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Implications of Portfolio Financings on Litigation Finance Returns

The following article is the first in an ongoing column titled ‘Investor Insights.’ 

Brought to you by Ed Truant, founder and content manager of Slingshot Capital, ‘Investor Insights’ will provide thoughtful and engaging perspectives on all aspects of investing in litigation finance. 

Executive Summary

  • Portfolio financings represent as much as 62% of all US commercial litigation finance investments
  • Strong growth trend for Law Firm and Corporate portfolios
  • Law firms recognize the inherent value in incubating portfolios
  • Not prevalent in non-contingent fee jurisdictions

Investor Insights

  • Potential effect of reducing overall investor returns relative to a portfolio of single case risks
  • Investors benefit from better risk-adjusted returns than single case investing
  • Cross-collateralized nature significantly reduces risk & shifts value to law firm
  • Portfolio financings may limit upside potential for investors
  • Review the portfolio composition (single vs. portfolio), past and future, to set return expectations.

One of the most significant trends in litigation finance for fund managers over the last few years has been the strong trend toward “portfolio financings”. Litigation finance can be broadly segmented between single case investments and portfolio financing investments. Single case is a reference to the provision of litigation finance to a single litigation, the outcome of which is completely dependent on the idiosyncratic case risk and binary litigation process risk.  Portfolio financing is a reference to the aggregation and cross-collateralization (typically) of a portfolio of cases, whether Law Firm or Corporate, whereby the results are determined by the performance of the portfolio as opposed to a single case. The trend has been so significant, that according to WestFleet’s 2019 Buyer’s Guide, Law Firm portfolio financings now account for 47% of capital commitments and Corporate portfolios account for 15% of commitments, for an aggregate of 62% of the commitments of the US industry.

Why is Portfolio Financing Growing So Quickly? 

  1. The primary growth driver of portfolio financings is that the industry, arguably, started in the area of single case financings and is now evolving its offerings into a more complex and larger area of litigation finance. It is typical for an industry to begin with the financings of single exposures, and then as the industry gets more comfortable and gains deeper experience, it evolves into other larger applications like portfolio financing.
  2. The second driver is that as litigation funders have expanded their capital base, they have had to look further afield in terms of where they can effectively invest their capital at scale. To this end, portfolio financings are an ideal way for litigation funders to put large amounts of capital to work quickly and in a better risk-adjusted way than undertaking the laborious task of assembling a series of single case investments into a portfolio.
  3. One of the knocks against litigation finance is a low degree of capital deployment. Managers are motivated to reduce risk by slowly investing capital into the case in a measured way so as to mitigate loss of capital. Unfortunately, this negatively impacts the amount of capital they deploy and is inversely proportional to the effect their management fees have on returns. Portfolio financings, on the other hand, allow litigation funders to commit large amounts of capital and also expedite the deployment of capital, as they typically replace dollars that have been deployed (actual or notional) previously by the law firm. One could view a portfolio as a series of cases that have been ‘incubated’ by the law firm, and are now ready to be invested in by a litigation funder.
  4. Law firms have, astutely, come to realize there is value in (i) originating cases, arguably one of the most difficult and expensive services litigation funders provide, and (ii) applying modern portfolio theory to a series of cases and cross-collateralizing the pool, both to the benefit of the law firm. Progressive law firms married the new availability of large amounts of capital with the value inherent in their incubated portfolios and parlayed that into significant portfolio financings at a reasonable cost of capital, thereby capturing some of the economics for themselves.
  5. As awareness for litigation finance has grown throughout the legal community, awareness has also grown for plaintiff bar firms with large portfolios of cases. This market has also evolved and extended into corporate portfolios (LCM, an Australian litigation finance manager, is actively pursuing corporate portfolios). Accordingly, the increased awareness of the industry in general has also increased awareness for portfolio financing opportunities.

What Does it All Mean for Investors in the Asset Class?

The following quote from Burford’s 2018 capital markets event sums it up nicely:

“When we moved from single cases to portfolio investments, people wondered whether returns would decline, but they went up”

This statement suggests that on a risk-adjusted basis, portfolio financings deliver superior outcomes. However, when you look at Burford’s return profile over a long period of time, you will see that relatively few single case investments contributed to their overall multiple of capital, with the Pedersen & Teinver claims being considerable contributors. In fact, the size of the gross dollar returns of these single case investments dwarfs the rest of the portfolio and skews the overall results. Burford makes the point in their disclosures that removing these outliers disrupts the core of their strategy, which is more akin to venture capital. As with all portfolios, one needs to assess the outliers. Yet having witnessed a large number of portfolio results, I would suggest the return profile of a portfolio is more aligned to the approach, strategy, size and nature of cases in which the manager has chosen to invest, as opposed to the notion that portfolio financings produce inherently superior results than investing in a cross-section of single cases. Some funders produce very consistent results in terms of returns and duration, whereas other strategies are more volatile; it just depends on what risk profile you are willing to accept (i.e. are you looking for venture capital or leveraged buy-out type returns).

I think it is fair to say that the public domain lacks enough data to determine whether portfolio financings are better risk-adjusted returns than a diversified portfolio of single cases. However, when you consider that most portfolio financings are cross-collateralized, this single feature does have a significant impact on risk. The question then becomes how much return does the Law Firm or Corporation extract for delivering a fully originated portfolio with cross-collateralization features.

I would expect that over a large portfolio of transactions, portfolio financings will outperform in terms of returns in relation to volatility, and that single cases will outperform in terms of returns, but at the expense of higher volatility. The other aspect that is difficult to control in comparing results of two sets of portfolios is whether the nature of the cases (case type, life cycle, jurisdiction, size, etc.) are common across the single case control group and the portfolio financings group.

We may never know the answer, but logic dictates that portfolio financings should be lower returning, lower volatility investments, as compared to a portfolio of single cases – the key difference being the cross-collateralization feature.

Investor Insights

When reviewing fund manager results one should look closely at the composition of the portfolio to understand what portion is being derived from portfolios compared to single cases.  It will also be important to note the trending in these case types.  If the manager is scaling its operations, as many currently are, their motivations are to deploy large amounts of capital quickly in large portfolios with lower risk.  While this is a prudent approach for the manager, one then has to determine whether the historic return profile based on a portfolio of single case exposures is indicative of a future portfolio which will be mainly comprised of portfolio financings.  The portfolio financings will have a different risk-reward dynamic and so investors will need to model their return expectations accordingly.  Either way, I expect the return profile for litigation finance to remain robust both in the areas of single cases and portfolios and continue to believe that diversification is a key success factor to prudent investing in the commercial litigation finance asset class.

Edward Truant is the founder of Slingshot Capital Inc. and an investor in the consumer and commercial litigation finance industry.

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Commercial Regulatory Issues

Funders Assess Challenges and Opportunities in 2025

By Harry Moran |

Leading funders in the US and UK have been asked to identify the challenges that they are facing, as well as the opportunities they are looking towards in 2025. Respondents included senior executives at Omni Bridgeway, Therium, Parabellum Capital, Harbour Litigation Funding, Balance Legal Capital, Burford Capital, and Bench Walk Advisors.

An article in Legal Business explains that the continued calls for tighter regulation and oversight of litigation finance were top of mind for many of the funders interviewed. This was particularly highlighted in the United States, where opposition to third-party funding was characterized by Therium’s Neil Purslow as “a hostile approach to the industry from US corporates”. Matthew Harrison of Omni Bridgeway and Dai Wai Chin Feman from Parabellum were both clear in saying that the actual regulators are not inherently adversarial towards funders, with Feman stating that “there is a lot of noise but there is always noise” from those who would seek to restrict third-party funding.

Meanwhile, UK funders are growing increasingly frustrated with the new government’s gradual approach to resolving the impact of the Supreme Court’s PACCAR decision, as the industry must now wait until the completion of the Civil Justice Council’s report next year. Purslow lamented the government’s inaction and pointed towards the previous parliament’s Litigation Funding Agreements (Enforceability) Bill as the obvious solution, arguing that “there was a fix available and it could and should be done”. Oliver Hayes from Balance Legal Capital similarly described the current situation as “undesirable”, but expressed hope that “the government provides a fix which clarifies the position and resolves the questionable challenges being run by defendants around the legality of funding agreements.”

Looking ahead to the opportunities open to funders, Omni Bridgeway’s Harrison suggested that the perception of funding has shifted away from only being a solution for ‘David versus Goliath’ situations, as “many CFOs, GCs, and big firms understand that litigation finance is a very valuable risk and cost mitigation tool.” As funders continue to look to diversify their investments, Mark King at Harbour noted that in the UK, “we are seeing an increased interest in credit finance facilities with law firms”.

Commercial Regulatory Issues

CJEU Judgment Prohibits Outside Investment in Law Firms

By Harry Moran |

A recent judgment from the Court of Justice of the European Union (CJEU) ruled that EU member states can block law firms from accepting external investment in order to protect lawyers’ independence and comply with their professional obligations. The court found that EU directives governing the freedom of establishment and free movement of capital, “must be interpreted as not precluding national legislation” that prohibits third-party ownership of law firms.

Reporting in Legal Futures explains that the ruling arose following preliminary questions submitted by a German court which was overseeing a dispute between law firm Halmer Rechtsanwaltsgesellschaft and the Rechtsanwaltskammer München (Munich Bar Association). Halmer had informed the Munich Bar Association that it had sold 51 of its 100 shares to an Austrian company called SIVE Beratung und Beteiligung GmbH (SIVE). The bar association responded by informing HR that the transfer of shares was prohibited under the German Federal Lawyers’ Code, and subsequently revoked Halmer’s registration with the bar association. 

The Court of Justice’s ruling on these questions found that it was permissible for member states to block this kind of outside investment, noting that “economic considerations focused on a purely financial investor’s short-term profit could prevail over considerations guided exclusively by the defence of the interests of the law firm’s clients.” André Haug, vice-president of Germany’s Federal Bar Association, welcomed the European court’s decision and highlighted that its ruling concurred with the German government’s position that “the ban on third-party ownership is justified in order to guarantee the independence of lawyers.”

The case that came before the court was of sufficient significance that it attracted attention from member states across the continent, with observations submitted on behalf of the German, Spanish, French, Croatian, Austrian and Slovenian Governments.

The CJEU’s full judgment can be found here.

Announcements Commercial People Moves

Delta Capital Partners Welcomes Accomplished Professionals to C-Suite

By Harry Moran |

Delta Capital Partners Management, an SEC registered investment adviser specializing in litigation and legal finance, is pleased to announce as additions to the firm Jason Searfoss as Chief Financial Officer, Elinoar Sofer as Chief Operations Officer, and Michael Ouliel as Chief Intelligence Officer.

Mr. Searfoss will be responsible for Delta’s finance, accounting, and administrative functions and will oversee all capital market activities, tax and valuation matters. Ms. Sofer will oversee the day-to-day operations and management of Delta, while Mr. Ouliel will assist with business intelligence activities in the firm’s management and monitoring of the cases in its portfolio or under consideration for investment.

Mr. Searfoss, an advisor to numerous startup and growth-stage technology companies, is a Cofounder of and served as Chief Financial Officer and Chief Investment Officer of Boomtown, a leading technology startup accelerator with more than 200 portfolio companies. A veteran of the litigation finance industry, Mr. Searfoss was also the founding Chief Financial Officer, a General Partner, and member of the Investment Committee of Longford Capital, a leading litigation funder. “I have known and worked closely with Chris DeLise and the Delta team for well over a decade and I am excited about the future of the organization. Litigation finance is an attractive and evolving asset class, and Delta’s strengths stand out in the industry,” said Searfoss.

Prior to joining Delta, Ms. Sofer previously served as the Chief Operating Officer of BlackSwan Technologies, a leading global technology AI startup. In this capacity, she scaled the company across six subsidiaries within the US, EMEA and Asia and successfully raised capital and secured valuable commercial partnerships with leading Fintech companies. “I am thrilled to be joining the very talented team at Delta and I am looking forward to collaborating with Chris DeLise and the senior team in building on their ongoing success and executing Delta’s ambitious growth plans,” said Ms. Sofer.

Before his tenure at Delta, Mr. Ouliel founded and acted as the CEO of Ripples Homeland Security Group. Ripples was a global technology company with a focus on building large and complex intelligence and investigation systems for governments and large multinational enterprises globally. Mr. Ouliel was also the founder and CEO of BlackSwan Technologies, where he was named among the Top 50 AI CEOs of 2021 by Technology Innovators magazine. In recent years, Mr. Ouliel has been acting as a special advisor to multiple governments and federal agencies in the area of technology, primarily focused on intelligence, counter terror, HUMINT, and extremism. Mr. Ouliel expressed that he is “thrilled and excited to join the excellent team at Delta” and that the opportunity presented an “outstanding value proposition and business model” for which his “skills and expertise will bring unique opportunities to the litigation funding market.”

Christopher DeLise, Delta’s founder, CEO and Co-CIO stated that he is “very proud to have such esteemed professionals join Delta as it is continues its growth and development in dynamic markets and verticals. The litigation finance industry has significantly changed over the past 14 years, which necessitates bringing on board very seasoned professionals to best enable the firm to adapt and profit from these developments. I have known each of Jason, Michael and Elinoar for over a decade, frequently collaborating on one-off projects, and therefore it made great sense to have them join the Delta team on a permanent basis as we embark on our latest set of growth initiatives and new product offerings.”

About Delta

Delta Capital Partners Management LLC is a US-based, global asset management firm specializing exclusively in litigation and legal finance, judgment and award enforcement, and asset recovery. Delta creates bespoke financing solutions for professional service firms, businesses, governments, financial institutions, investment firms, and individual claimants to enable them to investigate claims, pursue litigation or arbitration, recover assets, enforce judgments or awards, and more effectively manage their risks, cash flow, and capital expenditures.