forward to the year ahead, the CEO of India’s leading litigation funder has offered his perspective on the nuances of the Indian market for potential investors and funders. Writing in CXOtoday, Kundan Shahi, CEO of LegalPay, highlights the potential of the burgeoning litigation finance market in India, which he describes as having a greater potential in terms of the monetization of claims than other major markets such as London, Hong Kong and Singapore. As a developing economy India is also filled with unique opportunities, with Mr Shahi pointing to the rise in fraudulent and scam activity during the pandemic, as well as the evolution of insolvency regulations as catalysts for a surge in opportunities for third-party investment. Mr Shahi also notes that there are challenges facing funders entering the Indian market due to its legal framework, which may differ from that of traditional markets. He emphasizes the importance of new funders taking a more flexible approach and adapting to client-specific needs in order to succeed. However, Mr Shahi does suggest that the growth in the country’s arbitration and dispute practice will create fresh opportunities, which funders should look to take advantage of.
Commercial Deals

Therium Co-founder Sees Opportunity Amidst Economic Downturn

One of litigation finance’s most attractive attributes as an asset class is its lack of correlation to traditional markets. However, as one leading funder recently pointed out, litigation funding can go even further and benefit from economic downturns due to a correlated rise in litigious activity. Speaking with City A.M., Therium’s co-founder and chief investment officer, Neil Purslow, offered an optimistic outlook for the litigation funding industry despite the ongoing economic instability. Within the broader surge in litigation due to the economic downturn, Purslow also highlighted that in these difficult market conditions, companies may turn to litigation funders to provide the capital for meritorious litigation that they would struggle to finance given budget constraints. Purslow pointed to the rise in class action lawsuits in the UK as an area of continued growth for the London market, citing continued interest from investors who see litigation finance as a ‘counter-cyclical investment’ in the current market. In addition to these class action cases, Purslow suggested that ESG litigation could become a significant area of investment for funders, as the scope of this activity has increased to a point where ‘ESG is everywhere’.
Announcements Commercial People Moves

Omni Bridgeway announces EMEA leadership and investment management promotions in Amsterdam and London

Omni Bridgeway is pleased to announce the appointment of Hannah van Roessel as Co-Chief Investment Officer – EMEA, and the promotions of Kees de Visser and Alistair Croft. Based in Amsterdam, Hannah will work closely with Raymond van Hulst (Executive Director and Co-CIO EMEA) to jointly lead all aspects of Omni Bridgeway's EMEA operations. With 10 years of experience at Omni Bridgeway, Hannah brings a unique global perspective to her new role, having served as Senior Investment Manager and Director Enforcement first for EMEA and then the US, when she relocated to New York to launch the company's US judgment enforcement business in 2022. Throughout her tenure in the legal finance industry, Hannah has achieved a notable record of success, managing complex multijurisdictional enforcement cases and securing recoveries in contested settings. Before joining Omni Bridgeway, she practiced at leading law firms NautaDutilh and Loyens & Loeff, gaining significant experience with the cross-border recognition and enforcement of arbitral awards in many jurisdictions, in particular against sovereigns and semi-sovereigns. Commenting on Hannah's appointment, Omni Bridgeway Chief Executive Officer, Andrew Saker said, "Hannah is an exceptional talent, with an impressive track record of successfully expanding our business lines into new regions. She has a keen eye for strategy and client development that is the perfect complement to Raymond's experience and expertise in sourcing and structuring complex deals. We could not be better positioned for continued growth with Hannah and Raymond leading our team and business in EMEA." Also in Amsterdam, the company is pleased to announce Kees de Visser has been promoted as Chair of the Investment Committee for EMEA, in which he oversees funding requests as a member of the company's global investment committee. Before joining Omni Bridgeway in 2016, Kees practised law, admitted at De Brauw Blackstone Westbroek where he handled large and high-profile cross-border litigation and enforcement matters and led the firm's private international law team. In London, Alistair Croft has been promoted to Senior Investment Manager with a focus on enforcement, contentious trust and insolvency matters. Prior to joining Omni Bridgeway in 2015, Alistair practised law for over a decade, becoming a barrister and a partner at a leading law firm with a broad practice advising on complex cross-border litigation, fraud, enforcement, and contentious trust matters for UHNWI and insolvency. Raymond van Hulst, said, "I am thrilled to have Hannah on board as Co-CIO, and with the promotion of Kees and Alistair we are poised for continued success in EMEA. In combination with our recent hires in Dubai and Germany as well as our expansion into France we are proud to attract and promote the top talent in the industry. This is core to our strategy of continuing to establish operations in more jurisdictions and markets than any other legal finance provider, in order to best serve our clients with local knowledge and experience."
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Commercial Special Features

CFO’s and Litigation Finance: The Time is Ripe for Adoption

One of the holy grails of litigation funding has long been for funders to convince CFOs to view litigation through a commercial lens, and unlock the value of their legal assets. While straightforward and practical, the evolution of the CFO mindset on this issue has been slow to materialize. Many in the litigation funding community blame cultural norms—old habits are simply hard to break, which is especially true when things are going swimmingly. But with inflation upon us and a recession looming, the time is ripe for CFOs to reconsider their firm’s relationship to litigation funding. Research from Burford Capital in June of 2021 found that 75% of companies with over $1 billion in annual revenues reported unenforced judgments worth $20-$100 million in FY 2020, while at the same time, just 24% said they apply quantitative financial modelling to make decisions about litigation, as they do in other areas of the business. That research is now a couple of years old, but it underscores both the need for litigation funding, and the challenge that funders face when trying to convince CFOs to think differently about litigation. Change may finally be afoot. A recent global survey of CFOs conducted by Everest Group found improving cash flow continues to be a priority for a large majority of CFOs. As one respondent noted: “As the business environment continues to throw up shocks prompted by geopolitical uncertainty and sector disruption, CFOs should ensure that, as well as technological evolution, change management becomes a culture rather than a one-off exercise.” Indeed, macroeconomic constraints are forcing CFOs to re-prioritize. Gartner recently identified the Top-10 priorities for CFOs in 2023, based on Deloitte’s Autumn 2022 European CFO survey. The Top-5 among those are:
  • Coping with complex systems
  • Protecting margins and balance sheets
  • Acquiring and retaining talent
  • Raising capital
  • Finding focus
The second point stands out in relation to litigation funding—“protecting margins and balance sheets” is exactly the pitch that funders have been making to the CFO community for years now. PricewaterhouseCoopers conducted its own survey, and highlights the main topics on the CFOs agenda for 2023:
  • Navigate economic uncertainty
  • Enable growth
  • Take action on ESG
  • Accelerate transformation
  • Cultivate finance talent
  • Build trust and purpose
Responses such as ‘navigate economic uncertainty’ and ‘accelerate transformation’ should be music to every litigation funder’s ears. It’s clear based on the above data that litigation funding maintains a product/market fit, in that it addresses some of the core pain points CFOs are currently facing. That said, many CFOs still need to be brought to the table as to how their firms can benefit from the use of litigation funding. Advantages of Unlocking Capital Buried in Legal Claims Susanna Taylor, Head of Investments at Litigation Capital Management, highlights what she considers to be four core benefits of litigation funding for CFOs:
  1. Protecting the value of the business from the cost impact of litigation
  • “If the same case was financed by a third-party funder, then the business will not carry these legal expenses […] The operating profit in each year will be higher and the accounts will be a more accurate reflection of actual business performance.”
  • “Further, once the claim is successful, the company will be able to include the proceeds as profit which has been generated at zero cost.”
  1. Protecting the business from significant litigation risk
  • “The funder carries 100% of the financial risk involved in pursuing the claim and if the claim is unsuccessful, the funder will receive nothing. […] Litigation finance can include the offer of an indemnity against adverse costs and an agreement to meet an order for security for costs.”
  • “Using third-party litigation finance also removes uncertainty in forecasting legal spend, which can be highly variable and difficult to predict.”
  1. Insulating the business from unexpected claims
  • “Litigation brought against a company is an unwelcome consequence of doing business. These claims are almost always unexpected, unbudgeted and require action.”
  • “Importantly it offers the corporate client the opportunity to offset the costs and risks involved in defending claims, as well as allowing the business to apply its capital into growth operations rather than on uncertain litigation.”
  1. Unlocking the value that resides in claims
  • “Litigation finance allows companies to recognize the value in a piece of litigation at a time which suits them best.”
  • “These funds provided to the company can ‘plug the gap’ in expected EBITDA at no cost to the company.”
In an article for Global Banking and Finance Review, Ellora McPherson, Managing Director & Chief Investment Officer of Harbour Litigation Funding, points to the need for CFOs to consider alternative solutions in order generate value, which is especially true during today’s tumultuous economic climate. According to McPherson: “The macroeconomic lifecycle has no bearing on the outcome of disputes and litigation as an asset class itself it has little correlation to the wider market. This means that litigation funders have the capital to pursue meritorious claims at difficult times even when the businesses with the claims do not.” Commercial disputes are often worth tens or hundreds of millions of dollars. These legal claims are simply too valuable as assets not to be leveraged during times of economic upheaval. “It is now no longer a question of whether CFOs can afford to advance these claims,” says McPherson, “but whether they can afford to ignore these assets on their books any longer.” How CFOs Should Approach Funders If CFOs are to be swayed by the high-level arguments posed by funders as to the advantages of legal finance, they must first get comfortable with frontline interactions—what exactly should CFOs expect from a litigation funding partnership? What should they be on the lookout for, and what sets one funder apart from another? The lowest-hanging fruit answer here is cost of capital, but that is obvious. Beyond mere capital requirements, lies a plethora of differentiators which CFOs must account for when approaching and selecting the most appropriate funder for their legal claim (or portfolio of claims):
  • Flexibility. CFOs should select a litigation funder who will be their partner, not just their capital provider. Similar to an agreement with a lender, CFOs don’t want a funder who will balk the moment a curveball is thrown, especially if that curveball comes from somewhere out of your control (as is often the case with legal claims). Funder flexibility and adaptability is an important trait when considering the long-term relationship at stake.
  • Funder Capitalization. Per the aforementioned point, legal claims often take longer than anticipated, or tumble down rabbit holes no one saw coming. Does your funder have enough liquidity to backstop unforeseen circumstances? What is their policy during such a contingency? These are critical questions to ask.
  • Legal Sector Expertise. This is important for two reasons: firstly, so the funder understands the bespoke challenges posed by a given sector and doesn’t get cold feet should the case run up against those issues along the way, and secondly, so the funder can help consult on case strategy, should the claimant and law firm request (most funders are ex-lawyers, after all).
  • Enforcement. Winning a case is one thing, but collecting on the reward is quite another. Does the funder have a track record of enforcing victories—either via a third-party or in-house enforcement team?
  • Reputation. CFOs should consult with past clients to get a sense of how the funder interacts with both the client and the law firm. This is a triangular relationship, and it’s important that all sides work together towards a successful outcome.
Ultimately, Litigation Finance offers an opportunity to monetize what would otherwise remain an illiquid asset, and deploy that capital into a core business activity, thus increasing the enterprise value. That is an invaluable tool for any CFO looking to unlock value without having to resort to traditional capitalization methods, such as approaching lenders or equity partners. The CFO Roadmap Even companies with ample cash to cover attorney fees and expenses can benefit from the instant liquidity provided by litigation funders. Why wait years to unlock the value of a legal claim, when that capital can be put to work immediately? What’s more, the prevalence of litigation funding permits corporations to pursue litigation that they would otherwise leave on the table, and also to reject low-ball settlement offers which they might otherwise accept due to concerns over duration risk and case expense. For CFOs who want to understand if their firm is a strong candidate for litigation funding, there are several steps they can take:
  • Review the company’s litigation history. Have prior legal costs or outcomes influenced management’s thinking about pursuing potential legal matters? Perhaps it is time for a reevaluation of the firm’s approach to litigation.
  • Consult with internal legal staff to identify any matters that may have been deferred for one reason or another, and assess whether those prospective claims might represent strong candidates for litigation funding.
  • Speak with litigation funders or advisory firms to determine a full cost/benefit analysis, including estimates, milestones, duration risk, IRR/ROI potential, and more.
  • Understand the internal resource commitment your team is making, should you take on additional litigation with the help of a funder.
CFOs who follow the above roadmap stand to benefit by repositioning their legal department from a cost center to a profit center. This simple shift in mindset will help strengthen the balance sheet by producing higher net income, lower expenses, and an advancement of business strategies—all without the onerous conditions of a traditional loan.
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Announcements Commercial Deals

GLS Capital and Nanoco Group Announce ‘Transformative’ $150 Million Settlement of Nanoco v. Samsung Patent Litigation

 GLS Capital, one of the world’s largest private investment firms focused on litigation finance, announced today its financial partnership with Nanoco Technologies in its patent litigation against Samsung Electronics Co. in U.S. District Court and related proceedings in the U.S. Patent and Trademark Office (USPTO), Germany and China.

Shortly before the start of trial in the U.S. District Court case, the parties agreed to stay the proceedings to finalize a settlement agreement. Samsung has now agreed to pay $150 million to settle the litigation in a deal called “transformative” by Nanoco that includes a license agreement and the transfer of certain patents.”

Nanoco (LSE: NANO) is a pioneer and world leader in the development and manufacture of cadmium-free nanoparticles known as quantum dots. Nanoco alleged that Samsung’s QLED televisions infringe several fundamental Nanoco patents related to the synthesis and use of quantum dots. The Nanoco v. Samsung dispute also included the successful defense of five Inter Partes Review petitions in the USPTO, in which all challenged patent claims were upheld.  On January 6, 2023, Nanoco announced that a term sheet for settlement of the litigation had been agreed to.

Adam Gill, Managing Director at GLS Capital, stated: “We were proud to support Nanoco in obtaining the recognition and compensation they deserve for their fundamental inventions.  Nanoco is a true pioneer in its field.  Its foundational technology allows quantum dots to be made without the use of toxic heavy metals like cadmium, enabling displays like Samsung’s QLED televisions to be brighter, more brilliant and environmentally friendly.”

Nanoco CEO Brian Tenner said: “Litigation finance allowed us to pursue our claims on equal footing against a much larger adversary.  We chose GLS Capital because of their reputation not only as intellectual property subject matter experts, but also as reliable and trustworthy partners. We are grateful for their assistance throughout the course of the litigation, which we believe added substantial value.”

About Nanoco Group PLC: Nanoco is a pioneer and world leader in the development and manufacture of cadmium-free quantum dots and other specific nanomaterials emanating from its technology platform.  Nanoco's CFQD® quantum dots are free of cadmium and other toxic heavy metals and can be tuned to emit light at different wavelengths across the visible and infrared spectrum, rendering them useful for a wide range of applications including displays, lighting and biological imaging.

About GLS Capital:  GLS Capital is a commercial litigation finance firm with more than $500 million under management. Founded by litigation finance industry veterans, GLS focuses on investments in complex commercial litigation and arbitration, patent infringement litigation, and life sciences litigation. GLS prides itself on decision-making speed and the pace of its investment process. Armed with a broad investment mandate and fully discretionary capital, all investment decisions are made internally by the GLS investment committee, which provides certainty and transparency for counterparties throughout the investment lifecycle. More information about GLS Capital can be found at www.glscap.com.

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Case Developments Commercial

Court of Appeal Rules in Favour of Harbour in Dispute With Panamanian Foundation

As is always the case in litigation funding, a victory in the courts is not truly a success until judgements can be enforced and financial returns collected. A recent ruling in the Court of Appeal reinforced this principle, as Harbour received a favorable ruling from the court confirming its right to priority in the repayment of funds. The ruling, which is detailed on Casemine, was handed down by the England and Wales Court of Appeal (Civil Division) on January 20 and rejected an appeal by Phoenix Group Foundation, a Panamanian foundation which contested that it should hold that right as assignee. The denial of this appeal is the result of previous litigation which saw Harbour provide funding for commercial litigation by the “Orb Claimants”, which ended in a successful result for the claimants. Phoenix had argued in its appeal that any distribution of funds from the litigation fell under the terms of its Liquidation Inter-Creditor Settlement Agreement (LICSA). However, the court ruled against Phoenix’s appeal, and affirmed the order given by Mr Justice Foxton in the High Court of Justice, in May 2021. This ruling demonstrates the extended timeframes that funders have to work with in order to realize a return on their investment, given Harbour’s original investment in the commercial litigation dated back to July 2013.
Commercial

Leaders from Burford, GLS and Omni Bridgeway Speak at PTAB Masters

Patent infringement litigation has been at the forefront of the litigation funding industry, with high profile disputes over disclosure and the role of third-party funding coming into the spotlight. The role of the Patent Trial and Appeal Board (PTAB) has also come under scrutiny, and an event hosted this week hosted industry leaders from law firms and funders who discussed the future of patent disputes. An article by IPWatchdog recapped their Third Annual PTAB Masters program held in Ashburn, Virginia. The two-day event’s agenda included sessions on the best path for reforming the PTAB, a panel sharing the perspectives of Administrative Patent Judges (APJs), and a discussion on patent assertion and funding strategies featuring leaders from some of the industry’s most established funders. The latter panel session saw speakers from Burford Capital, GLS Capital and Omni Bridgeway all provide their insights into the challenges faced by patent owners. Omni Bridgeway’s Sarah Tsou spoke to the process of inter partes reviews (IPR), describing it as an opportunity rather than an obstacle for funders and their clients, as it allows them to prove the validity and value of their patents, which increases the likelihood of success. Joel Merkin, principal at GLS Capital, highlighted the risk/reward calculation when it comes to final written decisions (FWD), as they represent a significant advantage when given in favour of the patent owner. Raising the potential challenges created by the PTAB, Burford Capital’s Chris Freeman stated that there was always a high degree of uncertainty as to what direction the PTAB will take, regardless of the funder’s own assessment of a patent’s validity.
Commercial Deals

Omni Bridgeway’s Co-Chief Investment Officer Shares Industry Outlook

As litigation funding in the U.S. looks to have another strong year ahead with the volume and breadth of investing continuing to increase, industry leaders are sharing their outlook on the state of the market. In a new interview, Omni Bridgeway’s Co-Chief Investment Officer shares his perspective on a range of topics including the evolving relationship between funders and law firms, prevailing misconceptions about third-party funding and the challenges of judgement enforcement. Interviewed by Massachusetts Lawyers Weekly, Jim Batson, managing director at Omni Bridgeway, provided an overview of how litigation funding continues to evolve. Looking at partnerships with law firms, Batson reports that Omni is increasingly seeing law firms working on lawsuits on a partial or full contingency basis. This has created further opportunities for the funder to provide portfolio financing to law firms, thereby unlocking capital that can be deployed for a variety of business purposes, while still allowing Omni to achieve a suitable return on investment. Batson highlights that now is more important than ever for funders to provide expertise and strategic guidance to their clients beyond the actual financing requested, pointing to judgement enforcement as an area where Omni’s dedicated team can bring real value to clients in challenging situations. Batson also recognized the challenges that still remain for the industry due to common misconceptions around the practice, such as the idea that funders exert control over the litigation process, when in reality, their role is limited to an advisory capacity.
Commercial Regulatory Issues

UK Litigation Funding Market Could See Growth if EU Imposes Restrictions

The shadow of the Voss Report’s recommendations looms over the future of litigation funding in Europe, as firms evaluate where the best opportunities will be in 2023. As some in the industry fear that overly zealous regulation of the practice could seriously hamper funder activity in the European Union, there is growing speculation that the United Kingdom could be one of the largest beneficiaries if the report’s proposals are enacted. Writing in City A.M., Glenn Newberry, head of litigation at Eversheds Sutherland, offers an optimistic outlook for the potential growth of Litigation Finance in the UK. Newberry points out that there is still an issue with policymakers maintaining misconceptions about third-party funding, particularly around the idea that funders are predatory investors who seek to control litigation while exploiting plaintiffs for their own financial gain. Newberry highlights that the use of litigation funding is far broader than simply financing class action cases, and instead has become a multi-faceted tool which can be used by companies to pursue meritorious litigation. He argues that with the variety of funding options and different types of fee arrangements, the practice has become a sophisticated asset for the legal industry, and one that requires investors to take on commensurate risk in return for their potential return on investment. If Europe does move forward with restricting the use of litigation funding, Newberry suggests that this should only encourage the UK to create a welcoming market to benefit claimants, law firms and investors.
Commercial Deals

Litigation Funding as a Valuable Tool for HNW Individuals

When it comes to individuals taking advantage of litigation funding, it is most often thought of through the lens of class action lawsuits being brought by individuals or collectives against corporations or institutions. However, one area that has received less attention is the utility of litigation finance for high-net-worth individuals (HNWIs) who are looking for capital to fund their own disputes. In a new piece for WealthBriefing, Catherine Penny and Elizabeth Butler of Stevens & Bolton, argue that the current economic climate may put a strain on individual finances, and third-party funding can be a valuable tool to allow HNWIs to pursue meritorious lawsuits with the use of outside capital. The authors highlight that the scope of use for litigation funding has significantly widened over recent years, and now represents a viable option for a range of litigation including fraud disputes or asset recovery proceedings. Analyzing the qualities that HNWIs should look for in a funder, Penny and Butler suggest that choosing a funder who is a member of a reputable network, such as the Association of Litigation Funders (ALF), will offer potential claimants increased confidence in their services. Furthermore, HNWIs should focus on funders who have a proven track record of financing the sort of claim that they are looking to pursue, and depending on the importance of speed, they may also want to enquire about the length and extent of due diligence that an individual funder will require.
Commercial Regulatory Issues

Increased Transparency in Litigation Funding Could Aid Policymakers

Calls for increased transparency in the litigation finance industry are being brought by opponents of the practice, with the aim of forcing funders to disclose detailed information around funding agreements that they would prefer to remain confidential. A new op-ed argues that a measured and appropriate level of transparency would enable lawmakers to develop smart policy informed by accurate data and avoid potential issues caused by one party having less thorough disclosure requirements. Writing in Bloomberg Law, Michael Menapace, non-resident scholar at the Insurance Information Institute, and partner at Wiggin and Dana, provides an argument in favour of increased transparency in litigation finance in order to address the lack of a unified legislative framework to regulate the industry across the U.S. Referencing the recent GAO study that highlighted the lack of current and verifiable data around litigation funding, Menapace points out that both legislative and judicial decision-making around the use of third-party funding could be improved by increasing the availability of such data. Menapace also suggests that under the current structure, plaintiffs are at an unfair advantage because defendants must disclose any legal liability insurance they have in place, whilst plaintiff funding does not face the same requirements, resulting in an imbalance when it comes to parties evaluating pre-trial settlements. Furthermore, Menapace argues that without transparency, there is the inherent possibility of conflicts of interest, due to funder involvement remaining undiscovered, and therefore negatively impacting the judicial process.
Announcements Consumer

Risk Settlements Announces Name Change to Certum Group

Risk Settlements, which provides bespoke solutions for companies facing the uncertainty of litigation, has changed its name to Certum Group. Latin for “certainty,” Certum represents the core benefit the company delivers to its clients across its entire suite of solutions. “Our new name represents our mission of bringing certainty to the uncertain world of litigation through our proprietary risk transfer platform,” said Joel Fineberg, managing director. “By using risk transfer of known, threatened, or pending litigation or judgments, we help our clients win more by risking less.” Certum Group has created the first and only litigation risk transfer platform that combines insurance, premium finance, and litigation funding to provide tailored solutions for companies, litigants, and law firms. Founded 10 years ago, the team is comprised of former litigators, judicial clerks, actuaries, and financial professionals who design risk transfer and funding solutions to meet legal, business, and financial objectives. Certum Group’s suite of products includes litigation funding for companies and law firms, claim monetization for known or latent litigation assets, and judgment preservation insurance (JPI) to guarantee the recovery of large judgments being appealed. It also includes portfolio “wrappers” to ensure that an entire group of cases will prevail making monetization or funding possible, class action settlement insurance (CASI) which removes the uncertainty of claims-made settlements, and litigation buyout insurance (LBO) that shifts the outcome of contested litigation from the defendant to a large insurance carrier. Depending on the client’s goals, these solutions are offered stand-alone, or in combination with each other. About Certum Group Certum Group provides bespoke solutions for companies facing the uncertainty of litigation. We are the leader in providing comprehensive alternative litigation strategies, including class action settlement insurance, litigation buyout insurance, judgment preservation insurance, adverse judgment insurance, contingency fee insurance, capital protection insurance, litigation funding, and claim monetization. Our team of experienced former litigators, insurance professionals, and risk mitigation specialists helps companies remove the financial and operational volatility arising out of litigation by transferring the outcome risk. Learn more at www.certumgroup.com.
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