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Commercial

Video: Third Party Funding Enforcement

Olivia de Patoul, Senior Legal Counsel for the Asia-Pacific region at third-party funder Deminor, recently discussed enforcement issues with third party funders.  In a new video, De Patoul shares some background since opening her Hong Kong office in 2018. Deminor saw opportunities in Asia, specifically, Hong Kong and Singapore, which have both been a focus of Deminor’s as third party funding investment opportunities expand.  De Patoul notes that the market still needs to familiarize itself with new ways of pursuing third party claims; she expects third party investment to be more commonly pursued over the coming years.  The video comments are part of an update to Conventus Leadership’s essay on drivers to Asia’s adoption of third party funding.
Commercial Regulatory Issues

What is Federal Rule 26? And Why Does it Matter?

Federal Rule 26 serves as general guidance to the duty of disclosure during discovery proceedings. The question is, should litigation finance agreements fall under Federal Rule 26’s purview? Significant effort has been invested in various proposals requiring litigation funding information to be made available under Federal Rule Rule 26.  AboveTheLaw.com reports that a recent effort to amend Federal Rule 26 with a “one size fits all” provision requirement for litigation finance agreements has failed. The Federal Rules Advisory Committee on Civil Rules has upheld the notion that the decision to disclose litigation agreements resides with the litigant.  Proponents of amending Federal Rule 26 have petitioned for a Third Party Litigation Finance pilot project through an amendment to Fed. R. 26(a)(1)(A). Federal Rules Advisory Committee members signal no intent to approve any such measure, anytime soon.  Check out AboveTheLaw.com’s full deep dive into the latest news on Federal Rule 26. 
Commercial Regulatory Issues

Fifth Circuit Rejects LitFin Challenge for Lack of Standing

Anyone seeking to challenge a litigation funding agreement got a severe message from the Fifth Circuit court in December. The message is: You’d better have standing. An opinion by Judge Jacques L Weiner Jr. explained that the appellant-debtor in In re Dean did not have standing to challenge a funding agreement that had already been approved by a Texas bankruptcy court. Omni Bridgeway explains that the Fifth Circuit ruled that the debtor would not be impacted, either directly, financially, or adversely, by the funding agreement. This means that the court utilized the ‘person-aggrieved’ test to determine if the creditor was legally able to appeal an order from a bankruptcy court. The Fifth Circuit opinion was unanimous, and was joined by Judge James C Ho and Judge James E Graves Jr. The Texas case began with a voluntary Chapter 7 filing in US Bankruptcy Court for the Northern District of Texas. Scott Seidel was appointed trustee, and saw that he did not have the funds to pursue claims on behalf of creditors. He then entered a litigation funding agreement with Reticulum Management LLC. When Dean challenged the funding agreement, Seidel explained that funding was the best alternative since he couldn’t find a law firm who would take the case on contingency. Dean’s challenge centered around the idea that the agreement would disrupt the legal order of payment to creditors—putting the funders first in line. Ultimately, the ruling is good news for funders in the bankruptcy space, and good news for anyone pursing avoidance actions, breach of duty matters, tax recoveries, and insurance disputes.
Commercial Legal Innovation

Burford Capital’s Chris Bogart: Litigation Funding Innovator

After a notable career with Time Warner, Chris Bogart co-founded Burford Capital, now the global leader in litigation finance. It began with a simple idea: develop a third-party funding company that finances firms and individual claimants in exchange for a share in any settlement or award. As a moneymaker for investors and a way to increase access to justice—it’s a win-win. Carrier Management details that Bogart’s time with media giant Time Warner gave him considerable insight into the challenges of corporate legal departments. While the company had ample funds, spending on a legal budget seemed counterproductive. After drafting a contingency fee agreement for the Time Warner / AOL merger, Bogart realized there had to be a better alternative to paying lawyers by the hour. Burford Capital debuted on the London Stock Exchange in 2009. In October 2020, Burford became the first legal funder to be listed on the New York Stock Exchange. Since Burford’s formation, the insurance industry has leveled endless criticism at the funding industry. It’s no wonder, since keeping insurers honest is a common focus of funded cases. Insurers have asserted that funded cases take longer to litigate, lead to higher awards and greater expenses—all of which become ‘social inflation.’ This is what insurers cite as a reason to raise premium prices, negatively impacting policyholders. Bogart responds to this kind of criticism with a reminder that both funders and insurers are equally interested in fairness and efficiency, since they both work in the same litigation ecosystem. Litigation Finance has come a long way from its humble beginnings in feudal France. Today, funding alleviates the disparity between haves and have-nots in litigation. No longer can big businesses drag out funded cases to drain their opponents' resources. Gone are the days when class action plaintiffs are forced into accepting lowball offers because they lack the funds to move forward.
Commercial Fundraising

Crowdfunded Litigation Catches on in Scotland

Nearly 78,000 people have donated in an effort to crowdfund cases in the Scottish courts. A study published in Edinburgh Law Review details that The People’s Action on Section 30 has raised the most money of any crowdfunding campaign in Scottish legal history. Dr. Andrew Tickell led the analysis. Scottish Legal News explains that Martin Keatings, a pro-independence activist, secured over GBP 68,000 from nearly ten thousand people for his case centered on a hypothetical independence referendum bill, and whether such a bill would be under the purview of Holyrood. This is not the first successful legal crowdfunding venture. In 2019, a fund of more than GBP 207,000 was amassed in an effort to challenge Boris Johnson on the lawfulness of his prorogation of Parliament. Dr. Tickell affirms that legal crowdfunding is a viable and accepted form of legal finance.
Consumer

How Litigation Funding Benefits a Personal Injury Plaintiff

Litigation funding for personal injury plaintiffs is increasingly common, due to the myriad benefits it affords those heading into a costly legal battle. However, funding isn’t just about the money. Legal Scoops details the main benefits of pursuing legal funding for personal injury plaintiffs:
  • Justice. One of the most valuable aspects of third-party legal funding is that it increases access to justice. Funders allow more people to access the legal system in a fairer and more equitable manner.
  • Protection for the public good. The credible threat of lawsuits for illegal or unethical behavior is bound to keep businesses and insurers honest. Without backing from funders, even plaintiffs with strong cases may fall victim to lowball settlements.
  • Managing Risk. Experienced funders can advise on legal strategy and tend to have more experience when it comes to litigation, insurers, experts, and may be better equipped to navigate your case type. At the same time, funders have no decision-making power in the cases they fund—so the plaintiff makes the calls.
  • Efficiency. Funders know how to reduce the time duration of cases and how to best minimize costs.
Third-party legal funding is an innovative way to pursue a personal injury matter, and may have even more benefits than pure financing.
Commercial Deals

L&F Acquisition Corp Defies Expectation with Acquisition Target

All eyes are on L&F Acquisition Corp, launched by former chair of Kirkland & Ellis, Jeff Hammes, and CEO of Keller Lenker, Adam Gerchen. It was assumed that the SPAC would focus on acquiring a legal tech firm, however, the pool of potential targets expanded to include companies focused on Governance, Risk, and Compliance. Law.com details that it was then that Gerchen and Hammes reached an agreement with ZeroFox to take the company public. The expected valuation is about $1.4 billion. The complex and ambitious deal will also include acquiring IDX—a data breach response and digital privacy protection firm. This will enable the company to offer solutions for privacy and protection from cyber-attacks. It’s been suggested that time is a key factor in this deal. A SPAC has only two years from inception to securing a deal—otherwise, it can face liquidation. Since no one wants to risk that, it makes sense to expand the options for acquisition. According to Scott Mozarsky, formerly of Bloomberg Law and Vannin Capital, getting a good deal done requires a willing buyer and seller—plus impeccable timing. Mozarsky suggests that Hammes and Gerchen could have focused solely on the legal market and come up with a deal—but seem to have stumbled into the existing deal instead.
Case Developments Commercial

Billionaire Leon Black Accuses Co-Founder of Malicious Smear Campaign

Is Josh Harris, co-founder of Apollo Global Management, engaged in a plot to take down his former partner? Leon Black thinks so. He’s currently fighting a civil claim from his former mistress, Guzel Ganieva, who has accused him of sexual assault. Black is adamant that she is extorting him and that the years-long affair was consensual. Fortune explains that Black has filed a countersuit against his former lover, saying that an unnamed litigation funder and an as-yet-unidentified public relations team have joined forces, specifically to malign him publicly. Allegations against Harris assert that he used a PR firm to spread misleading information about Black’s business relationship with criminal sexual predator Jeffrey Epstein. Black was cleared of wrongdoing by a review commissioned initiated by Apollo, and appointed Marc Rowan as CEO last year. This effectively left Harris in the cold, possibly spurring his alleged campaign of harassment. How likely is it that a litigation funder would engage in a coordinated effort to smear someone? Surely such a gamble could reflect poorly on everyone involved, regardless of the outcome. We will keep an eye on any further developments. 
Announcements Commercial Fundraising

LexShares Raises $100 Million Litigation Finance Fund

 LexShares, a tech-enabled leader in litigation finance, today announced the oversubscribed closing of LexShares Marketplace Fund II (LMFII), a $100 million fund dedicated to investments in commercial legal claims. LexShares’ deployment of the fund will be overseen by new chief executive officer, Cayse Llorens, who joined the firm’s senior leadership team in 2021.

Investment in the fund was led by Titan Advisors, a $4.5 billion alternative investments firm, with additional participation from several institutional investors and select family offices.

“We are excited about our participation in LexShares Marketplace Fund II and our relationship with LexShares,” said Rob Wilson, Titan Advisors’ Director of Insurance Dedicated Funds. “We feel LexShares’ increasing prominence in an industry with multi-decade growth potential supports the objectives we share with our investors. We believe in LexShares’ mission to use technology to source high-quality investment opportunities and, more broadly, to use capital to empower litigants with valid claims to fully access the promise of the civil justice system.”

The successful closing of LMFII follows another major milestone for the litigation funder. In 2021, LexShares received a majority investment from Brockhurst Capital Partners, a Chicago-based private equity firm focused on specialty finance. As part of the investment, Brockhurst’s founding partner, Mr. Llorens, was named LexShares’ CEO. An accomplished technology entrepreneur and investor, Mr. Llorens will guide the firm’s strategic direction while spearheading LexShares’ deployment of LMFII.

Before founding Brockhurst, Mr. Llorens was a venture capital investor at Invest Detroit Ventures, OCA Ventures, and Hyde Park Venture Partners. Previously, he led software engineering teams through the $240 million IPO of R1 RCM, the $1.8 billion acquisition of Coyote Logistics by UPS, and the $400 million acquisition of BSwift by Aetna. Mr. Llorens graduated summa cum laude in computer engineering from the University of Illinois Urbana-Champaign and earned his MBA with honors from the University of Chicago Booth School of Business.

Mr. Llorens joins the LexShares management team and board of directors alongside the firm’s co-founders, president Jay Greenberg and chief investment officer Max Volsky.

“Over the past eight years, LexShares has become one of the most active litigation funders in the market, using technology-driven insights to help our team source more than 140 investments,” said Mr. Llorens. “From the start, LexShares has sought to facilitate greater participation in the legal system while expanding access to a growing asset class. Backed by this fresh capital, we will continue to explore new applications of technology where it meets the law, strengthening LexShares’ position as a leader in the middle market of commercial litigation finance.” 

About LexShares

LexShares is a leading technology platform for litigation finance, with an innovative approach to originating and financing high-value commercial legal claims. LexShares funds litigation-related matters, primarily originated by its proprietary Diamond Mine software, through both its online marketplace and dedicated litigation finance funds. Founded in 2014, the company is privately owned with principal offices in Boston and New York. For more information, visit

lexshares.com.

About LexShares Marketplace Fund II

LexShares Marketplace Fund II (LMFII) is the company’s second discretionary fund dedicated to providing access to a portfolio of litigation-related assets. LMFII has retained Seward & Kissel LLP as its legal counsel, BDO USA, LLP for tax and auditing services, and SS&C Technologies Inc. as its fund administrator.

This release may contain “forward looking statements” which are not guaranteed. Investment opportunities posted on LexShares are offered by WealthForge Securities, LLC, a registered broker-dealer and member FINRA / SIPC. LexShares and WealthForge are separate entities. Investment opportunities offered by LexShares are “private placements'' of securities that are not publicly traded, are not able to be voluntarily redeemed or sold, and are intended for investors who do not need a liquid investment. Investments in legal claims are speculative, carry a high degree of risk and may result in loss of entire investment.

Commercial

Maximizing Global Litigation Portfolios

Burford Capital is a worldwide leader in legal asset management and litigation finance. With a footprint in New York, Hong Kong, Singapore, Sydney and Washington, Buford’s legacy is pegged to innovating law structures and philosophies.  The Buford Quarterly recently profiled thoughts and ideas focused on maximizing litigation finance portfolios. Buford’s Craig Batchelor directs the firm’s investment underwriting risk. Batchelor further outlines some strategies for accelerating legal capital via litigation funding.  Here are some key takeaways from Batchelor’s findings: 
  • Litigation finance portfolio management is not understood by most. Therefore, experts must teach and learn from global thought leaders on litigation finance portfolio management structures. 
  • Data should be engaged to assess how litigation assets may appreciate over time, via clever execution of portfolio planning.
  • Prioritization of litigation assets is best focused on winning at the beginning, for exponential legacy portfolio returns. 
  • Mergers, acquisitions and competition based litigation funding is currently undervalued, according to Batchelor. 
Check out the Buford Quarterly to learn more on litigation finance portfolio management.   
Commercial

New Woodsford Guide, Litigation Funding 2022

Woodsford released a new guide titled, “Litigation Funding 2022.” The guide explores the practice of law across 23 jurisdictions worldwide. This is the sixth Litigation Funding edition by Woodsford.   Woodsford’s guide covers global jurisdictions from Spain, Sweden, Japan and India, as litigation funding across the planet continues to mature. Australia’s government is exhibiting some legislative pushback to litigation investors, something Woodsford teases as an, “attack on the access to justice.” Broadly, Woodsford reports that litigation funding is being embraced through innovation. One such example is that the British Virgin Islands approved it’s first litigation funding agreement back in 2020. Similarly, the Cayman Islands enacted the Private Funding Legal Services Act in 2021, which is considered a major achievement for the Caymans. Likewise, Singapore’s International Commercial Court has approved its own third party funding framework.  In New York there is resounding support for litigation funders, service providers and their investors. Experts are hailing third party funding as a mechanism to level the playing field and create new channels for justice to prosper.  Woodsford profiles ligaition finance as a significant contributor to the legal fabric of the world. Check out Woodsford’s complete guide to learn more. 
Announcements Commercial Deals

Nivalion and Litigium Capital enter into strategic partnership in the Nordics

Nivalion, Europe’s leading provider of legal finance solutions, and Sweden-based legal financing firm Litigium Capital have entered into a strategic partnership. The partnership comprises funding of disputes and provision of legal financing solutions in Denmark, Finland, Norway and Sweden as well as financing Nordic clients globally. Within the scope of the partnership, Nivalion and Litigium Capital will work closely together on a non-exclusive basis and aim to co-fund cases of all sizes. The partnership will be seamless for clients, who can contact either firm with the assurance that no information will be shared between Nivalion and Litigium Capital without the prior consent of the client. Stefan Kirsten, Nivalion’s Global Head of Origination, says: “The Nordics have been a key growth area for Nivalion for years and a market we appreciate for many reasons. Having worked together with Litigium Capital on several joint projects with great satisfaction, we are thrilled to announce this next step. We are firmly convinced that this partnership is a great match, and we look forward to driving the continued development of the Nordic legal finance market, making Northern Europe an-other stronghold for Nivalion.” Thony Lindström Härdin, CEO and co-founder of Litigium Capital, says: “We are honoured to join forces with Nivalion, which in our view has the leader jersey within legal financing in Continental Europe. The cooperation thus far has been a win-win and we have no doubt that a partnership will be highly beneficial for the Nordic market as a whole. We see a strong and growing interest for our services from all Nordic countries and expect an exciting journey ahead.” About Nivalion Nivalion is a Swiss legal finance provider with offices in Zug, Munich, Frankfurt and Vienna. We focus onfundingcomplexlitigationand arbitrationdisputes in Europe,theAmericas and Asia-Pacific, including direct and secondary funding of individual cases, case portfolios and law firms. Our team includes 29 professionals with substantial experience in dispute financing and private practice in leading financial institutions and law firms, offering the financial strength of its Swiss core investors. Nivalion is a member of the International Legal Finance Association (ILFA) and is committed to and compliant with the ICCA Queen Mary Task Force Best Practices, the ILFA Best Practices and the SIArb Third Party Funding Guidelines. More information on www.nivalion.com. About Litigium Capital Litigium Capital is a Swedish investment company dedicated to legal financing. We focus on funding litigation and arbitration disputes in the Nordics, as well as funding Nordic clients on a global basis. Combining legal and financial expertise for superior risk assessments and customer service, our vision is to make legal financing a natural tool for companies of all sizes in the Nordics. More infor-mation on www.litigiumcapital.com.
Case Developments Commercial

High Court Reduces £3M+ Claim to £21K

A London High Court recently ruled that a litigation funder had no material evidence to achieve a successful claim. Henceforth, the Court reduced a £3M+ litigation finance claim down to just over £21K in a recent ruling.  LawGezette.co.uk reports that the litigation firm, Candey, had no reason to break the rules of the court when the funding agreement went sour. According to Candey, the trouble started when the client revoked an agreed retainer. The client was upset when Candey allegedly refused the client’s rights of privilege in returning private bank statements.  Candey sued its former client for proposed fraud and misrepresentation; specifically a type of deceit that would violate retainer contingencies. Candey argued that the retainer had specific implied terms. However, the High Court noted that in any legal matter between a client and solicitor, a retainer is not a prerequisite, nor is it required. The Court suggested that the retainer is not subject to ‘good faith’ duty.  Overall, it appears that the High Court found Candey’s petition had little or no chance of success. 
Commercial Deals

Is Tennis Australia Paying Legal Fees for Novak Djokovic? And if so, Why?

Multiple unnamed sources have asserted that Tennis Australia, funded by taxpayers, is covering the legal fees of 20-time Grand Slam winner Novak Djokovic. Organizers of the Australian Open are believed to have agreed to cover expenses for the Serbian tennis star as they battle for him to compete in Melbourne. But is it fair to foist that responsibility onto taxpayers? There must be a better way!

Daily Mail explains that Djokovic left Australia last week after an 11-day legal skirmish over an exemption to the COVID vaccine mandate. A team of expensive lawyers was hired to represent Djokovic as he attempted to defend his title.

Tennis Australia has not made a statement denying allegations that it paid the legal fees. The estimated total for the legal fees is about half a million dollars. Astronomical as that number is, it doesn’t account for any possible appeals. Despite the high price tag, Djokovic’s visa was canceled last Friday.

For Australian taxpayers, this is a lose-lose situation. Paying Djokovic’s legal fees is bad enough, but had the government had to pay, taxpayers would have covered that as well.

Perhaps the question we should be asking is—why is the government footing the legal bills of a tennis start from Serbia? Surely third-party legal funding would make more sense than asking Australian taxpayers to cover those expenses. Australia is a global leader in litigation funding, and Djokovic would likely find ample opportunity to enter a litigation funding agreement that would cover his expenses with non-recourse funds.

A statement from Tennis Australia affirms that the organization respects the Immigration Minister’s decision to revoke Djokovic’s visa. It went on to say that the priority is to put on a great sporting event and that this incident has become a distraction for both fans and players. The statement concluded by asserting that the focus should now be on the game.

Commercial Regulatory Issues

Enforcing and Monetizing Arbitral Awards in Brazil

Understanding the difference between monetization and enforcement is essential when developing a strategy to navigate a situation requiring an award to be enforced. This was discussed by Annie Lespérance, Head of the Latin American group at Omni Bridgeway. Also speaking were Henrique Forssell and Wieger Wielinga. Omni Bridgeway details that from a funding perspective, enforcement involves a funder who provides non-recourse financing to pay the cost of enforcement. After a successful recovery, expenses and a return on investment will be collected by the funder. A monetization agreement involves funders paying an advance to the claimant, plus the costs of enforcement. Funders will still receive a share of the award—or they may buy out the award or judgment to become the primary award holder. Ideally, most funders would prefer to keep their relationship with award holders active, since they are likely to have information that’s helpful to enforcement. How does enforcement work? Claimants are encouraged to consider how to enforce a judgment at the beginning of a case. Precautionary measures can then be taken early on, including stopping the sale or transfer of assets. An investigation is vital, and building a team of experienced investigators specializing in enforcement is a good start. Once the team gathers strong evidence with which to convince a court, many courts are willing to take steps to compel defendants to pay a judgment. A strong team can induce even the most reticent debtor to pay. The Brazilian economy is expansive and complex. Debtors can use sophisticated means to hide assets from creditors—offshore accounts, trusts, foreign bank accounts, and unscrupulous third parties devoted to helping clients avoid paying their debts. Courts in Brazil also tend to recognize and enforce judgements made in global jurisdictions. The ability to freeze accounts without going to banks directly, for example, is one way Brazil succeeds in defeating reticent debtors.
Commercial Fundraising

London Startup Legal Utopia Begins Crowdfunding for GBP 200K

Legal Utopia, a London LawTech startup, recently launched a Seedrs crowdfunding campaign. It is hoping to raise GBP 200,000 in capital to further its mission to disrupt the legal industry. B Daily News reports that Legal Utopia uses AI to empower small businesses and consumers, and will use the funds to branch out into litigation funding, collective actions, and to grow its workforce. The startup uses analysis of over 100,000 cases to find the best legal services matches for clients. Legal Utopia received its first grant in 2018, and has since developed cutting-edge AI in collaboration with respected global law firms.
Commercial

What’s Ahead for 2022 in Islamic Litigation Finance?

Last year was uneventful as far as UK disputes in the Islamic Finance sector. COVID has impacted funders and borrowers, as businesses and potential plaintiffs all seek to lower risk and preserve funds. Islamic Finance News suggests that 2022 will be a busy year. The use of third-party legal funding is on the rise, and ESG issues are capturing the attention of funders and investors. Meanwhile, as national moratoriums on insolvency expire, an increase in defaults and insolvencies is expected soon. Perhaps the most notable judgement of last year came down from Justice Zacaroli in the Golden Belt case. In it, Golden Belt claims that the Saad Group defaulted on a $650 million loan, bringing about questions as to how the case addresses Shariah principles—and how this might relate to the larger Islamic finance sector. The judgement focused on contractual interpretation and whether Golden Belt was legally able to enter settlement negotiations or restructuring in Saudi Arabia without a go-ahead from certificate holders. This question, which was answered with a resounding Yes, took precedence over Shariah principles. Other factors sure to make 2022 even busier include:
  • Increased use of litigation funding, both globally and in the Islamic finance sector in particular. Funding is largely regarded as being Shariah compliant.
  • A growing trend toward class action cases thanks to the proliferation of litigation funding. All sectors will likely be impacted by this, including Islamic finance.
  • ESG investing will continue to grow, spurring more litigation on issues relating to environmental protections, social justice and civil rights, and government-related litigation and activism.
Commercial Legal Innovation

 Blockchain Technology: Emerging Legal Use Cases 

Multiple use cases are emerging for the integration of blockchain technology into modern global law practices. Traditionally, many legal enterprises start out as small to medium businesses which have been risk averse when it comes to new technologies.  The Spanish publication ObservatorioBlockchain.com reports that while the infancy of blockchain technology is obvious, the benefits for the legal community and litigation finance are real. The programmatic facilities of blockchain technology allow for litigation finance contracts to be more or less automated.   Document manipulation in litigation finance agreements is somewhat of an unspoken problem today. Blockchain technology could help small law practice businesses evolve into proper global enterprises, complete with enterprise document management systems. Smart legal documents are the forefront of law, many argue.  Check out Observatorio’s full outline of blockchain technology and law. Use your browser's translation tool to toggle between Spanish/English, or your preferred language.
Commercial Deals

Bloomberg Reports on Patent Litigation Financing  

Patent litigation growth is expected to increase, with innovation gracing the sector. In terms of a risk/reward profile, IP litigation is one of the most profitable areas of litigation finance.  Bloomberg Law reports an expected uptick in investment across patent litigation claims. Bloomberg notes that 2020 patent law funding saw a 19% increase. 2021 saw a 24% increase in patent litigation funding.   Investment firms have started to hire in-house patent experts to weed out and invest in best-in-class cases. One such case in 2021 was LSVI vs. Intel, scoring the second largest patent verdict in history at $2.19B.  Bloomberg forecasts that 2022 will usher in investment dollars to explore funding patent licensing, as well. Not only will patent litigation grow and evolve, but so too will enforcement of patent licensing claims, according to experts. Bloomberg outlines that the top level patent litigation investment houses are developing bespoke due diligence frameworks to help set the foundation for long-term success. To see all of Bloomberg's findings, click here to access their survey results.
Commercial

Emily O’Neill of Deminor Discusses Litigation Funding and IP Claims

Emily O’Neill is an expert in structuring and financing IP litigation in multiple jurisdictions. O’Neill says that an authentic, personal approach to clients is key. Pointing to a 30-year history and an 80% success rate doesn’t hurt either. I am Media asks O’Neill five questions about her approach and experience in IP and litigation funding. First, she explains her methods for building trust with clients, despite third-party legal funding being a comparatively new industry. When asked about her proudest professional achievement, O’Neill reveals that she was recently appointed to the council of the Law Society. This is an opportunity to improve diversity and social mobility within the finance sector, and the legal one. Questioned about her impressions of patent litigation in the UK, she states that like many legal areas, the UK patent court is in recovery from an unpredictable and difficult couple of years. Delays, increased costs, and longer case durations have caused multi-jurisdictional matters to lag. But O’Neill also points out that new IP specialist judges in the UK High Court are bringing improvements. In discussing Spectris plc’s global IP management system, O’Neill details that making employees aware of their responsibility to safeguard IP is the foundation of a successful system. Implementation was then tailored to the needs of specific subsidiaries that could be used between teams—allowing for collaboration while protecting IP. Finally, O’Neill cautions those embarking on multi-jurisdictional litigation to ensure coordination between the different jurisdictions. Not all teams will coordinate well, but having everyone working together is essential to see a successful case through to completion. 
Consumer

Litigation Finance Arrangements in the United States

Like a lot of things in America, the pursuit of justice can be out of reach for all but the wealthy. To pursue a case in the US, litigants have to cover the costs of lawyer fees, out-of-pocket expenses, and any other associated costs. Depending on their situation, potential claimants may be expected to do this while unable to work, injured, or having recently lost significant financial resources. MONDAQ explains that because of the prohibitively high cost of litigation, well-capitalized wrongdoers can deflect lawsuits with threats of high costs, or with lowball settlement offers. Contingency fee agreements may be helpful for plaintiffs in some situations. But rates can be as high as 50%, and still do not cover filing fees, discovery, and deposition costs. So while CFAs can be helpful for some, it’s not a solution to the widespread, runaway costs of modern litigation. Litigation Finance is a rapidly growing industry for good reason. It allows investors to fund individual cases, or a portfolio of several, in exchange for a stake in any award given or settlement reached. TPF can be utilized for consumer and commercial litigation and can be used at any point in the legal process—including enforcement of an award. Before accepting a case, funders conduct due diligence on the case itself, and those involved in it. Essentially, funders are providing funds in a situation where the case itself is the only collateral. The non-recourse nature of funding means that if the case is not successful, funders can lose their whole investment. 
Commercial Regulatory Issues

Singapore Allows No-Win, No-Fee Arrangements in Arbitrations

As of January 12, conditional fee arrangements—once banned outright in Singapore—are now permitted in some case types. No win, no fee agreements are allowed in international and domestic arbitrations, some mediations, and certain proceedings in the Singapore International Commercial Court. Straits Times details that the proceedings in question are those involving high-end commercial disputes. According to Singapore’s Minister for Law, Edwin Tong, allowing conditional fee arrangements will help domestic lawyers compete with lawyers outside the country who are not bound by rules prohibiting CFAs. He also explained that conditional fee agreements increase access to justice, allowing businesses with meritorious claims to pursue cases despite lacking the available funds with which to do so. Conditional fee arrangements could take the form of ‘no win, no fee’ agreements, or ‘no win, less fee’. Lawyers may also choose to charge an uplift fee on successful claims. Singapore is not the only jurisdiction to abolish prohibitions against CFAs. The United States, Canada, Australia, England, and Wales are among those who now allow CFAs in a variety of forms. According to Tong, the Singapore ministry is examining whether the use of CFAs should be expanded to other case types. He notes that CFAs should not be considered a replacement for traditional fee structures. He also affirms that safeguards, such as written agreements signed by lawyers and clients, will be put in place to protect clients from potential abuse.
Commercial Legal Innovation

Litigation Funding via ILO

Litigation finance has a new tech savvy way of doing business, with the emergence of Initial Litigation Offerings (ILO). So far, there has been only one group to gain notoriety employing an ILO. Weed vs. Hemp crop destruction is the controversial ILO investment subject.  RounTabelGroup.com reports that a $1B+ California based hemp operation was allegedly destroyed by agricultural mercenaries sponsored by the government. The operation has launched an ILO to gain investment dollars to start litigation.  The ceiling to the ILO offering is $5M, and is being brokered in $100.00 increments. This is the world’s first approach to litigation funding via ILO.  SEC regulation requires registration of such funding levels under certain conditions related to crowdfunding. However, the SEC has remained silent on the specifics of ILOs.
Commercial

Stonward’s 2022 Litigation Finance Predictions

Stonward forecasts a bright future for litigation finance and third party investment opportunities for 2022. Cash flow is the heart of every successful enterprise, as such Stonward finds liquidity being an extremely attractive bonus for third party clients.  Stonward recently published a LinkedIn feature outlining five trends for litigation finance developments in 2022. Here are some of the highlights:
  1. Regulatory clarity will bring cross-border litigation finance opportunities to fruition. 
  2. COVID-19 bears new opportunities for litigation finance agreements.
  3. Class action and antitrust litigation is set to increase, with third party investors sure to follow.
  4. Litigation portfolio finance will mature with risk mitigation facilities forefront. 
  5. Long term relationships will foster legacy profitability. 
Check out Sonward’s report to learn more about their 2022 predictions.
Commercial

Litigating Universal Cognitive Liberty

Freedom of thought is recognized by the Universal Declaration of Human Rights (UDHR). Interestingly,, cognitive liberty is not recognized as an international human right. Some want to change that, making the argument that humanity has the right to be free to think whatever they want (freedom of thought).   The Ottawa Citizen reports that the Canadian armed forces have launched ‘psychological operations’ as an experiment in government propaganda to counter civil disobedience. International human rights scholars are quick to point out that the lack of protection of cognitive liberty in such instances is due to the relative lack of technology capable of directly interfering with mental autonomy at the time the core human rights treaties were created.   Similar to a ransomware attack, the technology behind such operations can be abused. Canada is said to have exploited advanced technologies without the authority to do so. Even worse, it is alleged that Canada forcefully abused technology in the unsanctioned production of reports that appeared to be aimed at cognitive activities of Canadians. 
  • Other reports highlight similar technologies being explored by the New York City Police Department. 
  • In 2021, members of the National Lawyers Guild won $650,000 in litigation financed fees from abuse of the technology in New York. 
The semantics empowering freedom of thought as a human right hold new opportunities for modern international recognition of the right to cognitive liberty. 
Commercial Deals

Litigation Funding May See Boost from Rise in Commercial Cases

After a COVID-caused dearth of commercial cases, it’s beginning to look like disputes are on the rise. During a pandemic, it makes sense for companies to forego risky litigation in favor of conserving resources. In-house legal departments, however, are already reporting an increase in commercial cases that are only expected to grow. Law 360 details that a rise in commercial litigation will likely also lead to increased use of third-party litigation funding. As the Litigation Finance industry grows in maturity, and more legal firms have positive experiences with funders—applications for legal funding will only increase. Companies would do well to implement claims recovery strategies and vet existing claims to determine which should be pursued. A recent survey by Ernst & Young shows that 63% of lawyers (external and in-house counsel) reported eschewing litigation during the pandemic. A stunning 81% of respondents said they negotiated contracts to stay out of court, while 1/3 of respondents reported deferring or ignoring a valid legal claim due to a desire to reduce costs. These are situations where litigation funding can be especially helpful. More than half of companies surveyed say they’re expecting an increase in the volume of claims, while 66% of external legal counsel are in agreement. At least 1/3 of counsel surveyed report already seeing an increase in litigation. Stephen McBrady, partner at Crowell & Moring LLP, explains that the commercial litigation space is already seeing more recovery-oriented action. It is troubling though, that despite the expected increase in litigation, attorneys are not seeing an uptick in resources. In fact, half of lawyers surveyed by Burford Capital say they expect legal budgets to be reduced. In-house lawyers, therefore, should expect to do more work with fewer resources and greater time constraints. With that in mind, it makes sense to look to litigation funding as a way to continue pursuing litigation without taking away from the operating budget.
Commercial Deals

LegalPay Partners with Jumbo Finance

FinTech startup LegalPay has recently formed a partnership with non-banking financial company, Jumbo Finance. The Delhi-based start-up focuses on litigation funding for insolvencies. Business Today explains that the stressed asset market in India has an estimated TAM of about $150 billion, and will almost certainly see an uptick in deals in the near future. According to the Reserve Bank of India, the gross non-performing asset ratio could increase from 7.48% (March 2021) to 9.8-11.22% by March of this year. LegalPay founder and CEO Kundan Shahi claims that his company is aggressively capturing the insolvency market.
Commercial Regulatory Issues

Can a Defunct Company Sue? Courts Respond with a Resounding “Maybe”

Pursuant to a case involving bid-rigging from some of the world’s largest banks in 2013, a 2019 dismissal affirmed a longstanding precedent in the United States: Dead people can’t sue. Generally speaking, this applies to defunct companies as well. In order to initiate a lawsuit, the person or entity must exist. Chief Executive details that the Second Circuit Court of Appeals in New York reversed that decision. It reasoned last March that it doesn’t matter if the plaintiffs died before they filed suit—so long as someone still living had a viable stake in the case. This set off the US Chamber of Commerce, among others, which warned courts that this decision could lead to third-party legal funders anonymously launching cases simply for profit. The Chamber of Commerce went so far as to ask SCOTUS to overturn the reversal. It claims that the Constitution limits federal court involvement to cases that revolve around “real controversy” that have a tangible impact on “real persons.” It went on to suggest that the ruling would empower class-action lawyers, funders, or hedge funds to act unscrupulously. While that’s certainly possible—all industries have bad actors—is that really a reason to limit which cases can be pursued?
Commercial Regulatory Issues

Recovering TPF Costs in Arbitrations: The Current Approach

Five years ago, Essar vs Norscot brought about a landmark decision. The English High Court upheld a ruling requiring that the defendant cover the claimant’s costs associated with legal funding in the arbitration. Now it appears that arbitral tribunals are increasingly likely to award costs associated with procuring third-party legal funding. Omni Bridgeway explains that third-party funding costs may refer to the funder’s success fee, which is one of many payouts funders receive when a claim is successful. Plus, the costs can include reimbursing funders for costs paid over the course of the arbitration itself. In Essar, courts cited three reasons for awarding WPF costs:
  • The respondent engaged in “reprehensible conduct” well beyond typical breach of contract—thus spurring the arbitration.
  • The claimant’s lack of resources
  • The respondent’s actions, intended to take advantage of the claimant’s lack of financial resources.
Recovery of TPF costs is now a common part of arbitrations in multiple jurisdictions. A recent tribunal decision in Singapore held that tribunals do have the authority to award recovery of claimant legal costs—including those associated with third-party legal funding. What changes have been spurred by the Essar ruling? First, disclosure of funding agreements early on in the arbitration process is preferred. Some jurisdictions, Singapore and Hong Kong, for example, now require this. Next, some tribunals have signaled a willingness to include TPF costs of ATE (after the event) insurance premiums. One tribunal determined recently that a claimant’s ATE premium was a necessary part of their TPF costs—and could be recovered just as any other TPF costs. Finally, tribunals are evaluating the “reasonableness” of TPF costs sought, as they determine whether to award costs. In Essar, the TPF costs were about three times the legal and arbitration costs. Clearly, tribunals are responding to the necessity of third-party funding in arbitrations, and are ruling accordingly.
Commercial Regulatory Issues

 New ATE Premium Privacy Precedent 

Precedent has been set by Kent v. Apple. on the merits of ATE premium privacy. The court ruled that Apple is not privy to ATE policy details, in that it may afford the company an unfair advantage to dispute the claim.  Mishcon.com further dissects the relevance to ATE Premium disclosure in a new profile on courtroom strategic sensitivity. Competition Appeal Tribunal rules normally make determinations to authorize funding agreement details. In most cases, the details of the funding agreements are made available to all parties involved, under scope of common disclosure.   However, in this instance, Kent redacted her funding budget’s ATE premium details. Apple petitioned the court with objection to the redactions. As the tribunal weighed the argument, it debated if the information Apple sought was necessary. In this instance, the court found that the ATE premium details were not privileged, but were strategically relevant to the case and henceforth not privy to Apple under competitive fairness.   The landmark decision is welcomed as fundamental precedent in litigation finance proceedings. Similarly, the notion of “strategic sensitivity” may hail additional rulings in the future.