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Key Takeaways from LFJs Digital Event: Litigation Finance: What to Expect in 2024

On February 8th, 2024, Litigation Finance Journal hosted a special digital event titled ‘Litigation Finance: What to Expect in 2024.’  The event featured Gian Kull, Senior Portfolio Manager at Omni Bridgeway, David Gallagher, Co-Founder of LitFund, Justin Brass, Co-CEO and Managing Director of JBSL, and Michael German, Co-Founder and CIO at Lex Ferenda. The event was moderated by Peter Petyt, founder of 4 Rivers.

The discussion covered a range of topics pertinent to the litigation funding space. Below are some key takeaways from the event:

Which areas are you particularly interested in investing in over this coming year? 

MG: There is a supposition that this industry will continue to grow in 2024. All of the indicators suggest that the industry will continue to grow–nearly all of the funders are funding bankruptcy-related cases, and three quarters are funding patent cases. Those are areas of interest to us, and I think that will continue to make sense, given the types of commercial cases they are – complex cases that require significant amounts of attorney time and defendant time,  and yield significant costs to the litigaiton.

JB: We’re going to see a continued expansion into the mass arbitration space. That is something that has been coming up with more frequency. Mass torts has been staying quite busy. And where we see a lot of potential is with the evolution of the secondary market. There are a lot of funders coming up with maturing cases, and it makes sense for those funders to redeploy that capital into other opportunities – not necessarily exit that case – but just sell a minority stake or a portion of it. We that in traditional fixed income classes, so we think that is going to continue in the funding market as well.

Are you seeing any kind of appetite to invest in jurisdictions you haven’t previously invest in? Have some jurisdictions matured to the point where you now will give them a serious look? 

GK: That’s a hard question to ask Omni Bridgeway as a whole, because we try to be in a lot of places. But from my own experience in Europe, we’ve gotten quite comfortable in the Netherlands, we have a very large investment in Portugal. Spain is next on the list. Italy is after that. The jurisdiction I’ve been most disappointed in – aside from the UK with the regulatory issues there – is Germany. For such a large economy, from a commercial collective redress perspective that is a dead end. As we move through Europe, I’ll be watching the regulatory regimes and how those are tested over the coming years.

Are you seeing many requests for monetization of judgements or awards, or is that not an area that you are particularly interested in? 

DG: We’re especially interested in that, largely because my partners have spent a lot of their careers making those types of investments. And just speaking from my own experience, that has always been an important part of the market, and continues to be an important part of the market. I think the availability of judgement preservation insurance makes funding more available and appropriate both on the funder’s side and the client’s side.

In my view, it’s very interesting to see the number of people in the market moving into the insurance space. In my view quite a surprising number – it’s certainly indicative of a trend. LFJ just announced today that Ignite has launched a capital protection insurance resource. So there are a lot of interesting things happening here. Is it still early days for this space, because there are a lot of people moving into it with interest? 

MG: I share the sentiment of having a general level of surprise with how many folks from the litigation finance industry insurance has drawn. From the Lex Ferenda perspective, insurance has proven to be a very expensive option, that ultimately my clients and I don’t feel is worth the cost. But the vast majority of our investments – from an insurer’s perspective – are probably the least good fit, so that’s probably why it’s reflecting in the price.

JB: I think the insurance aspect of litigation finance is here to stay. There will be growing pains along the way. I think even as recently as last week, there were disclosures in the Affordable Care Act fee dispute where the law firm got an insurance policy related to its fee award. What was interesting there, was the law firm was seeking disclosure about the policy, and in essence how it worked. So not only is it new and here to stay, we’re seeing it become public. The risk to early-stage cases is the pricing can be expensive, but what will happen over time, is like anything else, the insurers will be tracking the progress on those cases, and as funders come back as repeat customers, they’ll be looking at you and factoring that relationship into their pricing, just like how a bank factors that into a credit score. I think the best path forward is figuring out how to work together and create a level of transparency and trust, because it’s not going away.

For the full recording of the event, click here.

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Commercial People Moves

LPF Group Appoints Former High Court Judge as Director

By Harry Moran |

In an announcement released earlier this week by LPF Group, the New Zealand litigation funder revealed that it had strengthened its board with the appointment of Judge Robert Dobson KC as a director. Mr Dobson brings a wealth of experience as both a commercial lawyer and judge, having served on the High Court from 2007 to 2020. Mr Dobson briefling returned to the bench as an acting judge on the Court of Appeal in 2022, before returning to his arbitration and mediation practice at Stout Street Chambers.

Phil Newland, founder and director of LPF, said “LPF is delighted to have Mr Dobson, a proven jurist with substantial legal and judicial experience join the board at such an important time for the development of class action law in New Zealand.”

Commenting on his new role, Mr Dobson stated: “Having observed LPF’s role from a different perspective for many years I now look forward to playing a part in continuing the development of litigation funding and assisting access to justice. I am very much looking forward to joining LPF in helping meritorious cases attract funding in the pursuit of justice.”

In addition to the appointment of Mr Dobson, LPF also stated that the company’s current Chairman, Bill Wilson KC, will be moving to the position of Emeritus Chair to provide continuing support to the funder’s board. Newland praised Wilson’s work during his time at LPF by saying “With Bill’s strong support LPF has assisted many thousands of New Zealanders to achieve redress, including in leading cases such as Mainzeal, Kiwifruit and in the recent CBL and Intueri shareholder class actions.”

Commercial Regulatory Issues

CAT Chairman: “Funding is Essential” for Collective Proceedings Success

By Harry Moran |

Following the publication of the Civil Justice Council’s interim report on litigation funding, industry leaders and experts have opined on the future direction of UK’s funding market. At a recent industry conference, attendees were treated to the views of the head of one of the country’s most important judicial bodies when it comes to litigation funding.

Reporting by CDR covers remarks delivered by Andrew Lenon KC, chairman of the Competition Appeal Tribunal (CAT) at the Global Class Actions Symposium. The keynote speech on the second day of the symposium saw Lenon discuss the current state of the CAT and the involvement of third-party funding, which he described as “essential to the success of the collective proceedings regime.”

Lenon noted that despite the period of uncertainty in the initial aftermath of the PACCAR decision, he suggested that “it seems likely that the UK market for litigation funding and collective proceedings will continue to grow.” Furthermore, Lenon argued that in this growth environment, the result would be the emergence of a “fully functioning competitive market for litigation funding.”

The CAT’s chairman emphasised the tribunal’s role “to clarify the legal principles relating to funding arrangements”, with a focus on ensuring that “collective proceedings do not become a cash cow to funders and lawyers, with minimal returns to class members.” However, in a welcome nod to funders and lawyers alike, Lenon assured that the CAT “will be slow to interfere with funding arrangements freely negotiated between funders and class representatives.”

Whilst he acknowledged that the CAT must keep a close eye to ensure that funder’s fees and legal costs do not spiral out of control, Lenon agreed that it was “entirely legitimate for funders to seek a return on their investment.” In summarising the CAT’s position on interfering with litigation funding agreements, Lenon said that “the tribunal should therefore be slow to second guess.”

Case Developments Commercial

Which? Files £3 Billion Cloud Claim Against Apple, Funded by LCM

By Harry Moran |

The growth of multinational technology corporations has provided years of product innovation and a mass availability of affordable consumer electronics. However, the resulting monopolies that have risen to dominate these markets have also created space for the potential for anti-competitive behaviour that harms consumers. In this environment, it is unsurprising we are seeing more and more claims being brought against these tech giants, with the legal proceedings supported by third-party litigation funders.

An article in TechCrunch covers the announcement of a new collective action being brought against Apple by the UK consumer rights group Which?, representing up to 40 million consumers over allegations that Apple breached competition law by overcharging users of the iCloud service. The opt-out proceedings, valued at approximately £3 billion, claims that Apple abused its monopoly position to favour iCloud over competing cloud storage providers and locking in customers to the iCloud services, thereby preventing them from switching to a competitor and enabling Apple to charge increasingly higher fees.

The application for certification was filed with the Competition Appeal Tribunal (CAT) on 8 November 2024, with the claim seeking to represent any UK consumer who used an iOS device or iCloud services from 1 October 2025 onwards. This nine year time period is particularly relevant as it follows the introduction of the Consumer Rights Act from that date. The claims is being funded by Litigation Capital Management (LCM), with litigation risk insurance having been secured to cover Apple’s legal costs if the claim is not successful

More information about the collective proceedings can be found on the Cloud Claim website.

In response to this new legal action being brought, Apple spokesperson Tom Parker provided the following statement: “Apple believes in providing our customers with choices. Our users are not required to use iCloud, and many rely on a wide range of third-party alternatives for data storage. In addition, we work hard to make data transfer as easy as possible — whether its to iCloud or another service. We reject any suggestion that our iCloud practices are anticompetitive and will vigorously defend against any legal claim otherwise.”