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Commercial Deals Special Features

Day One of LF Dealmakers Concludes

September 29, 2021

Day One of LF Dealmakers Concludes

Day one of the two-day 2021 LF Dealmakers conference has officially concluded. The day included a keynote address from Judge Shira A. Scheindlin, six panel discussions, and a host of networking opportunities. The initial panel discussion was titled “State of the Litigation Finance Industry: Innovations & Outlook.” The panel was moderated by Annie Pavia, Senior Legal Analyst at Bloomberg Law, and featured the following panelists:
  • Brandon Baer, Founder & CIO, Contingency Capital
  • Fred Fabricant, Managing Partner, Fabricant
  • Michael Nicolas, Co-Founder & Managing Director, Longford Capital
  • Andrew Woltman, Principal & Co-Founder, Statera Capital
The discussion began with big picture trends regarding the economic downturn, which a lot of people posited would result in a boost to Legal Services and the Litigation Funding industry. The panelists all weighed in: Brandon Baer explained that the case pipeline has been extremely robust. There is strong origination, and a lot of need from law firms for capital. Fred Fabricant explained that from law firm side, it’s been the busiest time in his career in terms of case load. More opportunities have come to his attention in last year and a half than ever before, with things being very active in the Eastern and Western Districts of Texas. And the quality of the opportunities is higher. New players are in the market, and existing players have raised more money than ever before. Michael Nicolas added that he’s seen an increase across all different sectors – law firms (both those who have used funding previously and those who have never used funding before), and clients (facing extreme demands stemming from COVID-related issues). Longford manages over $1Bn in AUM, so they have a lot of flexibility in terms of investment potential. Andrew Woltman ended the discussion by noting how comfortable law firms and clients are becoming with litigation finance. Structurally they are being more proactive about approaching fund managers than ever before. The panel all agreed that demand is strong across the board when it comes to case types. Capital deployment is not a problem here, and the panelists expressed hope that this trend would continue, and that clients will continue to recognize the value that funders bring to the table. In terms of current challenges the industry is facing, duration and collectability are obvious issues, but these are leading to certain efficiencies–like courts learning to be more efficient in order to address duration risk. So there is a silver lining here. At this point, Annie Pavia, the moderator, switched gears and asked Michael Nicolas about Longford’s $50MM funding deal with Willkie Farr. Nicolas acknowledged the longstanding relationship between the two firms, and how that developed into a $50MM financing arrangement. Willkie also brings a lot of commercial matters to the table, which helps Longford diversify away from its core focus on IP matters. Nicolas also mentioned that they went public with the deal in order to be fully transparent to Willkie’s clients, and make them aware that Longford’s funding is possible for their claims. The question of disclosure then popped up.  Will the disclosure of the funding relationship lead to unnecessary discovery sideshows in Willkie claims?  Nicolas does not believe the publicity of the relationship will hamper any Willkie claims, and that the trend line favors courts finding discovery irrelevant, where litigation funding is concerned (in most cases). While he understands this may prompt some questions, Longford isn’t particularly worried about the consequences here. Of course, most funds still keep their partnerships private, so Longford’s decision to publicize its relationship with Willkie may perhaps be a turning point for the industry—could less opacity be around the corner? Nicolas believes we will see more transparency as the asset class continues to grow. The rest of the day featured panels across a range of topics, including legal and regulatory challenges in the U.S., and changes in law firm and contingency fee models. One discussion on “How CFOs View Legal Assets: Data & Insights from a Recent Survey,” featured Kelly Daley, Director at Burford Capital, and Bruce MacEwen, President of Adam Smith, Esq. MacEwen asked an interesting question regarding law firms’ attitudes–law departments and finance departments typically don’t talk to each other. So how do conversations with law firms go, compared with conservations with corporate CFOs. Daley explained that conversations with law firms are different than those with corporations, because the assets at law firms are human labor, so it can be harder for law firms to leverage that than it is for corporations to leverage abstract assets. Law firms take their time more personally, so the conversation with law firms is more about risk shifting than with cash flows. Legal finance does both of these, but there is different value applied to each depending on what specific assets you value. MacEwen agreed, and followed up with the note that it can be tough for clients to define the value they get from a law firm, and therefore they are always looking for ways to get discounted rates. Litigation funding can play a part in that… in ameliorating the concerns clients have about overpaying for legal services. All in all, there was a lot of ground covered in the first day of the LF Dealmakers conference. And with the plethora of networking opportunities (both digitally and in-person), the event surely struck a powerful chord with all those in attendance.

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Commercial Regulatory Issues

France Issues Decree Regulating Third-Party Funded Collective Actions

By John Freund |

France has taken a significant step in codifying oversight of third-party financed collective actions with the issuance of Decree No. 2025-1191 on December 10, 2025.

An article in Legifrance outlines the new rules, which establish the procedure for approving entities and associations authorized to lead both domestic and cross-border collective actions—referred to in French as “actions de groupe.” The decree brings long-anticipated regulatory clarity following the April 2025 passage of the DDADUE 5 law, which modernized France’s collective redress framework in line with EU Directive 2020/1828.

The decree grants authority to the Director General of Competition, Consumer Affairs and Fraud Control (DGCCRF) to process applications for approval. Final approval is issued by ministerial order and is valid for five years, subject to renewal.

Approved organizations must meet specific governance and financial transparency criteria. A central provision of the new rules is a requirement for qualifying entities to publicly disclose any third-party funding arrangements on their websites. This includes naming the financiers and specifying the amounts received, with the goal of safeguarding the independence of collective actions and protecting the rights of represented parties.

Paul de Servigny, Head of litigation funding at French headquartered IVO Capital said: “As part of the transposition of the EU’s Representative Actions Directive, the French government announced a decree that sets out the disclosure requirements for the litigation funding industry, paving the way for greater access to justice for consumers in France by providing much welcomed clarity to litigation funders, claimants and law firms.

"This is good news for French consumers seeking justice and we look forward to working with government, the courts, claimants and their representatives and putting this decree into practice by supporting meritorious cases whilst ensuring that the interests of consumers are protected.”

By codifying these requirements, the French government aims to bolster public trust in group litigation and ensure funders do not exert improper influence on the course or outcome of legal actions.

Case Developments Commercial

Privy Council to Hear High-Profile Appeal on Third-Party Funding

By John Freund |

The United Kingdom's Judicial Committee of the Privy Council is set to hear a closely watched appeal that could have wide-ranging implications for third-party litigation funding in international arbitration. The case stems from a dispute between OGD Services Holdings, part of the Essar Group, and Norscot Rig Management over the enforcement of a Mauritius-based arbitral award. The Supreme Court of Mauritius had previously upheld the award in favor of Norscot, prompting OGD to seek review from the Privy Council.

An article in Bar & Bench reports that the appeal is scheduled for next year and will feature two prominent Indian senior advocates: Harish Salve KC, representing Norscot, and Nakul Dewan KC, representing OGD. At issue is whether the use of third-party funding in the underlying arbitration renders the enforcement of the award improper under Mauritius law, where third-party litigation funding remains a legally sensitive area.

The case is drawing significant attention because of its potential to shape the international enforceability of funding agreements, particularly in light of the UK Supreme Court's 2023 PACCAR decision. That ruling dramatically altered the legal landscape by classifying many litigation funding agreements as damages-based agreements, thereby subjecting them to stricter statutory controls. The PACCAR decision has already triggered calls for legislative reform in the UK to preserve the viability of litigation funding, especially in the class action and arbitration contexts.

The Privy Council appeal will test the legal boundaries of funder involvement in arbitration and may help clarify whether such arrangements compromise enforceability when judgments cross borders. The outcome could influence how funders structure deals in jurisdictions with differing attitudes toward third-party involvement in legal claims.

Case Developments Commercial

Banks Win UK Supreme Court Victory in $3.6B Forex Lawsuit

By John Freund |

Several major global banks, including JPMorgan, UBS, Citigroup, Barclays, MUFG, and NatWest, have successfully blocked a £2.7 billion ($3.6 billion) opt-out collective action in the UK’s Supreme Court. The proposed lawsuit, led by Phillip Evans, aimed to represent thousands of investors, pension funds, and institutions impacted by alleged foreign exchange (forex) market manipulation.

An article in Yahoo Finance reports that the case stemmed from earlier European Commission findings that fined multiple banks over €1 billion for operating cartels in forex trading. Evans’ action, filed under the UK’s collective proceedings regime, sought to recover damages on behalf of a wide investor class. However, the Supreme Court upheld a lower tribunal’s decision that the claim could not proceed on an opt-out basis, requiring instead that individual claimants opt in.

The judgment emphasized the insufficient participation rate among potential class members and found that an opt-out mechanism was not appropriate given the specifics of the case. Justice Vivien Rose, delivering the court’s opinion, noted that while individual claims might have merit, the representative structure lacked the cohesion and commitment necessary to justify a mass claim. As a result, the banks have succeeded in halting what would have been one of the largest collective actions in the UK to date.