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Commercial

London Court of Appeals Clarifies DBA Laws

In this post-Brexit world, London has long positioned itself as a global destination for disputes. A new Court of Appeal judgment clarifying laws relating to Damages Based Agreements helps support that goal. The recent ruling affirms the importance of DBAs, allowing greater access to justice. Burford Capital explains that a DBA is an agreement between client and attorney to share in litigation risk in return for a share of any award. DBAs were introduced in 2013. This is similar to a contingency agreement, with a few sticking points:
  • Could a solicitor recover funds if the DBA is terminated before the case ends?
  • If a partial payment is made, such as in a hybrid agreement, could the DBA then become unenforceable?
The court determined in Zuberi v Lexlaw that hybrid fee arrangements do not negate DBAs according to 2013 regulations. That’s great news all around. Contingency arrangements increase access to justice and allow meritorious cases to move forward even when plaintiffs lack the ability to pay costs. Combined with the accessibility of third-party legal funding, DBAs will no doubt explode in popularity in the coming years.
Commercial

Capitalized Funders and Adverse Costs

Now that Litigation Finance has established itself as a viable industry, laws are being written to clarify finer points and add consistency to laws across jurisdictions. One area of focus is how costs are handled, both in terms of the UK adverse costs regime, and in possible new requirements for third-party funders wishing to obtain securities for cost. DLA Piper explains that a strong example of this clarification comes by way of Rowe & ors v Ingenious Media Holdings. The case involved multiple finance schemes that were challenged by HMRC. More than 500 investors brought claims. Defendants applied for security for costs against the funder—Therium. The claimants then said that if security for costs was ordered, courts should require defendants to provide a cross-undertaking to cover any loss suffered due to that order. Ultimately, security for costs was granted, but not the cross-undertaking. The reasoning was that rather than a loss, what happened was an allocation of recovery. During the appeal, the court affirmed that regardless of third-party funding, claimants are not typically insulated from costs when pursuing claims. The appeals court determined that cross-undertaking for damages in return for security costs should not be presumed. In fact, it should only be used in ‘rare and exceptional cases.’ There are three main takeaways here:
  • That costs covered by third-party legal funding should be treated the same across the board.
  • Security for costs is typical and funders should factor this in when calculating expected costs.
  • Funders should be fiscally prepared to weather an adverse costs order.
This means that claimants and funders need to be more cognizant of the possibility of adverse costs orders, and should discuss these eventualities early on in the process.
Commercial

Omni Bridgeway Expands into Latin American Markets

Omni Bridgeway has been a leader in Litigation Finance for over 30 years. In that time, they’ve made a name for themselves in the US, Canada, the Middle East, Asia, and Australia. Now, the company is making a move to Brazil, Chile, Peru, Mexico, and Argentina with the formation of the Omni Bridgeway Latin America Group. Omni Bridgeway details that the group includes Senior Investment Managers Oliver Gayner and Tim DeSieno, Associate Investment Manager Cheng-Yee Khong, Legal Counsels Dana MacGrath, Nilufar Hossain, Dr. Gian Marco Solas, and managing Director Wieger Wielinga. The focus will be on bringing Omni Bridgeway’s services to new populations. This will include financing for commercial arbitration and litigation, award enforcement, insolvency and other distressed debt matters. The expansion is sure to be a boon to new clients and investors alike.
Commercial Covid-19

Australian Insurers Unified in Denying Policy Claims for COVID

There’s no apparent end in sight to the legal battles between insurers and policyholders with regard to business interruption and COVID. At least five law firms are looking at potential class actions against insurers denying that their business interruption policies do not cover pandemics. ABC details that business interruption policies exist to help companies when the unforeseen happens. This might include natural disasters or fires. Most reasonable people would agree that a pandemic is exactly the sort of calamity business interruption insurance was meant to cover. Insurers disagree, however. An early test case relied on a single sentence to make a determination. Whether or not to cover losses for disease depends on whether the disease itself is ‘quarantinable under the Quarantine Act 1908 and subsequent amendments’. But this act was repealed and replaced in 2016 with the Biosecurity Act. The issue now comes down to whether ‘subsequent amendments’ includes the Biosecurity Act. Not surprisingly, a consensus is yet to be reached. Litigation funder John Walker of Investor Claim Partner stated that on some level, he feels bad for insurers who may not have intended to pay out in the event of a pandemic. But that, he says, does not relieve them of their ethical, legal, and moral obligations to their policyholders. In the year since the pandemic began, very few claims have been paid. Walker finds this unacceptable. It’s unclear how insurers can make a claim that payouts for pandemics are not normally covered. Obviously, pandemics are not a normal occurrence, so insurers, courts, and policyholders are all treading in uncharted territory. Further test cases are expected soon. The sad truth is, these cases could drag on for years, leaving business owners without the protection they paid for.
Commercial Covid-19

Turning Litigation into an Advantage in the Wake of COVID

Most business owners are feeling the pressures of COVID. Startups and established brands alike are finding new challenges to overcome as they negotiate lower sales figures, supply chain hassles, and budget shortfalls. But solutions are available if you know where to look. Real Business UK explains that while some companies are relying on high-interest emergency loans, there are better options out there. Litigation might be the key to financial solvency during trying economic times. How? Pending litigation doesn’t have to be a drain on time and resources. In fact, with proper planning and backing from an experienced legal funder—litigation can become its own revenue stream. Often, financial pressures mean not following up on viable litigation. When the markets are down, it may feel like there’s just not enough revenue to go around. In fact, the Litigation Finance industry is not correlated to the rest of the market. Even during COVID, funders are flush with investable cash, and in search of meritorious cases to fund on a non-recourse basis. By sharing risk with funders, companies can pursue litigation without adding additional legal fees to the budget. In the UK and around the world, insolvencies and business closures keep coming. Third-party legal funding, now an increasingly viable asset class, can help companies pursue legal action, and even help with enforcement of awards or managing insolvencies.
Commercial

Remote Legal Tech Leads to Increased Competition

With remote work now mainstream, it’s become the norm for Legal Tech firms to hire well outside their physical location. While this opens up new opportunities to recruit talent, it also increases competition for job seekers, and companies looking to hire. What might this mean for Litigation Finance? Law.com details that physical offices are not a thing of the past just yet—but that day may be coming. Remote work, flexible office time, and teleconferencing are all being normalized thanks to a pandemic that’s still raging one year on. The talent pool for many firms has gone from local, to state-wide, to national, and even global. This applies not just to tech professionals, but to legal teams and those who specialize in legal finance. Some legal tech companies were already hiring remote workers before COVID hit. But many are still hiring with the expectation of filling their office spaces eventually. The level of training and expertise expected from remote workers may not need to expand, as some had predicted. Because staffers work remotely on a part-time or as-needed basis, it’s less essential to gain many skill sets with a single hire. That means that while competition is growing, so is the number of available positions. Ultimately, the expansion and growth of legal tech is good news for attorneys, clients, and the litigation funding industry on the whole. This ecosystem of coexistent entities will continue to adapt to support the goals of the industry.
Commercial

Law Firm Declares that Vauxhall Owners Will Not Pay for Legal Action

Millberg London has stated that, along with the assistance of third-party litigation funders, they will assume all upfront charges in order to begin legal action against Vauxhall. This will ensure that class participants will not bear any costs associated with the case, minimizing their personal liability. Express reports that clients will not be charged if the case is unsuccessful, and that insurance has been taken out to cover costs if there is no award. The case itself revolves around ‘defeat devices’ installed in a car’s engine management system in order to falsify emissions readings. According to the complaint, drivers were told they’d receive an environmentally safe car with a level of performance that’s literally impossible under normal conditions. Vauxhall maintains that they do not use defeat devices, and stresses that their vehicles comply with existing regulations.
Commercial Covid-19

Thoughts on Legal Tech and COVID

Senior Investment Manager and Head of Omni Bridgeway’s offices in New York, Jim Batson, recently hosted Omni's Beyond Hourly podcast. Batson is a former commercial litigator and law firm partner. The podcast features Ariana Tadler, founder of Tadler Law. Omni Bridgeway’s Beyond Hourly podcast shares insights about gender in law, being a consumer advocate, and the ways in which COVID continues to impact the pursuit of justice. Tadler describes an early case she worked as plaintiff’s coordinating counsel for an IPO Securities Litigation. The case began in 2000 and was related to more than 300 different class actions that were coordinated together, dealing with more than 50 investment banks as defendants. This led to discussion of an amendment to the Federal Rules of Civil Procedure, which was needed to update laws to include modern technology like the internet. Tadler herself was instrumental in the amendments process, eventually being appointed by Chief Justice Roberts to the Federal Civil Rules Advisory Committee. Talk of technology led to a discussion of COVID, and how the legal world simultaneously came to appreciate the value of high-speed internet. The need for remote working conditions, teleconferencing, and virtual document sharing has led to upgrades in tech across the industry. Tadler expresses that she’s confident in the tech choices she made for her firm, acknowledging that such decisions are easier in a smaller firm. When asked if she had advice to share with anyone contemplating founding a firm of their own, Tadler’s answer was unsurprising. She recommends tapping into existing network connections and then branching out into new ones. Never underestimate the value of a good Listserv and a diverse workforce. Seeing other firms and products as networking opportunities rather than as competition elevates everyone involved, while providing a framework to recommend and share information that ultimately helps legal teams and clients alike.
Announcements Commercial

$2.47 Billion of Capital Deployed Last Year Across U.S. Commercial Litigation Finance Industry, As Growing Sector Weathers Pandemic Storm

The number of litigation finance providers in the United States, their assets under management (AUM), and the dollars they committed to new financing deals, all grew over the last year, according to a new report from litigation finance advisory firm, Westfleet Advisors. According to The Westfleet Insider: 2020 Litigation Finance Market Report, between June 2019 and June 2020, 46 active funders managed a combined $11.3 billion in assets allocated to US commercial litigation investments, an 18% increase from the previous year. Despite the onset of a global pandemic and resulting disruption to the justice system, the total dollars committed to new investments by funders also grew by 6% – to $2.47 billion.

For the second year, Westfleet analyzed data collected directly from litigation funders to calculate the size of the U.S. litigation finance market. The most complete and revealing picture ever painted of the sector, The Westfleet Insider features data and commentary on the size, scope and focus of U.S. commercial litigation finance. This year’s report builds on the 2019 edition by adding historical context and new metrics that contribute additional depth to the overall market analysis.

“One of our core beliefs is that reasonable industry transparency serves to educate the public and increase comfort with, and ultimately utilization of, litigation finance,” said Charles Agee, founder of Westfleet Advisors. “Because of the aberrational nature of 2020, we are wary of drawing sweeping conclusions about the trajectory of the market, however, it is quite clear that investors continue to be drawn to the sector, attracted by equity-like, non-correlated returns.”

It remains to be seen whether the pandemic and the dramatic slowing of the U.S. economy that followed will be an intermediate-term boon to the litigation finance industry. As highlighted in this year’s report, the disruptions in global business operations likely created a lag in litigation funders’ investment processes that caused deals to extend just outside Westfleet’s data collection period. Regardless, the report’s findings make clear that those who predicted a massive growth year for the litigation finance sector may have underestimated the impact COVID-19 would have on the efficient operation of the nation’s litigation infrastructure.

“Time—and hopefully a rapidly-approaching return to normalcy—will tell what the litigation finance industry’s precise trajectory is,” Agee added. “The challenges of the last year have brought into sharp focus the myriad inefficiencies and opportunities to improve, across the sector, which should drive growth and innovation for a long time to come.”

Additional significant findings from the 2020 edition of the Westfleet Insider include:

  • The average size of the transactions Westfleet Advisors analyzed was $7.8 million. Single matter deals averaged $4.5 million, while portfolio transactions averaged $12.8 million.
  • The distribution of deals between law firms and corporations remained relatively constant from 2019 to 2020.
  • Litigation funding commitments to AmLaw200 firms remained consistent year-over-year, falling slightly from 30% to 28%.
  • Eighteen percent of all capital deployed last year was for patent litigation matters, and 80% of client-directed portfolio transactions involved patent infringement litigation.

About Westfleet Advisors

Westfleet Advisors is the leading litigation finance advisor in the United States. It was founded in 2013 to bring greater transparency and efficiency to the litigation finance market by equipping users of litigation financing with expertise and resources. Our core mission is to ensure claim holders and lawyers have all the information they need to be successful with litigation financing. Our senior leadership has been active in the litigation finance industry since 1998.

Litigation Finance News
Announcements Commercial

Litigation Finance Journal to Host Digital Conference: “Investor Insights into Litigation Funding”

An upcoming digital conference hosted by LFJ promises to uncover how LPs and institutional investors think about their Litigation Finance investments. The February 4th conference begins at 11 am EST, and will feature a panel discussion, Q&A with attendees, and a keynote speech from Charles Agee of Westfleet Advisors.
  • How do university endowments, PE firms and private wealth managers evaluate litigation funding opportunities?
  • How do they select managers to partner with?
  • What are their pain points?
  • And how do they feel about the future of the industry?
Panelists include: Jonathan Rix: Senior associate at Partners Capital. Mr. Rix holds a BA from Oxford and Level 3 CFA certification. David Demeter: Investment Director at Davidson College since 2018. Prior to Davidson, Mr. Demeter was manager of Investments at the University of Michigan for 12 years. Kendra Corbett: Principal on the Investment Team at Cloverlay. Prior to Cloverlay, Ms. Corbett was an Investment Advisor at Veritable for 15 years. The panel discussion will be moderated by Ed Truant, seasoned litigation funding investor and founder of Slingshot Capital. Additionally, the event will feature a keynote address from Charles Agee, founder of litigation funding advisory firm Westfleet Advisors. Mr. Agee co-founded one of the first-ever Litigation Finance companies back in 1998. He was instrumental in building funding portfolios and ensuring that ethical guidelines were followed in an industry that was still largely unregulated. He founded Westfleet Advisors in 2013, with the intention of bringing third-party funding to a wider range of clients. Mr. Agee’s keynote presentation will cover highlights from Westfleet’s 2020 report on the litigation finance market. Tickets for the event can be found here. All ticket holders will receive a recording of the conference post-event, regardless of ability to attend.  We look forward to seeing you at the conference!
Commercial

Private Funding of Legal Services Act Introduced in The Cayman Islands  

Even though much of the world has abandoned outdated maintenance and champerty laws, the Cayman Islands is reticent to let these common-law standards go. This is about to change, with the introduction of the 2020 Private Funding of Legal Services Act. Mondaq details that restrictions based on champerty and maintenance laws are now abolished. Attorneys may now enter into contingency fees without required court approval—with a few common-sense restrictions. This alone is a big step forward. Even bigger is that the new law makes Litigation Funding legal. In order to use third-party legal funding, some specific conditions will need to be met. Funding agreements must always be in writing, and the client must be making a fully informed decision. Funders are to be remunerated with costs based on the funders anticipated spending, or an agreed-upon percentage of any recovery. Also, contingency fees cannot impact costs between parties, according to the provisions of the act. Contingency fees and attorney success fees are similarly restricted and clarified by the new act. Fees cannot be more than the normal attorney fees or more than 40% of the total monetary award. Contingency fee agreements must also be in writing and delivered to the client by their legal counsel on the day that the agreement is executed. It’s important to note that the act’s contingency fee provisions do not apply to criminal cases.
Commercial

Investors Consider Options as UK Investment Fraud Grows

What is the best way to address fraud once it’s been discovered? Many professionals would say that a civil action is the most effective way to recoup losses and bring fraudsters to justice. Litigation funding can play a pivotal role in this process. Pinsent Masons explains that in a one-year span between September 2019-September 2020, there was a 28% increase in reports of investment fraud. This represents more than 17,000 instances of reported fraud, coming to more than GBP 650MM in losses for investors. There are limits on what law enforcement like police and regulatory authorities can do in cases of fraud. Police may be able to investigate a case and hand it off to prosecutors, but this is unlikely to help defrauded parties recoup losses. Civil proceedings might also be a viable choice for some. Civil fraud claims also require a lower standard of proof, which could mean that civil fraud claims are easier to prove than criminal claims. By suing those who committed fraud, one increases the chances of recovering what was lost. Funding civil actions is often best done by Litigation Finance professionals. Third-party litigation funding is an effective way to secure the resources needed to pursue a case. Often, victims of investment fraud have lost significant capital and may not be in a position to fund a long legal action. Consulting litigation funders has other advantages, like having the case vetted and evaluated for viability. Experienced funders can help with identifying class members, logistics, and even strategy. It isn’t always clear whether it makes more sense to pursue investment fraud as an individual or as part of a class action. Getting the facts before deciding is essential.
Announcements Consumer

Tribeca Capital Group, LLC Announces Expansion for New Year 2021 Mass Tort Initiative

Litigation Funding leader Tribeca Capital Group, LLC, is pleased to announce its New Year 2021 Mass Tort initiative to offer financial relief to victims of defective surgical implants, unsafe medications, or institutions that protected sexual predators. These mass torts include the over-the-counter heartburn medication Zantac, medical device placement surgeries for hernia mesh and inferior vena cava (IVC) filters, and sexual abuse by leaders and others associated with the Boy Scouts of America organization. Tribeca has formed a dedicated team to assist victims who are asserting claims against the corporations and groups in whom they placed their trust but ended up wreaking havoc in their lives. According to Donadio, each year tens of thousands of people assert claims in mass tort litigation and class action lawsuits. Those matters often take two to three years before the parties reach a settlement, and even longer for the class members to be identified, claims filed and approved, and payment made. "We intend to offer financial assistance to as many claimants as possible now while they're waiting for their claims to wind through litigation," explains Tribeca founder Rory Donadio. "2020 was a horrendous year for so many. We want to do our part to help some of the folks who have been hit not only by the pandemic, but by these unscrupulous companies and organizations." Tribeca's founder also emphasizes that these advances are not loans and are not designed to be repaid by the claimant. The litigation funding company takes its share from the eventual award. Even If the claimant's award is less than the advance, the claimant owes Tribeca nothing. Tribeca is fully prepared to handle the influx of new clients seeking financial assistance. The process is simple. Mass tort claimants can apply directly from the Tribeca website at tribecalawsuitloans.com or call (866) 388-2288. Donadio assures that Tribeca can process applications and make a funding offer within days. "Tribeca is thrilled to have an opportunity to help ease the burdens of people fighting for justice in these cases. Since we opened our doors, we have served more than twenty-five thousand clients by financing their litigation efforts and allowing them to receive a portion of their just due when they need it rather than having to wait the months and years that mass tort litigation often takes," says Donadio. If you are a claimant in one of these cases or a plaintiff in another type of personal-injury matter, a five-minute application or phone call can start the process for you. Call Tribeca Capital Group, LLC at (866) 388-2288 or visit our website at tribecalawsuitloans.com.
Commercial

Joint Committee Report of Australian Parliament on Class Actions

Australia’s rise in class actions has caused alarm in many circles. In addition to plaintiffs, big business, government, and legal professionals all have a stake in how class actions are funded, managed, and adjudicated.  Lexology details that a Joint Parliamentary Committee on Corporations and Financial Services was formed to investigate the effectiveness of the current levels of regulation in the industry. The committee was formed in response to concerns from businesses and various class members that fair and equitable outcomes are becoming more rare. Australia has already required licensing and specific disclosures with regard to funders and funding agreements. The committee has suggested several more improvements to oversight—some of which will not please funders. Among the proposed changes are indemnity for plaintiffs in the event of an adverse costs order. Also, funding agreements would require court approval in order to be enforceable, and the courts may reject all or part of any agreement. It’s also suggested that Federal Courts be able to appoint an assessor to vet funding fees, and that courts be empowered to order that litigation funders pay costs in some instances. The Federal Government should, according to the JPC, determine a minimum return on class action proceeds and offer a guaranteed minimum amount that would go to class members. Shareholder class actions have been of particular concern in Australia, which has prompted changes to the Corporations Act with regard to continuous disclosure. A 2020 amendment states that liability can only be shown if the lack of disclosure was knowing, reckless, or negligent—and materially impacted the security’s price or value. This was to be a temporary amendment, spurred by COVID. But the JPC has suggested that it be made permanent. Adopting these laws would ostensibly curb meritless class actions—if indeed that is what is happening.
Consumer

Girardi’s Former Clients Recount Regrets, Abused Trust

Thomas Girardi was a famous trial lawyer when he assured devastated clients that he would help them. One such client, Kathy Ruigomez, took the celebrity attorney at his word based on his affectation, and his reputation as illustrated in the film Erin Brockovich. Law 360 explains that Ruigomez’s son had been badly injured in a gas explosion, and Girardi assured her that the gas company would pay. Ultimately, the family claimed to have learned that while Girardi did win a settlement from PG&E, the money was spent by Girardi himself on personal matters. Lawsuits now allege that the firm Girardi Keese, and Thomas Girardi himself, have defrauded or stolen from families that were poisoned, earthquake survivors, elderly cancer patients, and a number of widows and orphans. Some say Girardi’s thieving was a not-very-well-kept secret in California’s legal community for many years. Girardi told potential clients that his many successes had led to jealousies and false claims about him. To a large extent, it worked. Last year, amidst a slew of lawsuits from consumer legal funders who had loaned him money and accused him of failing to repay, Girardi announced that he was broke. This led to an exodus of lawyers and staff from Girardi Keese, as well as a divorce from his reality-star wife, Erika Jayne. Next came a lawsuit from Edelson PC, co-counsel in a spate of cases against Boeing. Currently, Girardi’s brother has testified that the once-famed lawyer is mentally unfit to assist in his own defense. He’s even claimed that Girardi doesn’t remember where the missing monies went. Indeed, it’s not even clear how much money is missing. An interim trustee has announced that Girardi Keese will remain closed. Girardi has now been sued for fraud more than two dozen times. Meanwhile, Ruigomez and others like her are left feeling cheated and without protection or recourse. Some are especially galled to know that Girardi’s formal record is unblemished and he even has a Trial Lawyers Hall of Fame award.
Commercial

Class Action Against Woolworths Group Limited

Woolworths Group Limited is being accused of breaching disclosure obligations, including the 2001 Corporations Act, and engaging in deceptive or misleading conduct. That’s according to a recently filed class-action suit set in motion by Maurice Blackburn. The action has been slated for a hearing in February. Maurice Blackburn, a leading class action firm in Australia, details that the action covers investors who purchased Woolworths shares between August 2014 and May 2015. A central question in the case revolves around whether the company had a reasonable basis for its guidance to investors. Guidance was based on NPAT and NPAT Growth as performance metrics. If the company did not have a reasonable basis for its initial guidance, this may have led to inflated pricing for investors, who were then damaged by overpaying. The claim is being financed by International Litigation Funding Partners (ILFP). Omni Bridgeway, which had initially proposed funding for the class action, withdrew its funding proposal in 2018. In accordance with the funding agreement, ILFP will receive cost and expenses, plus a percentage of any recovery as detailed in Clause 10 of the agreement. Share prices dropped after announcements that WGL would not meet its stated goals. Investors were then informed that it would take a large investment of money and time to regain the sales momentum that had been lost. An earlier attempt at mediation led to the closure of additions to the class—which has now expired. As such, impacted persons who have not opted out of the action are able to register as class members at Maurice Blackburn’s website.
Commercial

QLD Energy Class Action Launched in Australian Federal Court is Biggest Energy Suit Ever

What’s being described as the biggest energy action in Australia’s history is now underway. A class action against two Queensland energy generators was filed in Federal Court on Wednesday. Allegations include manipulating the wholesale pricing system and artificially inflating energy bills for thousands of customers.

LCM, which is funding the action, explains that the claim is brought on behalf of registered Queensland customers who paid for electricity between Jan 2015 – Jan 2021. Class members are mainly residential customers, though over 1,600 businesses are registered as well. Only registered parties are eligible, and affected parties will have an opportunity to sign up if they so desire.

Because the action is being bankrolled by Australian funder LCM, interested class members can join the action at no charge.

Commercial

Cayman Island Welcomes Third-Party Legal Funding

The Cayman Islands is the latest territory to signal its embrace of Litigation Finance. Until 2017, champerty laws were still in force, and legal funding by third-parties was disallowed except in insolvency cases. That year, Harneys, a Cayman Islands law firm, received court approval for the practice. Omni Bridgeway explains that the passing of the Private Funding of Legal Services Act of 2021 is a clear welcome to third-party litigation funding. After the 2017 precedent, funders and clients alike were reticent to undertake funding agreements. Some speculate that the requirement of court approval for each case led investors to fear they could make funding agreements that are later rejected by courts. The new Act recognizes that funding agreements will be made by experienced professionals who are unlikely to need court guidance to develop contracts that are fair and reasonable. As such, it takes a hands-off approach unless there’s a reason for court involvement. Once the Act has taken effect, court approval will no longer be needed for third-party funding agreements. Arrangements must be in writing, and there are limits on the amounts that can be remitted to funders. These parameters apply to litigation and arbitration. This is big news in the Cayman Islands and elsewhere. The Cayman Islands is already a leading global financial hot spot. The new Act may lead to it becoming a destination for those shopping for the right jurisdiction in which to pursue litigation.
Announcements Commercial

Woodsford announces the promotion of Robin M. Davis to Chief Investment Officer, US

LONDON, NEW YORK 19 January 2021, Woodsford, the global provider of litigation financing solutions for businesses, individuals and law firms, has announced the promotion of Robin M. Davis to Chief Investment Officer, US. Robin, who joined Woodsford in October 2018 as Senior Investment Officer, was previously a partner at Radulescu LLP, a boutique patent litigation firm in New York City. Earlier in her career, Robin was an associate at Quinn Emanuel. “We recognized Robin’s potential when she joined the team just over two years ago and she has exceeded our expectations. Robin has played a key role in making Woodsford one of the leading funders of patent disputes in the US and will now drive and accelerate the continued growth of both our commercial litigation and IP-related practices across the US with her intellect and tenacity.” said Steven Friel, Woodsford’s CEO. Robin M. Davis commented, “I am thrilled to be stepping into the Chief Investment Officer role for Woodsford’s US business and beyond excited to shape and expand Woodsford’s sizeable footprint on this side of the Atlantic. With our outstanding team, Woodsford is both smart and creative— attributes that will serve us well as we continue to expand our success in the US market and further establish Woodsford as a leader in litigation finance.” About Woodsford Founded in 2010 and with a presence in London, Philadelphia, New York, San Francisco, Toronto, Singapore, Brisbane and Tel Aviv, Woodsford provides tailored litigation financing solutions for businesses, individuals, and law firms. This includes single case and portfolio litigation funding and arbitration funding and the funding of collective actions. Woodsford’s Executive team blends extensive business experience with world-class legal expertise. Woodsford is a founder member of both the International Legal Finance Association (ILFA) and the Association of Litigation Funders of England & Wales (ALF). Woodsford’s Chief Operating Officer, Jonathan Barnes, sits on the board of both organisations. Woodsford is continuing to recruit, seeking litigation lawyers to join as Investment Officers, and legal and other professionals to joins the Business Development team.
Commercial

Collective Redress Regime and its Impact on Litigation Funding

The German legislature is in the midst of groundbreaking decisions surrounding legal tech. They recently validated the business model of LexFox, a legal tech company. By ruling that LexFox did not violate the German Legal Services Act, the court validated similar companies like myRight and Flightright. JD Supra explains that in the coming year, traditional law firms and more modernized legal tech companies will find themselves at odds. The shakeup caused by the growing acceptance of litigation funding and contingency fees is somewhat calmed by the revised Legal Services Act. The new revisions are expected to add clarity and guidance to the practice of legal funding. Meanwhile, the final months of 2020 brought about new directives on collective redress. The new rules, which expand collective actions, won’t go into effect until 2023. This new directive is expected to strike a balance between giving citizens a process to ensure consumer access to justice and preventing an influx of frivolous or abusive litigation. Of note, the new directives do not contain specifics regarding international litigation. This could lead to increased forum shopping—the practice of finding a friendly jurisdiction for one’s case. Directives also maintain that litigation funding can be used—but that there cannot be a conflict of interest. This is, of course, in keeping with Litigation Finance best practices all over the world. It’s expected that the availability of legal funding will impact where and how cases are managed. The German Bar is vocally against many of these changes, and strong public debate is expected. Ultimately though, wronged consumers should expect more opportunities to see their day in court.
Commercial Covid-19

Business Interruption Insurers Play Hardball with Policyholders

What happens when you take every precaution only to be let down by your insurer? That’s what Josephine Woodberry is asking. She purchased a business interruption insurance policy for her dance studio in Preston, near Melbourne, only to discover she wasn't actually covered. Sydney Morning Herald details that after 20 years in business, Woodberry filed a claim with her insurer after COVID caused a seven-month shutdown of the school. That’s when she was informed that her policy would not cover a global pandemic. Woodberry is not alone. She’s one of the thousands of small businesses gasping for air during COVID, now being denied the coverage they’ve been paying for. Brokers appear to be firmly on the side of insurers over clients. Unlike Britain, where regulators used a test case to evaluate industry-standard policies—Australian courts let the industry self-regulate. Regulators coordinated with the insurance industry to test whether the Quarantine Act includes infectious diseases as declared under 2015’s Biosecurity Act. After a surprising appeals loss, the insurance industry stands to lose $2 billion. Still, the test cases keep coming. Next up, QBE and IAG policies will be under the legal microscope. Clearly, there won’t be a consensus on policy coverage any time soon. This is terrible news for the thousands of businesses that are barely staying afloat. One Berril Watson attorney explains that even if the courts rule that insurers have to cover COVID losses, claimants will still need to show actual covered losses. He goes on to state that insurers shouldn’t be delaying when policyholders need them most—they should be paying claims. Some insurers claim that business interruption policies were never intended or priced to cover a global event like COVID. They warn that the cost and availability of insurance for small businesses will dramatically change should the current legal judgments prevail. Meanwhile, Woodberry and thousands more like her are adamant. Woodberry refuses to let insurers win when she’s completely convinced that her policy covers her studio.
Commercial

Combustible Cladding Class Action Nears Compensation Phase

A class action against PE core cladding suppliers has finally reached the High Court of New Zealand. Participants are seeking compensation for those financially impacted by the cladding. Omni Bridgeway, which funded the action, along with law firm Russell McVeagh, has raised awareness about the combustible cladding. In addition to the NZ case, Omni Bridgeway is funding two similar class actions in Australia. Remuneration is being sought to cover the removal and replacement of the cladding in question. Many owners and renters claim that their losses include rising insurance premiums as well as costs associated with investigation and testing. Participants are still being accepted in the New Zealand class action. Omni Bridgeway’s Gavin Beardsell states that he’s pleased that the case is progressing. He looks forward to helping and supporting the claimants in their case against manufacturers.
Commercial

How CFOs and Corporations Can Prepare for the Coming Year

Last year, the world was thrown into upheaval thanks to COVID, and most industries are still reeling. Hospitality, entertainment, travel—so many once-thriving businesses are either closed down or hanging on by a thread. What can be done to ensure that your business isn’t one of those lost to the pandemic? Burford Capital is clear in stating that the economic impact of COVID is far from over. Taking a long look at expenses and incoming cash can help businesses understand what needs to happen in the coming year. Infrastructure changes are probably underway in your business already. Remote working, security challenges, and staffing changes are just the beginning. A legal operations department, when implemented, can maintain focus on prioritizing tasks, resource allocation, efficiency, and help remote workers stay abreast on company goings-on, which can all be a huge benefit. Optimizing legal assets is a modern way to free up cash that can be used for operating expenses or upgrades. Gaining instant liquidity from pending claims is an opportunity savvy legal teams will surely jump on. Outstanding litigation is sometimes seen as a liability. If cash is tied up in a case that seems to be dragging on without resolution, it may make sense to transform meritorious litigation into revenue by entering a risk-sharing contract with a legal funder. Now is an opportune time to make use of litigation finance as a way to manage assets and free up liquid capital. Retaining talent is another vital aspect of staying on top during the pandemic. Maintaining top performers can come down to revenue. If you aren’t prioritizing talent retention with high payouts, you risk losing your best team members to other firms. Ultimately, innovation—financial and otherwise—is the key to adapting and thriving in a post COVID world. Building a flexible pandemic plan is essential, and litigation funding can help.
Announcements Consumer

Multi Funding USA is Named Exclusive Litigation Finance Provider for TrialSchool.org

Multi Funding USA, a leading provider of pre-settlement funding serving law firms and attorneys, has been named the exclusive litigation funding partner for TrialSchool.org (Trial School), a not-for-profit trial advocacy training for lawyers who represent individuals and families. Multi Funding USA is a Platinum Sponsor for Trial School and will offer cloud-based litigation finance services to Trial School’s extensive client base of law firms and attorneys across the United States. Trial School provides a vast array of resources to attorneys across the United States. Its content is created and taught by some of the most respected trial lawyers in America. Trial School teaches 'Mixed-Method Advocacy,' which seeks to curate and combine today’s best approaches to trying cases, and is delivered through a sophisticated online repository of tutorials, resources, and case studies. The organization offers a comprehensive Boot Camp suitable for both plaintiff and defense attorneys. Among the topics covered are discovery strategies, witness testimony, cross-examination, managing documents and evidence, and creating closing arguments. Trial School provides hours of video tutorials to assist attorneys, as well as live focus groups and online documentation. Trial School resources and services are available at no charge for qualified attorneys. “Trial School is recognized as the leading resource for trial attorneys who are looking to improve their skillsets and learn new strategies which will help them win more cases,” said Kevin Flood, Multi Funding’s chief operating officer. “We are delighted to work with this trusted organization as its exclusive litigation finance provider and look forward to serving the many attorneys who rely on Trial School to keep up with the many new concepts and tactics that are redefining litigation.” Multi Funding offers the legal community proven, fast, and reliable pre-settlement and other litigation financing solutions. Established in 2007, Multi Funding is recognized by its clients for maintaining a high standard of excellence, and is one of the few providers in the industry to earn coveted NMLS (Nationwide Mortgage Licensing System) certification, which is given to select providers who undergo a rigorous examination of management, financial resources, and data security processes. Through Multi-Funding’s advanced technology, attorneys can easily apply for litigation financing on its secure website. Within minutes, attorneys can leverage the company’s full capabilities, such as automated workflows, instant notifications, document management, attorney and firm metrics, and funding updates. Multi Funding eliminates the manual tasks associated with funding, and provides litigants with much-needed financial resources. About Multi Funding USA Headquartered in Woodstock, New York, Multi Funding USA is a major provider of specialized legal funding, attorney funding, and law firm funding services. With decades of lawsuit funding, business, and legal experience, the company’s founders have made it their focus to provide simple and fast services while maintaining a high standard of excellence. Multi Funding USA has provided millions of dollars of legal funding to plaintiffs and attorneys across the United States. www.multifundingusa.com
Consumer

Girardi Legal Woes Mount as Records Show $10MM in Debt to Lit Fin Firm

It’s been asserted that lawyer and reality-show-husband Tom Girardi is currently incapable of active participation in his current legal situation. Documents recently filed assert that the firm Girardi Keese owes Virage SPV more than $10 million. Yet Girardi’s brother maintains that the founder of the firm is suffering from memory loss and requires a guardian ad litem for himself and his firm. Law.com details that Girardi Keese and Girardi are personally facing a contempt judgment of over $2 million. This comes after allegations that Girardi failed to remit settlement monies to clients relating to the crash of Lion Air Flight 610. Girardi is in the midst of both personal and business-related bankruptcies, though his brother insists that Tom Girardi is unable to have a reasoned conversation about his situation. Interim trustees have been appointed to oversee both bankruptcies, including active and recently settled cases that could add funds to the bankruptcy estate. These cases include a 2015 gas leak near Los Angeles. Meanwhile, Virage has produced promissory notes to the 2017 and 2018 loans. One loan, for use in the Porter Ranch gas leak action, was cosigned by lawyers Herman Russomanno (real estate lawyer to President Donald Trump and former president of the Florida Bar), and Bruce Mattock–both of whom have chosen not to comment. Their firms were co-counsel in litigation surrounding concussions in the NFL. Girardi has not responded to either bankruptcy petition. As such, Robert Girardi has asked that the deadline be moved to February 12th. Girardi’s attorney, Evan Jenness, has requested a mental evaluation of Girardi, telling the court that he was incapable of answering questions from the judge regarding the whereabouts of money owed to clients. Girardi’s lawyer and brother both maintain that his inability to respond to the accusations against him would be personally and financially detrimental.
Commercial

Parker Law Firm Forced into Arbitration with Litigation Funder by 8th Circuit Court

A recently filed case in the US Court of Appeals 8th Circuit regarding Timothy Parker and Parker Law Firm has been forced into arbitration. Seeking leave to litigate, the appeals court determined that the dispute in question was addressed by the arbitration clause in the formal agreement between parties.

Leagle details that the case in question is one part of a battle over whether Parker Law Firm was obligated to remit payments to litigation funder PS Finance LLC. The disagreement stemmed from Parker Law Firm’s representation of Eureka Woodworks. Eureka sought funding from PS Finance in exchange for proceeds from a claim against BP relating to the Deepwater Horizon spill. As is common in funding contracts, the agreement affirmed that PS Finance would be paid from monies received via settlement, verdict, or ordered judgment. The contract further detailed that any disputes relating to the contract would be subject to binding arbitration. Hence, the court ruling to disallow litigation.

Appellants recovered two payments in 2012 on behalf of Eureka. According to the contract, PS Finance should have received a portion of the payment after legal fees and costs. However, no portion of the payment was given to PS Finance. Parker and the law firm maintain that the money did not come from a settlement, verdict, or judgment and therefore they are not required to transfer any funds over.

In 2019, Parker and Parker Law sought a declaratory judgment affirming that they owed nothing to PS Finance. Parker made allegations that PS Finance breached its contractual obligations when it brought a lawsuit against Parker. The district court dismissed claims against PS Finance.

Arkansas law regarding policy interpretation is firmly on the side of policyholders. It states that when language is ambiguous, courts will construe the policy dictates in favor of the policyholder and against the insurer.

Commercial Consumer

The New Normal: Legal Services Predictions for 2021

For nearly a year, COVID has kept the world in a state of uncertainty. Temporary changes stretch out for months, and no one is sure when things will ‘get back to normal,’ or indeed, what ‘normal’ will look like when that happens. JD Supra has some predictions for the coming year. First, nobody should expect anything like a new normal until at least next fall. While that news may be disheartening, it may not be all bad. Stay-at-home orders led to sweeping upgrades in digital security, video conferencing, document sharing, and other tech advances that are no doubt here to stay. The legal world is likely to make use of these advancements even after in-person meetings resume and courts reopen. It seems that virtual working is here to stay. Review work in particular is moving to virtual spaces. This allows teams to be more nimble and flexible. It also allows teams to form over great distances, giving firms a much wider pool of talent to utilize. Flexible legal talent is expected to remain a viable career path for young legal professionals. Alternative Legal Service Providers (ALSP) refers to a range of services offered at lower price points than traditional legal services. This is an up-and-coming facet of law that is increasingly innovative, as it evolves to better meet the need of a wider array of clients.
Commercial

Antitrust Enforcement—Who Really Wins?

Since the 90s, competition authorities like the European Commission have been getting tougher on Big Tech. Fines have been coming down on tech giants like Apple, Google, Intel, and Microsoft. Some of these cases have resulted in fines in the billions. But who is really benefitting from the success of these? Harbour Litigation Funding explains that authorities are employing creative theories under which to charge Big Tech companies with harm. Antitrust claims or accusations of misused data have led to policy positions intent on limiting the power of tech companies. But how does that help consumers seek justice? What’s important to remember about the fines levied against tech companies is that those who were purportedly damaged aren’t seeing compensation. When consumers sue a company and an award is levied, plaintiffs receive a share as compensation for their losses. When government agencies pursue big tech, consumers generally see nothing. What happens to the billions being levied against these companies? Theoretically, those who were impacted deserve remuneration. In practice, governments generally keep these monies, arguing that payouts eventually reach citizens through social programs and other government spending. Class actions are still the best way for wronged consumers to gain compensation. Without an opt-out class action regime, however, this isn’t always feasible. Increasingly though, UK courts are seeking out more creative approaches that allow consumers proper redress. Litigation funding could be an essential part of this. Ultimately, what’s needed is a combination of a reasonable framework for collective redress, as well as aggressive enforcement of existing laws governing tech companies. Without that, competition authority enforcement is little more than an attempt at soapboxing. It’s essential that there be a reasonable path for wronged consumers to get the compensation they deserve. Some say such changes are coming. But how much longer will consumers have to wait?
Announcements Consumer

Easy Legal Finance Inc. acquires Settlement Lenders Inc.

Easy Legal Finance Inc. a Canadian litigation financing firm, announced today the acquisition of Settlement Lenders Inc. Based in Edmonton, Settlement Lenders Inc. started serving clients in the early 1990s as one of the first firms in the country to offer pre-settlement lending to personal injury plaintiffs. With this announcement, the Easy Legal Group of Companies has acquired the three original and most established litigation lenders in the country, creating an unparalleled portfolio of national brands. "Despite the challenges presented by COVID-19, we remain focused on our goal of strategic growth, through the acquisition of well-established and successful businesses. This acquisition, in addition to Seahold Legal Finance completed last year, demonstrates our continued commitment to servicing this sector," said Larry Herscu, President & CEO of Easy Legal Finance Inc. "Over the past 30 years, we have been providing personal injury plaintiffs with the financial support required, through the legal process," said Tim Latimer, President & CEO of Settlement Lenders. "Easy Legal's reputation for client service is uniquely aligned with ours and I'm pleased to have them further expand our service offering and evolve the firm, for the benefit of our clients and lawyer partners." Mr. Herscu also added that, "The Easy Legal Group of Companies will maintain its mission and remain dedicated to helping those who have been hurt, are in need of financial support, in partnership with the plaintiff bar and its service providers." About the Easy Legal Group of Companies
The Easy Legal Group of Companies is a Canadian litigation financing firm. Its lending solutions service the personal injury sector including plaintiffs with pending injury claims, their legal representatives and the service providers involved in their cases. The firm is registered to conduct business in Ontario, B.C., Alberta, and the Atlantic provinces. Services are delivered through four brands: Easy Legal Finance Inc., Rhino Legal Finance, Seahold Legal Finance and Settlement Lenders. www.easylegal.ca www.rhinofinance.com www.seahold.ca www.settlementlenders.com
Commercial Covid-19

Insolvency Claims in 2021

Given the impact of COVID, insolvencies are on everybody’s mind--how to avoid them or how to navigate them. Knowing what to do when you find yourself in the middle of a business or personal insolvency is crucial. Litigation funding may be one of the most valuable tools in the insolvency toolbox.

Harbour Litigation Funding director Charles Jeffrey has some predictions for 2021. He explains that in the UK, insolvencies were actually down in 2020 despite the ravages of COVID on numerous industries. This is because government assistance has been plentiful. Most programs helping small businesses have been extended through March of this year. After that, things become more unpredictable.

Jeffrey details that businesses in the most danger of insolvency are those that were already struggling. But he stresses that few businesses are pandemic-proof. He also notes that when any business goes under, it has the potential to impact supply chains, creditors, and others that might set off an insolvency chain reaction.

Common claims often pursued in insolvency cases include:

1. Unlawful dividends 2. Undervalued transactions 3. Malfeasance 4. Breach of Duty 5. Wrongful trading

Litigation funding can be a key part of successfully navigating insolvency. Legal costs can add up fast, and insolvent businesses or estates are generally not flush with liquidity. Insolvency practitioners are duty-bound to look into legal funding if funds aren’t available to bring appropriate claims. Jeffrey details that IP’s can assign claims to a funder in exchange for payment upfront. This can be used to cover legal fees and the IP’s fees during the liquidation. Monetizing claims are not allowed in all jurisdictions, but become a valuable financial tool when available.

A conversation with a litigation funder can increase understanding of one’s options during an insolvency situation. Experienced funders will be adept at navigating the process, and explaining one's options in a way that allows one to make informed decisions on how best to proceed.