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  • An LFJ Conversation with Eric Schurke, CEO, North America, Moneypenny
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Key Takeaways from LFJs Digital Event: Litigation Finance: What to Expect in 2024

February 12, 2024

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

An LFJ Conversation with Eric Schurke, CEO, North America, Moneypenny

Below is our LFJ Conversation with Eric Schurke, CEO, North America at Moneypenny.

Eric Schurke is CEO, North America at Moneypenny, a global leader in customer conversations. He is passionate about the intersection of people, communication and technology, and how businesses can use AI to improve customer experience without losing the human judgment and empathy that build trust. He regularly writes and speaks on customer experience, AI and people-first leadership.

Moneypenny's consumer research found that 38% of people aren't comfortable using AI for any legal communication, rising to 51% among Baby Boomers. For funders and the firms they back, where is the line between what AI should handle at intake and what still needs a person on the phone?

I don't think the answer is to draw a fixed line between AI and people. The key is designing an intake process that understands when one should give way to the other.

AI can be incredibly useful at the beginning of an enquiry. It can answer straightforward questions, gather basic information, establish the reason for contact, capture key details and make sure an enquiry reaches the right place quickly. Those are all areas where speed and consistency can improve the experience.

But legal and funding conversations aren't always straightforward. Someone may be worried, confused or dealing with a difficult situation, and there will be moments when they want reassurance or need to explain something that doesn't fit neatly into a predefined process. That's where a person becomes essential.

Our research is a reminder that businesses can't assume everyone is comfortable with AI. The best systems give people choice and make the transition to a human seamless, with the context already captured so the claimant doesn't have to start again.

For me, the principle is simple: use AI for speed and structure, and people for judgment, reassurance and trust.

You've argued that funders often win or lose an opportunity before case review even begins. What actually happens in those first few minutes of contact that determines whether a claimant stays in the process?

Those first few minutes answer some very basic but important questions for the person making contact: Have I reached the right place? Does this organization understand what I need? Is someone taking me seriously? And what happens next?

Good intake needs to gather enough useful information to move an enquiry forward without making that first interaction feel like an interrogation. That's why I think first contact deserves more attention. It's not simply an administrative stage before the "real" work begins; it's where trust and momentum start to form.

If the experience is slow, confusing or impersonal, a claimant may disengage before the funding team has even had an opportunity to assess the case. Get it right, and the claimant understands the next step while the funder has the context needed to progress the enquiry.

Most intake technology is sold on volume - enquiries handled, calls deflected, hours saved. Why are conversion and client outcomes the better measures, and what does a funder lose by optimizing for the wrong one?

Volume tells you how busy the system is. It doesn't necessarily tell you whether it's working.

You could automate thousands of interactions and reduce handling time considerably, but if good enquiries are dropping out, information is incomplete or people are having to contact you again because nothing was resolved, you've created efficiency on paper rather than value for the business.

I'd ask: Did the enquiry progress? Was the right information captured? Did it reach the right person? Was unnecessary follow-up avoided?

That's the real ROI of a conversation. Passing a message is activity; gathering what's needed for the next stage creates progress. For funders, optimizing purely for volume risks making the top of the funnel look efficient while valuable opportunities are being lost underneath it.

There is a wider lesson here for AI, too. We're seeing businesses invest heavily in technology without always being clear about the outcome they're trying to improve. That's where an AI value gap can emerge; when adoption increases, but the commercial return doesn't necessarily follow.

Consumer legal funding is drawing more state-level regulation in the U.S., much of it centered on disclosure and how claimants are communicated with. How should that shape the way a funder designs an AI-assisted intake process?

It makes clear boundaries and good governance even more important.

I'm not a lawyer, so I wouldn't tell funders how to interpret individual state requirements, but from a customer communication perspective, AI should make a compliant process easier to follow, not harder to understand.

Funders need to define what an AI system can say and do, what information it can collect and when human involvement is required. If a conversation involves important disclosures, nuanced questions or judgment, there should be a clear escalation path.

Technology can support consistency, but it shouldn’t remove human oversight. In a regulated environment, knowing what your AI shouldn’t do can be every bit as important as knowing what it can. I’d build the guardrails at the beginning rather than adding them after deployment.

Looking out two to three years, what does a well-run intake operation at a litigation funder look like, and which parts of it do you expect will still be human?

I think the best intake operations will feel simpler to the claimant, even though the technology behind them will be more sophisticated.

AI will increasingly handle predictable work: answering routine questions, gathering and structuring information, identifying missing details, scheduling next steps and routing enquiries with the right context. It will also work behind the scenes, reducing administration and helping people find information quickly.

What won't disappear is the human role at the moments that matter most. When somebody has a complicated story, is uncertain about the process, needs reassurance or simply doesn't fit the expected pattern, judgment and empathy will remain essential.

So, I don't see the future as AI-led or human-led. It will be intelligently blended. The best technology will almost disappear into the experience; the claimant will simply feel understood and know they're moving forward.

Commercial

Burford Prices Secured Notes at 8% as It Swaps $400M of 2028 Debt for $300M Due 2029

Burford Capital has set the terms on the refinancing it launched at the start of the week, pricing $300 million of senior secured notes at a coupon of 8.000% and locking in the cost of retiring its nearest maturity.

As reported by PR Newswire, the notes are due 2029 and will be issued by Burford Capital Global Finance LLC, an indirect wholly owned subsidiary. Burford Capital Limited is guaranteeing the paper, which is secured on a senior lien basis by substantially all of the issuer's assets and by the capital stock of certain subsidiaries, subject to exceptions.

The pricing carries a clear message about the funder's cost of capital. The 8.000% coupon on secured paper sits well above the 6.250% Burford is paying on the unsecured 2028 notes it is redeeming, and the company is putting up collateral to get there. Against that, the transaction takes $100 million of gross debt off the balance sheet, since net proceeds plus cash on hand will retire all $400 million of the 2028 notes.

The offering is expected to close on September 17, subject to customary conditions, with redemption of the 2028 notes to follow as soon as practicable afterwards.

The notes are being placed privately and have not been registered under the US Securities Act, with distribution limited to qualified institutional buyers under Rule 144A and to non-US persons under Regulation S, in each case also qualified purchasers under the Investment Company Act.

Commercial

Tata Power Loss in Singapore Puts Arbitrator Disclosure of Funder Ties Under Scrutiny

A Singapore ruling upholding a US$490.32 million arbitration award against Tata Power is drawing attention across the arbitration bar for what it says about how far arbitrators must go in disclosing their connections to third-party funders.

As reported by the Deccan Chronicle, the Singapore International Commercial Court on August 26 dismissed all three of Tata Power Company Limited's applications challenging the award, which was issued in favour of Kleros Capital Partners along with legal costs and interest. Kleros pursued the claim with litigation funding from Omni Bridgeway.

Tata Power argued that two members of the tribunal, Prof Lawrence Boo and Stuart Isaacs KC, should have disclosed their appointments in other arbitrations involving Omni Bridgeway-funded parties. It also pointed to Prof Boo's professional and personal association with Mark Hughes, a member of Omni Bridgeway's investment committee.

The court rejected the apparent bias allegations, holding that undisclosed appointments in unrelated matters did not establish bias and that where the circumstances did not give rise to apparent bias, there was no need to decide separately whether a disclosure obligation had been breached. It also declined to treat third-party funders as parties for disclosure purposes.

"How far should arbitrators be required to disclose professional relationships with parties, lawyers and third-party funders, particularly when litigation financiers have economic interests in the outcome?" asked finance expert Biswanth Pradhan, framing the wider question the case raises.

Tata Power has indicated it will appeal to the Singapore Court of Appeal.