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Burford Capital Update On Business Performance And Potential US GAAP Conversion

Burford Capital Limited, the leading global finance and asset management firm focused on law, today released the following statement on its performance for the six months ended June 30, 2021 and on matters relating to its potential conversion to US GAAP. Burford is scheduled to release its interim results on September 9, 2021. All figures in this disclosure are unaudited and presented on a Burford-only basis, unless otherwise stated. Certain definitions are provided below; additional definitions, reconciliations and information are set out in Burford's 2020 annual report, available at www.burfordcapital.com.
  • Record-breaking levels of new commitments and deployments
  • Portfolio returns rose and loss rates fell but case progress was relatively quiet with COVID delays noted
  • Considering US GAAP conversion at year-end
  • Non-cash accruals in the first half result in net accounting loss for the period; positive result on a cash basis
  • Liquidity position very strong with more than $430 million of Burford-only liquidity on hand
New business
  • $500+ million in new commitments; nearly $400 million in deployments
We saw robust levels of new business in the first half. We made new capital provision-direct commitments of over $500 million Group-wide, of which $284 million was Burford-only, more than four times higher than the first half of last year and above our prior record levels in the second half of 2019. We deployed $399 million Group-wide, of which $215 million was Burford-only, to a combination of new and existing capital provision-direct assets, more than three times our 1H 2020 level and well in excess of our prior record deployments in 1H 2018. Our trend towards larger and more complex new matters continued. Of our 14 new matters, none had commitment levels under $5 million while six were $20 million or above, including a new matter to which we committed and deployed $138 million on balance sheet and $139 million for our SWF partner between BOF-C and a new sidecar. This matter revolves around a number of antitrust claims against a large, financially strong multinational. This level of activity suggests that the slowdown in new business in early 2020 from COVID has moderated and that we are finding considerable opportunities to deploy capital. COVID delays and portfolio progress
  • Returns rose to 95% ROIC and realized losses fell to 0.5%
  • 43% of matters have seen COVID delays
  • Realized gains of $77 million in the period
We saw some strong portfolio successes in the first half – including achieving our full $103 million entitlement in the Akhmedov judgment enforcement matter (in addition to more than $5 million received in prior periods), validating our decision to fund matters like that despite their noise. Our returns increased somewhat, to 95% ROIC on concluded capital provision-direct assets since inception, driven by the 216% ROIC (and 67% IRR) on the Akhmedov matter on a GBP basis. On a USD basis, the Akhmedov matter generated a 233% ROIC (and a 71% IRR). We also had a remarkably low realized loss rate for the period of 0.5% of average portfolio at cost. However, as we have previously discussed, multiple waves of COVID have continued to have an impact on the pace and progression of matters in our portfolio. These issues are only a matter of timing; no clients have discontinued cases because of COVID delays and, indeed, as a result of how we often price our deals, our ultimate returns may increase because of the passage of time. We believe that 43% of our matters have incurred COVID-related delays, ranging from court date postponements to delays in the provision of discovery to slower settlement activity given the absence of a looming trial date to engender settlement. As a result (and perhaps due also just to normal volatility in portfolio activity), the portfolio as a whole was quiet in the period and generated lower levels of capital provision income than comparative periods. In short, almost nothing bad happened – just less happened than in some other periods. We had capital provision-direct realizations of $142 million during 1H 2021, on which we will see realized gains of approximately $77 million for the period. US GAAP conversion
  • Consideration of converting to US GAAP for December 31, 2021 reporting
  • Some balance sheet adjustments expected
We expect to remain a foreign private issuer for US purposes in 2022; our 2020 annual report discusses that status in depth. However, notwithstanding retaining foreign private issuer status for another year, we may well nonetheless proceed with our conversion to US GAAP; the Board will make a decision on that issue at its October meeting. If we do convert to US GAAP, our first half 2021 interim report will be our last report under IFRS, and beginning with our financial statements as of December 31, 2021, we would begin reporting under US GAAP. While most elements of our financial reporting would remain the same under both IFRS and US GAAP, including with respect to fair value, we expect to see an increase in both assets and liabilities due to changes in the approach to consolidation of subsidiaries. We will provide more details of these and any other adjustments in due course. Our consideration of converting to US GAAP has also caused us to examine the accounting practices of comparable US finance firms to identify certain common practices adopted by US GAAP issuers as we discuss below. Burford's compensation practices Burford's compensation practices are relevant to the accounting discussion that follows, so we provide detail here about our approach to incentive compensation. Burford uses four compensation components: base salary, annual bonus, stock grants and participation in the actual cash performance of litigation matters (which we call "carry" even though it is not technically participation in carried interest). We discuss our compensation practices in greater detail in our annual reports. Burford does not pay any incentive compensation – carry or bonus – based on non-cash fair value changes in our assets. We award carry on a vintage year basis. Thus, each year, we award eligible employees the right to receive a portion of the realized gains generated over time by the matters we originate financing for in that year. Then, in each following year, we look at the realized performance of all of the matters in a vintage in that year and make carry payments based on their collective performance in that year, so that realized losses reduce realized gains. So, for example, an eligible employee who joined Burford in 2017 will have received awards for each of the 2018, 2019, 2020 and 2021 vintages, and we will test the performance of each of those vintages in each succeeding year and make carry payments accordingly. Those payments continue until each vintage is fully resolved. We set out below the percentage of realized gains in each vintage that has been awarded as carry.

Vintage year

% of realized gains awarded

2015

4

2016

4

2017

4

2018

6

2019

6

2020

8

2021

9

No carry applies to vintages prior to 2015. Change in compensation expense accruals
  • Move to non-cash accrual of compensation expense on fair value
  • One-time non-cash accrual of $45 million, driven by YPF-related asset carrying value
Given that we do not pay employee carry on the basis of unrealized fair value gains, pursuant to IAS 19 we have historically recognized compensation expense only upon realizations from our assets, without regard to fair value movements. However, as more cases have concluded and we have further validation of our predictive models in general and across asset types, our confidence in our modeling and valuation methodology has continued to increase and we believe it is appropriate to change our accounting estimate of compensation expense under IFRS and accrue compensation expense related to our carry plan as we make fair value adjustments. Moreover, we note that this is also the practice of a number of comparable US GAAP issuers, and we also believe that matching potential future gains with potential future expenses is desirable. Given our generally moderate levels of fair value change, these charges are not expected to be material. For each period going forward, including 1H 2021, we will accrue against new fair value gains at the rate shown for each vintage in the preceding table; for example, for 2019 vintage matters, for every $100 of net fair value increase, we will accrue $6 of compensation expense. In the event of fair value losses, the respective accrual would reverse. This accrual is an entirely non-cash event; we will still only crystallize and pay compensation upon realized gains. In the first half of 2021, based on all the fair value gains in the period, the expense accrual was less than $1 million. The question then arises as to the existing accumulation of fair value gains, which are predominantly composed of fair value gains on our YPF-related assets. For the sake of consistency, we are going to take a one-time non-cash charge of $45 million to align with the current balance sheet assets. This is a one-time charge related to prior fair value gains; 70% of it is due to the substantial carrying value of the YPF-related assets. While this is a large number, it is entirely non-cash and simply matches a future potential gain expressed through a fair value change with a future potential expense instead of leaving the related expense until the point of realization. None of this money is being paid out, nor will it be unless and until there are realized gains in the underlying matters. For perspective, our YPF-related cases would have to generate more than $1.6 billion in cash in a litigation outcome for the present YPF-related accrual to be paid in full; we cite that number for illustrative purposes only given the current carrying value and this does not constitute a projection of any expected outcome in the matter. Moreover, we did not pay incentive compensation based on the secondary market sales of those YPF-related assets. We believe our compensation levels are moderate and appropriate, and while this change in approach is both consistent with IFRS and will align us better with some other US GAAP issuers, it does not change our cash-focused approach to compensation and to running the business generally. Asset recovery
  • Terminated profit-sharing arrangement except as to a small number of grandfathered cases
  • One-time non-cash accrual of £25 million ($34 million)
The division between our asset recovery and core litigation finance businesses has continued to blur as they have both evolved, and in 2019 we stopped including asset recovery in our new initiatives segment and incorporated it into our main capital provision segment. In 2021, we have gone a step further and have fully integrated the asset recovery team into the core business. Previously, the team had operated with a separate P&L and a direct profit-sharing component dating from the acquisition of the business in 2015; at the time, we acquired the business for very little current cash and instead used a profit-sharing arrangement as the bulk of the economics. Now, the team participates in Burford's standard compensation programs, including our carry plan. However, the historical profit-sharing approach has been grandfathered with respect to a small number of cases that are at advanced stages of activity. The result of our change in estimating compensation expense to match accounting gains and these revised arrangements is that we will take a non-cash charge of £25 million ($34 million) relating to the carrying value of those matters. These amounts would only potentially be paid upon the receipt of substantial actual cash profits. Financial Results
  • Anticipated net loss of approximately $70 million given one-time non-cash accruals
  • Approximately $20 million profit after tax if considered on a cash basis
As usual at this stage of our financial reporting cycle, we continue to work through a variety of accounting and tax issues, including fair values, internally and with our auditors in advance of our September 9 interim results reporting date. However, based on our current state of understanding, the combined impact of the non-cash accruals discussed above and the moderate level of asset realizations in the period suggests that we will report a net loss after tax of approximately $70 million, the bulk of which is related to those non-cash accruals. Adjusting for non-cash items (particularly fair value adjustments and the non-cash accruals), non-IFRS profit after tax would be approximately $20 million. Liquidity
  • Strong liquidity position of over $430 million
Liquidity at June 30, 2021 was strong, with the aggregate of cash and cash management assets of over $430 million (which does not include the receipt of the $103 million in cash related to the Akhmedov matter in July). Christopher Bogart, Burford Capital's Chief Executive Officer, commented:
"We are very pleased with the level of new business activity we saw in the first half of 2021 and with the continuing strength of our portfolio, notwithstanding a fairly quiet period for portfolio resolutions. We believe that moving to US GAAP and positioning the business in the US capital markets mainstream will inure to the benefit of shareholders. We appreciate shareholders' continued support on this journey, which we believe will result in a larger, stronger, more highly valued company." Definitions and use of alternative performance measures We report our financial results under International Financial Reporting Standards ("IFRS"). IFRS requires us to present financials that consolidate some of the limited partner interests in funds we manage as well as assets held by our balance sheet where we have a partner or minority investor. We therefore refer to various presentations of our financial results, and funding configuration, as:
  • Consolidated refers to assets, liabilities and activities that include those third-party interests, partially owned subsidiaries and special purpose vehicles that we are required to consolidate under IFRS accounting. This presentation conforms to the presentation of Burford on a consolidated basis in our financials. The major entities where there is also a third-party partner in or owner of those entities include the Strategic Value Fund, BOF-C (our arrangement with a Sovereign Wealth Fund) and several entities in which Burford holds investments where there is also a third-party partner in or owner of those entities. Note that in our financial statements, our consolidated presentation is referred to as Group.
  • Burford standalone, Burford-only, Burford balance sheet only, "balance sheet" or similar terms refers to assets, liabilities and activities that pertain only to Burford itself, excluding any third-party interests and the portions of jointly owned entities owned by others.
  • Group-wide refers to Burford and its managed funds taken together, including those portions of the funds owned by third parties and including funds that are not consolidated into Burford's annual consolidated financials. In addition to the consolidated funds, Group-wide includes the Partners funds (our first three core litigation finance funds), Burford Opportunity Fund and Burford Alternative Income Fund and its predecessor.
We refer to our capital provision assets in two categories:
  • Direct, which includes all our legal finance assets (including those generated by asset recovery and legal risk management activities) that we have made directly (i.e., not through participation in a fund) from our balance sheet. We also include direct (not through a fund) complex strategies assets in this category.
  • Indirect, which includes our balance sheet's participations in one of our funds. Currently, this category is comprised entirely of our position in the Burford Strategic Value Fund.
We also use certain Alternative Performance Measures ("APMs"), which are not presented in accordance with IFRS, to measure the performance of certain of our assets including:
  • Return on invested capital (ROIC) is a measure of financial performance calculated by comparing the absolute amount of realizations from a concluded asset relative to the amount of expenditure incurred in funding that asset, expressed as a percentage figure. In this release, when we refer to our concluded case ROIC, we are referring to the ROIC on concluded and partially concluded capital provision direct assets on Burford's balance sheet since the inception of the company until the current date.
  • IRR is a discount rate that makes the net present value of a series of cash flows equal to zero and is expressed as a percentage figure. We compute IRR on concluded (including partially concluded) legal finance assets by treating that entire portfolio (or, when noted, a subset thereof) as one undifferentiated pool of capital and measuring actual and, if necessary, estimated inflows and outflows from that pool, allocating investment cost appropriately. IRRs do not include unrealized gains.
  • Compound annual growth rate (CAGR) is the annual rate of return that would be required for a sum to grow from its beginning balance to its end balance, assuming reinvestment at the end of each year.
  • Profit after tax if considered on a cash basis is a non-IFRS measure comprising profit after tax removing all non-cash items, including but not limited to unrealized losses arising from fair value adjustments and non-cash compensation expense accruals.
Our business activities include:
  • Legal finance, which includes our traditional core litigation finance activities in which we are providing clients with financing against the future value of legal claims. It also encompasses our asset recovery and legal risk management activities, which often are provided to the same clients.
  • Complex strategies encompasses our activities providing capital as a principal in legal-related assets, often securities, loans and other financial assets where a significant portion of the expected return arises from the outcome of legal or regulatory activity. Most of our complex strategies activities over the past several years have been conducted through our Strategic Value Fund.
  • Post-settlement finance includes our financing of legal-related assets in situations where litigation has been resolved, such as financing of settlements and law firm receivables.
  • Asset management includes our activities administering the funds we manage for third-party investors.
Other terms we use include:
  • Cash receipts provide a measure of the cash that Burford's capital provision assets generate during a given year as well as cash from certain other fees and income. In particular, cash receipts represent the cash generated from capital provision assets, including cash proceeds from realized assets and related hedging assets, plus cash income from asset management fees, services and other income, before any deployments into funding existing or new assets.
  • Commitment is the amount of financing we agree to provide for a legal finance asset. Commitments can be definitive (requiring us to provide funding on a schedule, or more often, when certain expenses are incurred) or discretionary (only requiring us to provide funding after reviewing and approving a future matter). Unless otherwise indicated, commitments include deployed cost and undrawn commitments.
  • Deployment refers to the funding provided for an asset, which adds to Burford's invested cost in that asset. We use the term interchangeably with addition.
  • Deployed cost is the amount of funding we have provided for an asset as of the applicable point in time.
  • Liquidity refers to the amount of cash and cash management assets on our balance sheet.
  • Portfolio refers to the total amount of our capital provision and post-settlement assets, valued at deployed cost plus any fair value adjustments and any undrawn commitments.
  • Realization: A legal finance asset is realized when the asset is concluded (when litigation risk has been resolved). A realization will result in Burford receiving cash or, occasionally, some other asset or recognizing a due from settlement receivable, reflecting what Burford is owed on the asset. We use the term interchangeably with recovery.
  • Realized gain/loss refers to the total amount of gain or loss generated by a legal finance asset when it is realized, calculated simply as realized proceeds less deployed funds, without regard for any previously recognized fair value adjustment.
  • YPF-related assets refers to our Petersen and Eton Park legal finance assets, which are two claims relating to Argentina's nationalization of YPF, the Argentine energy company.
For additional information, including reconciliations of our non-IFRS financial measures to the corresponding IFRS figures, see our Annual Report on Form 20-F for the year ended December 31, 2020 filed with the US Securities and Exchange Commission on March 24, 2021. About Burford Capital
Burford Capital is the leading global finance and asset management firm focused on law. Its businesses include litigation finance and risk managementasset recovery and a wide range of legal finance and advisory activities. Burford is publicly traded on the New York Stock Exchange (NYSE: BUR) and the London Stock Exchange (LSE: BUR), and it works with companies and law firms around the world from its principal offices in New YorkLondonChicagoWashingtonSingapore and Sydney. For more information, please visit www.burfordcapital.com. This communication shall not constitute an offer to sell or the solicitation of an offer to buy any ordinary shares or other securities of Burford. This release does not constitute an offer of any Burford fund. Burford Capital Investment Management LLC ("BCIM"), which acts as the fund manager of all Burford funds, is registered as an investment adviser with the U.S. Securities and Exchange Commission. The information provided herein is for informational purposes only. Past performance is not indicative of future results. The information contained herein is not, and should not be construed as, an offer to sell or the solicitation of an offer to buy any securities (including, without limitation, interests or shares in the funds). Any such offer or solicitation may be made only by means of a final confidential Private Placement Memorandum and other offering documents. Forward-looking statements
This announcement contains "forward-looking statements" within the meaning of Section 21E of the US Securities Exchange Act of 1934 regarding assumptions, expectations, projections, intentions and beliefs about future events. These statements are intended as "forward-looking statements". In some cases, predictive, future-tense or forward-looking words such as "aim", "anticipate", "believe", "continue", "could", "estimate", "expect", "forecast", "guidance", "intend", "may", "plan", "potential", "predict", "projected", "should" or "will" or the negative of such terms or other comparable terminology are intended to identify forward-looking statements, but are not the exclusive means of identifying such statements. In addition, we and our representatives may from time to time make other oral or written statements which are forward-looking statements, including in our periodic reports that we file with the US Securities and Exchange Commission, other information sent to our security holders, and other written materials. By their nature, forward-looking statements involve known and unknown risks, uncertainties and other factors because they relate to events and depend on circumstances that may or may not occur in the future. We caution you that forward-looking statements are not guarantees of future performance and are based on  numerous assumptions and that our actual results of operations, including our financial condition and liquidity and the development of the industry in which we operate, may differ materially from (and be more negative than) those made in, or suggested by, the forward-looking statements contained in this announcement. Significant factors that may cause actual results to differ from those we expect include those discussed under "Risk Factors" in our Annual Report on Form 20-F filed with the US Securities and Exchange Commission on March 24, 2021. In addition, even if our results of operations, including our financial condition and liquidity and the development of the industry in which we operate, are consistent with the forward-looking statements contained in this announcement, those results or developments may not be indicative of results or developments in subsequent periods. Except as required by law, we undertake no obligation to update or revise the forward-looking statements contained in this announcement, whether as a result of new information, future events, a change in our views or expectations or otherwise. SOURCE: Burford Capital
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Trends in Offshore Markets—What’s Next After COVID?

What can we expect in the coming months in offshore markets? John O’Driscoll, leader of the Insolvency and Dispute Resolution team at Walkers, had much to say on the subject. Litigators, financial professionals, and insolvency practitioners should pay close attention to legal developments in offshore markets. Lexology details commentary from O’Driscoll, beginning with the impact of the Private Funding of Legal Services Act (which became law in May of this year) on litigation funding in the Cayman Islands. O’Driscoll explains that funding agreements often could not secure court approval, and were rarely used in commercial cases. The passing of the PFLSA is likely to foretell an increase in claims, as well as new entrants into the litigation funding space. In the Caymans and BVI, creditors are exploring new and innovative options when enforcing debt collection. Thanks to new legal provisions, court approval is no longer needed for a secured creditor to enforce its security. The BVI also recently affirmed that the court may grant injunctive relief in foreign proceedings. This positive development fixes an earlier law that did not specifically allow the court to grant such remedies. Ultimately, these laws are positive for creditors. They ensure that debtors will be unable to use asset protection provisions to evade their debts.

UK Takes Welcome Steps Toward Legal Funding and Class Actions

The UK case Merricks v Mastercard will move to trial thanks to a new litigation funder for claimants. The case could impact more than 46 million consumers in the UK, who are seeking damages of more than GBP 15 billion. Lexology details that the funding agreement was scrutinized to protect the financial interests of class members. The Tribunal expressed its satisfaction that there is no conflict of interest between class members and funders. The new funder is deploying significantly more funding than the previous one. Merricks now has an agreement for GBP 45.1 million, plus 15 million for adverse costs.  This development clears a path for the future of UK class actions, as well as legitimizing third-party legal funding. The potential for funding to be used in collective actions and large-scale litigation is sure to lead to increased access to justice in the UK.

ANZ Bank and Ross Asset Management Reach Settlement Agreement

Investors in Ross Asset Management have recently reached a settlement with ANZ, a joint statement revealed. The case alleged that the bank knew, or should have known, that David Ross was essentially engaged in a Ponzi scheme. RZN reports that all involved parties affirmed that they were misled by Ross, but declined to comment on the matter further. One spokesperson did mention that investors looked pleased while exiting the meeting. The RAM group received funding from a specialist third-party litigation funder, who will likely receive a share of the settlement.

Binance Traders Acquire Funding for Class Action

One group of Binance traders has asserted that they lost $20 million in cryptocurrency trades earlier this year. Bitcoin prices dropped by as much as 30% last May—following the announcement of a Chinese crackdown on cryptocurrency. Today UK News details that a steering group has recently been launched, poised to bring an action against Binance for losses suffered during a platform outage. The group is backed by Liti Capital, a third-party litigation funder based in Switzerland. According to a statement by Liti, at least 700—but perhaps thousands—of traders were negatively impacted. Together, losses may total more than $100 million. NBC’s Olivia Solon points out that crypto traders are now trying to hold a company to account—despite the fact that the largely unregulated company maintains no headquarters to approach. The case will prove difficult, but Liti Capital is funding the international arbitration to the tune of $5 million. A spokesperson for Binance stated that it is the company’s policy to compensate trader losses caused by platform issues. However, unrealized profits fall under the heading of ‘what ifs’.   The FCA warned consumers that Binance is not legally able to carry out regulated activities. Banks, including Barclays, no longer allow customers to make transactions with Binance.

Burford Capital Caseload Delayed by COVID

Leading litigation funder Burford Capital has revealed that nearly 50% of its current cases have experienced delays relating to COVID. Law Gazette details that a recent performance disclosure filed with the London Stock Exchange showed that delays are slowing the progression of cases. Christopher Bogart, Chief Executive at Burford, explains that no clients have ended their relationship with Burford over delays. He also stated that some clients are reticent to settle cases while delays are still happening. Deployments are way up—with AU $399 million deployed group-wide. Despite this, Burford is looking at a net loss of as much as AU $70 million, owing to non-cash accruals. Burford shares are currently at 847p.

Legal-Bay Lawsuit Funding Announces Roundup Litigation Settlements Still Have No Definitive Timeframe

Legal-Bay, The Presettlement Funding Company, reports that Bayer is reassessing its efforts to settle the numerous lawsuits they are facing due to their Roundup brand weed killer. It is estimated that 30,000 plaintiffs still have outstanding suits against Monsanto (a subsidiary of Bayer), claiming the company's product is directly responsible for making them sick.  Certain cancers are alleged to have been caused by the glyphosate-based herbicide including non Hodgkin lymphoma. Bayer has agreed to pay compensation on some claims, even while disputing liability on others. However, it has already been ruled that it will take $9 billion to settle over 100,000 existing claims—four claims alone had jury verdicts of $2 billion as well but are in appeals. At this time, Legal-Bay's sources report that they are unaware of any victims who have been paid any actual funds from Monsanto, despite the settlement being reached over a year ago. There are no guarantees that the company will settle these suits, and no exact numbers can be provided for payout amounts at this time. Chris Janish, CEO of Legal-Bay, commented, "We continue to assist and fund victims of Roundup despite no timeline as to when settlements will be ruled upon or when payouts will actually occur.  It is clear that Covid has slowed the payment process, but at this point the defendant seems to be dragging their feet unnecessarily." If you are involved in a Roundup weed killer lawsuit and need an immediate cash advance against your pending settlement, you can apply HERE or call: 877.571.0405 Legal-Bay's pre settlement funding programs are designed to provide immediate cash in advance of a plaintiff's anticipated monetary award. The non-recourse law suit loans—sometimes referred to as loans for lawsuit or loans on settlement—are risk-free, as the money doesn't need to be repaid should the recipient lose their case. Therefore, the lawsuit loan isn't really a loan, but rather a cash advance. To apply right now, please visit the company's website HERE or call toll-free at: 877.571.0405 where agents are standing by.
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Liti Capital’s Wrapped LITI (wLITI) Lists on Bitcoin.com Exchange

Liti Capital’s wLITI token, a wrapped version of the Swiss company’s LITI equity token, has been listed on the Bitcoin.com Exchange on 24 August at 10:00AM UTC. wLITI is trading with BTC and USDT pairs. Liti Capital, a Swiss-based blockchain private equity fund specializing in raising capital for legal cases, is making waves in traditional investing by bringing litigation financing to the masses, an investment practice traditionally monopolized by hedge fund heavyweights and elite investors. Just last week, 19 August 2021, Liti Capital announced that it was funding a claim (www.binanceclaim.com) against Binance, which would enable affected individuals to pursue claims, including, if necessary, in arbitration, for compensation in relation to the exchange failing on 19 May 2021. This failure resulted in the trading accounts (including Futures, Margin, and Leveraged Token products) of at least 700 and potentially thousands of individuals being effectively untradeable for hours, causing traders to suffer losses that could exceed one hundred million dollars. Litigation financing is the practice of bringing in investors to cover the cost of a lawsuit or arbitration in exchange for a portion of the profit. Litigation financing specialists, such as Liti Capital, purchase litigation assets for cases they deem to have a high chance of winning. While litigation financing often requires an initial investment of $500,000 to $1 million from an investor, Liti Capital makes it accessible for anyone with as little as $50. It does this by tokenizing shares in Liti Capital and paying out dividends to Liti Capital (LITI) equity token holders when a case in Liti Capital’s portfolio is won. Liti Capital has already secured a healthy case portfolio with its largest case potentially worth more than $1 billion when it finally settles. Cases like these, which tend to be commercial rather than consumer or personal lawsuits, usually target large-scale corporate disputes valued at more than $10 million. While they could take years before a settlement is reached, successful litigation funders can expect to pocket between three and five times their initial investments, according to estimates by litigation finance expert Steven Friel. What is wLITI? wLITI is an ERC-20 token that is the wrapped version of the LITI equity token. Launched on June 29, 2021, the wLITI token is suitable for trading on exchanges such as Bitcoin.com, whereas the LITI token is only available through liticapital.com after meeting KYC requirements. Liti Capital uses the blockchain to manage its share registry. Development of its own blockchain-based case management tools is on its roadmap. Switzerland-based Liti Capital creates wLITI at a LITI token buyer’s request via Liti Capital’s app or website, which converts the LITI to wLITI at a 1:5000 ratio. The tokens will always maintain this ratio. The buyer is then able to trade their wLITI freely. Liti Capital does not directly sell wLITI. LITI is a true digital share of Liti Capital that has voting rights, pays dividends and is protected under Swiss law. LITI is purposely not designed to be on exchanges at this time. Both tokens represent Liti Capital, whose mantra is “private equity for all.” Liti Capital works exclusively in a single form of private equity – Litigation Finance, also called third party funding. This asset class has remained almost entirely exclusive to hedge funds and venture capitalists since its inception several decades ago. Litigation Finance is the practice of financing all or part of a legal case on behalf of a plaintiff for an agreed upon percentage of the court award. Once Liti Capital purchases a portion of ownership of a case, it provides capital that can be used in many ways: legal fees, case management and strategy, expert witnesses, intelligence work and whatever else is needed to give the plaintiff the best chance of winning the case and collecting the award. The portion owned by Liti Capital becomes a “litigation asset” that backs the LITI token. A Strong Endorsement Danish Chaudhry, CEO of Bitcoin.com Exchange, shared his views on wLiti’s listing, saying,“The Liti Capital team are providing an equity token which is the first of its kind, focused around easy-to-access private equity investment opportunities for basically anyone with the help of blockchain technology.” Chaudhry continues on by saying: “We’re very excited to see how Liti Capital will continue to empower their vision, and gain further outreach with our outstanding community at the exchange.” Jonas Rey, CEO of Liti Capital, said, “Listing on Bitcoin.com Exchange is an excellent opportunity for us, and a milestone we are proud of. We have full confidence that once the public discovers just how valuable the litigation assets we are able to purchase on behalf of LITI investors are and how powerful blockchain-backed private equity trading can be, that wLITI will become a very popular token indeed.” Listing details Trading Opening: Aug. 24, 2021, 10:00AM UTC Deposit Opening: Aug 24, 2021, 09:00AM UTC Trading Pairs: wLITI/BTC wLITI/USDT About Bitcoin.com Exchange The mission of Bitcoin.com Exchange is to empower people from all over the world to trade cryptocurrencies with ease and confidence, from first-time traders to advanced trading professionals. With high liquidity, 24/7 multilingual support and dozens of trading pairs, complemented with a high level of security, we offer an attractive platform for trading any cryptocurrency. Within one year since launch, on average, the exchange has been visited by more than 500K active traders per month, and this number continues to grow by the minute. About Liti Capital Switzerland-based Liti Capital is a Swiss limited liability company specializing in litigation finance and fintech. Liti Capital buys litigation assets to fund lawsuits and provides a complete strategic solution along with connections to top law firms to help clients win their cases. Tokenized shares of the company lower the barrier of entry for retail investors and give token holders a vote in the company’s decision-making process. Dividends are distributed to LITI token holders upon the success of the plaintiff. Jonas Rey, co-founder of Liti Capital, also heads Athena Intelligence, one of the most successful intelligence agencies in Switzerland. His two co-founders, Andy Christen and Jaime Delgado, bring operational, innovation and technical skills to round out the leadership team. Liti Capital recently onboarded seasoned industry leader David Kay as chief information officer and executive chairman. Boasting more than a decade of experience as funding partner and portfolio manager of a billion-dollar private equity fund in the litigation financing space, Kay successfully enforced what was at the time the largest international arbitration award in history, bringing in over $1 billion in cash and securities.
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Insolvency Funding in Hong Kong and Singapore—Key Developments

In Asia, legal funding has been used in insolvency cases for over ten years. Since Hong Kong and Singapore adopted a funding framework for third-party arbitration, appreciation for funding has grown.

Burford Capital explains that in Singapore, amendments have been made to the existing Civil Law Act. In Hong Kong, the Arbitration and Mediation Legislation Ordinance came into law in early 2019. The introduction of an arbitration framework in both jurisdictions inspired greater interest in developing a more inclusive litigation funding industry across Asia.

Laws regarding legal finance and insolvency cases are constantly evolving, necessitating practitioners to keep their proverbial ears to the ground. As creditors grow more willing to pursue misconduct, fraud, or other claims against company directors—market momentum grows.

Several significant cases have shaped the development of legal finance in Singapore. In Re Vanguard Energy (2015), the court held that a liquidator may sell a company’s own fruits of a cause of action. The judge then affirmed that legal funding can be a vital facet of adjudicating insolvency cases. Two years later, an amendment to the Civil Law Act abolished maintenance and champerty laws. Finally, the IRDA became law in July of last year—which rolled existing insolvency laws into one piece of legislation.

Maintenance and champerty laws are still on the books in Hong Kong. But there have been small steps taken to expand the use of legal finance in insolvency matters. Unlike other jurisdictions, however, there is no wider framework welcoming the expanded use of legal funding.

Currently, Hong Kong courts require approval for the use of funding on an individual basis. In most cases, this part of the process is included in the funding agreement. However, in Re: Patrick Cowley, it was determined that liquidators didn’t need court approval before making an agreement with a funder.

Hong Kong is also overhauling its insolvency law regime in an effort to clarify and expand the use of legal funding in insolvency and restructuring matters.

Litigation Funding and Work Product / Common Interest Doctrines

It’s well known that information loses its attorney-client privilege when shared with a third party. Increasingly, however, rulings are allowing for documents and exchanges shared with third-party legal funders to be protected. Rimon Law explains that confidentiality can be maintained with legal funders under either the common interest doctrine or the work product doctrine. The work product doctrine exception would include information assembled as part of trial prep, or for another party such as a consultant or insurer. Recent rulings have expanded this to include strategy and mental impressions from involved parties. This can logically be applied to litigation funders, as they vet cases on the basis of potential for success, merit, and the defendant’s ability to pay. In Miller UK Ltd v Caterpillar Inc, the court ruled that confidential documents are shared with potential funders, and it would be counter to the interests of justice for clients to lose their right to privilege simply to acquire funding. The common interest doctrine is not applied across the board—and some courts have ruled pointedly against it. But more and more courts are recognizing that information shared with litigation funders is protected, because the third party in question has a common interest with the client. In In Re Intern. Oil Trading Company LLC, a case in US Bankruptcy Court in the Southern District of Florida, the court ruled that sharing information with funders is ‘an essential element to the exception to the general rule’. Ergo, the funder’s involvement in the case depends on an assessment of that case—and sharing that information should not end attorney-client privilege.

Funder and Firm Win Fees from Terminated Client Relationship

His Honor Judge Cadwallader ruled that a couple suing their former solicitors should be held liable for costs. The Liverpool judge also affirmed that Vanessa and Michael Kennedy breached their agreement with law firm Bermans and the funder, Escalate Law, when they misled their lawyers. Legal Futures UK details that the firm and funders were entitled to end their retainers with the couple, as well as the costs of GBP 75,000. Cadwallader also found that the Kennedys instructed their legal team to make inappropriate or unreasonable agreements and amendments to previous agreements. This included instructing lawyers to deliberately mislead the Leicester Diocesan Board of Finance. Escalate Law is registered in Liverpool as an alternative business structure. The case Escalate Law Ltd & Anor v Kennedy & Anor began when the Kennedys hired Bermans and Escalate to sue Peter W Marsh & Co over guidance provided during a land deal. After a failed mediation and renegotiations, the couple was given permission to build a house on the land—provided construction began within three years. It didn’t. After the deadline passed, the firm and funders terminated their working relationship with the Kennedys, claiming the payments owed according to the agreement. Ultimately the Kennedys were found to be acting in bad faith, and that their actions ‘lacked commercial probity.’ HHJ Cadwallader went on to reject the Kennedys claim that the lawyers’ and funder's work was without value. He further rejected the Kennedys’ claim that his lawyer should have advised him to accept a settlement offer.

What is ‘Super Priority’ Financing?

The High Court of Singapore took a dramatic step recently in granting ‘super priority’ status in a corporate restructuring. This is the first time any third-party legal funder has been given such an order since Singapore’s IRDA became law in 2018 Omni Bridgeway details that the complex and expensive nature of arbitration makes it a very high-risk investment. The order essentially guarantees that Omni Bridgeway will be first in line to receive payments from a successful recovery. This ruling represents an opportunity for businesses that would prefer to restructure a struggling company rather than liquidate it. Only the respondent objected to Omni Bridgeway’s application for ‘super-priority.’ This begs the question: should a creditor be allowed to participate in the process of securing funding—leading to a disclosure they might not normally be granted? It will be fascinating to see how this precedent impacts future arbitration.

Disclosure Reveals Non-Profit Funding Climate Change Litigation

New Jersey’s new disclosure rule regarding third-party legal funding is in effect. As such, a recent climate change case saw the disclosure of a non-profit providing limited funding for attorney fees and expenses. Wisconsin state courts and federal courts in the Northern District of California have adopted similar rules in recent months. Legal Newsline explains that lawyers from Korvatin Nau and Emery Celli of New York filed disclosures stating that the Institute for Governance and Sustainable Development is funding the case. Defendants include Exxon, Chevron, and BP over their alleged impact on climate change. Lawyers disclosed the funding despite the non-profit not having a financial stake in the outcome of the case—an unusual arrangement for third-party funders. The Rockefeller Brothers Fund has also contributed to funding climate change litigation via the IGSD. The oil industry prefers these cases to be tried in Federal court, owing to the difficulty plaintiffs will face as opposed to state courts. SCOTUS is expected to rule on the issue soon.

Mainstreaming Class Action Cases and Litigation Funding

This past year has seen multiple judgments supporting the validity of class actions—once thought ‘too American’ for many jurisdictions. London courts in particular have paved the way for collective actions against big businesses. Litigation funding has proliferated, and is spurring access for justice to parties who would otherwise be left out in the cold. Law Gazette details that earlier this month, a collective action against MasterCard was certified, and will proceed to trial on behalf of 46 million people. A Brazilian court just reopened a claim against mining company BHP—which could be worth billions. British Airways also settled a data breach case that impacted more than 16,000 people. Increasingly, judges are affirming the value of class action and collective litigation. However, some old-school judges remain intransigent. This could lead to increased regulation and more uniform rulings in the future. The same applies to third-party litigation funding. Litigation funding was once dismissed as an opportunistic scheme, but is now viewed as a vital part of class action litigation. As litigation funding becomes more accepted and utilized around the world, its inherent value in increasing access to justice grows more apparent. At the same time, funding agreements have raised eyebrows when claimants must pay large portions of their award to funders. Third-party funding is non-recourse, so funders are taking a significant risk in supporting these cases. It makes sense that their rewards will be substantial. Many class action cases couldn’t move forward without funding. It’s been asserted that more sophisticated funding models could ultimately lead to larger payouts for claimants. Tets Ishikawa, managing director of Rosenblatt offshoot LionFish, explains that third-party funding is often unjustly maligned. Pricing for litigation funding isn’t much different from other financial markets. LionFish, for example, is a principle funder (rather than one who invests on behalf of others), and therefore has more leeway in the size and types of cases they fund.

A Guide for Choosing a Litigation Funder

As lawyers, courts, and plaintiffs develop an appreciation for Litigation Finance, competition becomes increasingly robust. Demand for funding is up, as are the number of new funders throwing their hats into the ring. There’s a wide array of funding entities now, and they vary in terms of preferred case size, minimum and maximum deployments, jurisdiction, commercial or industry specialties, and more. Above the Law details how claim holders can best go about choosing the right litigation funder to meet their needs. One might think that rankings would give the clearest picture of the available funder options—but does it? Cost is considered the most important factor in choosing a funder, according to respondents in this year’s annual survey of lawyers. That’s not surprising, but it’s worth noting that cost probably shouldn’t be a deciding factor—at least not without further consideration. Preferred investment size and type are both important. Most funders have a preferred investment size that is based on timing, award potential, the likelihood of settlement, and more. Knowing how your case coincides (or doesn’t) with what funders are looking for can help you approach the likeliest match. The same goes for preferred investment types. Some funders only take commercial cases, or class actions, or patent and IP cases. Finding a funder that specializes in your case type brings additional expertise and experience to your team—which has benefits that can far outweigh a monetary percentage. Capital reserves and the right to end a funding agreement are also critical considerations. A funder should be well capitalized at the outset and should remain so for the life of the case. Also, carefully consider the terms under which a funder can exit and cease funding your litigation. Is the funder committed to seeing the case through to completion? Statistics can tell you about funders, but they can’t really discern the right funder for your specific situation. That’s why all factors deserve consideration before a choice is made.

Taurus Capital Founder Talks Litigation Funding as Alternative Investment

Litigation Finance is a growing asset class, spurred on by the financial fallout caused by COVID. Increasingly, investors are seeking uncorrelated investments. As Gary Sweidan, founder of Taurus Capital explains, litigation funding is about as uncorrelated as it gets. Moneyweb explains the attraction of this alternative investment, who it benefits, and how it all works. As explained, funding litigation as a third party doesn’t correlate to stock markets, currency rates, global politics, or more mainstream investments. Taurus Capital follows a model similar to established funders in the UK, Australia, the US, and elsewhere. A funded entity raises a fund with input from investors. That capital is then deployed toward meritorious cases that are carefully vetted. Funding is provided on a non-recourse basis, so a funder loses the entire deployment if the case is not successful. As such, mitigating risk is essential. Funders have widely varied parameters for fund size and deployment goals. Taurus Capital currently has a fund with R145 million, which is expected to be deployed over seven or eight cases. The target is a four-to-five-times return on investment. Of course, some cases may be more lucrative, but some may be total losses. But even with the fund losing a case or two, investors can still expect sizable returns according to Sweidan. The timeline for cases is varied and not entirely predictable. Sudden settlements can end cases far earlier than expected. Endless motions or appeals can drag a case out for years. In South Africa, where Taurus Capital is based, it’s not uncommon for a case to take three to five years to complete. Finding a funder who will see a case through to completion is essential for plaintiffs who don’t want to be left bereft of funding to complete their case. Taurus utilizes a legal risk committee made up of senior counsel (both active and retired), and an investment committee with commercial expertise. Both the legal and commercial aspects are vital parts of vetting potential cases for funding.

What Statistics Tell Us About COVID Business Interruption Insurance

It’s no surprise that COVID has resulted in an influx of insurance-related litigation. Specifically—the question of whether individual commercial insurance policies cover business interruption caused by the pandemic. Burford Capital suggests that analyzing the current numbers can give us a sense of momentum—but the totality of how COVID will impact past and future insurance coverage cannot be predicted with the information available. While new cases are being filed daily, nearly 2,000 COVID-centric insurance cases are either pending or resolved. About 85% of concluded cases have favored insurers. Insurers are moving cases from state to federal courts when possible—despite the fact that insurance policy interpretation is governed by contract law—a state issue. Federal courts thus far have been more likely to favor insurers. As the virus continues to cause damages totaling trillions, business interruption claims will no doubt be a significant part of the legal landscape for years to come. 

BCCE Announces $12 Million Funding Round

Bank Cartel Claims Europe (BCCE), a joint-venture of law firm Grantley Sinclair LLP and litigation finance firm Commercial Damages Claims Limited today announced a $12M funding round for its dedicated litigation finance fund, the Bank Cartel Claims Fund (BCCF), providing institutional and individual investors the ability to access a portfolio of litigation-related assets through a single fund allocation. BCCE has identified three recently decided EU antitrust cases that it believes are highly suitable for follow-on antitrust litigation: the European Government Bonds Case, the Sovereign, Supra-Sovereign & Agency Bonds Case, and the Foreign Exchange Case. In each of these cases, investment banks participated in a cartel through a group of traders. Cartel behaviour between competitors is the most serious form of anti-competitive behaviour and carries the highest level of penalties. Fines totaling €1.47 billion ($1.73 billion) were imposed on the investment banks by the European Commission. “Companies are liable for violations of antitrust law and victims are entitled to full compensation for the actual losses and lost profits that they have suffered,” BCCE Director Kees Arnaud said. “In these three cases, for example, the pension and hedge funds that lost millions of dollars because of these illegal cartels can effectively claim their damages through actions before a national court. A national court cannot overrule the European Commission on the issue of liability, so in most cases, the only remaining question to be decided is the amount of the damages. This makes antitrust litigation very attractive for investors.” “Investments in litigation financing generally offer high yields,” said Frank Mulder, COO of litigation finance firm Commercial Damages Claims Limited. “The key to higher returns is selecting lawsuit investments with key characteristics that mark them as effective investments. And thanks to a variety of modern innovations in finance and the law, investors can access litigation markets in ways that were not possible even a decade ago.” BCCE plans to use the capital to hire leading barristers, solicitors, and economic experts to pursue these claims against the banks. Damages are expected to exceed $1 billion. Find out more at https://bankclaimsfunding.com About Grantley Sinclair Grantley Sinclair is a leading law firm with more than 25 dedicated lawyers and public affairs experts. Clients big and small, from some of the world’s largest multinationals to small tech start-ups, trust Grantley Sinclair to solve their most challenging and business-critical problems. We provide insight at the point where law, business, and government meet, giving clients a voice and achieving successful outcomes. For more information, please visit: https://grantleysinclair.com About CDC CDC is a premier litigation finance firm that helps corporations exercise their right to full compensation for harms caused by e.g., breach of contract, business torts, or illegal cartels. CDC can arrange for the coverage of all the ongoing risks and expenses of litigation, including any adverse cost risk. It aims to deliver an arrangement that works for the client; therefore it operates in both the insurance and funding markets. For more information, please visit https://commercialdamagesclaims.com
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Kosovo Welcomes Third-Party Legal Funding

In recent years, Kosovo has taken a number of steps to promote foreign investments. Among these is the ratification of bilateral investment treaties with Switzerland, Luxembourg, Austria, and Belgium, among others. In 2014, a Law on Foreign Investment was adopted, which outlines the use of arbitration for investor-related disputes. Michelman & Robinson LLP, along with Bench Walk Advisors, explains that while Kosovo has not adopted the full measures of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, its Laws on Arbitration accomplishes many of the same things. As the financial climate improves, Kosovo is taking steps to attract more foreign investors, including third-party funding. Specific criteria are utilized when evaluating risks associated with cases:
  • Merits. Obviously, cases must be meritorious in order to qualify for funding.
  • Legal Team: Funders rely on the plaintiff’s legal team to win a satisfactory result for the client. Legal teams with a strong history of success and expertise in the area of dispute are essential.
  • Dispute Forum: Funders will specialize in specific forums for disputes. Some may want to avoid jurisdictions known to be unreliable, notoriously slow, or otherwise lacking in procedural stability or predictability.
  • Budget v Damages: Generally funders will have a minimum and maximum budget limitation. This means either a limit on how much funding they will deploy on a single case, or a minimum potential recoupment before considering a case for funding.
  • Enforcement and Defendants Financial State: Winning an award doesn’t help investors if the award cannot be collected. Most funders will examine the defendant’s ability to pay, as well as consider other potential enforcement issues such as hidden assets, or cross-jurisdictional issues.
Kosovo has taken some excellent first steps toward encouraging outside investment—with litigation funding strengthening investor confidence.

Liti Capital Token wLITI Lists on HitBTC, Bringing Litigation Financing to the Masses

Liti Capital, the Swiss-based litigation financing company that has made private equity investing accessible to everyone through blockchain technology, has listed its wLITI token for the first time on a centralized exchange (CEX) - HitBTC. wLITI’s first CEX listing follows its recent listings on decentralized exchanges (DEXes) Uniswap and 1Inch Exchange. Having launched earlier this year, Liti Capital is already making waves in traditional investing by bringing litigation financing — an investment practice traditionally monopolized by hedge fund heavyweights and elite investors — to the masses. “We are very excited to list on HitBTC,” said Liti Capital CEO Jonas Rey. “This represents a major milestone toward our goal of leveling the playing field for litigation finance. Legal claims are an extremely appealing asset class because they can be so lucrative, and we provide a means for anyone to get in on this exciting investment opportunity.” Founded in 2013, HitBTC is one of the oldest and largest spot-trading cryptocurrency exchanges in the world. It is well-known for its state-of-the-art matching engine, high security measures and low trading fees. With a trading robot-friendly API and 24-hour customer service, HitBTC is a popular exchange with over 800 trading pairs and more than 400 spot instruments. Putting traditional investing on the blockchain Litigation financing is the practice of bringing in investors to cover the cost of a lawsuit or arbitration in exchange for a portion of the profit. Litigation financing specialists, such as Liti Capital, purchase litigation assets for cases they deem to have a high chance of winning. While litigation financing often requires an initial investment of USD 500 K to USD 1 million from an investor, Liti Capital makes it accessible for anyone with as little as USD 50. They do this by tokenizing shares in LitiCapital, and paying out dividends to LITI equity token holders when a case in Liti Capital’s portfolio is won. wLITI, or “Wrapped LITI” — the token listed on HitBTC today — is Liti Capital’s ERC-20 liquidity token. It doesn’t provide access to dividends like LITI does, but wLITI can be exchanged for LITI tokens at a 5000 to 1 ratio. However, both tokens give holders the power to vote on how Liti Capital assets are used to finance crypto fraud cases that affect Liti Capital community members, an initiative that the company is dedicated to allocating between five and ten percent of their yearly investment budget for. Boasting a billion-dollar case portfolio Liti Capital has already secured a healthy case portfolio, with their largest case potentially worth more than USD 1 billion when it finally settles. Cases like these, which tend to be commercial rather than consumer or personal lawsuits, usually target large-scale corporate disputes valued at more than USD 10 million. While they could take years before a settlement is reached, successful litigation funders can expect to pocket between three and five times their initial investments, according to estimates by litigation finance expert Steven Friel (Bloomsbury, The Law and Business of Litigation Finance, 2020). To attain this goal, Liti Capital onboarded seasoned industry leader David Kay as CIO and Executive Chairman. Boasting more than a decade of experience as Funding Partner and Portfolio Manager of a billion-dollar private equity fund in the litigation financing space, Kay successfully enforced what was at the time the largest international arbitration award in history, bringing in over USD 1 billion in cash and securities. “Litigation assets generally don’t correlate with the state of the economy, allowing litigation financing to thrive even in a bear market,” Kay explained. “A relative newcomer to the modern investment ecosystem, litigation financing is expected to double in market value within the next six years. Our investment team at Liti Capital is actively seeking out the top opportunities in litigation assets, and aims to add at least five more multi-million dollar cases to our portfolio by this time next year.” Listing details Trading Date: August 17, 2021 3:00 pm UTC Deposit Opening: August 16, 2021 3:00 pm UTC Trading Pairs: wLITI / BTC wLITI / USDT About Liti Capital Switzerland-based Liti Capital is a Swiss Limited Liability Co. specializing in litigation finance and fintech. Liti Capital buys litigation assets to fund lawsuits and provide a complete strategic solution along with connections with top law firms to help clients win their cases. Tokenized shares of the company lower the barrier of entry for retail investors and give token holders a vote in the company’s decision-making process. Dividends are distributed to LITI token holders upon the success of the plaintiff. Co-Founder Jonas Rey heads one of the most successful intelligence agencies in Switzerland, Athena Intelligence. His two co-founders, Andy Christen and Jaime Delgado bring operational, innovation and technical skills together to round out the leadership team. David Kay, CIO, ran a billion-dollar NYC private equity litigation finance firm before joining Liti Capital.
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German Asset Manager Sues Over Wirecard Bankruptcy

A lawsuit brought by Union Investment, Germany’s third-largest asset manager, is not welcome news for banks and bondholders. Wirecard is accused of making more than 70 statements, including corporate press releases, that are being described as fraudulent. FR24 News reports that Nadine Hermann of Quinn Emanuel stated that because Union Investment made decisions based on misleading statements, its claims should positioned alongside those of more senior creditors, such as banks and bondholders. This lawsuit has the potential to set precedent for other shareholders impacted by the Wirecard bankruptcy. The case is being funded by Burford Capital, a leading third-party litigation funder. So far, more than 14 billion Euros in claims have been filed against Wirecard with Michael Jaffe, the administrator. Jaffe has amassed about 600 million Euros from the sales of Wirecard assets. Should this lawsuit be successful, Union Investment would receive a share of the accumulated capital currently earmarked for Wirecard’s creditors, as would Burford. The banks and bondholders have filed multiple legal opinions rejecting Union’s claims.

Omni Bridgeway CEO Andrew Saker Responds to Proposed Statutory Price Cap

It cannot be denied that third-party litigation funding is a boon to justice. In many instances, it’s the only way that impecunious plaintiffs can have their day in court. At the same time, legal funding is a business that depends on ROI for investors. That’s why funders have a lot to say about a proposed new regulation in Australia, legislating a standard minimum return to class members in funded class actions. Some have suggested this guaranteed percentage be as high as 70%. Is that reasonable? Omni Bridgeway CEO Andrew Saker penned his opinion on the matter, based on years of experience in the industry. Saker begins by pointing out that the 70% figure doesn’t appear to be based on any available data. It’s an arbitrary figure arrived at without input from funding groups like ILFA, nor does it factor in the significant risk undertaken by funders who deploy funding on a non-recourse basis. Since the Hilmer Review in the 1990s, it’s been established in Australia that the government should only intervene in those markets where there has been a market failure. That’s simply not true of the funding industry. While dire warnings of frivolous class actions haven’t abated, this explosion of opportunistic cases never materialized. Saker is clear in stating that funding is already subject to checks and balances, self-regulation by industry leaders, and increased court input on settlement approval and even funding agreements. The proposed allocation of 70% of awards or settlements to class members would negatively affect over 90% of cases, according to an analysis by PwC. In some instances, the remaining award funds wouldn’t be enough to cover legal expenses, or would reduce funder commission so drastically that it loses value as an investment. Leading funders like LCM, Woodsford, and Burford Capital all agree that an arbitrary price cap will hurt funders, lawyers, and potential claimants who may find themselves with no financial help when they need it most.

Litigation Finance Product for Retail Investors Launches in India

One Delhi-based startup has created a litigation funding platform with retail investors in mind. Investors may now fund cases as a third party for as little as 25,000 rupees, or about $335 USD. Called LegalPay, the startup is focusing on late-stage commercial arbitrations. Business Today explains that LegalPay is backed by LetsVenture and 9Unicorns, among other venture capital firms. It plans to develop an SPV of about a dozen cases to diversify risk. The focus will be on commercial B2B cases with big-ticket defendants and a predictable timeline. Investing in third-party funding is typically only available to the wealthy. LegalPay makes this opportunity more accessible to average investors. Potential investors should have a clear understanding of how third-party funding works, and especially its non-recourse model—before making an investment. Founder Kundan Shahi details that his business model is such that even winning as few as one in six cases will mean that invested capital will be secure.

Insights Into the Energy Industry

The COVID pandemic has wreaked havoc on many industries, energy included. Energy usage fell, production disruption was rampant, regulations changed all over the world, and at least 19 energy companies filed for bankruptcy last year. Burford’s newly commissioned 2021 Asset Report explores the ways in which energy companies can use their legal assets to create revenue. Burford Capital details that while energy litigation can be costly and time-consuming, it’s also among the most lucrative. When polled, more than ¾ of senior finance professionals in the energy sector say that even extensive affirmative recovery programs aren’t meeting the needs of the company. This could be addressed by better communication between legal and financial departments. Greater reliance on quantitative analysis over qualitative analysis when vetting pending legal claims would also be helpful. Burford Capital’s recent roundtable featured some top legal minds in the energy field. Mark Baker, global co-head of international arbitration at Norton Rose Fulbright,  states that volatility in the energy sector has been the norm long before COVID. Oil and gas are constantly in a state of flux depending on investment regimes, politics that alter energy policy on a global scale, and a transition toward green energy, which all impact pricing and availability. Michelle Gray, a founding partner at Fogler, Brar, O’Neil, and Gray, speaks to the uncertainty that’s still clouding active lawsuits. There has been precious little precedent with regard to COVID-centric litigation. Until that happens, it’s impossible to predict how litigation—or even arbitration—will progress. The use of litigation funding along with quantitative financial analysis makes perfect sense. The expertise provided by experienced funders can be instrumental in identifying which litigation is worth pursuing, and then maximizing its value. Non-recourse funding can mitigate expenses and legal fees while creating untapped revenue and reducing risks--without adding costs to the balance sheet.

Australia Eases Continuous Disclosure, Extends Virtual AGMs

While class action attorneys and litigation funders are fuming, publicly-listed companies in Australia are breathing easier after continuous disclosure laws were relaxed. This move is expected to protect company officers against liability for deceptive, misleading, or incomplete disclosure to stockholders—unless fault is proven affirmatively. Yahoo! Finance explains that the move is meant to stifle “opportunistic” shareholder class actions, according to Treasurer Josh Frydenberg. The new rules also allow annual general meetings to be held virtually rather than in-person, through March 31 of 2022. These new rules are described as ‘temporary relief,’ though Frydenberg noted that more lasting reforms are expected to be introduced before the end of 2021. There are concerns, however, that these new relaxed rules may limit shareholder’s legal options for holding executives to account.

Legal-Bay Lawsuit Funding Enters Attorney Funding Market with Law Firm Loans Up to $25MM

Legal-Bay, The Pre Settlement Lawsuit Funding Company, announced today that they are now assisting a large number of attorneys with their funding needs. The premier lawsuit funding company is currently working with lawyers and law firms, generating a renewed focus on cash flow needs that may have arisen due to Covid-19 shutdowns and a severely slowed court system. Chris Janish, CEO of Legal-Bay, commented, "We have secured ample capital in our quest to assist our many law firm clients. We're able to get them the money they require to help them carry on with their professional needs, as case settlements have slowed down due to Covid-19. Legal-Bay is now positioned to be a full-service funding firm–and invaluable resource–for law firms and their clients alike by helping with cash-flow needs and building case value through our multitude of funding products." If you are a lawyer or law firm who needs an immediate cash advance and are interested in discussing how law firm loans can help you, please visit Legal-Bay HERE or call toll-free at 877.571.0405. When it comes to case cost funding, funding for experts, trial cost, or medical procedure / surgical funding for a client, attorney loans are invaluable to lawyers and medical providers. Many law firms have walked away from great cases because they couldn't pull the funding together for personal injury clients that don't have insurance. Also, smaller firms sometimes need to bring in additional counsel for bigger cases because they cannot self-fund things like expert costs, excessive trial costs, or general case costs needed to properly prosecute a valid claim. Plus, now that surgery centers are strapped for cash as well due to Covid they are more hesitant to undertake personal injury surgery on lien or Letter of Protection (LOP). Now, law firms can go to Legal-Bay to help finance the surgery by paying the medical provider upfront. This greatly improves the case value for the client, and the medical provider is more than willing to work with the law firm. Legal-Bay can structure large and small transactions mostly on a non-recourse basis depending on the nature of each transaction. Legal-Bay has helped lawyers in New YorkNew JerseyFloridaPennsylvaniaCaliforniaTexas, and Ohio, but they work with attorneys from all states, even outside of NY, NJ, FL, PA, CA, TX, and OH. Let them provide immediate capital to scale your operation with credit lines up to $25MM. They are a leader in the industry with access to large capital portfolio companies. They offer the fastest approvals with less underwriting than traditional banks, and interest rates/usage fees have simple terms ranging from 12% to 40% per annum with no upfront fees or hidden costs built into the contracts. They can tailor transactions and paybacks, so your cash-flow remains strong. Legal-Bay's goal is to work tirelessly to help get your firm the capital it requires. If you are a lawyer or law firm who needs an immediate attorney loan or law firm loan, please visit Legal-Bay HERE or call toll-free at 877.571.0405. Keep in mind, there are some key requirements to be eligible for funding: 1. Diversified portfolio of personal injury cases and/or other contingency fee type cases 2. Track record of success in settling and/or trial wins 3. Steady cash-flow and profits each year 4. Reputable principals within the firm with a history of integrity Legal-Bay provides fast attorney loans for your law firm and your clients in need. Their staff is trained to make things as efficient for your team as possible. They want to be a resource to help your clients hold out for a fair settlement while also not inundating your firm with unnecessary document requests. Legal-Bay's loans for lawyers provide the lowest industry rates so that any funding liens do not get in the way of settling your client's case… and most importantly, put more money back into their pocket! If you are a lawyer or law firm who needs an immediate cash advance for trial cost funding, funding for experts, or surgical funding, please visit Legal-Bay HERE or call toll-free at 877.571.0405. Legal-Bay remains vigilant in helping clients with their professional and personal needs. Any clients who need cash now can apply for funding to help them get through their financial crises. Legal-Bay funds all types of law firm loans including funding off personal injury cases, attorney lines of credit, attorney fee acceleration, advancement of attorney fees, case cost lines of credit, case cost funding, case cost disbursement funding, and many more. Legal-Bay works directly with many top law firms to provide the best cash advance rates in the industry in as little as 24 - 48 hours. They can assist with acquiring needed loans for law firms in circumstances such as:
  • Portfolio loans
  • Funding for trial costs, trial cost loans, case cost funding, or lines of credit
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Insight on the Development of Litigation Funding in Ontario

Canada has joined the US, UK, EU, Singapore, and Australia (and now many others) in having fully embraced third-party legal funding. Courts are seeing the value in the practice and are ruling accordingly. Combined with the increase in contingency fee arrangements—Canadian plaintiffs are seeing access to justice increase. Woodsford Litigation Funding explains that legal funding began with a desire to help plaintiffs have their day in court—especially against a rich defendant, corporation, or even a government. Since then, the scope and benefits of litigation funding have adapted to the needs of the market. Now, third-party funding is used by CFOs and GCs to manage legal expenses and share risk with other parties. In single plaintiff and class action cases, funding often leads to more equitable settlements, due to a variety of factors, including the added legal expertise and the capability of rejecting lowball offers thanks to a lack of financial constraints. The Ontario Trial Lawyers’ Association recently developed best practices standards for lawyers and funders. These are similar to the codes of conduct used by the Association of Litigation Funders. In January 2020, a Quebec Court of Appeal decision requiring a litigation funding agreement be given to creditors as ‘a plan of arrangement' was overturned. An earlier order by the supervising judge was reinstated. Thus, third-party funding used as interim financing should be determined on a case-by-case basis. Judges may permit third-party funds as interim financing when it is in the interests of justice to do so. Third-party funding for class actions has been approved several times—including David v Loblaw, where courts allowed the use of funding under the following conditions:
  • Plaintiffs, not funders, direct litigation decisions
  • Funder is able to cover an adverse cost order
  • Courts must approve if funder backs out of the case
  • Plaintiffs are given independent legal counsel on the funding agreement terms
Ontario residents now have more options with which to pursue meritorious claims.

ILFA Comments on UNCITRAL Working Group TPF Reform Proposals

The International Legal Finance Association (ILFA), founded in 2020, is a global association of third-party legal funders committed to self-regulation and promoting high industry standards. The ILFA has provided commentary on the proposed new regulation, as well as context around the concerns purportedly being addressed. The ILFA explains that in developing new proposals, the Working Group did not liaise effectively with ILFA members or the funding market as a whole. Also, the proposals appear to stem from a biased narrative emanating from academic (rather than hands-on) experience, deliberately casting doubt on the legitimacy of the funding industry. There’s also a rather stunning lack of supporting data. The proposals were ostensibly made to address some rather spurious concerns, according to ILFA. Among these are:
  • That funding increases the total number of frivolous claims
  • That funding leads to more investor-state arbitration claims
  • Funding increases the number of cases in which states are unable to recover costs.
Granted, these would be legitimate concerns, if indeed there was evidence that supported them. By the Secretariat’s own admission—there is no data supporting the existence of these concerns. ILFA is made up of the 14 largest third-party funders in the world. Therefore, it makes sense to consult with industry professionals when suggesting new legislation that impacts the work they do. After a lengthy explanation of the wrongheadedness of the Working Group’s findings, ILFA reiterated its commitment to working with UNCITRAL’s Working Group to assuage its concerns by providing additional data. ILFA remains confident that the Working Group’s concerns about the industry can be addressed in a manner that does not impede access to justice.

Motion to Disclose Legal Funding Agreement Denied in Boeing Action

A motion to compel disclosure of a funding agreement was denied in a recent case accusing Southwest Airlines and Boeing of collusion to cover fatal aircraft defects. Damonie Earl et al v Boeing revolves around allegations that Southwest and Boeing colluded to mislead ticket buyers about 737 Max Jets—which were defective. Southeast Texas Record details that defendants asked to see all third-party legal funding agreements for all firms representing plaintiffs in this RICO case. Plaintiffs filed an opposition to the motion, claiming that the request is ‘grasping at straws’ with no legitimate basis for concern. Still, there may be concern over the relationship between Pierce Bainbridge and its fraught relationship with Virage Capital. None of the other legal firms involved in the Boeing action have funding agreements in place. The motion was denied on August 2nd by US District Judge Amos Mazzant—who said the information requested was now moot since the attorney in question has withdrawn from the case.

Claims of Investment Losses Spark Investigation

Leading litigation funder Omni Bridgeway is currently investigating claims made by CMC Markets’ Crude Oil West Texas Intermediate Cash product. Investors are encouraged to register their interest in a potential class action relating to investment losses and damages. This is not book building, but rather a gauge of interest in the matter. Omni Bridgeway details that CMC Markets created a network to allow investors to speculate on the price of oil. The volatility in crude markets caused by COVID led to a sharp drop in crude oil prices. This caused CMC Markets to alter the URI for West Texas crude oil. These changes included automatic close-out positions, depending on price, and preventing investors from opening new positions in the CFD. Investors were understandably upset at these changes, and now claim they were misled, and that changing the URI was unfair. CMC Markets offered this product to customers in Australia, New Zealand, the US, UK, the EU, and Singapore. Now many are saying they suffered losses and damage. Those WTI Cash product investors registering interest should be aware that doing so is not an invitation to participate in a case. Offers for participation will come in the form of a Product Disclosure Statement.