News and analysis dedicated to the commercial litigation funding sector including regulatory issues, case developments, funding activities, and more.

Everything we know about the business world is changing, in no small part due to the Coronavirus. Retail outlets, restaurants, bars, theaters, and even insurance companies are feeling the crunch caused by stay-at-home orders, supply shortages, and staffing woes. Yet through it all, Litigation Finance is enjoying a surge of opportunity.

Tail Risk is a term used to describe a situation that’s unlikely to happen, but would have a profound impact should it take place. The current COVID-19 pandemic certainly qualifies. The disruption caused by the Coronavirus outbreak is affecting markets around the globe, yet despite the upheaval – or perhaps because of it – Litigation Finance is thriving.

Litigation Finance is a complex and growing industry for good reason. It’s a boon to potential plaintiffs of limited means, as it increases their access to the pursuit of justice. It’s helpful for legal firms keeping the balance sheets tight while still pursuing a heavy caseload. Litigation funding is also good for the court systems at large, as funders only want to fund meritorious cases—cutting down on frivolous litigation clogging courts.

The Australian government plans to move forward with its inquiry into class-action lawsuits. This inquiry was originally planned for March of this year, but has been slow going thanks to the current pandemic. Concerns over COVID-19 have also raised questions about how class actions might hurt Australian small businesses.  

A recent settlement involving Sydney telecom giant Vocus is raising questions about third-party funding arrangements. The debate between common fund orders (CFOs) versus funding equalization orders (FEOs) reached its apex, when Justice Moshinsky’s ruling resulted in a lower payout to litigation funder Woodsford.

This week, the Supreme Court of Canada publicly released the reasoning behind its January decision in a case involving third-party litigation funding. The ruling provides clarity for an earlier act known as CCAA—the Companies Creditors Arrangement Act. The unanimous ruling found that a gaming software company may use third-party funding to pursue a $200MM lawsuit against Callidus Capital Corporation.

The contentious divorce of Putin ally Farkhad Akhmedov and his wife, Tatiana, has produced escalating divorce proceedings for nearly two decades. Lawyers for each party have asserted multiple claims of previous divorces that can’t be corroborated, requests for personal emails between father and son, and now—an accusation of champerty regarding Burford Capital’s funding of Tatiana Akhmedova. Technically, the backing of claims by third-party funders in exchange for profit has been illegal in Russia since feudal times.

The global financial crisis of 2008 brought with it a flood of class action litigation against big banks. A similar wave of litigation is expected in the post-COVID world. Indeed, it might be even more widespread. In recent years, the rules and procedures surrounding the formation of class action suits have become more sophisticated. Advances in the understanding and use of Litigation Finance make pursing class actions less complicated.

The pandemic is far from over, but the steps that legal firms are taking to mitigate it have only just begun. Third-party funders are already seeing shifts in the way firms are approaching them. It’s not surprising that law firms will be creative and proactive in heading off financial woes before they occur—but it is startling how quickly things are changing.

An Australian class-action suit against prominent online entities has taken major strides forward in recent weeks. Targeting Facebook, Google, and Twitter over their refusal to accept cryptocurrency advertising, the case has amassed over one billion Australian dollars. This staggering number makes it one of the largest class action cases in the country.

In her 65-page decision, Justice Jillian Mallon ruled that the case against Ross Asset Management will go to trial. This came after ANZ Bank filed to have the case thrown out before trial. Ross Asset Management has been called the biggest Ponzi scheme in New Zealand since its went under in 2012.

Last week, Dealmakers hosted a virtual event titled ‘Law Firm-Funder Partnerships in a Time of Economic Uncertainty.’ The event was sponsored by Validity Finance, and featured a panel of speakers including Alanna Clair (AC), Partner at Dentons, Jordan Goldstein (JG), Partner and GC at Selendy & Gay, Joshua Libling (JL), Portfolio Counsel at Validity, and Reed Oslan (RO), Partner at Kirkland & Ellis. The panel was hosted by Bob Robertson (BR), Strategic Advisor at Dealmakers.

Given that the stock market has fallen almost 20% in the last 30 days, securities claims are expected to surge. The need for increased operational funds and asset liquidity makes Litigation Finance an attractive option for companies facing such claims.

It’s clear that insurers and policyholders are keeping a close eye on the law as it pertains to pandemics. Clauses in contracts specifically related to viral or biological agents will take center stage in new lawsuits that are sure to spring up after COVID-19 precautions have taken a heavy toll on businesses.

Convicted of fraud in 2007, Alexander Tugushev is now suing a former business partner. The case is being funded by 17 Arm, a firm advised by a former prosecutor and former foreign secretary, and is raising questions due to the high-profile nature of those involved, and because of the use of Litigation Finance.

It’s no secret that Litigation Finance is a profitable and growing industry around the world. With Australia, Asia, Europe and North America all enjoying the fruits of lit fin’s labor, is it time for Africa to get in on the act?

In a typical scenario, contingency cases involve Davids v. Goliaths. That is to say, usually smaller law firms are the ones who take cases on contingency. Established firms are less likely to take cases on a contingency basis, but that may be changing—thanks in part to litigation funding.

Third-party litigation funding is becoming a natural response to the economic turmoil caused by COVID-19. Firms beset by financial anxiety are looking to keep balance sheets balanced, and funding is an excellent route.

The growing influence of litigation finance in the global legal environment has led to increased regulation and certain ethical concerns. That said, funders, clients, and legal professionals are all feeling optimistic about the impact of lit fin in the future.  In addition, new markets are opening up in Asia-Pacific and elsewhere.