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

No one will ever accuse Aussie law firm Maurice Blackburn of not being proactive. The class action king (Maurice has filed the most in Australia) is pursuing a class action claim against banking giant NAB, and plans to use a contingency-fee model. There’s just one wrinkle here: contingency-fee arrangements aren’t legal in Australia. The state of Victoria is mulling legislation that would legalize such arrangements, but hasn’t passed the final bill yet. 

“Lawyer-Directed” litigation finance, whereby a funder forms a partnership with contingency counsel, provides an opportunity to work around some of the issues that exist in client-directed funding – most notably issues that arise when creditors or lienholders are awaiting recoupment from the client, pending successful litigation. Many funders are averse to partnering with a client that is encumbered by senior lienholders, hence many such claims go unfunded, despite the merits of the underlying case. Lawyer-directed funding provides an attractive solution. 

New Zealand has been far slower to adopt litigation funding than neighboring Australia, where the practice originated. However, the funding market is surging in kiwi-land, thanks in part to local funder LPF Group, which has bankrolled some sizable claims. 

The bankruptcy trustee for the now-defunct aircraft parts manufacturer Super98, is looking to clawback payments made to law firm Quinn Emanuel and litigation funder IMF Bentham, for a claim the company pursued against Delta Airlines. 

Litigation funder JustKapital is considering bailing on the Westpac claim, after the Australian Supreme Court overturned common fund orders. 

Deputy Associate Attorney General Stephen Cox of the Justice Department gave a speech on Monday to False Claims Act (FCA) attorneys, and Cox expressed concern that DOJ doesn’t know the extent to which FCA attorneys are using litigation funding. Cox mentioned that Justice is considering mandating disclosure of litigation funding agreements for FCA whistleblowers. 

UK-based Manolete Partners has published its latest investor presentation – a 15-minute showcase of the UK insolvency litigation market, and explanation of how litigation funding will benefit lawyers and practitioners in the space. 

According to the Amendments to the Code of Civil Procedure, 1908, (Order XXV Rule 3), litigation funding in India is permissible, in that non-lawyers are not restricted from accepting remuneration upon a completed claim. With recent litigation funding partnerships in the engineering and construction sectors, it seems litigation funding in India is poised for growth. 

Among the chief concerns over the rise of litigation funding are the potential growth of frivolous lawsuits, and funder control over case decisions. While those worries haven’t exactly panned out as many industry skeptics had imagined, they remain nagging concerns as the funding industry continues to expand with new entrants and capital sources. One unifying solution to both of these ethical problems is to mandate that lawyers who partner with litigation funders operate on success-based fee arrangements. 

A bevy of funded class actions are making their way through New Zealand courts in 2020, sparking debate on issues such as opt-in/opt-out, and other procedural components of how the nascent class action regime should operate.