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Announcements Case Developments Commercial

Class action lawsuit progresses in London against Visa and Mastercard to challenge card payment fees affecting UK businesses

A significant class action lawsuit against Visa and Mastercard has progressed at the UK’s specialist competition tribunal. The Competition Appeal Tribunal (CAT) has set a date in April 2023 for a Collective Proceedings Order hearing, which will determine whether the claim – on behalf of a large number of businesses seeking damages for allegedly unlawful charges – can proceed to a full trial.  Harcus Parker, a UK-based commercial litigation law firm specialising in group litigation, competition litigation and class action lawsuits, has brought the corporate card claim at the CAT, the UK’s specialist judicial body for hearing competition cases. The class action seeks compensation for UK businesses, which were charged Multilateral Interchange Fees (MIFs) for accepting payments using corporate* credit cards, as well as for both credit and debit cards used by overseas visitors.  The CAT has published the claim on its website and has now agreed to hear the application for a Collective Proceedings Order.  Harcus Parker claims that Visa and Mastercard have forced banks to agree to a level of MIFs set by the two giants, which are “anti-competitive and unlawful”.  “We want to ensure businesses across the UK economy are properly compensated.  We are making a stand against unlawful interchange fees, which should be abolished. Both the UK Supreme Court and the Court of Justice of the EU have condemned this practice for consumer credit and debit cards. The UK courts should now clamp down on commercial card fees and consumer card inter-regional fees,” said Jeremy Robinson, competition litigation partner at Harcus Parker.  Mr Robinson added: “UK businesses in the travel, hospitality, retail and luxury sectors are particularly hurt by Mastercard and Visa’s multilateral interchange fees and we are pleased that this important claim has been endorsed by a number of leading trade bodies including UKHospitality and ABTA.”  Multilateral Interchange Fees make up the greater part of the service charges levied by banks on businesses when customers pay by card.  Typically, for every £100 spent, up to £1.80 is charged on payments made by corporate cards, or cards used by overseas visitors – costs which are borne by companies throughout the UK.   Since 2015, EU law capped Multilateral Interchange Fees at 0.3 percent on consumer credit card transactions, and 0.2 percent for consumer debit cards. However, this cap did not apply to corporate cards or for consumer card inter-regional transactions.  These sales have continued to attract fees of up to 1.8 percent per transaction.  Harcus Parker accuses Mastercard and Visa of requiring banks to charge anti-competitive MIFs on businesses. These MIFs for corporate and inter-regional payments should be zero per cent, say Harcus Parker.  The class action is open to all businesses, including large international companies and local businesses, as well as some non-UK companies. Many of these businesses, particularly in the travel and hospitality sectors but also the luxury sector too, have been particularly hard hit by Brexit, Covid-19 and the current economic climate.  UK businesses are invited at this stage to register their interest online at www.commercialcardclaim.co.uk.  Those businesses with an annual pre-Covid turnover of £100 million or more will be invited to opt-in to the claim.  Businesses with a turnover under this threshold who have registered online will be automatically included unless they choose to opt out.  A number of trade bodies have endorsed the claim, including: 
  •     ABTA, which represents over 3,900 leading UK travel brands; 
  •     UK Hospitality, which represents 740 members representing many businesses across the UK; 
  •     UKinbound, which represents 330 businesses; 
  •     Tourism Alliance, which represents 65 associations and organisations, which in turn comprise thousands of potential claimants; 
  •     Advantage Travel Partnership, which represents 350 businesses with over £4.5billion annual turnover and which officially endorsed the case at its 2022 annual overseas conference. 
The CAT will hold a ‘certification hearing’ between 3-5 April 2023, when it will decide whether the case can go forward to trial, which is likely to take place in stages in 2024 and 2025.  The case is financed by a third party litigation funder, Bench Walk Advisers, and is fully insured.  *Corporate cards are a type of commercial card, sometimes known as a company or business card.  The served claims can be found on the Competition Appeal Tribunal website:  Harcus Parker is a commercial litigation firm.  It specialises in bringing and defending complex claims, often involving large groups of claimants.  Founded by Damon Parker in 2019, the firm is a recognised market leader in group litigation, case management and litigation funding. 
Announcements Commercial Fundraising

Contingency Capital Holds Final Closing of First Commingled Fund

Contingency Capital, a global asset management business focused on credit-oriented legal assets, has successfully completed the capital raise for its first commingled fund, with over $490 million in new discretionary capital across the fund and related managed accounts. The firm launched in November 2020 and has raised and deployed in excess of $700 million across a series of strategies and transactions. Its investor base includes university endowments, pension funds, family offices and consultants.

Brandon Baer, Founder and Chief Investment Officer of Contingency Capital, stated: “We are very grateful for the support our business has received from institutional investors in the United States and Europe. Since launch, we have continued to see strong interest from investors seeking diversifying strategies that are generally uncorrelated to the broader equity and fixed income markets. The asset class has evolved considerably in recent years, and our capital raise reflects a growing appetite for legal asset-related investments as well as the increasing institutionalization of the asset class more generally.”

Contingency has a multi-strategy approach, focusing on a broad spectrum of legal assets, including loans to law firms, portfolio financing and distressed and special situations investments where the primary driver is related to a legal, tax or regulatory process. The firm combines litigation expertise with a fundamental credit approach, building structured, diversified pools of legal assets to create sustainable, credit-like returns.

About Contingency Capital  

Contingency Capital is a global asset management business focused on credit-oriented legal assets. For further information on Contingency Capital please see www.contingencycapital.com.

Commercial Regulatory Issues

Schulte Roth & Zabel Partners Criticize Key Recommendations in the Voss Report

Regulation will be a key industry focus in 2023, with the stage having been set by the Voss Report passed by the European Parliament in September. However, the report’s proposals have received significant criticism, and one law firm has offered careful analysis of issues posed by five of the Voss Report’s central recommendations. In an article for ThoughtLeaders4 Disputes, partners at law firm Schulte Roth & Zabel, Polly O’Brien and Boris Ziser, have examined the following recommendations from the report: capital adequacy, adverse costs, fiduciary duty, a cap on fees, and disclosure of funding arrangements. O’Brien and Ziser note that it already benefits funders to ensure they have sufficient capital to finance activities, and question how a universal standard could be applied, whilst also questioning whether industries outside of litigation finance are held to such standards. Regarding the proposal to make funders liable for adverse costs, the authors highlight that this seems to sit at odds with the report’s stated aim to lower the costs of litigation and widen access to justice, as enforcing such a measure would increase the risk for funders and thereby necessitate higher fees. On the suggestion that funders should maintain a fiduciary duty to the claimant, O’Brien and Ziser observe that while such a duty appropriately exists for a funder to its investors, there seems to be no reason for this to exist for clients who have no need for financial recourse where a claim is unsuccessful. The recommendation for a cap on fees is highlighted as an idea that seems misguided in trying to use a one-size-fits-all approach to all cases, regardless of individual differences in risk and capital required, and would also lead to funders being hesitant to finance cases in the EU. Finally, the authors criticize the similarly blanket approach to disclosure by highlighting that the details of a funding arrangement should have no relevance to a claim’s merits, and that enforcing such detailed disclosure will only encourage defendants to prolong cases where they can see the financial burden will drain a claimant’s funding resources.
Case Developments Commercial

Judge Recommends Confirmation of $1.8 Million Award for Woodsford

\Despite the mutually beneficial partnership between litigation finance companies and lawyers, one ongoing dispute in U.S. federal court had placed a spotlight on a strained relationship between a funder and law firm. However, the dispute between Woodsford and Hosie Rice, which LFJ originally reported on in September, looks closer than ever to being resolved. A recent article by Bloomberg Law details the latest development in the case, after a recommendation was issued by US Magistrate Judge Sherry Fallon, saying that the federal district court in Delaware should confirm a $1.8 million award to Woodsford. The judge found that Hosie Rice had not provided sufficient legal reasoning to overturn the award set by a panel of three arbitrators. This arbitration found that Woodsford was entitled to collect fees from Hosie’s case against Google, where the funder had provided $800,000 in funding. Woodsford’s chief executive officer, Steven Friel, reiterated the company’s position that the basis of the dispute was a “straightforward debt collection matter”, whilst the law firm said that it would continue to fight the award despite Judge Fallon’s recommendation. Both parties will now await the Delaware federal judge’s decision as to whether it will grant the award to Woodsford.
Commercial Deals

Shareholder Class Action against AVZ Minerals to be Funded by Omni Bridgeway

Shareholder-led class actions are on the rise, with investors seeking to hold corporations to account where they engage in misleading or deceptive statements, and litigation funders are increasingly eager to fund these actions. One of the latest examples was reported by the Australian Financial Review, covering a shareholder class action being brought against AVS Minerals, an exploration company based in Australia. Omni Bridgeway is funding the action which alleges that AVZ misled its investors over its ownership rights to a hard rock lithium deposit in the Democratic Republic of Congo, called the Manono Project. The claim alleges that AVZ failed to disclose relevant information related to its ownership of the project, which led to an increased valuation of AVZ’s shares on the stock market. Law firm Johnson Winter Slattery will be running the claim, and will represent investors who purchased shares during an almost year-long period between May 17 2021 and May 6 2022.
Announcements Case Developments Commercial

£110 million Comet Group judgement in favour of funded party largest ever claim successfully brought under the UK’s 1986 Insolvency Act

LitigationCapital Management Limited (AIM:LIT),an alternative asset manager specializing in dispute financing solutions internationally, is pleased to announce positive progress on two investments within its portfolio. Successful Judgment in investment in English court litigation As announced on 23 June 2021, LCM entered into an agreement to provide a finance facility to Geoffrey Carton-Kelly, a partner of FRP Advisory ("FRP"), additional liquidator of CGL Realisations Ltd (In Liquidation), formerly known as Comet Group Ltd ("Comet"). This investment forms part of LCM’s Fund I portfolio of investments. In November 2022, judgment in the High Court was awarded in favour of Mr Carton- Kelly (the funded party) for approximately £110m. This judgment is understood to represent the largest ever (by value) preference claim successfully brought under the UK’s 1986InsolvencyAct. The Defendant to the proceeding has obtained permission to appeal the judgment, which will delay the maturity of the investment, but will be paying the judgment amount into court. This investment has been significantly de-risked from both a merits and recovery risk perspective. The financial performance of this investment is protected against the passage of time by way of an increasing multiple of invested capital. The size of the investment made by LCM is within the median range for an investment within Fund I. Clarification of press report on an LCM investment Following recent press speculation, the Company is providing an update on a further Fund I investment involving claims against Poland under both the Energy Charter Treaty (ECT) and the Australia-Poland Bilateral Investment Treaty (BIT), which has now been heard by an Arbitral Tribunal. Following completion of the hearing, the Arbitral Tribunal will render an Award in due course. There is no specified date for an Award to be rendered and there is no certainty as to what the outcome of that Award will be. Revenue recognition In line with LCM’s revenue recognition, the Company will only recognise revenue associated with these matters at the point in time it has more certainty on the final outcome, including following any appeal where relevant, or when there is more clarity around the recovery of funds. We remain confident that with respect to the awards set out above these will generate returns in line with management expectations, notwithstanding that, the timing within which each award will be realised remains uncertain. The Company generally expects the duration of investments to increase to between 36 - 42 months. Patrick Moloney, CEO of LCM, commented: “We are pleased with the significant progress on these key investments. The successful judgment in the High Court of England demonstrates LCM’s strength in project selection and we look forward to reporting further once each of these investments has reached a conclusion.” About LCM Litigation Capital Management (LCM) is an alternative asset manager specialising in disputes financing solutions internationally, whichoperatestwobusiness models. The first isdirectinvestments madefromLCM'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 inSydney, with offices in London, Singapore, Brisbane and Melbourne, LCM listed on AIM in December 2018, trading under the ticker LIT.
Commercial Regulatory Issues

Funder Argues Disclosure of Funding in International Arbitration Can Be Beneficial

Disclosure of litigation funding remains one of the most discussed industry topics as we head into the end of the year, with disclosure requirements and disputes occurring in jurisdictions around the world. In the realm of international arbitration, one funder argues that disclosure should not be viewed as a negative, but as a useful tool for strengthening the client’s claim. Outlined in a new piece of analysis by William Panlilio, an investment manager at Litigation Capital Management (LCM), the issue of disclosure in international arbitration is reframed to focus on its benefits for funders. Mr Panlilio points out that while there are no formal rules around disclosure in this area, it is generally accepted that both the presence as well as the identity of litigation funders in international arbitration should be discoverable. Panlilio argues that this should not be seen as undesirable, as the existence of a funding arrangement can act as a strong signal to all parties concerned that the claim is supported by a third-party who has assessed it as being substantial and likely to succeed. Additionally, it can dissuade the opposite party from engaging in stalling tactics in the hope of draining a claimant’s financial resources. Panlilio does specify that discoverability should not be exhaustive, as the details and exact nature of a funding arrangement should not play any role in a tribunal’s decision-making, nor is it relevant to the merits of a claim.
Commercial Deals

CASL Funds Class Action by Aboriginal Communities Against Australian Government

Litigation funding is perhaps at its most impactful when it can be used by individuals or groups of citizens to hold their government to account. A new class action in Australia is once again demonstrating this impact, as a leading funder is supporting a new action by Aboriginal communities against the regional authorities. Detailed in an article by National Indigenous Times, the Northern Territory’s public housing body is facing a class action suit brought by Aboriginal remote community residents who allege that the regional government has failed to ensure that local housing meets safety standards. The class action brought by residents of Gunbalanya is being funded by CASL, and takes aim at both the Territory and Commonwealth governments for failing to resolve tenant complaints about the quality of housing. Madeline White, a senior associate at law firm Phi Finney McDonald, which is leading the case, argued that this class action is not only about securing compensation for those residents involved in this lawsuit, but also for the wide array of remote Aboriginal communities throughout Australia. This is also not the first case of its kind, with similar lawsuits being brought in 2016 and 2019 by communities in Santa Teresa and Laramba.
Commercial Regulatory Issues

Aussie Government to Roll Back Litigation Funding Restrictions

Regulatory developments are at the front of mind for funders around the world, with significant proposals being discussed to place restrictions on third-party funding in the European Union, whilst other jurisdictions look to open their legal systems to increased involvement from funders. In a welcome development for funders in Australia, the government has made good on its commitment to reverse litigation funding restrictions put in place by the prior administration. In an announcement by the Department of the Treasury, the Australian government announced that its plans to exempt funders from investment regulations have now come into force. This reversal of the previous government’s position, which LFJ reported on in September, means that funders will once again be exempt from regulations including the managed investment scheme and Australian financial services licensing, according to a release by the Australian Securities & Investment Commission. Stephen Jones, the Assistant Treasurer and Minister for Financial Services, said in the statement that litigation funders play a crucial role in the government’s broader aim to widen access to justice. He also stated that the Treasury would continue to evaluate the Australian Law Reform Commission’s wider recommendations, to ensure that the country’s class action regime would produce ‘fair and reasonable outcomes’.
Commercial Regulatory Issues

60 Minutes Underscores Need for Litigation Funding, While Highlighting Lack of Regulatory Oversight

This Sunday’s “60 Minutes” featured a segment on the growth of litigation funding. Host Leslie Stahl highlighted the industry’s important role within the Legal Services sector, but also pointed out the lack of regulatory oversight which can lead to ethical concerns. “Litigation funding can help in cases where otherwise the little guy who’s suing would just get crushed or lowballed by defendants with deep pockets,” Stahl explained as part of her opener on the necessity of the funding industry. “The problem is, this market is exploding, with almost no rules or oversight.” Stahl profiled a litigation funding claimant: Craig Underwood’s family farm. Underwood had one customer—a hot sauce maker. When that customer pulled out of a contractual obligation, Underwood faced financial ruin. He sued his former client and won a breach of contract claim.  But the hot sauce maker appealed, and Underwood couldn’t afford to keep fighting. That’s when he heard of litigation funding, and found Burford Capital. Underwood took $4MM from Burford to continue fighting, and won the appeal and the $23MM. When it was all said and done, Underwood still had to pay his attorneys, and then compensate Burford to the tune of $8MM. Asked whether he thought that payment amount was predatory, Underwood emphatically said no, given that Burford stepped in and funded his case when no one else would. “They basically rescued us.” Christopher Bogart, co-founder and CEO of Burford, noted that on average, the funder will double its money on a successful outcome, explaining that funders take enormous risk, given the non-recourse nature of their investments. He emphasized that Burford has a roughly 90% success rate. Stahl then interviewed Maya Steinitz, law professor at University of Iowa, who pointed out the ethical considerations at play here. Steinitz explains that although funders like Burford claim not to interfere in how a case is managed, there is nothing legally stopping a funder from compelling a client to settle. Consumer Legal Funding was also featured prominently in the program, where Stahl explained that the funding helps poor people pursue their legal claims. Yet she also pointed out how claimants are routinely charged very high interest rates by funders, highlighting RD Legal Funding’s alleged ‘predatory behavior’ in the 9/11 victims’ compensation fund case. The program concluded by pointing out how essential litigation funding is to American society. “Accessing the courts in a civil process is a luxury good in America” explained Maya Steinitz.  “It’s simply too expensive to bring your case in a court.”  That said, Steinitz is calling for more oversight of this largely unregulated industry.
Announcements Commercial Legal Innovation

“60 Minutes” Scheduled to Air at 7:30 PM, ET/7:00 PM, PT After Football on the CBS Television Network

Burford Capital will be featured on CBS’ 60 Minutes this Sunday, December 18 at 7:30 PM ET/7:00 PM PT [after to Sunday Night Football (please check local listings)].

Schedule for the show is as follows:

CONVOY OF LIFE – Scott Pelley reports from Ukraine, where more than 1,000 children are fighting cancer amid Russian attacks on hospitals and the power grid, putting their lives in immediate danger. A renowned American hospital and 21 countries have stepped in to help. Kristin Steve and Nicole Young are the producers.

LITIGATION FUNDING – Lesley Stahl reports on litigation funding, a relatively new multi-billion-dollar industry where investors fund lawsuits in exchange for a slice of the award. It can be lucrative and help level the playing field against big corporations with deep pockets, but it’s growing rapidly with little rules or oversight. Shachar Bar-On and Jinsol Jung are the producers.

LOURDES – Bill Whitaker reports from the Sanctuary of Our Lady of Lourdes, a Marian shrine in southern France and the site of 70 medical miracles recognized by the Catholic Church. 60 MINUTES goes inside the Lourdes Office of Medical Observations where world-renowned doctors and researchers conduct decade-long investigations into the dozens of claims of miraculous cures made every year. They determine which cases can be medically explained and which cannot. Nichole Marks is the producer.

Commercial People Moves

Major World-Wide Talent Expansion at Woodsford 

ESG financier and litigation investor Woodsford is proud to announce a new class of team members joining the firm's global enterprise.  Amar Singh Mann, David Haighan and Jordan Howells will join Woodsford's London, United Kingdom office. Cody Nguyen is slated to enter Woodsford's Brisbane, Australia office. Additionally, Woodsford announced that former Australian Federal Magistrate, the Honorable Neil McKerracher KC will join the firm's global investment advisory panel. Woodsford says that Australia continues to be an emerging market for litigation finance innovation. Woodsford's appointment of Howells as Senior Investment Manager is rooted in his wealth of experience, including 14 years of public and private organizational investigation, litigation and negotiation for ESG malfeasance. Woodsford plans to engage Howells' prosecutorial acumen that includes liaising with the United States Department of Justice, Securities and Exchange Commission and Serious Fraud Office. Steven Friel, Woodsford's Chief Executive Officer, says that the firm's new international appointments are indicative of cross border litigation investment innovation. Friel goes on to say that Woodsford's international footprint in ESG justice is expected to represent some of the highest standards in the world.
Announcements Consumer

Mill City Ventures III, Ltd. Provides Short-Term Loan to Mustang Litigation Funding

Mill City Ventures III, Ltd. ("Mill City") (NASDAQ:MCVT), a specialty short-term finance and non-bank lender, announced today that, in accordance with its previously announced letter of intent regarding a proposed merger transaction with Mustang Funding, LLC dba Mustang Litigation Funding ("Mustang"), it has entered into a $5 million short-term financing arrangement with Mustang in furtherance of the proposed merger. The related short-term note is scheduled to mature on the ninth-month anniversary of the loan. Mill City Chief Executive Officer, Douglas M. Polinsky, said, "Our announcement on December 6, 2022, outlined a few conditions set forth in the letter of intent, one of which was the consummation of a short-term loan by Mill City to Mustang. This $5 million short-term loan that we closed not only provides Mustang with short-term liquidity, but also marks the first step in what we believe will be an eventual combination transaction between Mill City and Mustang as outlined in our letter of intent and related public announcement. This is an exciting time for Mill City, as we believe that the proposed transaction with Mustang will be transformational for our combined company." Mustang President, Jimmy Beltz, said, "We are excited about taking the next steps in our company's growth and development, and look forward to working towards our goals with Mill City's team." About Mill City Ventures III, Ltd. Founded in 2007, Mill City Ventures III, Ltd., is a specialty short-term finance company providing short-term non-bank lending primarily to small businesses, both private and public. Additional information can be found at www.sec.gov or www.millcityventures3.com. About Mustang Litigation Funding Founded in 2018, Mustang Funding, LLC dba Mustang Litigation Funding looks for best in class capital solutions for the legal industry through funding law firms, plaintiffs, vendors and other opportunistic legal assets. More information can be found at www.mustangfunding.com
Commercial Deals

Litigation Funding as a Solution to Corporates Damaged by ‘Black Swan’ Events

The nature of litigation funding means that it is often most sought after and most valuable in situations where unforeseen events lead to dire consequences for a wide array of parties. As a new piece of analysis suggests, the interconnected nature of the global economy and financial markets means that such situations could increase in frequency and trigger a higher volume of lawsuits requiring funding. This analysis by Jason Levine, investment manager and legal counsel at Omni Bridgeway, uses the example of the latest scandal in the cryptocurrency world: the collapse of FTX, to illustrate the danger of these ‘black swan’ events. Levine points out the unanticipated and massive financial losses that occur in such events, acting as a catalyst for a strong litigious response which can be enabled and bolstered by the use of third-party funding. Levine highlights that in situations where corporate plaintiffs are damaged by these black swan events, they may lack the liquidity to pursue litigation due to the financial strain imposed by the event. He also points to the fact that during these challenging times, taking on the costs of litigation may result in a hit to company valuation, and so, the use of litigation finance to shift these costs off the balance book can become particularly important. Levine concludes that if we do see an increase in the number and scale of these black swan events, particularly in the currently unstable financial markets, litigation funding will be a vital tool for corporates to seek redress and compensation through the legal system.
Case Developments Commercial

BVI Court Ruling Affirms a Client’s Right to Disclose Confidential Information to Funders

Although the issue of disclosure has primarily been discussed in recent months with relation to US plaintiffs being required to disclose details of their funding arrangements to the courts, a ruling in another jurisdiction appears to signal a victory for clients looking to disclose confidential information to their funders.  Detailed in a piece of analysis by Ogier, a law firm specializing in offshore matters, a new ruling by the Court of Appeal in the British Virgin Islands (BVI), affirmed the right of clients to disclose certain confidential case details to their funders where necessary. In the case of Fang Ankong v Green Elite Limited, the Court agreed with the precedent set by the English High Court, that the ability of funders to access such information does fall within the ‘purposes of proceedings.’ Ogier’s analysis noted that this is an important victory for funders and their clients, as it ensures they will be able to share information that could be used to assess the viability of future funding, thereby creating a more transparent process and one in which funders are less likely to be blindsided by information relevant to evaluating funding decisions. However, the analysis did note that this ruling only applies to cases within the BVI, and where cases involve proceedings in other jurisdictions, this guarantee is not automatically assured.
Commercial Deals

Litigation Funding as a Catalyst for European Class Action Growth

The volume and scale of class actions is on the rise in jurisdictions around the world, mirroring the regularity and broad scope of proceedings that are more commonly experienced in the US. Many industry commentators see Europe as a market with huge potential, driven by the expansion of litigation funding on the continent, and the regulatory development that could act as a catalyst for growth. In an article in Strategic Risk, Henning Schaloske, partner at Clyde & Co, argues that the European Union’s ‘Directive on Representative Actions’ will set the stage for a significant rise in class action activity, as it will create a uniform structure that will enable collective actions to be taken across all member states. Schaloske argues that this directive will be the mechanism to open the door for increased class actions, but it will be litigation funders who will play a key role in realising this opportunity. Whilst Schaloske does not see the EU completely emulating the US model, he does see an opportunity for funders to drive further activity, especially in cases related to data privacy misconduct which are enabled through the EU’s General Data Protection Regulation (GDPR). He does note the counter-balancing factor of proposed regulations that would restrict third-party funding, but argues that the trend of high-profile and high-value cases would suggest that litigation funding will still play an important role.
Announcements Commercial Fundraising

NEW LITIGATION FINANCE FIRM – LEX FERENDA LITIGATION FUNDING – EXECUTES SUCCESSFUL LAUNCH; EXCEEDS EXPECTATIONS AT FIRST CLOSE

Lex Ferenda Litigation Funding LLC "LF2" is pleased to announce that it recently launched commercial funding operations after completing the first capital close for its Lex Ferenda Litigation Funding Master Fund. The Fund, which will focus its investments on US litigation and domestic commercial arbitration, welcomed several institutional investors whose commitments to LF2 exceeded initial expectations, and brought the Fund substantially closer to its USD $100 million+ target. LF2 is co-founded by Michael German, a veteran litigator and litigation funder with more than a decade of experience resolving high-value, complex commercial litigation, and Chris Baildon, a financial services expert with more than 30 years of industry experience. "We are incredibly excited to officially announce our commercial launch and look forward to being disruptive to the litigation finance industry," said Michael German, LF2's Chief Investment Officer. "We have created an investment platform at LF2 that permits us to quickly assess and make informed, data-driven decisions about the potential litigation investments we consider. The resulting transparent, client-focused investment process, which is driven by true subject-matter experts, makes LF2 a trusted partner and advisor for our clients and the law firms that represent them," said German. "In addition, our industry access and deep bench of seasoned litigators and investors make LF2 a trusted investment manager for the Fund's investor-base as well," said Chris Baildon, LF2's Chief Operating Officer. LF2 Differentiates Through Niche Focus and Veteran Team of Industry Professionals LF2 is a privately held investment management firm, with a focus on the litigation, legal, and litigation support and technology markets. As manager, LF2 is primarily focused on single-case investments in US commercial litigation and domestic commercial arbitration, with sizes ranging between USD $1 million and $10 million, although LF2 retains discretion to make all manner of investments on behalf of the Fund. LF2 brings to market one of the most flexible funding mechanisms currently available, with the ability to assess and invest in claims at any point along the dispute resolution life cycle and with flexible guidelines on law firm and client co-investment. "We created the investment program at LF2 to specifically address the lack of focus on the customer across the industry," said German. "LF2 solves for this by creating a unique and individualized funding plan for each investment as assessed from the perspective of each of the investment's underlying stakeholders. Our experience shows us that this yields the greatest outcomes for our clients," said German. Executive Team Michael German – Co-Founder and Chief Investment Officer Michael is one of the co-founders of and the Chief Investment Officer at LF2. He is primarily responsible for the firm's strategic direction, investments, and fund risk management. Michael is an experienced litigator, trial lawyer, and litigation funder with more than a decade of experience litigating, resolving, and investing in complex commercial litigation and arbitration matters. Chris Baildon – Co-Founder and Chief Operating Officer Chris is one of the co-founders and the Chief Operating Officer at LF2. He is primarily responsible for the firm's operational and compliance efforts as well as its capital raising and investor relations efforts. Chris brings three decades of global investment banking and finance experience, with substantial experience in management, business development, and capital raising across investment verticals, including litigation finance. David Stickney – Managing Director, Underwriting and Risk David is LF2's Managing Director, Underwriting and Risk. He is responsible for the firm's case underwriting, investment monitoring, and risk management programs, and supports the firm's business development efforts. David is a renowned litigator and law firm leader who recovered billions of dollars for his clients through complex commercial litigation, earning him recognition as a "Titan of the Plaintiffs' Bar" and a "Litigation Groundbreaker." Advisory Board Hon. Vanessa Gilmore (ret.) – Member of the Advisory Board Judge Gilmore is a member of the Advisory Board at LF2. She primarily advises the leadership team on new and existing investments, but is also an important strategic advisor to the firm on various legal and dispute resolution matters. Judge Gilmore recently retired from the bench after more than 25 years serving as an Article III judge in the Southern District of Texas. Scott Mozarsky – Member of the Advisory Board Scott is a member of the Advisory Board at LF2. He is an important strategic advisor to the business on legal, data and technology issues. Scott currently leads the M&A and Capital Markets Advisory Practice for a leading middle market investment bank and previously served as a corporate and legal leader to several large multinationals and publicly-traded entities. Institutionally Managed Capital Takes Long-Term View of LF2 LF2's first close was led by a leading global financial investment manager with an alternatives portfolio AUM exceeding USD $22 billion. "We are thrilled to have an exceptionally strong investor, with substantial experience in the litigation finance asset class, show such confidence in LF2. With access to significant committed capital and the substantial reach of its industry-knowledgeable investors, LF2 is able to act quickly in meeting plaintiff funding needs, which is crucial to securing quality case investments," said Baildon. LF2 is structured with the objective of meeting the highest standards in investment process management, quality control, risk management, and compliance. For further information about Lex Ferenda Litigation Funding, please visit: www.lf-2.com. For Investor Relations or other questions, please contact: Chris Baildon.
Commercial Deals

Research Suggests Litigation Funding for Patent Cases is on the Rise

Patent dispute funding has been a prominent topic in recent headlines, largely due to ongoing cases where the area of third-party funding disclosure has become a divisive issue. However, according to new research, this is unlikely to have a dampening effect on this type of litigation finance activity, and in fact, indicators suggest that it will continue to be a dominant sector. An article by Bloomberg Law highlighting the results of its recent Litigation Finance survey suggests that patent litigation remains one of the most active areas of third-party funding, with 23% of lawyers surveyed indicating they had obtained funding specifically for patent cases in 2022. This activity is reflected by the response from funders, with 68% of these companies having committed capital to patent litigation. Of particular interest for those looking ahead to 2023 is the fact that interest in exploring funding for patent law cases has risen dramatically in recent years, with 30% of lawyers expressing interest in 2022, compared to only 11% when asked two years prior. Unless a major regulatory development appears to discourage the use of third-party funding in patent litigation, it seems likely based on this data that we will see continued growth next year.
Commercial Deals

Funders Play Vital Role in Enabling International Securities Fraud Litigation

Although the US has traditionally been the primary jurisdiction for securities fraud litigation, a wave of regulatory developments and landmark cases has led to a much more active international market in recent years. In countries including the UK, Australia and the Netherlands, we are seeing numerous examples of high-value settlements being secured, and litigation funders are playing an increasing role both in providing capital and reducing risk for investors looking to take legal action. A new article by Bloomberg Law details the rise in investor-led litigation against major corporations, highlighting data from Institutional Shareholder Services (ISS) which shows an average of 60 of these lawsuits being brought each year outside of the US, since 2016. Jeff Lubitz, director of securities class actions services at ISS, states that while this trend is not experienced in every jurisdiction, there is clear evidence that in certain countries there is a combination of investors, lawyers and funders working together to actively pursue these claims. Burford Capital’s director of legal finance, Michael Sternhell, argues that the Netherlands and Australia are two particularly promising jurisdictions due to the speed of their legal system and the willingness of the courts to take an inclusive approach to international shareholder participation. Adam Erusalimsky, senior investment officer at Woodsford, also highlighted the important role litigation funders play in this area, as they provide a counterbalance to corporate power and open access to justice for shareholders.
Commercial Regulatory Issues

Burford Co-Founder Says Outside Investment is Key to Law Firm Growth

The traditional partnership model for law firms has been one of the bedrocks of the industry for so long, that suggestions of alternative ownership structures have been regularly dismissed without significant debate. However, with the advancement of law firm IPOs in the UK and the rise in adoption of the alternative business structure (ABS), some industry figures see outside investment as the best path forward. Writing in Law.com, Burford co-founder and chief investment officer, Jonathan Molot, argues that while there have been examples of IPOs and outside ownership gone awry, outside equity investment is still the best tool for law firms to innovate. He highlights the fact that the partnership model does not incentivize investment for long-term innovation and development, while outside capital can allow a firm to invest in new technology and services which will benefit firms and their clients. Molot goes on to state that by accessing outside investment, especially from legal finance companies, law firms can explore more flexible billing options for clients, which can be a powerful tool in attracting and retaining customers in such a competitive market. He also raises the currently unstable economic market as another reason why relying on traditional methods of funding can be vulnerable, whereas a third-party funder is able to provide capital and offer a stable foundation for growth and innovation.
Case Developments Commercial

Nimitz Loses Appeal Against Judge’s Funding Disclosure Order

Disclosure has been the key word in the litigation funding industry in recent weeks, as an ongoing patent infringement lawsuit brought the issue into the spotlight. However, the latest development in the case suggests that the tide may be turning against funders who seek to maintain a level of discretion over their involvement. Reporting by Reuters details the announcement today that Nimitz Technologies LLC failed in its appeal to prevent a federal judge in Delaware from mandating disclosure of its litigation funding arrangements. The U.S. Court of Appeals for the Federal Circuit ruled in favour of Judge Colm Connolly, stating that the request for disclosure was within the Court’s authority, and did hold relevance to the ongoing patent infringement case. Whilst the Federal Circuit denied Nimitz’s appeal, it did make clear that Judge Connolly’s order was not a request for the plaintiff to make the details of its funding arrangements known to the public, and they would still have the ability to request the disclosure be sealed by the judge.
Commercial Fundraising

LegalPay Seeks to Boost Legal Innovation Through New Fund

Litigation funding has been a powerful tool for widening access to justice and driving innovation in the legal sector, and technological evolution continues to provide ongoing sector optimization. Seeking to enable this kind of evolution, one major industry player is setting up a fund to boost technological development for the legal sector. Detailed in an article by Hello Entrepreneurs, LegalPay, the market-leading funder in India, has launched its Justice and Inclusion (JAI) Fund to provide startups and established LegalTech companies with $2 million in capital. The purpose of the fund is to invest in technologies and solutions to make India’s legal system more efficient, and speed up the litigation process. LegalPay’s founder and CEO, Kundan Shahi, stated that the JAI Fund aims to remedy the lack of capital for Indian startups, especially those whose solutions could be beneficial for the country’s legal structure, which has experienced relatively little innovation. In addition to Shahi, the fund’s investment committee includes Kashish Grover, COO of LegalPay and Ojasvi Babbar, CEO of the Amity Incubation Centre.
Announcements Consumer

Mill City Ventures III, Ltd. Enters into Letter of Intent to Acquire Mustang Funding, LLC

Mill City Ventures III, Ltd. ("Mill City") (NASDAQ:MCVT), a specialty short-term finance and non-bank lender, announced today that it has entered into a non-binding letter of intent for a merger transaction with Mustang Funding, LLC dba Mustang Litigation Funding ("Mustang"), a Delaware limited liability company owning and operating a Minneapolis-based litigation finance business focusing on the long-term capital needs of law firms, plaintiffs and vendors. Mustang has associated offices in Plymouth Meeting, Pennsylvania and Sarasota, Florida. The letter of intent contemplates Mill City's acquisition of Mustang through a legal structure that is to be determined in connection with reaching a definitive agreement, but with the owners of Mustang receiving a sufficient number of shares of Mill City common stock such that they would own 80% of the total number of issued and outstanding shares of Mill City common stock on a post-transaction basis. The letter of intent is non-binding and obligates the parties only to work cooperatively and in good faith for the purpose of negotiating and entering into a definitive agreement governing the transaction. The letter of intent sets forth certain conditions precedent to any closing of the transaction, and a definitive agreement, if reached, would likely set forth additional customary and negotiated conditions to any such closing. The conditions identified in the letter of intent include the completion of due diligence to the satisfaction of the both parties, a financing-based condition, the consummation of a short-term loan by Mill City to Mustang, the approval of the owners of Mustang and the shareholders of Mill City, together with any related regulatory approvals that may be required, including any required approval by Nasdaq of the continued listing of Mill City common stock after any closing. Any definitive agreement that may be reached is expected to contain other customary and negotiated terms and conditions, and may contain terms and conditions different from those contemplated in the letter of intent. About Mill City Ventures III, Ltd. Founded in 2007, Mill City Ventures III, Ltd., is a specialty short-term finance company providing short-term non-bank lending primarily to small businesses, both private and public. Additional information can be found at www.sec.gov or www.millcityventures3.com. About Mustang Litigation Funding Founded in 2018, Mustang Funding, LLC dba Mustang Litigation Funding looks for best in class capital solutions for the legal industry through funding law firms, plaintiffs, vendors and other opportunistic legal assets. More information can be found at www.mustangfunding.com
Announcements Commercial People Moves

Omni Bridgeway expands in France with new Paris operations, welcomes Leon Ioannou

Omni Bridgeway is pleased to announce the company's expansion and permanent operations in France, welcoming Leon Ioannou as Investment Manager and Senior Legal Counsel. Based in Paris, Leon will focus on supporting clients and lawyers with non-recourse financing and recovery solutions for legal disputes both in France and internationally. Leon brings extensive legal, financial, and international arbitration expertise across jurisdictions from his career in-house and with leading law firms, most recently as the general in-house legal counsel for the European operations of an international medical device company where he steered the resolution of the company's European disputes and litigation. Prior to that, Leon practiced as a lawyer resolving international disputes at White & Case LLP, Hughes Hubbard & Reed LLP, and Freshfields Bruckhaus Deringer. Leon's has advised clients in international arbitration (both common- and civil-law governed) across industry sectors including energy (nuclear, oil and gas), construction, utilities, telecommunications, pharmaceutical, banking and finance, and professional service industries. Leon has conducted proceedings under most of the world's major arbitral institutional rules as well as ad hoc proceedings under the United Nations Commission on International Trade Law (UNCITRAL) Rules.  In Paris, Leon will work closely with the full EMEA team including French trained lawyer, Nevena Ivanova, Investment Manager, Senior Legal Counsel who joined Omni Bridgeway in 2020. Prior to Omni Bridgeway, Nevena gained over a decade of experience in a French boutique law firm where she specialised in fraud, insolvency, asset recovery and international private law litigation. She has deep experience in the enforcement of EU and non-EU judgments and arbitral awards, and regarding the ex-parte authorisations and challenge of various asset attachments, including real estate. "Omni Bridgeway has been successfully funding and supporting clients with legal proceedings in France for more than 30 years, including litigation, arbitration, and judgment enforcement proceedings," notes Raymond van Hulst, Executive Director, MD and CIO for EMEA. "We are very pleased to deepen our commitment to our clients in France with Leon joining us in Paris. Leon's excellent track record is based on his deep international arbitration experience and business perspective, gained in leading law firm and corporate in-house roles across various jurisdictions. He is very well positioned to advise law firms, companies, and individuals in France and across borders regarding dispute funding, legal risk management and specialist recovery solutions." Leon Ioannou commented, "I am extremely happy to join Omni Bridgeway, the most respected legal finance provider in the industry with the most experienced team. As international disputes become more complex and require novel financing and legal solutions, we are well-equipped to help our clients manage risk, and provide both legal and financial support. This includes advising and supporting law firms and companies whether they are large established corporations, or small and emerging businesses who operate in our local market." 
Announcements Consumer People Moves

FinLegal invests in international growth

Leading claims automation solution FinLegal has appointed Connor Goggin, as a Senior Product Specialist, to work closely with US firms and litigation funders to replicate its success in the UK. Connor joins FinLegal with extensive experience in SaaS (Software as a Service) and legaltech sales.

Commenting on the news, CEO, Steve Shinn says: “Many US law firms and claims administrators struggle to obtain information from claimants in a timely fashion and spend unnecessary hours on offline administration and communication. They desperately need online solutions in mass torts, class action, and mass arbitration.”

He continues: “Our solution helps firms reduce the man hours and costs associated with these cases by automating the qualifying, information gathering, and correspondence with claimants and third parties. This leads to more engaged claimants and more fees for firms.

“I am delighted that Connor has joined us to solidify our presence in such an important jurisdiction.”

Commenting on his appointment Connor adds, “I am excited to be joining FinLegal at such a significant growth period for the business. Our platform solves the key challenges that class action and mass torts law firms face including claimant dropout and labour-intensive administration. I am looking forward to working with Steve and the team to establish FinLegal as the leading claims automation solution across the US.”

About FinLegal:

FinLegal is the legaltech provider for the business of disputes. We enable those in the disputes market to do more business by abandoning offline and dated methods and benefitting from automation and online connectivity.

Our claims automation solution removes the costly barriers of claims management - that it's people intensive and often uses dated systems. It streamlines and automates the majority of claims management, claimants self-serve and so legal teams only need to intervene when prompted.

Our funding and After the Event insurance marketplace provides access to funders across the globe and to a range of funding for disputes of different types and sizes, whilst also providing lawyers with visibility and control over their funding requests. Our claimant marketplace links claims management companies, marketing services providers and claim originators in volume claimant work and class actions so you can easily buy or sell claimants, leads or traffic at the touch of a button.

Commercial Deals

Funded Class Action Against UK Universities over Covid Policies May Include Law Schools

One significant driver of class action litigation over the last year has been the after-effects of Covid, and parties claiming damages for the impact of pandemic-related policies implemented by institutions and businesses. One such class action in the UK targeting higher education institutions looks to be gaining momentum, with law schools now potentially being targeted as well. Reporting by The Law Society Gazette provides an update on the ‘Student Group Claim’, which sees students demanding compensation from their universities for a failure to deliver in-person teaching and wider access to university resources as a result of the pandemic and staff labour actions. The claim which already represents 300,000 students also includes almost 3,000 law students, and is targeting 18 universities across the country. The claim has managed to garner broad student participation due to the involvement of an unnamed litigation funder and the presence of litigation insurance, meaning that there is no risk of legal fees for the students. The claim is being brought by solicitors from Asserson and Harcus Parker, who have suggested that if successful, each student could receive compensation of up to £5,000 and beyond.
Case Developments Commercial

Funder’s Strategy to be Reviewed After Two Losses

Whilst the large returns on investment for litigation funders are both lauded and criticized by commentators, there is never an absolute certainty that funders will see a positive return on each and every case. This uncertainty has been brought into the spotlight once more, after one funder’s parent company reported recent losses from two unsuccessful cases for its funder subsidiary. A new article from The Law Society Gazette covers the announcement by RGB Holdings, that its high profile litigation funding business, LionFish, has suffered two losses in recent cases that it had financed. The losses declared to the London Stock Exchange, sees LionFish incur a £4 million non-cash write-off for 2022, having failed to meet its expected £2.3 million in profits. However, the actual cash value of these losses only total £1.1 million. Nicola Foulston, RBG’s chief executive, stated that she was ‘disappointed’ with these results from LionFish and that the company would review the funder’s strategy with an eye towards reducing exposure to the £3.3 million in LionFish's outstanding litigation commitments. RBG stated that it would provide a further announcement in 2023. Editor's note--a previous version of this piece listed LionFish's commitments as being under review.  That is incorrect. It is the overall strategy under review. We regret the error.
Case Developments Commercial

Judge Issues Fierce Defense of Litigation Funding Disclosure Order in Patent Dispute

In the conversation around litigation funding and disclosure, few cases have attracted as much attention as the ongoing proceedings between a Delaware federal judge and Nimitz Technologies, a patent holding company. Since LFJ last reported on Nimitz’s appeal of Judge Colm Connolly’s order for further disclosure regarding its litigation funding arrangements, Judge Connolly issued an 80-page opinion, detailing his reasoning for his order. Outlined in articles by Reuters and Bloomberg Law, Judge Connolly’s opinion went further than ever before by raising the spectre of companies abusing the court system through these patent disputes, and using a “shell LLC” to bring lawsuits without incurring any liability. Connolly re-asserted that despite Nimitz’s protests, the Court retained this “inherent authority” to order disclosure of other parties involved in the case, where there are concerns that their identity is being hidden from both the judge and the defendants. Whilst all participants in the case will have to await the result of the mandamus petition filed by Nimitz, it is clear that the lasting consequences of Judge Connolly’s initial order are far from complete and that the outcome will have a significant impact on the intersection of third-party funding, patent disputes and disclosure. Judge Connolly’s opinion can be read in full here.
Case Developments Commercial

Harbour Funds £14 billion Claim Against Google for Anti-Competitive Adtech Practices

Whilst the power of technology giants has increased tremendously over the last two decades, this growth in market dominance has also attracted the attention of those wary of monopolistic practices by these companies. With no looming threat of any kind of government-led crackdown on these market leaders, the courts have become the new battleground for those seeking to re-assert competition and balance to the Technology industry. An article in TechCrunch details the latest development in one such case, as Google is facing a class action claim in the UK for its allegedly anti-competitive practices in the Adtech space. This suit, along with another claim in the Netherlands, was first reported in September and focuses on the suggested malpractice by Google when dealing with digital publishers. Google is accused of controlling pricing and dictating terms that are favourable to its own ad platforms. Both cases are being financed by Harbour Litigation Funding, with the UK claim seeking to secure up to £13.6 billion in damages for approximately 130,000 businesses who were harmed by Google’s alleged anti-competitive behaviour. The UK suit is being brought to the Competition Appeal Tribunal (CAT), with UK law firm, Humphries Kerstetter, acting for the plaintiffs.