The topic of disclosure in litigation where there is the presence of third-party funding has been a hot topic in several jurisdictions, with defendants strongly arguing that there needs to be an increased level of transparency when it comes to litigation funding. In a recent development, outlined in The National Law Review, a judge in the District of Delaware has ruled that parties in patent litigation cases must comply with enhanced Rule 7.1 disclosures, specifically those required around funding arrangements. Chief Judge Connolly, in the case of Longbeam Technologies v. Amazon.com, stated concerns around the plaintiff’s lack of disclosure for its third-party funding and stayed the case to allow for the defendant to pursue discovery on Longbeam’s litigation funding. This latest example of a court mandating further disclosure around third-party funding agreements is unlikely to be the last, and as the use of litigation funding increases around the globe, both funders and litigants should keep a close eye on whether courts are mandating a heightened degree of transparency.

One of the central tenets of litigation funding is the importance of risk management and analysis not only during case selection, but further down the road when counsel must weigh the benefits and drawbacks of settlement. Whilst law firms bring their significant weight of experience and expertise to bear when evaluating settlement options during dispute resolution, the ability to pinpoint the exact right moment and terms under which to settle is always a challenge. In an announcement by The Legal Tech Fund, one potential solution to this challenge is being explored, as the fund has invested in SettleIndex, a fintech company aiming to reduce risk through detailed financial modeling. The SettleIndex platform is designed to provide lawyers with the tools to evaluate the risk of any case, allowing them to visualize potential outcomes and map that against the financial risk of each option. The value of such technology is not only present for lawyers and their clients, but also for funders eager for more ways to assess case viability and mitigate risk when financing a particular case. Being able to model not only probabilities of success, but also the individual pathways to reliable financial return could be a unique tool in a funder’s arsenal.

While the availability of, and access to, litigation funding has been a boon for those seeking access to justice, some industry insiders argue that reforms have not gone far enough, and that more change is needed. One area of interest is recoverability for plaintiff costs, where currently claimants still stand to lose financially in order to cover the costs of the very funding that has allowed them to access justice. Writing for The Law Society Gazette, managing director of LionFish, Tets Ishikawa, argues that where defendants have been proven to have harmed plaintiffs, it is right and just that they recoup the costs for an action caused by the defendant’s wrongdoing. He argues this is doubly true in cases where the defendant prolongs proceedings through inaction or failure to properly handle proceedings, thereby causing claimant’s costs to rise; as is true in the case of Cabo Concepts Ltd v MGA Entertainment. Ishikawa also acknowledges that reform should not mean recoverability would be available in all commercial litigation matters, but that it should still be at the liberty of the court to make such determinations on a case-by-case basis. He points out that the basis behind non-recoverability is now outdated, and fundamentally misaligned with the principles of widening the avenues to legal redress that litigation funding is supposed to provide.

After a triumphant conference in March 2022, LITFINCON is excited to announce its return to The Post Oak Hotel in Houston, in March of 2023.  According to the company’s press release, this past year’s LITFINCON attracted global thought-leaders from a variety of disciplines in the legal and investment sectors. In particular, attendees learned about major trends and notable developments in litigation finance – an emerging asset class for institutional investors and a source of capital for legal professionals and law firms. Building on LITFINCON, LITFINCON II expects to have a diverse set of over 300 attendees that include leading business executives, judges, litigation funders, elite Am Law firms, corporate counsel, legal professors, and institutional investors. We are looking forward to hosting this event in our backyard, Houston, Texas, one of the largest legal markets in the country. Attendees will have the opportunity to listen to a diverse mix of insightful panel discussions, regulatory changes, judicial thoughts & opinions, and investment trends in litigation finance. There will be even more opportunities to connect with speakers, panelists, and other attendees to expand referral networks and become well-informed about this growing institutional asset class. New to the agenda, LITFINCON II will host an exclusive event for VIP attendees to experience the Houston Livestock Show and Rodeo, the largest livestock exhibition and rodeo in the world. The conference will also continue the fun tradition of "Law, Lunch & Laughs" with a celebrity comedian as a keynote speaker. LITFINCON II is thrilled to have early support from some of the most high-profile organizations in the litigation finance industry. Confirmed initial sponsors for LITFINCON II include Certum Group, CAC Specialty, Schulte Roth & Zabel, Omni Bridgeway, Filevine, Aon, Dunning Rievman, and Arran Capital. “We’re proud that the inaugural LITFINCON was a tremendous success and want to thank the many sponsors, panelists, and attendees, who attended from all over the world – London, Geneva, New York, Miami, San Francisco, and Austin. LITFINCON highlighted the growing field of litigation finance and the importance of Texas as a hub that unites all participants in the legal field. Siltstone Capital is excited about continuing the momentum and advancing the litigation finance field by hosting LITFINCON II in March 2023,” says Mani Walia, Managing Partner & General Counsel, Siltstone Capital. Entrusted by leading institutions, Siltstone Capital is a premier multi-strategy investment firm that provides capital solutions to litigants, law firms, and legal departments to help resolve their real-world legal issues and create significant value for all stakeholders.

A claim against Sony Group was filed on 19 August 2022 in the UK’s Competition Appeal Tribunal (CAT). The claim is being brought on behalf of UK-based PlayStation users who have purchased digital games and/or add-on content from the PlayStation Store since 19 August 2016. The claim is being funded by Woodsford, the UK’s leading ESG, access to justice and litigation finance business. It’s alleged that Sony is breaching UK and EU competition law by abusing its dominant position resulting in consumers paying inflated prices for digital PlayStation games and add-on content. This standalone collective action is brought on behalf of an estimated 9 million potential class members. An application has been made to the CAT for a Collective Proceedings Order which if ordered will result in a single class representative representing all potential class members on an opt-out basis. The proposed class representative is consumer champion Alex Neill, Chief Executive of Resolver.co.uk. Alex’s team, funded by Woodsford, includes the law firm Milberg London LLP, economics experts at Berkeley Research Group LLC and barristers from Monckton Chambers. Woodsford’s Chief Executive Officer, Steven Friel, commented: “Woodsford’s ESG team is dedicated to holding big business to account when corporate wrongdoing causes loss to consumers and other stakeholders. We are proud to support Alex Neill's case, helping deliver access to justice for millions of gamers. Our significant financial and professional resource is already backing UK class actions against train companies accused of overcharging, and shippers whose cartel behaviour is alleged to have inflated the price of cars. With the launch of this claim against Sony, and with more landmark cases being worked up, Woodsford is now clearly established as the most successful ESG and litigation finance business in this area of UK collective redress." Further information on the claim and updates on its progress can be found at www.playstationyouoweus.com. About Woodsford Founded in 2010 and with a presence in London, New York, Brisbane, Philadelphia and Minneapolis, Woodsford is a leading ESG, access to justice and litigation finance business. Whether it is helping consumers achieve collective redress, ensuring that investors and universities are properly compensated when Big Tech infringes intellectual property rights, or helping shareholders in collaborative, escalated engagement up to and including litigation with listed companies, Woodsford is committed to ensuring the highest ESG standards while providing access to justice. Working globally with many of the world’s leading law firms, our legal experience, investment, business and technical expertise, in tandem with our significant financial muscle, makes us a powerful partner and a formidable adversary. Woodsford is a founder member of both the International Legal Finance Association (ILFA) and the Association of Litigation Funders of England & Wales (ALF), and a member of the International Corporate Governance Network. Woodsford continues to grow, and we welcome approaches from experienced litigation lawyers and other professionals who are interested in joining our team. For more information visit www.woodsford.com

As the litigation funding market continues to grow and evolve, funders are placing a higher value on environmental, social and governance (ESG) issues. This development raises questions about the connection between ESG and litigation funding, how litigation funders are currently addressing ESG, and what the future of ESG in litigation funding will look like. The following article will offer answers to those questions and act as a general overview of the state of ESG in litigation funding.

What is ESG and Why Does it Matter?

ESG encompasses environmental issues like air or water pollution, social issues such as customer privacy and data security, and governance issues like transparency. ESG pursuits have come to the forefront of many corporate agendas over the last decade. In some cases, this focus may be self-imposed, but it’s often a legal requirement as well. Even as companies champion ESG to satisfy customers and shareholders, they don’t always stay in compliance with those values and/or laws. As the number of ESG-related laws and regulations increases, compliance will become a greater focus for companies and investors alike. Litigation exists as both a deterrent to, and a regulator of, ESG non-compliance. ESG cases in response to corporate non-compliance create the connection between ESG and litigation funding. As Tets Ishikawa, Managing Director at LionFish Litigation Finance stated, litigation funding of ESG cases has a key role to play in helping businesses meet their ESG goals. Corporate executives aren’t the only ones concerned about ESG issues, however; savvy investors also recognize the importance of ESG. Responsible investing in ESG causes is often an obligation for pension fund managers and other asset allocators. Even when that is not the case, investors increasingly see ESG as a priority, with 85 percent of investors interested in sustainable investing.

Litigation Funders Pursuing ESG Cases

Major players in the litigation funding arena are already talking about or pursuing ESG investments. Funders like Therium, Woodsfood, North Wall Capital, and Litigation Lending Services have prioritized ESG cases, and more funders will likely join them in the coming years. One leading litigation funder, Therium, emphasizes the importance of ESG as part of broader responsible investing efforts. Funding ESG legal action, the funder states, makes justice more accessible for those harmed in ESG breaches. Litigation funding helps those claims be brought, even when the claimants don’t have the resources to fund extensive legal battles. Woodsford is another litigation funder touting the value of ESG litigation. Bob Koneck, Director of LitFin and legal counsel at Woodsford, emphasized the potential of ESG litigation as a reputation-enhancing tool for companies. He claims that companies can position themselves as ESG leaders through litigation, while also recovering money to use toward additional ESG initiatives. This is a unique view on the value of ESG litigation that speaks to the potential these cases have for corporations. This past week’s news cycle illustrates how cemented the concept of ESG litigation has become within the litigation funding ecosystem, as both new entrants and entrenched players are making waves on the topic. North Wall Capital recently announced a $100 million investment into law firm Pogust Goodhead, with the aim of funding ESG cases specifically. Fabian Chrobog, Chief Investment Officer of North Wall, argues that ESG investment makes practical sense, as these cases maintain a higher probability of settlement than most other claim types. And Paul Rand, Chief Investment Officer of Omni Bridgeway, recently revealed that the longtime funder is planning the launch of an ESG Finance fund. According to Rand, Omni is currently testing bespoke techniques for valuing and assessing ESG risk management.

ESG Cases Funded by Litigation Funders

Airbus Case Funded by Woodsford One prominent ESG case organized and funded by a litigation funder, is the Airbus case financed by Woodsford. Investigations by international authorities including the US Department of Justice revealed that Airbus SE, a manufacturer of military and civilian aerospace products headquartered in Europe, had participated in a widescale bribery and corruption scheme. In 2020, the company was forced to pay billions of dollars of fines to resolve these bribery charges, causing a major dip in its share price. Airbus investors incurred serious losses due to these violations of ESG principles and Airbus’ failure to inform the public in a timely manner about its conduct. That’s where litigation funder Woodsford got involved. Woodsford organized the affected investors into a special purpose entity, Airbus Investors Recovery Limited (AIRL), which is currently pursuing legal action against Airbus in Amsterdam to recover losses. The ESG team at Woodsford is funding and organizing this action. Without such involvement, the claimants may not have been able to pursue action against a large company with such deep pockets. Being able to hold major corporations like Airbus accountable for their egregious ESG breaches is one of the most significant benefits of litigation funding. Litigation Lending Services' "Stolen Wages" Claim Litigation Lending Services, an Australian litigation funder, funded another notable ESG case related to stolen wages. This class action began in September of 2016, and was a lawsuit on behalf of Aboriginal and Torres Strait Islander workers in Australia. The workers had been subject to ‘protection’ legislation from the late 1800s up to the 1970s. This wage control legislation led to tens of thousands of indigenous workers across a variety of industries never receiving their full wages, estimated to be millions of Australian dollars in total. Wage violations like these fall under the governance portion of ESG. Litigation Lending Services offered its support to the case, which reached a settlement of $190 million in December, 2019. To date, the case is the largest human rights case in Australian history. The settlement brought resolution to more than ten thousand First Nations people. Both of these cases illustrate the potential of ESG, and the possibilities for more ESG cases and litigation funder involvement in the future. In Conclusion Global legal actions related to ESG issues like climate change are increasing, and the targets of these lawsuits are shifting to include more corporations over time, rather than just governments. It’s worth noting that environmental issues often get the most attention, but ESG litigation goes beyond just environmental claims. Lawsuits involving fraud, disclosure rule breaches, diversity and equity, misrepresentation, and health and safety issues all fall under the category of ESG litigation. Environmental claims have seen the largest growth in the last few years, but we can expect other types of ESG lawsuits to increase as well. Another factor driving additional ESG litigation is the lack of clarity surrounding what exactly constitutes ESG. The intense focus on ESG is fairly new, meaning parties are not in complete agreement on the definition of ESG and how it should be measured and reported. As the number of ESG group claims increases, there’s room for growth in the litigation funding market. This industry is constantly evolving to keep up with broader trends in litigation, including the evolution of ESG claims. For now, it’s clear ESG will have a key role to play in the future of litigation funding.

Today, Inc. Magazine revealed that Experity Ventures is # 682 on its annual Inc. 5000 list, the most prestigious ranking of the fastest-growing private companies in America. The list represents a one-of-a-kind look at the most successful companies within the economy's most dynamic segment—its independent businesses. Microsoft, Facebook, Under Armour, Patagonia, Chobani and many other well-known names gained their first national exposure as honorees on the Inc. 5000. Joseph Greco, Founder and Chairman, commented, "We are proud and honored to be recognized for a second consecutive year as part of this prestigious list. Our three-year revenue growth rate of 914% is testimony to us executing our vision every day. Congratulations to our dedicated and talented team and we look forward to continuing our amazing innovation and growth story."  Ryan Silverman, CEO, added "We are very excited to be recognized again and be part of this impressive class of great companies. Experity Ventures growth and performance is a result of a continued focus and relentless execution from our outstanding team. Along with our valued partners, we will stay committed to this ideal every day." The companies on the 2022 Inc. 5000 have not only been successful, but have also demonstrated resilience amid supply chain woes, labor shortages, global events and the ongoing impact of Covid-19. Among the top 500, the average median three-year revenue growth rate soared to 2,144 percent. Together, those companies added more than 68,394 jobs over the past three years. Complete results of the Inc. 5000, including company profiles and an interactive database that can be sorted by industry, region, and other criteria, can be found at www.inc.com/inc5000. The top 500 companies are featured in the September issue of Inc. magazine, which will be available on August 23.  "The accomplishment of building one of the fastest-growing companies in the U.S., in light of recent economic roadblocks, cannot be overstated," says Scott Omelianuk, editor-in-chief of Inc. "Inc. is thrilled to honor the companies that have established themselves through innovation, hard work, and rising to the challenges of today."

As part of a broader effort by the US Securities & Exchange Commission (SEC) to increase transparency around hedge fund investing and reduce risk in the financial system, the spotlight has fallen on the activities of funds engaging in litigation financing investments. In a proposal last week, the SEC would require hedge funds and private investment advisors to confidentially disclose their litigation funding activities and spending. Analysis by Bloomberg Law highlights that there has been a lack of transparency around the extent of hedge fund involvement in the litigation funding industry, even for regulators. However, the new rules would ensure that funds would have to report what portion of their capital was dedicated to litigation financing efforts. This reporting would not be made public. Bloomberg reports that there will certainly be pushback from both hedge funds and Republican officials, who have long fought against any national disclosure regulation. However, this may not deter the SEC, as Scott Masciana, partner at Holland & Knight, points out that as the industry continues to grow, it will become increasingly difficult to escape further oversight from regulators.