The following was contributed by Ken Rosen Esq, Founder of Ken Rosen P.C. Ken is a frequent contributor to legal journals on current topics of interest to the bankruptcy and restructuring industry.

In many Chapter 11 cases, the debtor’s estate holds valuable litigation claims, which can be a key source of recovery. However, pursuing these claims can be daunting when the defendant has substantially greater financial resources. Well-funded defendants may use aggressive litigation tactics to exploit the estate’s limited means.

Unsecured creditors, often receiving only token recoveries, may be hesitant to approve further legal spending. Debtor’s counsel, wary of nonpayment if litigation fails, may also be reluctant to pursue claims. Contingency fee arrangements can reduce estate risk, but they shift risk to counsel—particularly when facing a resource-rich defendant.

To gain creditor support, more than the committee counsel’s confidence may be needed. Litigation funding can bridge the gap. It provides capital to pursue claims without draining estate resources, helping to fulfill Chapter 11’s core goals: preserving going concern value and maximizing creditor recovery, as recognized by the Supreme Court.

Litigation funding is especially valuable when the estate lacks liquidity. It enables the debtor to pursue meritorious claims against stronger opponents, discouraging defense strategies aimed at exhausting the plaintiff through expensive discovery and motion practice.

The Funder’s Evaluation Process:

1. Legal Merits – Assessing the strength of claims based on facts, evidence, and precedent.
2. Recovery Potential – Estimating damages or settlement value to ensure adequate return.
3. Litigation Costs – Forecasting expenses to trial or resolution.
4. Risk Analysis – Evaluating the defendant’s ability to pay, jurisdictional issues, and delays.
5. Independent Review –Funders conduct rigorous due diligence before committing capital.

A funder’s involvement serves as a “second opinion” validating the case. Their willingness to invest can bolster confidence in the claim’s merits and justify some estate contribution. It can serve as a soft endorsement of the litigation’s potential value. When a party seeks authorization for litigation funding it should be viewed by the Bankruptcy Court as weighing in favor of approval.

Whether or not funding is obtained, the terms of any arrangement should be redacted/sealed and remain confidential—shared only with the Court and key constituent counsel. The rationale for proceeding without funding should likewise remain undisclosed. Keeping defense counsel in the dark preserves strategic advantage.

Conclusion:

Litigation funding can be a powerful tool for Chapter 11 estates, enabling pursuit of valuable claims, minimizing financial strain, and supporting reorganization efforts. This strategy aligns with Chapter 11’s purpose and can significantly enhance the likelihood of a successful outcome. Key constituents and the court should recognize that.

In this episode, Dr. Rachael Kent shares her journey leading the collective action against Apple in the UK. She shares her experience bringing the action forward, and the impact it is having on claimants and consumers in the UK and beyond.

Visit Rachael’s website.

Order Rachael’s book on Amazon.

The following was contributed by Joel Magerman, Managing Partner of Bryant Park Capital, a leading investment bank specializing in litigation finance, with over 35 completed transactions totaling more than $2.4 billion in this sector alone.

Executive Summary: 

• Third-party funding for consumer litigants has been a growing industry in the U.S. since the 1980s.  
• The need for third-party litigation funding emerged because banks do not typically provide advances to litigants whose only collateral is potential proceeds from lawsuits. 
• Today, there are over two hundred companies providing pre-settlement and medical lien litigation funding to individual claimants. 
• Over the past 25 years, consumer litigation finance has matured into an investment grade asset, with over 25 separate securitizations representing over $2.7 billion of invested capital since 2018. 

Why the need for litigation funding? Insurance companies have found that a plaintiff’s need for a financial settlement is often a driving force in settling a case for a lower amount than if the case runs its course to a hearing. Litigation financing provides equal footing to a plaintiff to pursue claims due to an injury they have incurred due to another party’s actions or negligence.

A recipient of litigation funding benefits from certainty and speed of funding, and the fact that the funding is non-recourse. For the attorney representing the client, litigation funding allows the legal process to play out and maximize the plaintiff’s settlement while providing some financial relief until a settlement is finalized. At the same time, third-party litigation funders see the potential upside in underwriting pending lawsuits and earning a return on non-recourse advances. Generally, third-party litigation funders have no control over the litigation they fund, allowing the plaintiff and their legal counsel to decide their legal strategy. 

Medical lien funding, which is closely related to consumer pre-settlement funding, provides funding to providers of medical services (imaging, doctors visits, physical therapy, surgery, etc.) to these same plaintiffs who cannot pay the medical provider until a claim is adjudicated and paid. Funding these liens is effectuated by buying the lien or the LOP (Letter of Protection) from the medical provider, depending upon state statutes.  

General Industry Data (Pre-Settlement Litigation Funding) 

• Funding amount as percentage of expected case value: ~10-15% 
• Typical funding size: $1,000-$50,000 
• Asset-level IRR for the funder: typically 25-35%  
• Multiple on invested capital: 1.4-2.0x 
• Weighted average life: 1-3 years 
• Application time to funding: typically a couple of days 
• Number of market funders: 200+ 
• Non-recourse to the plaintiff  

An Emerging Asset Class 

In recent years, consumer litigation financing has become more attractive to investors due to rising inflation, increasing interest rates, and volatility of many other classes of investments. The consistent robust returns that are uncorrelated with the economy make litigation funding attractive. Alternative lenders and multi-strategy funds have invested in litigation finance, with U.S. funders categorized into dedicated funders (specialize in litigation finance), multi-strategy funders (entities that have established a dedicated litigation finance strategy), and ad hoc funders (occasional participants in litigation finance). These investors have increasingly diversified their investments, by allocating funds to multi-claim portfolios and making fewer single-case investments. 

 Institutional investors have continued to enter the litigation funding industry, both through directly funding litigation and through providing billions of dollars of financing to litigation funding companies. There have been approximately $2.7 billion of securitizations of consumer pre-settlement assets since 2018, plus billions of dollars of advances to market participants from credit opportunity and hedge funds, as well as private equity firms such as Blackstone, Parthenon, Further Global, Edmond De Rothschild, and UBS. We expect that the investor sentiment of diversifying into litigation finance will continue in coming years. 

Learn More 

To uncover additional industry and investment insights, download the full BPC Litigation Finance Industry Primer. 

The following piece was contributed by Obaid Saeed Bin Mes’har, Managing Director of WinJustice.

Introduction

A Practical Overview

Third-party litigation funding (TPF)—where an external financier covers a claimant’s legal fees in exchange for a share of any resulting award—has gained significant traction in arbitration proceedings across the Gulf Cooperation Council (GCC). Historically, TPF was not widely used in the Middle East, but recent years have seen a notable increase in its adoption, particularly in the United Arab Emirates (UAE). The economic pressures introduced by the COVID-19 pandemic, coupled with the high costs of complex arbitrations, have prompted many parties to view TPF as an effective risk-management strategy. Meanwhile, the entry of global funders and evolving regulatory frameworks highlight TPF’s emergence as a key feature of the GCC arbitration landscape.

Growing Adoption

Although the initial uptake was gradual, TPF is now frequently employed in high-value disputes across the GCC. Observers in the UAE have noted a discernible rise in funded cases following recent legal developments in various jurisdictions. Major international funders have established a presence in the region, reflecting the growing acceptance and practical utility of TPF. Similar growth patterns are evident in other GCC countries, where businesses have become increasingly aware of the advantages offered by third-party financing.

By providing claimants with the financial resources to pursue meritorious claims, third-party funding is reshaping the dispute-resolution landscape. As regulatory frameworks evolve and more funders enter the market, it is anticipated that TPF will continue to gain prominence, offering both claimants and legal professionals an alternative means of managing arbitration costs and mitigating financial risk.

Types of Cases

Funders are chiefly drawn to large commercial and international arbitration claims with significant damages at stake. The construction sector has been a key source of demand in the Middle East, where delayed payments and cost overruns lead to disputes; contractors facing cash-flow strain are increasingly turning to third-party funding to pursue their claims. High-stakes investor–state arbitrations are also candidates – for instance, in investment treaty cases where a government’s alleged expropriation deprives an investor of its main asset, funding can enable the claim to move forward . In practice, arbitration in GCC hubs like Dubai, Abu Dhabi, and others is seeing more funded claimants, leveling the field between smaller companies and deep-pocketed opponents.

Practical Utilization

Law firms in the region are adapting by partnering with funders or facilitating introductions for their clients. Many firms report that funding is now considered for cases that clients might otherwise abandon due to cost. While precise data on usage is scarce (as most arbitrations are confidential), anecdotal evidence and market activity indicate that third-party funding, once rare, is becoming a common feature of significant arbitration proceedings in the GCC. This trend is expected to continue as awareness grows and funding proves its value in enabling access to justice.

Regulatory Landscape and Restrictions on Third-Party Funding

UAE – Onshore vs. Offshore

The United Arab Emirates illustrates the region’s mixed regulatory landscape. Onshore (civil law) UAE has no specific legislation prohibiting or governing litigation funding agreements . Such agreements are generally permissible, but they must not conflict with Sharia principles – for example, funding arrangements should avoid elements of excessive uncertainty (gharar) or speculation . Parties entering funding deals for onshore cases are cautioned to structure them carefully in line with UAE law and good faith obligations. In contrast, the UAE’s common-law jurisdictions – the Dubai International Financial Centre (DIFC) and Abu Dhabi Global Market (ADGM) – explicitly allow third-party funding and have established clear frameworks.

The DIFC Courts issued Practice Direction No. 2 of 2017, requiring any funded party to give notice of the funding and disclose the funder’s identity to all other parties . The DIFC rules also clarify that while the funding agreement itself need not be disclosed, the court may consider the existence of funding when deciding on security for costs applications and retains power to order costs against a funder in appropriate cases. Similarly, the ADGM’s regulations (Article 225 of its 2015 Regulations) and Litigation Funding Rules 2019 set out requirements for valid funding agreements – they must be in writing, the funded party must notify other parties and the court of the funding, and the court can factor in the funding arrangement when issuing cost orders . The ADGM rules also impose criteria on funders (e.g. capital adequacy) and safeguard the funded party’s control over the case .

In sum, the UAE’s offshore jurisdictions provide a modern, regulated environment for third-party funding, whereas onshore UAE allows it in principle but without detailed regulation.

Other GCC Countries

Elsewhere in the GCC, explicit legislation on litigation funding in arbitration remains limited, but recent developments signal growing acceptance. Saudi Arabia, Qatar, Oman, and Kuwait do not yet have dedicated statutes or regulations on third-party funding . However, leading arbitral institutions in these countries have proactively addressed funding in their rules. Notably, the Saudi Center for Commercial Arbitration (SCCA) updated its Arbitration Rules in 2023 to acknowledge third-party funding: Article 17(6) now mandates that any party with external funding disclose the existence of that funding and the funder’s identity to the SCCA, the tribunal, and other parties . This ensures transparency and allows arbitrators to check for conflicts. 

Likewise, the Bahrain Chamber for Dispute Resolution (BCDR) included provisions in its 2022 Arbitration Rules requiring a party to notify the institution of any funding arrangement and the funder’s name,, which the BCDR will communicate to the tribunal and opponents . The BCDR Rules further oblige consideration of whether any relationship between the arbitrators and the funder could compromise the tribunal’s independence. These rule changes in Saudi Arabia and Bahrain align with international best practices and indicate regional momentum toward formal recognition of third-party funding in arbitration.

Disclosure and Transparency

A common thread in the GCC regulatory approach is disclosure. Whether under institutional rules (as in DIAC, SCCA, BCDR) or court practice directions (DIFC, ADGM), funded parties are generally required to disclose that they are funded and often to reveal the funder’s identity . For instance, the new DIAC Arbitration Rules 2022 expressly recognize third-party funding – Article 22 obliges any party who enters a funding arrangement to promptly inform all other parties and the tribunal, including identifying the funder. DIAC’s rules even prohibit entering a funding deal after the tribunal is constituted if it would create a conflict of interest with an arbitrator. This emphasis on transparency aims to prevent ethical issues and later challenges to awards. It also reflects the influence of global standards (e.g. 2021 ICC Rules and 2022 ICSID Rules) which likewise introduced funding disclosure requirements.

Overall, while no GCC jurisdiction outright bans third-party funding, the patchwork of court practices and arbitration rules means parties must be mindful of the specific disclosure and procedural requirements in the seat of arbitration or administering institution. In jurisdictions rooted in Islamic law (like Saudi Arabia), there is an added layer of ensuring the funding arrangement is structured in a Sharia-compliant way (avoiding interest-based returns and excessive uncertainty. We may see further regulatory development – indeed, regional policymakers are aware of litigation funding’s growth and are considering more formal regulation to provide clarity and confidence for all participants .

The GCC region has seen several important developments and trends related to third-party funding in arbitration:

• Institutional Rule Reforms: As detailed earlier, a number of arbitral institutions in the GCC have updated their rules to address third-party funding, marking a significant trend. The Dubai International Arbitration Centre (DIAC) 2022 Rules, the Saudi SCCA 2023 Rules, and the Bahrain BCDR 2022 Rules all include new provisions on funding disclosures. This wave of reforms in 2022–2023 reflects a recognition that funded cases are happening and need basic ground rules. By explicitly referencing TPF, these institutions legitimize the practice and provide guidance to arbitrators and parties on handling it (primarily through mandatory disclosure and conflict checks). The adoption of such rules brings GCC institutions in line with leading international forums (like ICC, HKIAC, ICSID, etc. that have also moved to regulate TPF).
• DIFC Court Precedents: The DIFC was one of the first in the region to grapple with litigation funding. A few high-profile cases in the DIFC Courts in the mid-2010s involved funded claimants, which prompted the DIFC Courts to issue Practice Direction 2/2017 as a framework. This made the DIFC one of the pioneers in the Middle East to formally accommodate TPF. Since then, the DIFC Courts have continued to handle cases with funding, and their decisions (for example, regarding cost orders against funders) are building a body of regional precedent on the issue. While most of these cases are not public, practitioners note that several DIFC proceedings have featured litigation funding, establishing practical know-how in dealing with funded parties. The DIFC experience has likely influenced other GCC forums to be more accepting of TPF.
• Funders’ Increased Presence: Another trend is the growing confidence of international funders in the Middle East market. Over the last couple of years, top global litigation financiers have either opened offices in the GCC or actively started seeking cases from the region. Dubai has emerged as a regional hub – beyond Burford, other major funders like Omni Bridgeway (a global funder with roots in Australia) and IMF Bentham (now Omni) have been marketing in the GCC, and local players or boutique funders are also entering the fray . This increased competition among funders is good news for claimants, as it can lead to more competitive pricing and terms for funding. It also indicates that funders perceive the GCC as a growth market with plenty of high-value disputes and a legal environment increasingly open to their business.
• Types of Arbitrations Being Funded : In terms of case trends, funded arbitrations in the GCC have often involved big-ticket commercial disputes – for example, multi-million dollar construction, energy, and infrastructure cases. These are sectors where disputes are frequent and claims sizable, but claimants (contractors, subcontractors, minority JV partners, etc.) may have limited cash after a project soured. Third-party funding has started to play a role in enabling such parties to bring claims. There have also been instances of investor-state arbitrations involving GCC states or investors that utilized funding (though specific details are usually confidential). The Norton Rose Fulbright report notes that funding is especially helpful in investor-treaty cases where an investor’s primary asset was taken by the state, leaving them dependent on external financing to pursue legal remedies.

As GCC countries continue to attract foreign investment and enter into international treaties, one can expect more ICSID or UNCITRAL arbitrations connected to the region – and many of those claimants may turn to funders, as is now common in investment arbitration globally.

• Emerging Sharia-Compliant Funding Solutions: A unique trend on the horizon is the development of funding models that align with Islamic finance principles. Given the importance of Sharia law in several GCC jurisdictions, some industry experts predict the rise of Sharia-compliant litigation funding products. These might structure the funder’s return as a success fee in the form of profit-sharing or an award-based service fee rather than “interest” on a loan, and ensure that the arrangement avoids undue uncertainty. While still nascent, such innovations could open the door for greater use of funding in markets like Saudi Arabia or Kuwait, by removing religious/legal hesitations. They would be a notable evolution, marrying the concept of TPF with Islamic finance principles – a blend particularly suitable for the Gulf.

Overall, the trajectory in the GCC arbitration market is clear: third-party funding is becoming mainstream. There have not been many publicly reported court challenges or controversies around TPF in the region – which suggests that, so far, its integration has been relatively smooth. On the contrary, the changes in arbitration rules and the influx of funders point to a growing normalization. Businesses and law firms operating in the GCC should take note of these trends, as they indicate that funding is an available option that can significantly impact how disputes are fought and financed.

Conclusion

Litigation funding in the GCC’s arbitration arena has evolved from a novelty to a practical option that businesses and law firms ignore at their peril. With major arbitration centers in the region embracing third-party funding and more funders entering the Middle Eastern market, this trend is likely to continue its upward trajectory. 

For businesses, it offers a chance to enforce rights and recover sums that might otherwise be forgone due to cost constraints. For law firms, it presents opportunities to serve clients in new ways and share in the upside of successful claims. Yet, as with any powerful tool, it must be used wisely: parties should stay mindful of the legal landscape, comply with disclosure rules, and carefully manage relationships to avoid ethical snags. 

By leveraging litigation funding strategically – balancing financial savvy with sound legal practice – stakeholders in the GCC can optimize their dispute outcomes while effectively managing risk and expenditure. In a region witnessing rapid development of its dispute resolution mechanisms, third-party funding stands out as an innovation that, when properly harnessed, aligns commercial realities with the pursuit of justice.

At WinJustice.com, we take pride in being the UAE’s pioneering litigation funding firm. We are dedicated to providing innovative funding solutions that enable our clients to overcome financial hurdles and pursue justice without compromise. By leveraging third-party litigation funding strategically—balancing financial acumen with sound legal practices—stakeholders in the GCC can optimize their dispute outcomes while effectively managing risk and expenditure.

If you are looking to maximize your dispute resolution strategy through expert litigation funding, contact WinJustice.com today. We’re here to help you navigate the evolving landscape and secure the justice you deserve.

The following was contributed by Tom Webster, Chief Commercial Officer for Sentry Funding.

At the start of this month the Supreme Court heard an appeal in three motor finance test cases with huge ramifications for lenders.  

In Johnson v FirstRand Bank Ltd, Wrench v FirstRand Bank Ltd and Hopcraft v Close Brothers Ltd, the appeal court held last October that the car dealers involved were also acting as credit brokers, and owed a ‘disinterested duty’ to the claimants, as well as a fiduciary one. It found a conflict of interest, and no informed consumer consent to the receipt of the commission, in all three cases. But it held that that in itself was not enough to make the lender a primary wrongdoer. For this, the commission must be secret. However, if there is partial disclosure that suffices to negate secrecy, the lender can still be held liable in equity as an accessory to the broker’s breach of fiduciary duty.

The appeal court found there was no disclosure in Hopcraft, and insufficient disclosure in Wrench to negate secrecy. The payment of the commission in those cases was secret, and so the lenders were liable as primary wrongdoers. In Johnson, the appeal court held that the lenders were liable as accessories for procuring the brokers’ breach of fiduciary duty by making the commission payment.

The appeal court ruling sent shockwaves through the industry, and the two lenders involved, Close Brothers and FirstRand Bank (MotoNovo), challenged the decision in a three-day Supreme Court hearing from 1 – 3 April. Commentators have pointed to the huge significance of the case, which could lead to compensation claims of up to £30bn. Close Brothers is reported to have set aside £165m to cover potential claims, while FirstRand has set aside £140m. Other lenders are reported to have set aside even more substantial sums:  £1.15bn for Lloyds, £290m for Santander UK and £95m for Barclays. 

The Financial Conduct Authority is considering setting up a redress scheme to deal with claims, which is currently on hold as it awaits the judgment of the Supreme Court this summer.

Will the Supreme Court uphold the lenders’ appeals, or will the Court of Appeal’s logic win out? My own view is that the appeals are likely to fail, and October’s Court of Appeal decision will be upheld. Lenders will therefore face substantial compensation bills as they find themselves faced with a huge number of claims. What’s more, the ramifications of this significant Supreme Court ruling are likely to reach beyond the motor finance sector, to other areas where businesses provide credit through intermediaries who take a commission, without making that crystal clear to the consumer.

Sentry supports litigation funders looking to deploy funds into cases in which consumers were not aware of the commissions they were being charged when they bought a car on finance, as well as a number of other miss-selling and hidden commission claim types.

On March 27th, LFJ hosted a virtual town hall featuring key industry stakeholders giving their perspectives on investment within the legal funding sector. Our esteemed panelists included Chris Capitanelli (CC), Partner at Winston and Strawn, LLP, Joel Magerman (JM), CEO of Bryant Park Capital, Joe Siprut (JSi), Founder and CEO of Kerberos Capital, and Jaime Sneider (JSn), Managing Director at Fortress Investment Group. The panel was moderated by Ed Truant (ET), Founder of Slingshot Capital.

Below are highlights from the discussion:

One thing that piqued my interest recently was the recent Georgia jury that awareded a single plaintiff $2.1 billion in one of 177 lawsuits against Monsanto. What is your perspective on the health of the mass tort litigation market in general?

JSn: Well, I think nuclear verdicts get way more attention than they probably deserve. That verdict is going to end up getting reduced significantly because the punitive damages that were awarded were unconstitutionally excessive. I think it was a 30 to 1 ratio. I suspect that will just easily be reduced, and there will probably be very little attention associated with that reduction, even though that’s a check that’s already in place to try to prevent outsized judgments that aren’t tied as much to compensatory damages. I expect Monsanto will also likely challenge the verdict on other grounds as well, which is its right to do.

The fact is, there are a whole number of checks that are in place to ensure the integrity of our verdicts in the US legal system, and it’s already extraordinarily costly and difficult for a person that files a case who has to subject himself to discovery, prevail on motions to dismiss, prevail on motions for summary judgment, win various expert rulings related to the expert evidence. And even if a plaintiff does prevail like this one has before a jury, they face all sorts of post-trial briefing remedies that could result in a reduction or setting aside the verdict, and then they face appeals. The fact is, I think corporate defendants have a lot of ways of protecting themselves if they choose to go to trial or if they choose to litigate the case.

And I think, oftentimes when people talk about the mass tort space, their disagreement really isn’t with a specific case, but with the US Constitution itself, which protects the right to juries, even in civil litigation in this country. The fact is that there is a rich tradition in the United States that recognizes tort is essential to deterring wrongdoing. And ensuring people are fairly compensated for the injuries that they sustained due to unsafe products or other situations. So, broadly speaking, we don’t think in any systematic a way that reform is required, although I suspect around the margins there could be modest changes that might make sense.

Omni has made a number of recent moves involving secondary sales and private credit to improve their earnings and cash flow. What is your sense of how much pressure the industry is under to produce cash flow for its investors?

JSi: I think there is some pressure for sure, but more than pressure, I think it’s a natural thing for self-interested managers to want to give their investors realizations so that they can raise more capital, right?

So, even if no one had ever told me, boy, it would be nice to get money back at some point in the future, that would obviously still be what I’m incentivized to do because the sooner I can get realizations and get cash back, the sooner people can have confidence that, wow, this actually really works, and then they give you 2x the investment for the next vehicle.

So the pressure is, I think, part of it. But for a relatively new asset class like litigation finance, which is still in middle innings, I think, at most, you want realizations. You want to turn things over as quickly as you can, and you want to get capital back.

In terms of what ILFA is doing, do you feel like they’re doing enough for the industry to counter some of the attacks that are coming from the US Chamber of Commerce and others?

CC: I think there has been a focus from ILFA on trying to prevent some of the state court legislation from kind of acting as a test case, so to speak, for additional litigation. So there’s been, you know, they’ve been involved in the big stuff, but also the little stuff, so it’s not used against us, so to speak.

So I think in that regard, it’s good. I wonder at what point is there some sort of proposal, as to if there’s something that’s amenable, is there something that we can all get behind, if that’s what’s needed in order to kind of stop these broad bills coming into both state legislatures and Congress. But I think overall, the messaging has been clear that this is not acceptable and is not addressing the issue.

Pretium, a relative newcomer to the market, just announced a $500 million raise. At the same time, it’s been rumored that Harvard Endowment, which has traditionally been a significant investor in the commercial litigation finance market, is no longer allocating capital to the Litfin space. What is your sense of where this industry continues to be in favor with investors, and what are some of the challenges?

JSi: On the whole, I think the answer is yes, it continues to be in favor with investors, probably increasing favor with investors. From our own experience, we talk to LPs or new LPs quite frequently where we are told that just recently that institution has internally decided that they are now green lighting initiatives in litigation finance or doing a manager search. Whereas for the past three or four years, they’ve held off and it’s just kind of been in the queue. So the fact that that is happening seems to me that investors are increasingly interested.

Probably part of the reason for that is that as the asset class on the whole matures, individual managers have longer track records. Maybe certain managers are on their third or fourth vintage. And there are realized results that can be put up and analyzed that give investors comfort. It’s very hard to do that on day one. But when you’re several years into it, or at this point longer for many people, it becomes a lot easier. And so I think we are seeing some of that.

One of the inherent challenge to raising capital in the litigation finance asset class is that even just the term litigation finance itself is sort of shrouded in mystery. I mean, it’s very unclear what that even means and it turns out that it means many different things. The media on the whole, not including LFJ obviously, but the media on the whole has not done us many favors in that regard because they often use the term litigation finance to mean one specific thing, oftentimes case finance, specific equity type risk on a single case, when in fact, there are many of us who do all kinds of different things: law firm lending, the credit stuff, the portfolio finance stuff. There’s all kinds of different slivers. And so the effect of that is that an LP or factions within an LP may have a preconceived notion about what litigation finance is, which is completely wrong. And they may have a preconceived notion of what a particular manager’s strategy is. That’s completely wrong.

I also think that litigation finance provokes an almost emotional reaction sometimes. It’s often the case that investments get shot down because someone on the IC says that they hate lawyers, or they got sued once, and so they hate lawyers. And so they want nothing to do with litigation finance. And so whether that’s fair or unfair is irrelevant. I think it is something that is a factor and that doesn’t help. But I’d like to think that on the whole, the good strategies and the good track records will win the day in the end.

The discussion can be viewed in its entirety here.

The U.S. litigation finance market continued to cool in 2024, according to the latest Westfleet Insider report. New capital commitments dropped 16% YoY, marking the second straight year of decline. According to the report, this reduction is being driven mostly by tight capital markets rather than any deep issues with litigation finance itself.

That said, the report doesn’t just show a market in retreat—it highlights how the space is adjusting and evolving. For one, deal sizes are getting bigger. Single-matter deals averaged $6.6 million (up from $4.8 million in 2023), while portfolio deals jumped to $16.5 million. Portfolio structures continued to dominate overall, making up about two-thirds of all new capital committed—roughly the same ratio we’ve seen since 2019.

One of the most interesting trends is the continued rise of claim monetization—essentially, turning a legal claim into upfront capital. This strategy made up 26% of new commitments in 2024, up from just 8% three years ago. Corporate claimants, in particular, seem to be driving this trend as they look for cash flow in a tougher funding environment.

Patent litigation is still the biggest slice of the pie, accounting for 32% of all new capital. Notably, most of that funding went into patent portfolios rather than one-off cases—suggesting funders are leaning into more diversified, lower-risk plays in the IP space.

Another first this year: Westfleet started tracking contingent risk insurance, and the data shows 19% of new capital commitments were insured in some way. That’s a big signal that funders are getting more creative about managing risk.

Big Law’s share of the pie grew a bit too, up to 37% of total capital commitments—though the actual dollars going to the top 200 firms fell to $850 million (down from $960 million the year before), simply because the total pool shrank.

Bottom line: while the market’s clearly under pressure, the players that are still active are getting smarter about how they deploy capital. With signs that capital flows could loosen up in 2025, funders focused on monetization, patent portfolios, and insured deals may be best positioned to ride the next wave of growth.

The following was contributed by Drew Hathaway, Founding Partner of Ignitis

Litigation funding has become a powerful tool for leveling the playing field in legal disputes, particularly in large-scale collective redress and mass litigation. However, traditional litigation funding models generally focus on established claims, leaving many meritorious cases stranded without the resources to move forward. ESF changes that dynamic, ensuring that strong claims don’t fail due to a lack of early investment.

What is Early-Stage Funding (ESF)?

ESF is a litigation seed funding model designed to provide capital before a case is mature enough for traditional funders. Unlike standard litigation finance, which typically invests after a case has been filed and is well-developed, ESF supports cases at their most critical early phase—covering investigation, legal groundwork, expert reports, and strategic planning.

For many high-stakes claims this early-stage investment is the difference between a case moving forward or being abandoned due to financial constraints.

How Can ESF Be Used?

ESF can be used in various ways. Some examples are:

• Case Investigation & Viability Assessments: Financing expert reports, forensic analysis, and economic modeling to strengthen claims.
• Initial Legal Work: Supporting law firms in preparing legal arguments, securing lead claimants, and initiating regulatory engagement.
• Claimant Outreach & Bookbuilding: Funding the early-stage efforts to build a robust claimant pool in opt-in and opt-out actions.
• Litigation Structuring & Strategy: Ensuring that the case is structured in a way that will later attract traditional (Round B) litigation funders.

Who Benefits from ESF?

ESF benefits injured parties, law firms, and traditional litigation funders in the following ways:

Claimants: Claimants generally do not have the means to finance their own litigation. For individuals or businesses harmed by corporate misconduct, access to ESF means:

• Non-recourse capital to get the claim off the ground (meaning the ESF only needs to be paid back if the case is fully funded). 
• The case moves forward faster, without waiting for full-scale funding.
• Access to top-tier legal representation capable of success against well-resourced defendants.
• The claims are properly developed and strategically executed, increasing their chances of success.

Law Firms: Law firms working on large-scale litigation often struggle with taking on the full risk and high costs of early-stage case development. This stage generally takes significant work, bookended with long timelines to securing Round B funding before capital begins to be deployed. For law firms, access to ESF means:

• They have immediate access to capital to help with law firm cash flows.
• They no longer must take on full risk for their time and upfront resources needed to secure funding.
• They can focus their attention on developing the best legal arguments possible rather than worrying about their up-front time commitment.
• They have a better developed case to present to Round B funders, making it more efficient to secure full funding.

Round B Funders (Traditional Litigation Funders): Frequently Round B Funders are presented with cases that they believe are simply too early for investment. Traditional litigation funders benefit from ESF because:

• They receive well-developed cases that have already passed viability assessments.
• They have immediate access to expert reports and legal opinions to better analyze the case and risks.
• The risk of investment is reduced, since much of the groundwork has been completed and expert opinions are available.
• Their duration risk is significantly reduced because ESF has been deployed to jump start the case and litigation is ready to commence. 

Conclusion

As litigation finance evolves, ESF is emerging as an essential tool for claimants, law firms and funders alike. By enabling early-stage legal work and de-risking high-potential claims, ESF ensures that justice is not delayed or denied due to financial constraints.

If you are exploring funding options for an early-stage case, ESF could be the solution to unlocking its full potential. 

About the Author

Drew Hathaway is a Founding Partner of Ignitis, where he leads case development, business strategy, and litigation funding initiatives. A U.S.-trained class action lawyer, Drew brings nearly two decades of experience navigating complex, high-stakes disputes and has built a reputation for advancing impactful litigation across borders.

After beginning his career defending medical malpractice cases, Drew transitioned to the plaintiff side in 2016, where he later became a key figure in the growth of international collective redress. He played a central role in launching and scaling European collective actions, helping to secure and deploy over €100 million in funding for cases aimed at holding multinational corporations accountable. Drew has helped millions of Europeans gain access to justice.

Drew’s expertise spans the full lifecycle of cross-border collective litigation—from claim foundation setup and funding structures to jurisdictional strategy, cost and tax modeling, and claims management. His comparative knowledge of U.S. and European systems allows him to operate effectively at the intersection of law and finance, where he regularly collaborates with leading law firms, economists, litigation funders, and academic experts.

He is a frequent speaker on international collective redress and litigation finance and is deeply committed to expanding access to justice for individuals and consumers harmed by systemic corporate misconduct.

He earned his B.A. from the University of North Carolina at Chapel Hill and his J.D. from Campbell University School of Law, where he was a National Moot Court Team member, Order of Old Kivett inductee, and editor of the Campbell Law Observer.

Drew is admitted to practice law in North Carolina, multiple U.S. federal and appellate courts, and in England and Wales.

The following article was contributed by Kirstine Rogers, Legal Director at Certum Group, and Molly Pease, Managing Director at Curiam Capital.

Both are also on the steering committee for Women of Litigation Finance (WOLF). WOLF is an organization intended to give women in and around the litigation finance field a space for support, mentorship and connections. WOLF holds quarterly zoom meetings focused on specific relevant topics and hosts various networking events throughout the year.  Please find out more through our LinkedIn page or by contacting any member of the steering committee. WOLF welcomes the support and participation of all industry members. 

—

As our country continues to debate the pros and cons of diversity, equity, and inclusion programs in the government and private sectors, the litigation finance industry would be well served by remembering that diverse teams make companies better.  Indeed, several studies have explored the link between diversity initiatives and increased profitability in organizations and found that a more diverse workforce can positively impact business performance, innovation, and profitability.

There are many reasons for this.  First, representation matters.  Whether it is getting a phone call for a potential new investment opportunity from a female general counsel who wants to see diversity in the team she might be working with or being able to hire top talent who want to work with a diverse team, better opportunities present themselves to litigation finance market participants when those firms present a diverse and capable team.  Second, a diverse team allows for more diverse networking opportunities, which encourages investment opportunities from a wide variety of sources.  And finally, and potentially most importantly, diversity of backgrounds, skills, and expertise allows for a risk assessment in underwriting investment opportunities that is less likely to miss potential risks or pitfalls that a more narrow-minded team might not see.  Better underwriting decisions result in better investments, which results in more revenue for the company.

Diversity need not be a mandate for it to be an intentional and profitable choice.

“If you build it, they will come.” 

Does your company reflect the world of your counterparty or their counsel?  

Research has shown that consumers are more likely to buy from or engage with businesses that appear to understand their specific needs, often through shared demographic traits like race, gender, or age.  Businesses that reflect their target consumers’ characteristics and values are more likely to foster trust and client loyalty.   The same is true in commercial transactions with counterparties and their counsel.  In entering into a funding agreement, you are forming a potentially long-term partnership.  Communication and trust are essential to the success of that relationship.  You only maximize the likelihood of that success with the diversity of the decision makers on your team.   

Companies with inclusive environments are also more likely to attract top talent and retain employees.  Why wouldn’t a firm cast the widest net possible?

“Nobody puts baby in a corner.” 

Having a diverse workforce also increases opportunities for connection and visibility in the market.  It provides a vehicle for commonality – a shared experience, history, or perspective.  This is because similar backgrounds make it easier to communicate, share common goals, and find mutual interests, which in turn can lead to individual career opportunities and company-wide growth.

Diversity-based industry groups like the Women of Litigation Finance (WOLF) facilitate interaction between market peers, provide leadership and speaking opportunities, and lead to collaboration between companies seeking to work together.  Bar associations also frequently have smaller diversity-based committees that provide a smaller community from which to network and form connections.  Bigger fish. Smaller pond.  Stronger bond.  And these genuine connections formed on shared experiences can lead to exponential networking growth.  A familiar face at one industry event only leads to more familiar faces at the next one.  

This is true for thought leadership too.  If every member of a panel of speakers looks the same and does not reflect the different faces in the audience, there are people in that audience your panel is not reaching.  If every article is written from the same perspective, there are readers who are not listening.  

“You’re gonna need a bigger boat.” 

At its core, the litigation finance industry assesses risk.  The better a firm can do that – whether it is a funder, a broker, or an insurer – the more profitable it will be.  Risk assessment involves seeing things that others might miss and making sure no stone gets left unturned.  

There are many components of a due diligence risk assessment, including reviewing the strength of the legal merits of the claims, assessing the credibility and testifying potential of key witnesses, and predicting what arguments or defenses will be presented by opposing counsel.  A diligence team with diverse backgrounds, experiences, and perspectives will be better at identifying risks and assessing the value of potential claims.  For example, a funder will often speak extensively with key witnesses to assess how they would present testimony at trial and whether a jury would find that testimony credible and persuasive.  If a trial team were conducting a mock jury to test these points, it would assemble a diverse panel of men and women from different ages and backgrounds to get various views on the testimony.  Similarly, a funder trying to make its own internal assessment will be better served by a diverse team with a variety of perspectives.  If everyone in the room has the same basic background, characteristics, and experiences, they are likely to see things similarly and thus miss key factors that could be important in determining the impact of the testimony.  And this is only one aspect of a risk assessment.  Each step of the diligence and risk assessment process would benefit from analysis by a diverse team.  The biggest concern in the litigation finance industry is that a funder, broker, or insurer misses a significant risk in their assessment of a legal asset and finds themselves funding an investment that has a low chance of success in hindsight.  A diverse team will protect against this outcome and therefore drive revenue for industry participants.

“You talkin’ to me?” 

At the end of the day, the value of meaningfully implemented diversity initiatives is clear.  Having the benefit of differing experiences and perspectives makes companies better.  And, as to litigation finance in particular, diversity without question strengthens the return on investments. 

But just having a diverse workforce does not necessarily result in a better company or improved profitability.  The company needs to foster an inclusive environment where diverse perspectives are valued and integrated into decision-making processes and where those selected as thought leaders demonstrate how diversity is implemented, prioritized, and integrated into company culture.

In honor of International Women’s Day, make this a call to action – what can you do at your company to ensure you have the broadest perspectives represented?  Ask yourself, does the panel you are sponsoring completely reflect your target client base?  Does your leadership team include those with different perspectives?  Does your company provide women with networking and mentoring opportunities? 

After all, diversity presents an opportunity for someone at your company to collaborate with other market participants to write an article just like this.  

About the authors:

Molly Pease is Managing Director and Chief Compliance Officer at Curiam Capital, and Kirstine Rogers is Legal Director at Certum Group. They both serve on the Steering Committee for WOLF, the Women of Litigation Finance.  They can be reached at molly.pease@curiam.com and krogers@certumgroup.com. 

On Thursday, February 27th, LFJ hosted a virtual town hall on AI and legal technology. The panel discussion featured Erik Bomans (EB), CEO of Deminor Recovery Services, Stewart Ackerly (SA), Director at Statera Capital, David Harper (DH), co-founder and CEO of Legal Intelligence, and Patrick Ip (PI), co-founder of Theo AI. The panel was hosted by Ted Farrell, founder of Litigation Funding Advisers.

Below are some key takeaways from the discussion:

Everyone reads about AI every day and how it’s disrupting this industry, being used here and being used there. So what I wanted to ask you all to talk about what is the use case for AI, specific to the litigation finance business?

PI: There are a couple of core use cases on our end that we hear folks use it for. One is a complementary approach to underwriting. So initial gut take as to what are potentially the case killers. So should I actually invest time in human underwriting to look at this case?

The second use case is a last check. So before we’re actually going into fund, obviously cases are fluid. They’re ever-evolving. They’re changing. So between the first pass and the last check, has anything changed that would stop us from actually doing the funding? And then the third more novel approach that we’ve gotten a lot of feedback

There are 270,000 new lawsuits filed a day. Generally speaking, in order to understand if this lawsuit has any merit, you have to read through all the cases. It’s very time consuming to do. Directionally, as an application, as an AI application, We can comb through all those documents. We can read all those emails. We can look through social and digest public information to say, hey, these are the cases that actually are most relevant to your fund. Instead of looking through 50 or 100 of these, these are the top 10 most relevant ones. And we send those to clients on a weekly basis. Interesting.

I don’t want you to give up your proprietary special sauce, but how are you all trying to leverage these tools to aid you and deliver the kind of returns that LPs want to see?

SA: We can make the most effective use of AI or other technologies – whether it’s at the very top of the funnel and what’s coming into the funnel, or whether it’s deeper down into the funnel of a case that we like – is that we try to find a way to leverage AI to complement our underwriting. We think about it a lot on the origination side just making us more efficient, letting us be able to sift through a larger number of cases more quickly and as effectively as if we had bodies to look through them all, but also to help us just find more cases that may be a potential fit.

In terms of kind of the data sources that you rely on. I think a question we always think about, especially for kind of early stage cases is, is there enough data available? For example, if there’s just a complaint on file, is that going to give you enough for AI to give you a meaningful result?

I think most of the people on this call would tell you duration is in a lot of ways the biggest risk that funders take. So what specific pieces of these cases is AI helping you drill down into, and how are you harnessing the leverage you can access with these tools?

DH: We, 18 months ago or so, in the beginning of our journey on this use case in law, were asked by a very, very big and very well respected personal injury business in the UK to help them make sense of 37,000 client files that they’d settled with insurers on non-fault motor accident.

And we ran some modeling. We created some data scientist assets, which were AI assets. And their view was, if we had more resources, we would do more of the following things. But we’re limited by the amount of people we’ve got and the amount we get per file to spend on delivering that file. So we developed some AI assets to investigate the nearly 40,000 cases, what the insurers across different jurisdictions and different circumstances settled on.

And we, in partnership with them, improved their settlement value by 8%. The impact that had on their EBITDA, etc. That’s on a firm level, right? That’s on a user case where a firm is actually using AI to perform a science task on their data to give them better predictive analysis. Because lawyers were erring on the side of caution. they would go on a lowball offer because of the impact of getting that wrong if it went to court after settlement. So I think for us, our conversations with financiers and law firms, alignment is key, right? So a funder wants to protect their capital and time – the longer things take, the longer your capital’s out, the potential lower returns.

AI can offer a lot of solutions for very specific problems and can be very useful and can reduce the cost of analyzing these cases, but predictive outcome analysis requires a lot of data. And so the problem is, where do you get the data from and how good is the data? How unstructured or structured are the data sets?

I think getting access to the data is one issue. The other one is the quality of the data, of course, that you put into the machine. If you put bad data in a machine, you might get some correlations, but what’s the relevance, right? And that’s the problem that we are facing.

So many cases are settled, you don’t know the outcome. And that’s why you still need the human component. We need doctors to train computers to analyze medical images. We need lawyers and people with litigation experience who can tell a computer whether this is a good case, whether this is a good settlement or a bad settlement. And in the end, if you don’t know it because it’s confidential, someone has to make a call on that. I’m afraid that’s what we have to do, right? Even one litigation fund or several litigation funders are not going to have enough data with settlements on the same type of claim to build a predictive analytical model on it.

And so you need to get massive amounts of data where some human elements, some coding is still going to be required, manual coding. And I think that’s a process that we’re going to have to go through.

You can view the full panel discussion here.

The following piece was contributed by Ana Carolina Salomao, Founder of Montgomery, Micaela Ossio, Solicitor in England & Wales and Peruvian Attorney, Jessica Pineda, Legal Director at Pogust Goodhead, and Diego Saco Hatchwell, Partner at GCS Abogados.

International commercial arbitration is today one of the most demanded mechanisms for resolving disputes in Latin America. The practice has been bolstered by sustained regional growth, ongoing market liberalization efforts, and the pursuit of a less time consuming and specialized route to address increasingly complex cross-border transactions. As of 2023, the region ranks second in terms of party origin and third in terms of the jurisdictions where ICC arbitrations were seated[1], evidencing the region’s growing prominence in the global arbitration landscape. This push is building on the region’s growing appetite to attract new business opportunities by fostering safer and easier legal frameworks to do business.  

A key legal innovation in this regard has been the promotion of third party funding mechanisms.[2]  Two types of funding arrangements have particularly gained favor among investors: enforcement funding arrangements whereby investors provide non-recourse funding for the legal costs of the enforcement proceedings and realize returns only when the debt is collected, and award monetization arrangements where the funder advances capital to a claimant in exchange for a portion of the entitlement of the award[3].

In general, most major jurisdictions within the region contain express provisions that allow the assignment of economic rights arising from contracts or other legal sources and provisions that allow transferring rights that are subject to ongoing disputes, but not necessarily in the forms required by third party funding. As claimants (or their lawyers) seek to secure funding, they must thoroughly consider the jurisdictions where such arrangements are legally binding agreements[4]. As such, this article explores the financial case behind third party funding for litigation, particularly arbitral awards, as well as the market dynamics currently shaping the sector in Latin America. It also highlights the importance of designing adequate policy to promote the responsible growth of these practices in the region as well as gives insight to potential funders looking for attractive investment opportunities in a fast-evolving market.

The rise of litigation finance – why is it gaining momentum?

Even though the practice of litigation finance is not necessarily new – external funding of legal cases goes back at least a few decades – the understanding of legal claims as a financial asset class is still, in many ways, nascent. Currently, only around 50 dedicated funds exist globally, and in a 2019 survey, more than three quarters of respondent firms indicated they had significantly expanded their litigation finance practice and foresaw important growth moving forward.[5] Considering that the ICC docketed 890 cases in 2023, and far more civil claims of different nature flooded the worlds’ most mature litigation ecosystems (with close to 400,000 claims filed in the US alone), the industry has big room for growth and newcomer absorption.[6]

Despite a total industry value of USD13.5 billion as of 2023, investment in legal claims and legal futures is still largely concentrated in traditional litigation finance firms, particularly in the US, the UK and Australia.[7] Nonetheless, asset managers like BlackRock, PIMCO, KKAR and other alternative investment funds, notably credit funds, have recently entered the space, as a result of the asset class yielding an average return on investment of 20% over the last five years.[8] In fact, most litigation finance firms now target a hurdle rate of 15% to 35% and a holding period of two to three years (especially for commercial arbitration awards), placing returns at par or even above private equity companies.[9]

Despite this attractive return profile, a positive outcome on each individual investment largely depends on the merits of the funded claim, which creates uncertainty and concern for traditional institutional investors. Among other factors, insufficient precedents on certain matters hinders reliable predictions of returns and the asymmetry of information between the parties seeking funding and the capital providers still thwarts more skeptical investors to emphatically support this asset class. To close this gap, law firms and specialized litigation funders are working on investor-friendly frameworks to provide greater transparency relating to risks, expected returns and time to recover.

Investor concerns have also been heightened by recent regulation, particularly in Europe, a global hub for litigation finance. As shown by the recent frenzy caused by the Supreme Court decision in PACCAR[10] in the United Kingdom, or the Voss Report[11] in the European Union, regulation coming to the sector in up-and-coming regions such as Latin America seems to be inevitable. But despite these challenges, the outlook for market growth remains positive with large commercial arbitration cases currently dominating the market due to their significant value, international enforceability, and relatively swift proceedings.

The investment case for arbitral awards

In recent years, arbitral awards have emerged as a new and dynamic asset sub-class for investors in the litigation finance space. The main reason is that pursuant to the New York Convention[12], arbitration awards can be enforced within the jurisdictions of all signatory states and the process of enforcement tends to be easier and less politicized[13] than that of other asset classes, such as private or sovereign debt. In other words, arbitral awards can be fast-tracked on a global scale, ensuring the award’s commercial value. For example, the holders of defaulted Venezuelan/PDVSA notes have had little success in collecting their debt when compared to investor-state award holders, such as Crystallex,[14] Rusoro,[15] and ConocoPhillips,[16] who have been more successful in attaching Venezuelan assets abroad.  

Investors can also expect attractive interest rates. According to a 2020 study of ICC awards where PwC and Queen Mary University of London analyzed damages awards in international commercial arbitration,[17] the absolute rate of interest for 180 cases that were reviewed, ranged from 1% to 18% annually.  The study also noted that the rate of interest was frequently expressed as a mark-up over a benchmark such as LIBOR or by reference to a national legal interest rate. These interest rates can help to mitigate the economic downside in cases where the time to enforce the award takes longer than expected.  

Finally, since arbitration proceedings are generally private and confidential, arbitral awards tend to be of confidential nature unless the parties agree otherwise. This means that in cases of assignment of awards, the awards can remain in the name of the initial claimant allowing investors to operate away from the media spotlight. Similarly, it is often the case that investments in arbitral awards do not have to be reported and disclosure requirements tend to be limited.

All these characteristics have led to a burgeoning secondary market in which awards are sold by award-creditors at a discount, to buyers who take on the role of enforcing the full award. Considering the increasing number of awards coming on the market and with only a few funds tapping into it, it can currently be described as a buyers’ market. 

The market opportunity for Latin America

To become a regional hub in litigation finance, Latin America must stop addressing litigation merely as a “cost center” (i.e., a necessary but burdensome expense for those seeking justice). Contingent receivables arising from dispute resolution mechanisms shall be considered an asset class, one that can be monetized at various stages through mechanisms like litigation funding[18]. This mind shift needs to be rooted in the understanding that legal claims possess intrinsic value and can attract third-party investors who fund litigation in exchange for a share of the financial outcome if the case succeeds[19].

Brazil is spearheading this mindset shift and has been the first country to have arbitration chambers develop soft law regarding third-party funder involvement in arbitration procedures[20]. For example, Brazil’s precatórios offer private parties access to a well-established, constitutionally-recognized and liquid secondary market where they can assign their rights linked to a judicial or arbitral decision (a credit against a government entity) to investment funds. Colombia has also laid the groundwork for developing a secondary market for the transfer of judgments issued by courts in the context of the Armed Conflict. The Colombian state has established legal precedents that allow holders of these judgments to sell their rights in a secondary market, providing a liquidity solution for those seeking immediate capital.[21]

With the increasing recognition of arbitration as an effective dispute resolution mechanism across key economies such as Brazil, Mexico, Colombia and Peru, the region is poised for significant growth in third-party funding. As liquidity becomes an essential factor for enterprises, enforcement funding and monetizing of arbitral awards offers a way to unlock tied-up capital, allowing businesses to focus on growth while investors capitalize on the financial potential of their legal claims. It also enables smaller market players, such as SMEs and individual claimants, to finance complex claims against larger corporations or entities, expanding access to justice and promoting more equitable outcomes.

To this end, judicial systems in the Latin American region shall adopt pro-enforcement policies, like those seen in offshore jurisdictions like the Cayman Islands and Bermuda, as highlighted in recent case law involving arbitral enforcement[22]. While the New York Convention has been widely adopted across the region, the inconsistent application of arbitral award enforcement by local courts can still pose a challenge for claimants. Clear and consistent legal frameworks, aligned with international best practice, will help attract more investors into the sector. Examples of such practices include the use of freezing injunctions and receiverships, both of which are essential in securing assets and managing them until enforcement is completed, and the availability of Norwich Pharmacal orders or similar disclosure orders, already recognized in jurisdictions like the Cayman Islands and the British Virgin Islands, which allow claimants to obtain critical information about the debtor’s hidden assets or banking arrangements.

Building on the momentum

The momentum behind this market development in Latin America is growing, driven by a combination of factors including the asset class’s attractive return profile and an increased reliance on arbitration as a dispute resolution mechanism, particularly following the economic pressures created by the COVID pandemic. Furthermore, the increasing focus on environmental, social, and governance (ESG) factors in investment decisions is accelerating third-party funding in ESG-related arbitration cases, such as those involving environmental disputes or human rights violations. As judicial systems in emerging markets strive to expand access and provide a more equitable and fair administration of justice, transparency and simplicity in the arbitral award enforcement and monetization space might provide a very cost-effective and efficient way to achieve desired social and developmental results, all while promoting Latin America as a global investment hub.

This article was authored by Ana Carolina Salomao, Founder of Montgomery, Micaela Ossio, Solicitor in England & Wales and Peruvian Attorney, Jessica Pineda, Legal Director at Pogust Goodhead, and Diego Saco Hatchwell, Partner at GCS Abogados.

[1]           ICC Dispute Resolution 2023 Statistics

^[2]           According to some experts in the field the two main factors that have brought this new market to the attention of institutional investors, have been the transfer of distressed debts from banks to private investment funds following the 2008 recession, and the search for higher yields in traditional financial markets. As banks recovered from the financial crisis and opportunities for distressed debt diminished, these private funds began to explore arbitration awards as alternative investments, recognizing their similarities to bank loans. While arbitration awards are often sold at a discount, sellers are not necessarily distressed; they simply find it commercially sensible to transfer the collection process. To know more about this topic, watch the 6ta. Edición de Open Arbitraje 2020 denominada “Mesa Allen & Overy: Acquisition of awards: Market trends and challenges.”

[3]           Although buying the entire award may be appealing to claimants in need of immediate cash, experts suggest that funders often prefer maintaining a relationship with the award holders or ensuring that the claimant remains involved in the process. Award holders typically possess valuable knowledge about the respondent, which can be beneficial for recovery efforts.

[4]           In some civil law jurisdictions, the concept of retrait litigieux can be an impediment to a monetization agreement.

[5] https://clp.law.harvard.edu/knowledge-hub/magazine/issues/litigation-finance/investing-in-legal-futures/

[6] https://www.supremecourt.gov/publicinfo/year-end/2023year-endreport.pdf

[7] https://www.google.com/search?q=black+rock+investment+in+litigation+finance&sca_esv=969c9be58d3ff7ea&rlz=1C5CHFA_enUS837US837&sxsrf=ADLYWILynJMXdzxuFUmHYgDQCWx3Veqb0g%3A1729807553471&ei=wcQaZ663HJ2dptQP48yI-Ac&ved=0ahUKEwjum4Smg6iJAxWdjokEHWMmAn8Q4dUDCBA&uact=5&oq=black+rock+investment+in+litigation+finance&gs_lp=Egxnd3Mtd2l6LXNlcnAiK2JsYWNrIHJvY2sgaW52ZXN0bWVudCBpbiBsaXRpZ2F0aW9uIGZpbmFuY2UyBxAhGKABGApIkBdQmARYtBZwAngAkAEBmAH7AqAB5haqAQc5LjguMy4xuAEDyAEA-AEBmAIUoALQE8ICCxAAGIAEGLADGKIEwgIEECEYFcICBRAhGJ8FwgIIEAAYgAQYogTCAgoQABiABBgKGMsBwgIIEAAYFhgKGB7CAgoQABgWGAoYHhgPwgIOEC4Y0QMYFhjHARgKGB7CAgYQABgWGB7CAgUQIRigAZgDAOIDBRIBMSBAiAYBkAYEkgcIMTEuNi4yLjGgB79e&sclient=gws-wiz-serp

[8] https://www.pm-research.com/highwire_display/entity_view/node/167885/content_tabs#:~:text=Litigation%20finance%20is%20a%20rapidly,correlation%20to%20other%20investment%20areas.

[9] https://www.deminor.com/en/litigation-funding/what-is-litigation-funding/

[10] The Supreme Court in PACCAR Ltd v. (1) W.A. Bailey (Properties) Ltd & (2) C. Robert Wright & Sons Ltd clarified that litigation funding agreements should be treated similarly to damages-based agreements, influencing the regulatory framework for litigation funding in the UK; however, this ruling is expected to be revisited with the introduction of the forthcoming Litigation Funding Bill, which aims to reverse this classification.

[11] Voss, H. (2020). Report on the financing of litigation and the role of litigation funding in the EU. European Parliament

[12] See https://www.newyorkconvention.org/text

[13] Born, G. B. (2014). International Commercial Arbitration. 2nd ed. Kluwer Law International. Pages 473-510

[14] See https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/403/crystallex-v-venezuela

[15] See https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/483/rusoro-mining-v-venezuela

[16] See https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/245/conocophillips-v-venezuela

[17] See https://www.pwc.co.uk/forensic-services/assets/documents/trends-in-international-arbitration-damages-awards.pdf

[18] “How Litigation Finance Works” by Bloomberg Law. https://pro.bloomberglaw.com/insights/litigation/how-litigation-finance-works/

[19] The Justice Case for Litigation Funding by M. Todd Henderson

[20]         This is the case of the “Camera de Comercio Brasil – Canada” (CAMCCBC)

[21] According to the Colombian Commercial Code (Article 884), interest rates exceeding the legal limit are considered usurious and illegal. The usury rate is set quarterly by the Superintendencia Financiera de Colombia (Financial Superintendency of Colombia), which establishes the rate at 1.5 times the current banking interest rate, based on average rates charged by financial institutions.

[22]         Pro-enforcement policies in such countries have been pivotal in shaping favorable legal environments for arbitration awards enforcement. For instance, the Cayman Islands has demonstrated strong pro-enforcement tendencies through case law like Gol Linhas Aereas S.A. v MatlinPatterson Global Opportunities Partners (Cayman) II LP, where the court affirmed its commitment to enforcing arbitration awards in line with the New York Convention in 2022. Similarly, Bermuda has shown a similar approach, particularly in cases such as La Générale des Carrières et des Mines v F.G. Hemisphere Associates LLC (2012), which underscored Bermuda’s adherence to the New York Convention and support for arbitration proceedings.

The following post was contributed by Pete Hanlon, Chief Technology Officer of Moneypenny.

As CTO of Moneypenny, the leading outsourced communications company, Pete Hanlon brings a unique perspective to the transformative technology trends set to shape 2025 for lawyers. From advancements in AI to the realities of integration and regulation, he foresees pivotal changes that could redefine the legal profession and beyond.

Here’s a deep dive into what lies ahead—not just the obvious shifts, but the deeper changes that could impact how lawyers work,.

Open Source Is Coming for the Crown

The most exciting battle in AI isn’t unfolding in corporate labs, it’s happening in the open source community. They’re catching up fast, and were starting to see open source models going head to head with industry leaders such as OpenAI o1 and Claud-Sonnet-3.5. This isn’t just about matching performance metrics. It’s about making AI accessible to both large and small law firms that have been held back by data privacy concerns, opening doors for firms that have struggled to leverage this technology. The result? A new era where AI is democratized, accessible to all, and no longer controlled by closed source businesses.

Forget AI Replacing Lawyers – Think AI as Your Digital Colleague

Remember when everyone thought AI would replace many law firm jobs overnight? That’s not how it’s playing out. Instead, we’re witnessing the emergence of hybrid teams where AI takes on the repetitive tasks, leaving people free to handle more complex challenges. It’s less about replacing jobs and more about using AI to super power people and using data to enable smarter decision making. Moneypenny, for example, delivers outsourced communication solutions that blend the efficiency of AI with the personal touch of real people. This balanced approach boosts productivity and enhances customer satisfaction. 

Integration: The Real Challenge Nobody’s Talking About

Here’s where things get interesting and complicated. The next phase isn’t about building brand new AI systems, for lawyers it’s about weaving them seamlessly into existing business processes, work flows and infrastructure. Picture CRM systems that can predict what customers need, knowledge bases that update themselves, conversations that flow naturally between voice and text, and customer support that breaks language barriers. We understand the importance of seamless integration, and at Moneypenny, we’re fully embracing it helping legal teams embed AI powered systems into their infrastructure seamlessly . 

Industry Specific Models: Tailored AI for Specialized Needs

We’re entering an era of industry specific LLMs tailored for the legal field. These models will come pre loaded with domain-specific knowledge, enabling firms to deploy AI that understands their unique requirements, language, and regulatory needs. In finance, LLMs could support compliance and offer investment insights. In law, they could streamline contract review and case law analysis. These specialized models will allow companies to quickly implement AI that’s relevant, compliant, and impactful in their field.

The Reality Check Is Coming

Some firms may soon realize they’ve taken on more than they can handle with AI adoption, facing a range of unexpected challenges. Many will struggle with complex integration issues as they attempt to launch AI initiatives within existing systems. Additionally, there may be difficulties in managing the high expectations around AI’s capabilities, as reality often falls short of the hype surrounding its potential. 

Regulation: The Elephant in the Room

Law firms should prepare for the growing impact of AI regulations, particularly in customer facing applications. Forward thinking organizations are already taking steps to build transparency into their AI systems, overhauling data governance practices to ensure accountability. They are creating detailed audit trails to track AI decision making and making sure that their systems are both fair and accessible. These proactive measures not only help them stay compliant but also foster trust with their customers.

What This Means for lawyers

The next year won’t just be about AI getting better – it’ll be about AI getting smarter about how it fits into our existing world. Success won’t come from blindly adopting every new AI tool. It’ll come from carefully choosing where AI can genuinely improve how lawyers work.

The winners won’t be the companies with the most advanced AI. They’ll be the ones who figure out how to blend AI and human capabilities in ways that make sense for their business and their customers. Yes, we’ll see AI continuing to be more accessible and capable. But the real story will be about how lawyers learn to use it wisely. After all, technology is just a tool – it’s how the legal profession use it that matters.

Last week, LFJ hosted its final virtual town hall of the year which covered an array of key developments and trends in the legal fundng sector. Panelists included Tets Ishikawa (TI), Managing Director of LionFish, Boris Ziser (BZ), Co-Head of the Finance Group at Schulte Roth and Zabel, William Marra (WM), Director at Certum Group, and Sarah Johnson (SJ), Head of the Litigation Investing Team at The D.E. Shaw Group. The panel was moderated by Rebecca Berrebi (RB), Founder and CEO of Avenue 33, LLC.

Below are the key takeaways from the event.

RB: What are the key changes that have effected the regulatory landscape of litigation finance in 2024, and how do you think those changes have affected deals in the industry this year?

TI: There’s been quite a few symbolic moments over the past two years. There was a proposal [The Voss Report] saying that litigation funding should be regulated and there should be a cap on fees. In the UK, there as a Supreme Court decision in the case of PACCAR that considered litigation funding agreements to be damages-based agreements, basically making a lot of litigation funding agreements unenforceable. And that has triggered an industry-wide review of the litigation funding industry in the UK by the Civil Justice Council. And that is ongoing, with a report expected next year, and the government may act on those recommendations and enact legislation.

In addition to all of that, there was a report written by the European Law Institute, which is probably the most interesting thing to focus on. Rather than the usual high level narratives of what’s good and bad about litigation funding, it actually proposed principles on the back of research and feedback that it got on all sides of the argument. And it was written by some really highly regarded judges and academics. And the report was quite balanced. But what was really interesting about the report was that it set a tone for the direction of how the UK should really be thinking about litigation funding. The key themes coming out of it are that 1) there is no one size fits all solution-litigation funding has many different parts to it, and 2) that regulation is not just something one does, but there needs to be a real identifiable problem that regulation resolves, otherwise there could be a lot of adverse consequences, and that recognition is key. There is also the recognition that funders do run commercial businesses, so there has to be an economically viable solution.

RB: Deal structures evolve as time goes on, and certainly have evolved in our industry. Boris, can you speak to any particular deal structures that have become less popular this year than they were before, or have started to fall by the wayside?

BZ: I wouldn’t say any have fallen by the wayside, I think that there has been a little bit of a shift – if you go back a number of years, you would see there were more debt deals than equity deals, and that was for various reasons, some of it was preference, some was tax-driven, some was based on an analysis of whether you would be splitting legal fees and things like that – and I think over the last couple of years, you have seen more of a shift where more parties are comfortable with equity deals, particularly with the introduction of alternative business structures in Arizona and Utah. So I don’t think that anything has gone by the wayside, but there has been more comfort and more development on the equity side of the business.

RB: Will, do you see that too? What do you think about that?

WM: Yeah I think that’s right. What’s interesting is, there hasn’t been that much development on the question of which provisions in litigation funding contracts may or may not be enforceable, or the big question of tax clarity. I think Boris makes a very good point about Rule 5.4, the debate around that has largely settled. So you do see an increase around law firm deals. I think this question is also tied up with the increasing diversification of products available, and if you start too think about insurance, and insurance-backed debt, and debt plus equity in these deals, we’re seeing a lot of that. We’re also seeing an increase in acquisitions to the extent that claims are alienable and can be acquired. I think that a lot of claim holders are seeing a lot of benefits entering into those sorts of arrangements.

RB: Sarah, what deal structures do you think are growing in popularity, and why do you think that is happening?

SJ: We’ve seen something similar in the shift from debt to equity. I might characterize it though as a move away from debt to law firms, where your collateral is a lot of cases. I think we’ve seen those deals – especially the ones that happened before Covid – there were a lot of different risks that were introduced rather than just the underlying litigation. The amount of OpEx that the law firm needed to survive, and when you’re debt financing for the whole firm, it gets very complicated. So we’ve seen a shift away more to – I won’t say single cases – but perhaps smaller portfolios with a law firm, so you can target your exposure and share more of the risk and OpEx with the law firms themselves.

We’ve also seen a bifurcation in terms of the size of deals. We’re seeing some more very large deals, like $100MM+ deals, and also small single cases, than perhaps we saw in previous years. We’re just seeing a lot of one-off single case deals where funders can share the risk, vs. entire portfolio monetizations.

To view the entire discussion, join the event page on LinkedIn (you must register for the event to view).

Earlier this week, Legal Funding Journal attended IMN’s 3rd Annual International Litigation Finance Forum in London, which brought together senior executives and thought leaders from across the legal sector to discuss the industry’s most pressing issues and developments. The one-day conference featured a wide array of discussions covering everything from the broader state of the funding market and external attitudes towards it, to nuances around the evolving relationships between funders, insurers, law firms and claimants.

An overarching point of discussion across the day was whether the market is still growing and if it is still heading in a broadly positive direction, or if there are warning signs on the horizon such as potential regulatory expansion. 

Rose Ioannou, managing director at Fortress Investment Group, made the important point of defining what is meant by ‘growth’, noting that in terms of the number of market participants and wider understanding of litigation funding there is certainly growth, whilst she also cautioned that it was less clear if there would still be continued growth in the volume of available capital. Across these categories, Ioannou emphasised that the most exciting area of growth is in the broader acceptance of funding in the dispute resolution community and that despite the industry’s “naysayers”, there was an increased “sophistication and understanding” of funding participants.

Looking at the near-future for the European funding market, an audience question prompted a discussion about whether we would continue to see gradual growth across the continent or if there was an explosion of activity around the corner. Iain McKenny, founding director of Profile Investment, offered the boldest prediction and suggested that whilst European funding has been “slow and steady for a long time”, renewed activity in individual jurisdictions could indicate that “we may be approaching a tipping point”. Other speakers were more hesitant in predicting a major increase in funding activity across the region, with Paul de Servigny from IVO Capital Partners explaining that it will continue to vary between European countries, with the Netherlands being an example of a jurisdiction where there has been a tangible market boom.

Outside of the European mainland, the issues facing the UK funding market were another hot topic, with speakers reflecting on how the industry has adapted to living in a post-PACCAR world and speculating on how the new government will approach litigation funding. 

Woodsford’s Steven Friel acknowledged that whilst it was disappointing that the election and change in government had resulted in the Litigation Funding Agreements bill being forced down the agenda, it is encouraging that Kier Starmer’s legal background means that the new Prime Minister “intrinsically understands” the issues at play. When asked to speculate on whether we would see legislation to solve PACCAR be introduced in 2025, the panellists were split down the middle, with half agreeing that it would follow the CJC review next year and the other speakers suggesting it would likely get delayed until 2026.

On the subject of future regulations, the recommendations outlined in the recent European Law Institute report were discussed, with the issue of disclosure as one of the key topics. Lerika Le Grange, partner at Taylor Wessing, highlighted that whilst there was a general openness to some level of disclosure, an attempt to mandate the disclosure of the source of investment funds could create a sense of nervousness among investors.

The dynamics of the relationships between funders, insurers and law firms was another frequently discussed area at the conference, with one of the primary questions being: are funders and insurers increasingly competing against one another? Most speakers at the event shied away from describing the two business models as being in direct competition, with Verity Jackson-Grant from Simmons & Simmons describing them aptly as businesses that serve different purposes whilst still supporting and facilitating cases between them. In a similar vein of thought, Kerberos Capital Management’s CEO Joseph Siprut acknowledged that whilst there can be “some tension” between funders and insurers, he highlighted that from a funder’s perspective “the ability to layer in insurance is value additive”.

Overall, IMN’s International Litigation Finance Forum once again succeeded in delivering a full day of informative and engaging discussions, whilst providing the opportunity for key stakeholders to network and exchange ideas as they continue to try and shape the best path forward for the industry.

A long-time litigation funding professional and former trial lawyer, Ronit Cohen is considered among the most experienced legal finance underwriting counsel in the U.S. After working as a litigator at Simpson Thacher and O’Melveny and Myers, she joined the burgeoning funding industry in 2012, first at Bentham IMF, now Omni Bridgeway, where she helped launch their first office, and then at Validity Finance, where in addition to serving as a member of the Risk Monitoring Team, she headed up a pro bono effort to provide capital to wrongfully accused individuals during the pendency of their civil actions. She co-founded Arcadia Finance in June of 2024, and serves as Managing Director along with co-founders David Kerstein and Joshua Libling.

Company Name and Description: At Arcadia Finance, we go beyond traditional litigation finance to provide frictionless funding, empowering clients and partners to achieve their legal goals through customized financial solutions and unparalleled support. Our seamless collaboration, clear deal terms, and broad mandate empower clients to navigate challenges, make informed decisions, and secure capital – fast. Led by industry veterans with over $400 million invested across 80+ deals, Arcadia Finance offers adaptable solutions for all–from litigation boutiques to AmLaw firms and corporations. Arcadia Finance’s mission is to invest in meritorious litigation, and with backing from multiple and flexible capital providers, we find new ways to help clients and law firms finance, monetize, and share risk on their legal assets. Our solutions include everything from traditional single-case funding and law firms portfolios, to purchasing companies or patent portfolios whose primary value is litigation. At every stage from pre-litigation to appeal and enforcement, Arcadia has the experience, flexibility, and capital to assist.

Company Website: arcadiafin.com

Year Founded: 2024

Headquarters: New York, New York

Area of Focus: With a focus on U.S.-based commercial and patent litigation and domestic and international arbitration, Arcadia Finance is open to the full spectrum of litigation-based assets, from mass torts to law firm lending to patent acquisition, including cross-border and offshore matters. We consider cases in all federal and state courts, as well domestic and international arbitrations.    

Member Quote: “I believe litigation funding is essential for a balanced legal system. It empowers clients with valid claims to seek justice, even when facing well-resourced opponents.”

On Wednesday October 16th (Thursday the 17th, in Australia), LFJ hosted a virtual town hall titled ‘Spotlight on Australia.’ The event featured Michelle Silvers (MS), CEO at Court House Capital, Stuart Price (SP), CEO and Managing Director of CASL, Maurice Thompson (MT), Global Head of Litigation Funding at HFW, and Jason Geisker (JG), Head of Claims Funding Australia. The event was moderated by Ed Truant, Founder of Slingshot Capital.

Unfortunately, Jason Geisker was unable to join the panel due to technical difficulties. However, the other three panelists covered a broad range of topics relating to litigation funding in Australia. Below are key takeaways from the event:

ET: Australia is a pioneer in the use of litigation finance. Can you provide an overview of the Australian market?

MS: Australia has been involved in litigation funding for over 20 years, since the late 1990s. At the moment it’s an interesting environment, we have listed and private funders, hedge funds, law firms and private insurers. Our market is dominated by litigation funders, not necessarily alternative capital sources, which is what tends to happen overseas. We’ve witnessed the market globalizing with offshore funders entering, and local funders expanding abroad, but a lot of the offshore funders have withdrawn from the market in recent years.

The market is small – Australia’s population is 25-28 million, so you can imagine that the way we operate here is quite different than overseas. We have about 10 players operating in the Australian market at the moment. Our environment is quite different than overseas, it’s smaller and well-knit. We all know each other quite well, we compete for the same cases. It’s fierce competition, and an exciting environment.

ET: In terms of return profile, I ‘ve been privy to a lot of litigation finance resolutions on a global basis, and in my review of the data, it strikes me that Australian funders are some of the best in terms of producing consistent returns, albeit the quantum of financing is a little bit smaller than what you might find in the US. Generally speaking, do you agree with that? And to what would you attribute the performance of Australian funders?

SP: I attribute that to the predictability of outcomes, and that really comes from the jurisdiction being established for a long time. Some of the growing pains that other jurisdictions are having, are dealing with new issues and new laws. Most of our bench that deals with litigation funding and new actions, they were senior and junior lawyers, partners, barristers, and now have become judges. So there is an ingrained knowledge of the system, and an appreciation of the importance of litigation funding to provide access to justice.

That in itself also goes with the Australian civil justice system, which is an absolute Rolls Royce. It is gold-plated, it is costly, so you need to be able to navigate that in a way where duration risk doesn’t become an issue to you. So when you talk about performance, I absolutely agree Australia is up there as one of the better performing markets in the world. We select our cases well and we settle cases before trial (about 95% of cases settle before trial – that brings duration risk down). That combination of factors are all a reflection of the 25 years-plus of existing in this market.

ET: Up until recently, outside of the class action space, lawyers have not been able to engage in contingent fee arrangements, but jurisdictions like Victoria have changed this dynamic. Can you discuss the current state of contingent fee arrangements and its likely trajectory, and the implications for the litigation funding market?

MT: Everything Stuart mentioned about this being an isolated part of the world, and the impacts that has on doing business here, is absolutely correct. A flip on that though, is that degree of isolation that we’ve had as a nation has always had us looking closely outside of our borders. So we observe what’s happening in other parts of the world and that influences how we think.

Some of the comments you’ve heard might suggest that we’re a slightly immature legal market, in the sense that politics have impacted the courts and there has been some degree of uncertainty since 2020. But I’d flip that and say that this is a case of us looking hard at what we need moving forward and what will suit Australia. The largest differential between us and the United States, for instance, is that we never want to see a situation in Australia where the overweight child might sue the fast food chain because some lawyer provides contingent fee arrangements, all those sorts of things. We’ve laughed at that scenario overseas, and we don’t want that here. So the whole idea of contingent fees stirs up all sorts of feelings in our legal environment, and in having to deal with those negative perceptions, we have to think very carefully about how we structure things moving forward.

In the period between 2020 and now, there’s been a proliferation of class actions in Victoria to take advantage of the contingent fee arrangements. Not all law firms have done that – my law firm, for instance, we’re running three large plaintiff class actions at the moment, we’ve got a few others in the pipeline. We’re currently not fixated on Victoria, because among other things, the way it’s been dealt with – generally if you want to take full advantage of a contingent arrangement sanction by the court and legislation, you have to bear all the risk of the costs and a security for costs order against the law firm. And most law firms won’t stomach that at all (because this is so new). But other law firms see this as an opportunity – particularly large national firms like Maurice Blackburn for instance. Large firms like that will take advantage because they can finance the risk. If I’m going to sell that to my partners in London, Asia or elsewhere, it’s a different proposition.

So we are inching closer to a wider opportunity for law firms to take on contingent risk, but we’re not there yet. I don’t think it’s going to be the free for all that people have been concerned about. That’s not to say there hasn’t been class actions flooding into Victoria as opposed to other states, but I think that will slow down. And so a firm like us is looking beyond the Victoria borders.

To view the entire 1-hour discussion, please click here.

Viren is a Partner in Milbank’s New York office where he leads the international arbitration practice in the US.  He specializes in international arbitration (construction, commercial, and investment arbitration) as well as enforcement of awards and judgments in U.S. courts. 

He has nearly two decades of experience acting as counsel for parties in a broad range of industries, with a particular focus on energy and mining disputes. His investment treaty experience includes representing investors in disputes against Argentina, Azerbaijan, Bosnia-Herzegovina, Bolivia, Ecuador, India, Italy, Mexico, Nigeria, Peru, the Philippines, the Russian Federation, Timor-Leste, Uruguay, and Venezuela.  He has advised litigation funders on whether to underwrite prospective matters and also obtained litigation funding for his clients.  He sits as arbitrator in commercial arbitrations and teaches international arbitration at Columbia Law School. 

Viren has been recognized for his accomplishments in international arbitration by Chambers Global, Chambers USA, Legal 500, Who’s Who Legal: Arbitration, The Best Lawyers in America:  International Arbitration, Euromoney (commercial arbitration), Latinvex (disputes in Latin America), Law360 (energy disputes), Lawdragon (500 Leading Global Litigators, 2021, 2023, 2024), The New York Law Journal, Crain’s Business New York,The LGBT Bar Association, the South Asian Bar Association, and the American Bar Association.  His client reviews in Chambers include, “Viren is talented, smart, and quick on his feet.  He is a lawyer you want in your corner”; “His attention to detail and commitment made him stand out – he was always thinking of next steps and briefing us often”; “Viren is bright, capable and a really strong advocate.”  Legal 500 identified Milbank as one of three firms to watch in the international arbitration space, noting, “Milbank continues to grow its profile in international arbitration since the late 2022 arrival of Viren Mascarenhas.  The team is particularly noted for its activity in the energy and infrastructure areas.”

Company Name and Description:  Milbank LLP is an international law firm headquartered in New York with offices in Washington, DC, Los Angeles, Beijing, London, Frankfurt, Munich, Tokyo, Hong Kong, Sao Paulo, Seoul, and Singapore.  Chambers USA ranks Milbank in Band 1 for a range of practices, including Bankruptcy/Restructuring, Capital Markets, Metals & Mining, Projects, and Transportation.

Company Website: www.milbank.com

Year Founded:  1866.  Company rebranded to Milbank in 2019.

Headquarters:  New York

Area of Focus: Milbank is a full services international law firm.  Viren is a member of the Litigation & Arbitration Practice Group.

Member Quote:  “Litigation funders want lawyers who can chart a course of action from filing a claim to collecting on the award/judgment, and then engage with the wide variety of players involved (client, opposing counsel, co-counsel, witnesses, experts, investigators, the adjudicators, and the funders themselves!) to make it happen.”

On September 26th, LFJ hosted a virtual town hall titled “Spotlight on Insurance.” The panel discussion featured David Kerstein (DK), Founder and Managing Director at Arcadia Finance, Michael Perich (MP), Director, Head of Litigation Insurance at Lockton Companies, Steve Jones (SJ), Managing Director, M&A, Litigation and Tax Practice at Gallagher, and Jeremy Marshall, Chief Investment Officer and Managing Director, Winward U.K. Limited. The panel was moderated by Jim Batson (JB), Chief Operating Officer at Westfleet Advisors.

Below are some key takeaways from the event:

JB: As Arcadia is a relatively new player in the litigation finance space, how has Arcadia incorporated insurance products into your underwriting and claims selection processes?

DK: As we were raising capital earlier this year, we explored using insurance to wrap a future portfolio, to potentially help drive fundraising and lower cost of capital. We weren’t able to do that as a first-time manager, but it’s something we’d like to explore in the future. We’re currently exploring traditional insurance products like JPI, and wrapping portfolios that may be on the edge of our mandate, and wrapping them in insurance would help us get to ‘yes.’

JB: So wrapping portfolios will help you look at some deals you might not otherwise consider?

DK: Exactly.

JB: Steve, can you give us an overview of the current Legal Insurance market? Especially focusing on recent developments in Capital Protection Insurance.

SJ: At the moment, I’m seeing a lot of innovation, so it seems like no two deals are the same, as there is a lot of creativity to get deals done. Very high submission rates, which probably suggests that knowledge of the products is increasing. And I see insurers and funders collaborating. It’s very seldom we see funders approach portfolio deals without thinking of insurance, and capital protection insurance (CPI) is the most obvious example of that. The net result of all of that is increased choice for clients, which I think we can all agree is a good thing.

JB: Jeremy, how do you view the relationship between funders and insurers? Some have thought of insurers as competitors to litigation funders – an example is in the appeal context, where the client has the option of taking funding and de-risking immediately, or taking insurance and de-risking at conclusion of the matter. How do you see the relationship between insurers and funders evolving?

JM: I view it very much as a collaborative venture, for at least two specific reasons: One is the competition appeal tribunal (CAT) in the UK. You couldn’t go into the CAT without the support of the insurers. And that morphs into the concept of co-funding, which is growing. And you wouldn’t be able to do this without insurers, particularly when you’ve got a policy with an insurer and you’re invited to participate with somebody else, it might be syndicated with more than one funder– all the insurers are going to have positions in relation to that and you’re not going to get it off the ground without the insurers involved. It really is a team effort, as cases have lots of ups and downs.

Without a good relationship with an insurer, you’re not going to get off the ground. And particularly in a client-facing situation, you want insurers and funders to be speaking with the same voice, and often you’ll see in points of tension where clients and law firms sometimes, will try to play the ‘divide and rule game’ with insurers and funders. And we need to speak with a unified voice if we can. And I think that will grow in time, where insurers will play a bigger role in both the front and back end of a transaction.

JB: Michael, from your perspective, what are you seeing as the most interesting trends in terms of the intersection of insurance and litigation funding?

MP: Litigation insurance has been in the transaction space for quite a long time. What we’ve been seeing lately is a substantial uptick in deal flow based on increased awareness and knowledge of the product base. Some of that deal flow are things that are not insurable (in the US market) – things like portfolios of personal injury or mass tort cases. Those won’t be insurable in the US. But we’re seeing more IP and antitrust cases, and more interest around building a sustainable market that involves portfolio risks and complex pieces of commercial litigation that helps make a more efficient transaction for everybody. And that’s where all of the parties are getting more aligned. So over the past six months, we’ve been noticing a lot more collaboration and innovation lately, which is a good thing.

For the full panel discussion, please click here.

Michelle Silvers is Chief Executive Officer and a Director of Court House Capital and leads the company’s business strategy, growth and operations across geographic markets. She oversees stakeholder relations with capital investors and all decisions pertaining to the company’s investment portfolio.

Michelle is a highly-respected leader in litigation funding. She co-founded the litigation funding industry in Australia in 1999 and has over 30 years’ combined funding and legal experience across commercial dispute resolution, insolvency, insurance and collective redress (class actions).

Michelle has played a crucial role in funding more than 200 legal disputes and is passionate about structuring capital and risk management solutions for clients and helping claimants gain access to justice.

In 2019 Michelle joined Court House Capital, quickly establishing the business as a funder of choice in Australia and New Zealand. Previously, she served as Managing Director and CEO of Litigation Lending Services Limited, where she pioneered portfolio funding and grew the business to become one of the most successful funders in the region. Her career also includes senior roles at leading international funders (Augusta Ventures and IMF Bentham, now Omni Bridgeway), global insurance firms (AMP, FAI General, Lawcover) and private legal practice (DLA Piper).

Michelle is a co-founder and Director of the Association of Litigation Funders of Australia (AALF) and is a regular speaker and commentator on industry developments. She holds a Bachelor of Arts and Bachelor of Laws from the University of New South Wales and is a Director of Court House Capital Management Limited.

Company Name and Description: Court House Capital is a leading litigation funder focused on cases in Australia and New Zealand. Court House Capital was established with a mission to provide financial and strategic support to parties seeking capital, risk management and access to justice. Our team is led by industry founders, with Australian based capital, and is renowned for expertise, agility and collaboration.

Company Website: courthousecapital.com.au

Year Founded:  2019

Headquarters: Sydney

Area of Focus: Litigation Finance

Member Quote: We offer cost and risk mitigation strategies for commercial clients and ‘a level playing field’ for those who cannot afford to pursue justice themselves. It is an honour to be co-founders of an industry that provides access to justice for so many, and to be the funder of choice for claimants and professional advisers. Our financial resources, industry network and knowledge has helped many claimants achieve successful outcomes.

Boris Ziser is a partner and co-head of Schulte Roth & Zabel’s Finance Group, where he advises on a diverse range of asset classes and transactions such as asset-backed lending and securitization, warehouse facilities, secured financings, specialty finance lending and esoteric finance transactions. Boris manages the London finance practice and the global litigation funding and law firm finance practice.

With almost 30 years of experience, Boris works on a variety of asset classes, including life settlements, litigation funding, equipment leases, structured settlements, lottery receivables, timeshare loans, merchant cash advances and cell towers, in addition to other esoteric asset classes such as intellectual property, various insurance-related cash flows and other cash flow producing assets. He also represents investors, lenders, hedge funds, private equity funds and finance companies in acquisitions and dispositions of portfolios of assets and financings secured by those portfolios.

Company Name and Description: With a firm focus on private capital, Schulte Roth & Zabel LLP is comprised of legal advisers and commercial problem-solvers who combine exceptional experience, industry insight, integrated intelligence and commercial creativity to help clients raise and invest assets and protect and expand their businesses. The firm has offices in New York, Washington, DC and London, and advises clients on investment management, corporate and transactional matters, and provides counsel on securities regulatory compliance, enforcement and investigative issues.

Company Website: https://www.srz.com/

Year Founded: 1969

Headquarters: New York, New York, U.S.A.

Area of Focus: Finance, Litigation Finance, Private Credit, Structured Finance

Member Quote: “With its uncorrelated investment opportunity and plethora of rules that vary by jurisdiction (State-by-State and international), litigation funding is a complicated asset class that is rewarding at the same time, as it enables those with meritorious claims, but without the necessary resources, to pursue justice.”

Lewis Edmonds is a Director of Fibre Group and is a seasoned financial planner with over 10 years of expertise in cross-border planning, wealth management, and alternative investments. He serves a diverse clientele across the UK, USA, Middle East, Europe, and Latin America, offering tailored solutions that include diversification, wealth creation, and risk hedging strategies. 

Lewis’s comprehensive approach ensures clients achieve their financial goals while navigating the complexities of international finance. Lewis manages the group’s portfolio of investment opportunities and fund management providers, whilst assessing new opportunities to enhance the company’s offering. 

Company Name and Description: Based in the United Kingdom, Fibre Group focuses on cross-border payments, cross-border wealth and alternative investment strategies. 

The payments side of the businesses ensures clients have access to highly competitive exchange rates through multi-currency banking solutions, and guidance to manage foreign exchange risk, which is often a significant consideration for international property transactions and cross-border wealth matters. 

Fibre Capital focuses on international wealth management and alternative investment, by providing tailored strategies that are customised to individual goals and risk preferences.

Acknowledging the limitations of conventional banking, Fibre looks beyond public markets and traditional investments to identify solutions that diversity, balance and enhance clients’ portfolios. 

Within the Litigation funding ecosystem, Fibre’s role is to introduce their active and growing client base of investors, to investment opportunities in the litigation funding space, via loan note, corporate bond, or direct investment. 

Company Website: www.fibrepayments.com — https://fibre.capital

Year Founded:  2021

Headquarters:  London

Area of Focus:  Traditional wealth management and alternative investment strategies for our active client base. 

Member Quote: “In an ever-changing economic landscape, we are actively seeking innovative investment strategies, to ensure the best outcome for our clients and opportunities in litigation financing are increasingly becoming an attractive alternative asset class, for our clients.”

On Thursday August 15th, LFJ hosted a Virtual Town Hall titled ‘PACCAR Revisited.’ The live event revisited the PACCAR decision one year later and explored what the future holds for legal funding in the UK and beyond.

Panelists included Ben Knowles (BK), Chair International Arbitration at Clyde & Co LLP, Robert Marven (RM), Barrister at 4 New Square, Nicholas Marler (NM), Head of Technical Underwriting at Litica Ltd, and Neil Purslow (NP), Founder and Chief Investment Officer, Therium Capital Management Limited. The panel discussion was moderated by Tets Ishikawa, Managing Director of LionFish Litigation Finance Limited.

Below are some key takeaways from the event:

We don’t hear much from insurers in regard to the PACCAR issue. Nicholas, from an insurer’s perspective, what are your thoughts?

NM: The ATE insurers’ odyssey through the world of PACCAR is in some ways quite different from that of a litigation funder. At first bluff, you might think that PACCAR doesn’t have anything to do with insurers because it has to do with litigation funding agreements, and you’d never catch an insurer signing an LFA, so what’s the problem?

If you scratch a little deeper though, the reality is quite different. If you as an insurer, insure a funder, and the funder gives an adverse costs indemnity to the claimant, then all of a sudden, the insurer’s contractual fortunes are tied to the funders. If the LFA is unenforceable, then not only can the insurer not collect its contingent premium if there’s a success, but the coverage provided to the funder has vanished–this is because the LFA is unenforceable.

We actually had this exact experience play out. An opportunistic claimant sought to cut the funder out, because it felt emboldened to do so as a result of the PACCAR decision. When they were informed that doing so would void their insurance, which was to their benefit, they magically found the goodwill necessary to resolve things with their funder and an amicable solution was quickly found.

You’ve touched on enforceability. Given how central that is to the heart of the PACCAR issue, Robert, can you share some insights and perspectives on this corse issue?

RM: There are essentially two views on the concept of enforceability. One is that it essentially says there isn’t anything wrong with the contract, just that it can’t be enforced. There is another view which says that the contract is unenforceable, that it is an illegal contract. I don’t agree with that. It seems this is one of the paradoxes of PACCAR, it seems to have rendered unenforceable funding agreements that were perfectly legal under common law.

A lack of enforceability is important to understand as a two-way street. It means the funder cannot enforce, and it also means the claimant cannot enforce. And this is the key to understanding why things have been put right in cases that are still ongoing. A claimant who says to a funder ‘I don’t have to pay you anymore,’ well, a funder could say to the same token, ‘I don’t have to fund your case anymore.’ And we have seen cases that have been over or very nearly over, where the claimants think they don’t need the funder anymore and saying ‘thank you very much, I needed the funding but I don’t have to pay you.’ Or ‘I did pay you, but I want the money back.’

This is where it’s important to remember that enforceability is a two-way street. If all sides want to continue to carry on, then everyone has an incentive in fixing the problem. It’s only where those interests converge that seem to have led to a significant litigation dispute.

Ben, from your perspective, how do you think this affects the UKs standing as a legal jurisdiction?

BK: PACCAR created a mess, and it was an expensive mess, irrespective of where we’re going to end up. There’s been a lot of lawyer’s time figuring out what PACCAR means and where we’re going to go. The PACCAR fix, as I call it, would have cleared things up to some extend. But the absence of that means some of this uncertainty will continue. And uncertainty means additional costs.

We have these various appeals on the funding agreements out there at the moment. I would expect that in some of these cases, there will be appeals that go to the Court of Appeals, and potentially, all the way up to the Supreme Court. My feeling is, when there’s a case to be funded, lawyers will find a way to get that case funded. Although I’d imagine there will be a risk premium attached to that funding, not least because everybody will be getting their funding agreements checked, double-checked and triple-checked. And you may have lawyers who disagree on what’s permissible, and that leads to additional costs at the start of the case.

This session is about PACCAR, but we’d be remiss not to talk about the CJC, given how the two issues merge. Neil, you’re on the consultation group for the CJC review. Are there any insights you’re able to share?

NP: There’s now a working party reporting up to the CJC. We’re expecting an interim report from that working party to come out in late summer or early autumn, and there will be a consultation, and then the final report in the middle of next year. So we’ve put on quite a tight timeline.

From an industry perspective, this review is welcome, unless you’re opposed to the idea of talking about regulation, which I don’t think the industry is. This is a sensible organizational group that is considering these points in a proper and thoughtful way. I would encourage people to get behind the work that ILFA and ALFA are doing here, and I’d also encourage funders to get involved in the consultation phase as well. It’s very important that the CJC are thinking about these points with a full and proper understanding of how funding actually works, so they can understand the impact.

I think it’s also important that the industry makes sure that the review takes place in a proper context, and by ‘proper context’ I mean that there is an understanding that funding does have benefits. So the review should look at how good responsible funding can be encouraged and those benefits can be maximized, rather than looking at funding as a suspicious thing that needs to be controlled and is just a risk. I think there is a very positive message for funding that needs to be emphasized, and I think the CJC needs to look at it through this positive lens, and I’m confident that they will.

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Dan is a founder of the business, but began his career at one of the UK’s largest FX brokerages. He has since built a robust network of partnerships with financial advisors and lawyers, focusing on high-net-worth clients and professionals in sports.

Dan also specialises in supporting trusts and wealth structures with cross-border payments and management of their assets, addressing challenges typically faced with by traditional banks. 

Recognising the demand from clients for interest solutions to complement the multicurrency offering, Dan also focuses on identifying new growth and investment opportunities to enhance the current portfolio and meet clients’ needs. 

Company Name and Description: Fibre Group

Based in the United Kingdom, Fibre focus on cross-border payments, cross-border wealth and alternative investment strategies. 

The payments slide of the businesses ensures clients have access to highly competitive exchange rates through multicurrency banking solutions, and guidance to manage foreign exchange risk, which is often a significant consideration for international property transactions and cross-border wealth matters. 

Fibre Capital focuses on international wealth management and alternative investment, by providing tailored strategies that are customised to individual goals and risk preferences.

Acknowledging the limitations of conventional banking, Fibre look beyond public markets and traditional investments to identify solutions that diversity, balance and enhance clients’ portfolios. 

Within the litigation funding ecosystem, Fibre’s role is to introduce their active and growing client base of investors, to investment opportunities in the litigation funding space, via loan note, corporate bond, or direct investment.

Company Website: www.fibrepayments.com — https://fibre.capital

Year Founded:  2021

Headquarters:  London

Area of Focus:  Cross-border payments, interest solutions and alternative investment strategies. 

Member Quote: “We are dedicated to delivering the highest service standards by integrating cutting-edge payment technology with innovative interest and investment strategies to achieve the best outcomes for our clients.”

The following article was contributed by Mats Geijer, Counsel Scandinavia of Deminor.

In the complex world of securities trading, disputes and violations can arise, leading to legal actions that seek to hold wrongdoers accountable and provide recourse for affected parties.

In recent years we have seen an increase in actions from investors towards listed companies, shareholders vs the so-called issuers in the region. Notable cases are OW Bunker, Danske bank in Denmark and more recently Ericsson in Sweden.

Securities litigation serves several important purposes in the financial ecosystem, namely:

1. Protecting Investors: Securities litigation helps investors in their fiduciary responsibility to seek financial compensation for losses resulting from securities fraud or misconduct. By holding wrongdoers accountable, it deters fraudulent activities and promotes market integrity.
2. Enforcing Compliance: Securities litigation enforces compliance with securities laws and regulations, ensuring that companies and individuals adhere to disclosure requirements and ethical standards in their financial dealings.
3. Promoting Transparency: Securities litigation can uncover hidden risks, misrepresentations, or conflicts of interest that may impact investors’ decisions. This transparency is essential for maintaining trust in the financial markets.
4. Enhancing Corporate Governance: Securities litigation can target corporate governance failures, such as breaches of fiduciary duty or conflicts of interest among corporate insiders. Holding company officers and directors accountable can lead to improved governance practices.

Securities litigation in Sweden can be done in various ways, through class/group actions, derivative actions, or regulatory enforcement actions (by authorities). Case law in the sphere of private enforcement is historically scarce but will now hopefully start to emerge. A historic reason is probably that Sweden as a civil law country lacks statutory rules regulating civil liability in relation to improper securities activities.

In the Ericsson case, 37 institutions are claiming roughly $200 million from the issuer in the district court of Solna, Sweden. The claimants state they have suffered investment losses since Ericsson withheld information about potential bribes paid to the terrorist organisation ISIS in Iraq, that caused the share price to fall. The claimants are all large (non-Swedish) institutional investors, and the case is funded by a third-party funder (not Deminor). The case will be tried in the first instance court in 2025.

The legal community expects to see an increase in litigation related to securities in the coming years, to paint a picture in 2021 there where was one (1) initial public offering every second day (157 in total). In 2022-23 there were only a handful of initial public offerings each year. Sweden has a disproportionate number of listed companies compared to other EU countries and it is considered a national sport to invest in the stock market. A majority of listed shares are held by local and foreign sovereign wealth funds, they seldom engage in litigation locally but often participate in international cases in the US and elsewhere. The economy is currently in a recession which has historically always led to an increase in the number of disputes.

Deminor is the only international funder with a local presence that focuses on securities litigation. On paper there are plenty of opportunities in Scandinavia, but in practical terms cases are often too “small” meaning the quantum of the potential loss the investor has suffered is not sufficient to initiate the litigation. Or which is more often the situation, the investors that do hold a significant part of the shares (the loss) are not willing to engage in litigation for various reasons. The claimants that are willing to lead the way in terms of creating the much-needed case law is the types we see in the Ericsson case, foreign institutional investors.

We could summarize the situation with a phrase coined by the advertising industry for when there was a minute of silence before the next add was supposed to run – watch this space!

With a background in Physics, Engineering and Software, Julian Coleman has 30+ years’ experience at the COO level conceiving new products and leading the project management, system design, engineering, software development, manufacturing, compliance and delivery teams.

Company Name and Description: 10^th Mind is an e-discovery company that has been created with a major focus on innovation, not only for general e-discovery activities but in particular to assist litigation funds to overcome their specific challenges and threats  –  a special approach demanding a change of mindset.

Our name reflects our focus on innovation and is derived from the intelligence community – the Tenth Man principle. It requires that, where a group of ten analysts is working on the same data and nine of the group reach the same conclusion, it is the duty of the 10^th person, the 10^th Mind, to examine the issue on the premise that the other nine are wrong.

The ‘group think’ consensus may be right most of the time, or even mostly right all of the time, but tends to favour business as usual. The 10^th Mind is there to challenge the consensus view and proffer different solutions.

10^th Mind has defined (and addressed) four key areas:

• Costs – there is in our view an increasing understanding that costs must be reduced
• Process management and recording – not only does a very efficient process drive costs down, but it can (and must) include extensive record keeping of the entire process in order to support effective litigation
• Technology will play an ever increasing role
• Litigation Funds – a rapidly expanding market both in terms of finance available and in market sectors, funds are naturally focused on profit, a critical part of their business being case selection – and costs are a major factor here too. Funds have their own challenges, but also are having a significant impact on the wider litigation landscape.

Addressing these issues has been very interesting. As a seasoned C level executive it has been interesting to analyse and then dispense with so much convention. A business structured around what is today rather than yesterday can look very different and cost far less whilst being intrinsically more responsive and adaptable. In terms of what we can do, having no legacy structures to worry about has major benefits which transfer to the client:

• Costs are reduced.  Many expensive overheads can be dispensed with.
• We have developed our own project management and recording systems; based on PRINCE2 and facilitated by our unique software, integrated with selected new commercial products, management processes are vastly improved. Full traceable record keeping and transparency are built in and automated, essentially at zero cost.
• …and finally but crucially, 10^th Mind will work with funds on special terms:
  • if the fund is prepared to take on a case we will work on a CFA basis
  • we will also work with the fund on a CFA basis to undertake early stage investigations, in our view crucial to improving the evidence on which to base case selection and ultimately, therefore, profitability.

At 10^th Mind we are convinced that not only is such an approach necessary now, but there will be ever-present forces driving the need for continued evolution:

Costs are becoming a major issue.  Significant concern has emerged in the English litigation funding community over last year’s Paccar judgement. Omni Bridgeway’s Co-chief Information Officer, Matt Harrison, has said that some litigation funders may not survive the economic instability as “they don’t have the money available to them to invest in cases and in law firms.”  Bloomberg Law also recently noted that some litigation funds are currently facing financial difficulty.

Burford, one of the biggest litigation funds in the world and which describes itself as “the institutional quality finance firm focused on law“, undertook surveys from which they report:

“[Over half of respondents to its poll] (52%) say drastic steps are needed to better manage legal costs, such as moving away from the billable hour, limiting outside firms and more innovation from outside counsel.“

and

“Finance and legal professionals agree: the legal department’s top priority for the next 15 years is to minimize legal costs. But they are also unified in prioritizing that the legal department simultaneously find new ways to recover value.“

It is clear there is a consensus that costs, specifically cost reduction, must be considered, and in our view, litigation funds will be a driving force.

Litigation funds have a very different focus from law firms, crucially they exist to make profits and that means winning cases, which in turn places a focus on the initial assessment stage.  And, as previously observed, the sector is expanding both in terms of available funds and in scope, driving change and posing challenges for dispute litigation as a whole. 

Logically as funding takes over a larger percentage of dispute litigation, the greater the overall impact this will have on costs. Arguably as saturation approaches, such pressures can only increase.

Process management and recording is in our view now essential, not merely tracking the ingestion and processing of data from collection to court, but the recording of all the management processes which defined the data management: who did what, when and why, recorded in forensic detail. This not only, if done well, improves business processes but it evidences them should legal challenges arise. Hence this data must be ‘forensics ready’.

Technology can and will help. But it must be the right technology which assists the first two objectives, ie improving practises whilst reducing costs. Having found critical gaps in commercial offerings, we have worked on our own solution.

Website: www.10thMind.com

Founded: 2023

Headquarters: UK (London)

Member Quote: We feel it crucial that providers must always question the legacy thinking and structures that entrench lack of efficiency, accuracy, and high costs.  By applying the 10^th Mind principle, we are providing services in a new way: shared risk, formal (and unique) project management and software, along with specialised services specifically to assist funds combine to make us, to our knowledge, unique in the e-discovery sector.

If you would like to find out more as to how we can assist you and your clients, we would be delighted to meet you. Please contact us through our website (www.10thmind.com) or email our COO directly at julian.coleman@10thmind.com.

Michael Klaschka is a Managing Principal and head of the Financial Institutions team based in EPIC’s Jersey City office.  He has over 32 years of industry experience and is a highly respected and skilled negotiator in the professional liability marketplace. 

Mike has extensive experience working with financial institution, investment management, litigation finance, real estate, venture capital, private equity and complex risks with strong technical knowledge of D&O, E&O, Cyber, Fidelity, Fiduciary, Media and Employment Practices Liability. 

Mike joined EPIC in August 2016.  Prior to joining EPIC, Mike was the national leader of Integro’s Management Risk Practice where he spent 11 years.  Prior to Integro, Mike spent 10 years at Marsh & McLennan where he held various positions including head of their E&O Center of Excellence Group based in NY as well as the west coast FINPRO placement leader for their financial institution, technology and commercial accounts group based in San Francisco.  Mike earned a Bachelor of Arts Degree from Drew University in 1991, and majored in Economics with a minor in Political Science.

Company Name and Description:  EPIC Insurance Brokers & Consultants

We are a unique and innovative retail risk management and employee benefits insurance brokerage and consulting firm, founded in San Francisco, California in 2007 with offices and leadership across the country.

EPIC Insurance Brokers & Consultants has a depth of industry expertise across key lines of insurance, including risk management, property and casualty, employee benefits, unique specialty program insurance and private client services.

Company Website: https://www.epicbrokers.com/

Year Founded: 2007

Headquarters: San Francisco, CA

Area of Focus: Property & Casualty Insurance with expertise in Directors’ & Officers’, Errors & Omissions, Employment Practices, Fund, and Cyber Liability.

Member Quote: Procuring insurance for litigation finance companies can be a challenge as many insurers view the industry as driving up their costs.  Several even prohibited their underwriters from offering terms.  In addition, litigation finance companies have unique exposures that are not addressed in “off the shelf” products offered by insurers.  At EPIC, we have the knowledge and experience as well as the relationships with key insurers that gives us the ability to negotiate and place coverage tailored to each client.

Davide De Vido is an Italian lawyer with significant expertise in commercial and company law consultancy and disputes. In 2000, Davide started his career as an in-house counsel for a leading industrial group in the production and sale of building materials, gaining experience in complex transactions and corporate dispute resolution.

Subsequently, he assumed the same role for a leading company in the field of production and sale of eyewear, and after these two experiences, Davide founded his own law boutique.

In 2019, Davide entered in the litigation funding industry and founded FiDeAL®

Company Name and Description: FiDeAL® is a full consultancy company of litigation finance (funding and insurance) solutions that works across Europe with a particular focus on the Italian legal market.

We assist those seeking financial solutions to pursue single cases, and also help create portfolio claims. We collaborate with law firms, associations, other NG organizations, companies and litigation funds or investors to structure complex projects.

Last June, through collaboration with expert and university professors, FiDeAL has established its environmental, climatic, and ESG law department to offer the highest level of expertise in preparing, structuring, and conducting in-depth legal and economic analyses of projects, making the funding process more efficient and effective.

Company Website: www.fideal.it

Year Founded:  2019

Headquarters:  31020 San Vendemiano (Treviso), Italy

Area of Focus: Advising and brokering all types of litigation finance related matters. Since June 2024, FiDeAL has been working in environmental/climate/ESG law to help protect the planet and improve people’s quality of life and business relations.

Member Quote: We dream of a world where access to justice is democratized and easily accessible globally for each individual, company or entity.

Rebecca Berrebi is the CEO and Founder of Avenue 33, LLC, a full service, litigation finance consultancy that provides brokerage, strategic advisory and recruiting services. She handles all types of matters within the litigation finance industry from single case financings to law firm portfolios to insured structured credit matters.  Rebecca has worked in the litigation finance industry since 2016, and her background as a private money transactional lawyer and funder allows her to serve clients with both legal acumen and keen business insight. 

Previously, she was the Head of Corporate Affairs at a leading litigation finance fund manager where she oversaw investments and served on many boards and committees, including of Eco Oro Minerals Corp. (CSE: EOM).  Rebecca graduated from Duke University, after which she worked in the political affairs and public relations industry.  She later obtained her law degree from Benjamin N. Cardozo School of Law, and practiced as a private equity M&A lawyer at Kirkland & Ellis LLP and at a global private equity fund. 

Company Name and Description:   Avenue 33, LLC serves litigants, funders, law firms and investors in addressing and closing the litigation finance knowledge and communications gaps in order to facilitate a more seamless, efficient and successful financing process – from outset to outcome.

Often even sophisticated parties come to a “dispute finance” matter with varying backgrounds, underlying understandings and assumptions. With information equality, alignment of interests, harmonization of expectations and clarity of process, the opportunities for maximizing positive outcomes and minimizing contention substantially increases for all stakeholders. Avenue 33 can provide guidance, strategic advice and support leading to efficient value optimization.

Company Website: www.avenue33llc.com

Year Founded:  2020

Headquarters:  Westchester, NY

Area of Focus:  Advising and brokering all types of litigation finance related matters

Member Quote: In this opaque market, visibility into trends and appetites of the players saves lawyers, clients, funds and all stakeholders time and money.  Experienced, high-quality brokers create value for individual deals as well as add credibility to the litigation finance industry generally.