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CFO’s and Litigation Finance: The Time is Ripe for Adoption

One of the holy grails of litigation funding has long been for funders to convince CFOs to view litigation through a commercial lens, and unlock the value of their legal assets. While straightforward and practical, the evolution of the CFO mindset on this issue has been slow to materialize. Many in the litigation funding community blame cultural norms—old habits are simply hard to break, which is especially true when things are going swimmingly. But with inflation upon us and a recession looming, the time is ripe for CFOs to reconsider their firm’s relationship to litigation funding.

Research from Burford Capital in June of 2021 found that 75% of companies with over $1 billion in annual revenues reported unenforced judgments worth $20-$100 million in FY 2020, while at the same time, just 24% said they apply quantitative financial modelling to make decisions about litigation, as they do in other areas of the business. That research is now a couple of years old, but it underscores both the need for litigation funding, and the challenge that funders face when trying to convince CFOs to think differently about litigation.

Change may finally be afoot. A recent global survey of CFOs conducted by Everest Group found improving cash flow continues to be a priority for a large majority of CFOs. As one respondent noted: “As the business environment continues to throw up shocks prompted by geopolitical uncertainty and sector disruption, CFOs should ensure that, as well as technological evolution, change management becomes a culture rather than a one-off exercise.”

Indeed, macroeconomic constraints are forcing CFOs to re-prioritize. Gartner recently identified the Top-10 priorities for CFOs in 2023, based on Deloitte’s Autumn 2022 European CFO survey. The Top-5 among those are:

  • Coping with complex systems
  • Protecting margins and balance sheets
  • Acquiring and retaining talent
  • Raising capital
  • Finding focus

The second point stands out in relation to litigation funding—“protecting margins and balance sheets” is exactly the pitch that funders have been making to the CFO community for years now.

PricewaterhouseCoopers conducted its own survey, and highlights the main topics on the CFOs agenda for 2023:

  • Navigate economic uncertainty
  • Enable growth
  • Take action on ESG
  • Accelerate transformation
  • Cultivate finance talent
  • Build trust and purpose

Responses such as ‘navigate economic uncertainty’ and ‘accelerate transformation’ should be music to every litigation funder’s ears.

It’s clear based on the above data that litigation funding maintains a product/market fit, in that it addresses some of the core pain points CFOs are currently facing. That said, many CFOs still need to be brought to the table as to how their firms can benefit from the use of litigation funding.

Advantages of Unlocking Capital Buried in Legal Claims

Susanna Taylor, Head of Investments at Litigation Capital Management, highlights what she considers to be four core benefits of litigation funding for CFOs:

  1. Protecting the value of the business from the cost impact of litigation
  • “If the same case was financed by a third-party funder, then the business will not carry these legal expenses […] The operating profit in each year will be higher and the accounts will be a more accurate reflection of actual business performance.”
  • “Further, once the claim is successful, the company will be able to include the proceeds as profit which has been generated at zero cost.”
  1. Protecting the business from significant litigation risk
  • “The funder carries 100% of the financial risk involved in pursuing the claim and if the claim is unsuccessful, the funder will receive nothing. […] Litigation finance can include the offer of an indemnity against adverse costs and an agreement to meet an order for security for costs.”
  • “Using third-party litigation finance also removes uncertainty in forecasting legal spend, which can be highly variable and difficult to predict.”
  1. Insulating the business from unexpected claims
  • “Litigation brought against a company is an unwelcome consequence of doing business. These claims are almost always unexpected, unbudgeted and require action.”
  • “Importantly it offers the corporate client the opportunity to offset the costs and risks involved in defending claims, as well as allowing the business to apply its capital into growth operations rather than on uncertain litigation.”
  1. Unlocking the value that resides in claims
  • “Litigation finance allows companies to recognize the value in a piece of litigation at a time which suits them best.”
  • “These funds provided to the company can ‘plug the gap’ in expected EBITDA at no cost to the company.”

In an article for Global Banking and Finance Review, Ellora McPherson, Managing Director & Chief Investment Officer of Harbour Litigation Funding, points to the need for CFOs to consider alternative solutions in order generate value, which is especially true during today’s tumultuous economic climate.

According to McPherson: “The macroeconomic lifecycle has no bearing on the outcome of disputes and litigation as an asset class itself it has little correlation to the wider market. This means that litigation funders have the capital to pursue meritorious claims at difficult times even when the businesses with the claims do not.”

Commercial disputes are often worth tens or hundreds of millions of dollars. These legal claims are simply too valuable as assets not to be leveraged during times of economic upheaval. “It is now no longer a question of whether CFOs can afford to advance these claims,” says McPherson, “but whether they can afford to ignore these assets on their books any longer.”

How CFOs Should Approach Funders

If CFOs are to be swayed by the high-level arguments posed by funders as to the advantages of legal finance, they must first get comfortable with frontline interactions—what exactly should CFOs expect from a litigation funding partnership? What should they be on the lookout for, and what sets one funder apart from another?

The lowest-hanging fruit answer here is cost of capital, but that is obvious. Beyond mere capital requirements, lies a plethora of differentiators which CFOs must account for when approaching and selecting the most appropriate funder for their legal claim (or portfolio of claims):

  • Flexibility. CFOs should select a litigation funder who will be their partner, not just their capital provider. Similar to an agreement with a lender, CFOs don’t want a funder who will balk the moment a curveball is thrown, especially if that curveball comes from somewhere out of your control (as is often the case with legal claims). Funder flexibility and adaptability is an important trait when considering the long-term relationship at stake.
  • Funder Capitalization. Per the aforementioned point, legal claims often take longer than anticipated, or tumble down rabbit holes no one saw coming. Does your funder have enough liquidity to backstop unforeseen circumstances? What is their policy during such a contingency? These are critical questions to ask.
  • Legal Sector Expertise. This is important for two reasons: firstly, so the funder understands the bespoke challenges posed by a given sector and doesn’t get cold feet should the case run up against those issues along the way, and secondly, so the funder can help consult on case strategy, should the claimant and law firm request (most funders are ex-lawyers, after all).
  • Enforcement. Winning a case is one thing, but collecting on the reward is quite another. Does the funder have a track record of enforcing victories—either via a third-party or in-house enforcement team?
  • Reputation. CFOs should consult with past clients to get a sense of how the funder interacts with both the client and the law firm. This is a triangular relationship, and it’s important that all sides work together towards a successful outcome.

Ultimately, Litigation Finance offers an opportunity to monetize what would otherwise remain an illiquid asset, and deploy that capital into a core business activity, thus increasing the enterprise value. That is an invaluable tool for any CFO looking to unlock value without having to resort to traditional capitalization methods, such as approaching lenders or equity partners.

The CFO Roadmap

Even companies with ample cash to cover attorney fees and expenses can benefit from the instant liquidity provided by litigation funders. Why wait years to unlock the value of a legal claim, when that capital can be put to work immediately?

What’s more, the prevalence of litigation funding permits corporations to pursue litigation that they would otherwise leave on the table, and also to reject low-ball settlement offers which they might otherwise accept due to concerns over duration risk and case expense.

For CFOs who want to understand if their firm is a strong candidate for litigation funding, there are several steps they can take:

  • Review the company’s litigation history. Have prior legal costs or outcomes influenced management’s thinking about pursuing potential legal matters? Perhaps it is time for a reevaluation of the firm’s approach to litigation.
  • Consult with internal legal staff to identify any matters that may have been deferred for one reason or another, and assess whether those prospective claims might represent strong candidates for litigation funding.
  • Speak with litigation funders or advisory firms to determine a full cost/benefit analysis, including estimates, milestones, duration risk, IRR/ROI potential, and more.
  • Understand the internal resource commitment your team is making, should you take on additional litigation with the help of a funder.

CFOs who follow the above roadmap stand to benefit by repositioning their legal department from a cost center to a profit center. This simple shift in mindset will help strengthen the balance sheet by producing higher net income, lower expenses, and an advancement of business strategies—all without the onerous conditions of a traditional loan.

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Insurers Intensify Offensive Against Litigation Funders

By John Freund |

In a fresh salvo that lays bare the brewing turf war between two sophisticated risk-transfer industries, a cadre of major U.S. insurers is doubling down on efforts to hobble third-party litigation finance.

An article in Bloomberg Law reports that carriers including Chubb, Liberty Mutual, Nationwide and Sentry are leveraging their Washington lobbying muscle—and, critically, their underwriting leverage—to choke off capital flows to funders. Executives have signaled they will refuse to place policies for firms that invest in, or even trade with, outside funders, arguing that those investors fuel “social inflation” and nuclear verdicts that drive casualty-line losses. The aggressive posture follows the industry’s failed push to tack a 40% excise tax on litigation finance profits into the Trump administration’s sweeping budget bill earlier this month.

Yet the campaign has its detractors—even within the insurance ecosystem. Ed Gehres, managing partner at Invenio LLP, calls the stance “logically inconsistent,” noting that insurers themselves underwrite contingent-risk cover that is often purchased by the very funders they now vilify. Marsh McLennan, Lockton and others already offer bespoke judgment-preservation and work-in-progress (WIP) policies that dovetail neatly with funder portfolios. Daniela Raz, a Marsh SVP and Omni Bridgeway alum, underscored that such products can allow litigants to “retain more proceeds than they would in an uninsured litigation-finance transaction,” blurring any bright line insurers try to draw between their own risk-transfer solutions and funder capital.

Insurers’ hard-line rhetoric may complicate capacity-placement for funders and plaintiff firms, but it also highlights litigation finance’s growing systemic relevance. If carriers continue to walk the talk—declining placements or hiking premiums for funder-adjacent risks—expect a rise in alternative instruments (captives, bespoke wrap policies, even reinsurer-backed facilities) and deeper collaboration between funders and specialty brokers to fill the gap. The skirmish could ultimately accelerate product innovation on both sides of the ledger.

Court Shields Haptic’s Litigation-Funding Files From Apple

By John Freund |

A Northern District of California decision has handed patent plaintiff Haptic Inc. an important procedural win in its infringement fight with Apple over the iPhone’s “Back Tap” feature.

An article in eDiscovery Today by Doug Austin details Judge Jacqueline Corley’s ruling that work-product protection extends to Haptic’s damages analyses and related documents that were shared with a third-party litigation funder during due diligence.

Although Apple argued that those materials might reveal funder influence over strategy or settlement posture, the court held that Apple showed no “substantial need” sufficient to overcome the privilege. The opinion also rejects Apple’s broader bid for a blanket production of Haptic-funder communications, finding the parties had executed robust NDA and common-interest agreements that preserved confidentiality and avoided waiver. Only royalty-base spreadsheets directly relevant to Georgia-Pacific damages factors must be produced, but even those remain shielded from broader disclosure.

Judge Corley’s order is the latest in a string of decisions limiting discovery into financing arrangements unless a defendant can identify concrete, case-specific prejudice. For funders, the ruling underscores the importance of tight contractual language—and disciplined information flows—in preserving privilege. For corporate defendants, it signals that speculative concerns about control or conflicts will not, standing alone, open the door to funder dossiers.

Beasley Allen Beats J&J Funding Discovery Bid

By John Freund |

Johnson & Johnson’s quest to unmask the financial backers behind the avalanche of talc-cancer claims just hit another wall. A special master overseeing the federal multidistrict litigation has rejected the company’s demand that plaintiffs’ firm Beasley Allen disclose its third-party funding agreements and related communications. The ruling affirms that the materials are protected attorney work product and that J&J failed to show any “substantial need” that would override that privilege.

Law360 reports that J&J argued funders might be steering litigation strategy or settlement positions, threatening fairness to the defendants. The special master disagreed, noting Beasley Allen’s lawyers, not its financiers, control the case and that J&J offered no concrete evidence of undue influence.

The decision aligns with a growing body of federal authority allowing discovery only when a defendant can articulate specific, non-speculative concerns. For funders, the order underscores that carefully structured agreements—and disciplined funder conduct—can withstand aggressive discovery campaigns even in headline-grabbing mass-torts.

The outcome is another tactical setback for J&J as it defends more than 60,000 ovarian- and mesothelioma-related suits while pursuing parallel bankruptcy maneuvers through subsidiary Red River Talc. For the legal-finance community, the ruling reinforces work-product boundaries and signals that courts remain wary of turning funding discovery into a fishing expedition.