More people than ever now understand the broad strokes of what Litigation Finance is and what it can offer. Investors fund cases through funding entities that are then owed a share of any recovery or award in the case. Litigation funding is non-recourse, so funders can take a higher percentage in exchange for the enhanced risk.
A recent order in a case between Laser Trust and CFL Financing is turning heads. The English High Court has made three cost orders against CFL. The court determined that the funder exerted an excessive amount of control over the case it had funded.
As the number of jurisdictions embracing litigation funding grows, bar associations are following suit. Lawyers utilizing third-party funding as an option for clients would do well to note guidance offered by the state bar association on funding agreements and professional ethics obligations. While more state bars are expected to lend their opinions on the practice, New York and California have their own approaches to litigation funding.
Litigation funding has a new landscape to conquer—cryptocurrency. Liti Capital is the first legal funding company to tokenize shares. This creates an equity token that is asset-backed—which is unusual in blockchain. Using tokens allows a wider swath of investors to participate, as the entry threshold is lowered.
Are insolvency claims about to become more expensive and time-consuming to pursue? Some have suggested yes, after a ruling in Manolete Partners Plc v Hayward and Barrett Holdings Ltd 2021. It’s said that the recent ruling impacts those who assign insolvency claims, as well as insolvency practitioners themselves, by increasing the cost of claims, and may require two separate sets of proceedings regarding the same set of facts. Why?
As parts of the world seek out post-COVID normalcy, a predicted spike of legal claims is en route. Insolvencies are increasing, as are claims of fraud, breach of contract, and breach of fiduciary duty. With that in mind, a group of practitioners who deal in fraud, insolvency, and enforcement held the Asset Recovery Americas Conference—focusing on enforcement law in Latin America and the United States.
Last month, the Private Funding of Legal Service Act 2020 (AKA the Act) became law. The Act brings codification to the rules governing the practice of third-party litigation funding—which had been addressed on a case-by-case basis previously. Like many jurisdictions, champerty and maintenance laws had to be abolished before litigation funding could be supported by the law. This was a key element of the Act.
Investments made by Arkansas’s Teacher Retirement Systems increased by a staggering $783 million. This ranks the fund in the top 5% of public pension funds in America. This comes after last year’s investments fell to only $15.1 billion as of the beginning of COVID shutdowns.
When Alexander Tugushev went to London in 2018, he expected to sue Magnus Roth and his former business partners for a cut of Russian fishing group, Norebo. The claim revolved around a one-third share based on informal verbal agreements made long before the founding of Norebo.
Optimise is a new scheme covering clinical negligence and personal injury, specifically aimed at small law firms. The partnership comes amid motor legal reforms and offers a full dedicated authority scheme for firms and sole practitioners who take on clinical negligence or personal injury cases.
Alternative Investment specialist Percent recently announced a strategic partnership with Mustang Litigation Funding. Mustang, founded in 2018, focuses on portfolio litigation funding and personal injury case funding. This includes product liability, auto accidents, and premises liability. The partnership is expected to expand investment options and grow the companies’ network of partners.
A potential class action against Tyro Payments Limited is being investigated by Bannister Law Class Actions. Tyro is Australia’s largest non-bank provider of Point of Sale Electronic Fund Transfer services. Service outages in January of this year impacted hundreds of businesses—causing loss of sales revenue, service fees that provided poor or no service, customer dissatisfaction, and general damage to businesses as they sought to compensate for Tyro’s outages.
Liquidators of Nuoxi Capital and Kunzhi Ltd are presently engaged in negotiations with potential litigation funders. Multiple sources claim that it will be very expensive to recover various inter-company claims—not to mention the need for a Beijing court to accept a previous keepwell ruling originating in Hong Kong.
Law firm King & Spaulding, along with partners Craig Miles and Reginald Smith, are being sued by former client, Trinh Vinh Binh. The firm is accused of failing to follow client instructions, and of ‘erroneous allocation’ of funds. Claims include breach of fiduciary duty, fraud, and negligence, as Binh seeks fee forfeiture in addition to damages.
Shine Lawyers is seeking claimants for a newly launched class action on behalf of indigenous Australians whose wages were stolen. Wage control legislation led to wages being withheld in the period between the late 1800s and the early 1970s. This may include farmworkers, domestic staffers, laborers, stockmen, and others.
As more countries allow the use of third-party funding, more courts are tasked with clarifying how the practice should work with existing law. In Austria, questions regarding ‘pacta de quo-ta litis’ arose with regard to Austrian Civil Code section 879, and section 16 of the Austrian Attorney’s Code.
It’s no secret that the Australian government is concerned about class actions—especially those with potentially high awards. In recent months, a law requiring third-party litigation funders to hold specific licenses came into effect. Disclosure obligations were formalized and may become permanent. Now there is talk of imposing a 30% cap on how much claimants can be charged by funders in collective actions.
As the world economy inches toward some sense of post-COVID normalcy, asset-backed securities are demonstrating their resilience. Unlike traditional ABS classes like leases, car loans, student loans, or credit card debt, the term ‘esoteric ABS’ can be applied to assets that can be traded for non-recourse funding.
The acceptance and mainstreaming of litigation funding are happening at different times and speeds in different parts of the world. Much of Europe has made use of the practice for nearly two decades. Other locales, like Singapore and Hong Kong, have only welcomed legal funding in recent years.
The collapse of the Woodford Equity Income Fund is still yet to be resolved. Leigh Day sent a letter-before-action to Link Fund Solutions in March, accusing the ACD of failing to maintain proper liquid asset levels, as well as general mismanagement of the fund.
Around the world, antiquated champerty laws are being struck down in favor of allowing third-party litigation funding. In the late-1990s, litigation funding gained popularity in Australia, England, Wales, and the United States. Since then, it has grown in acceptance and familiarity—and is now a multi-billion dollar industry.
Litigation Finance is a rapidly growing and evolving industry, and has been since its emergence during the last financial crisis. The practice helps law firms accept more contingency cases, allows businesses to monetize illiquid assets, and can turn existing IP into a profit center.
In Hong Kong, attorneys are not allowed to charge fees based on the potential award for a case. Increasingly, however, some types of flexible fee arrangements are allowed. In Hong Kong’s quest to become a destination for multi-jurisdictional litigation, the Law Reform Commission of Hong Kong has developed a subcommittee that will make recommendations regarding ‘Outcome Related Fee Structures.’
Hausfeld, a law firm that includes connections to the DC Attorney General’s office, has been chosen to file an antitrust lawsuit against retail giant Amazon. The case is said to be so potentially lucrative that the contingency fee agreement states that the firm may not accept more than $55 million in fees. Paul Gallagher will lead the litigation. Gallagher has a long history in antitrust cases, and once worked for the Department of Justice and the DC Attorney General.
An investigation of claims is underway as Bannister Law Class Actions determines whether a class action against Tyro Payments Limited is warranted. Tyro is a powerhouse provider of payment acceptance logistics, currently serving more than 32,000 businesses in Australia.
Is an existential threat to the legal world looming? A survey of over 1,000 GC’s suggests that many of them fear the future promises smaller budgets, heavier workloads, and more pronounced risk for in-house legal teams. For many businesses, litigation funding can be a vital part of the solution.
