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Legal and Ethical Considerations When Navigating Litigation Finance

By John Freund |

The following post was contributed by Jeff Manley, Chief Operating Officer of Armadillo Litigation Funding

In litigation finance, especially in mass torts and class actions, trust and success hinge on unwavering ethical practice and legal compliance. For attorneys and financial professionals navigating this complex field, a steadfast commitment to upholding ethical standards is not just ideal—it’s imperative. This article delves into the crucial considerations that must guide the intricate relationship between legal funding and professional integrity.

The Importance of Law Firm Independence

Law firm independence is paramount when it comes to funding arrangements, particularly within the complex sectors of mass torts and class actions. The imperative to maintain this independence while engaging with external funding sources necessitates a sophisticated approach to partnership. Firms must ally with financiers who not only understand the legal and ethical implications inherent to such cases but who also value the firm’s autonomy in decision-making processes. A skilled financier can guide firms through the nuances of these arrangements, ensuring that the terms of any financial agreement bolster the firm’s ability to act in its clients’ best interests without external influence. Drafting agreements with a clear delineation of roles and expectations, without compromising the firm’s command over legal strategy, is not solely a matter of due diligence—it’s a strategic endeavor to uphold the integrity and efficacy of the legal services provided.

Managing Conflicts of Interest

Managing conflicts of interest requires a collaborative effort between law firms and their funding partners. Identifying and mitigating potential conflicts at the intersection of funders, firms, and clients necessitates a united approach. Together, firms and funders should conduct thorough reviews of funding arrangements to spotlight areas where interests might diverge, ensuring that neither the firm’s allegiance to its client nor the client’s best interests are compromised. Adopting a joint strategy that aligns with ABA Model Rule 1.7 on conflicts of interest can fortify this alliance. This partnership approach to conflict management might include establishing shared guidelines for conflict checks, mutual disclosures to involved parties, and embedding protective measures in funding agreements that prioritize client outcomes. A cooperative oversight mechanism, possibly in the form of a committee comprising representatives from both the firm and the funder, can serve as a vigilant guardian of ethical integrity and client dedication, fostering a proactive culture of transparency and ethical vigilance.

Crafting of Finance Agreements

Moving into the structuring of financing agreements, it’s vital that financiers and law firms unite to craft solutions (and operating agreements) that are ethically grounded and legally sound, starting with shared due diligence. Both parties engage in a transparent exchange to ensure all legal and ethical considerations are meticulously evaluated, laying a groundwork that prioritizes the client’s best interests and compliance with regulations. The agreement’s structuring phase is an exercise in precision, balancing financial objectives with stringent ethical standards. Following the execution of the agreement, a concerted monitoring effort is essential to ensure ongoing compliance and address any ethical issues proactively. This cooperative stance not only fosters trust and transparency between the financier and the firm but also upholds the dignity of the legal profession and the rights of the clients they serve. This endeavor necessitates guidance from a trusted and sophisticated financier, ensuring that the partnership is built on a foundation of expertise and integrity.

Regulatory Compliance

Navigating this domain requires acute awareness of both state and federal regulations. This environment demands that law firms and financiers possess a deep understanding of the legal intricacies that define their operational landscape. The diversity of regulations across jurisdictions necessitates a partnership with well-respected funders, who bring sophisticated guidance to the table. Their expertise is invaluable in steering through the complexities of compliance, ensuring that practices are not only current but also anticipatory of the legal field’s dynamic evolution.

The future of litigation finance hinges on adaptability to regulatory changes, which are increasingly influenced by the sector’s growing recognition and its impact on access to justice. The call for enhanced clarity in regulations and the push for stringent disclosure practices indicate a trend towards standardization across the board. Law firms, guided by seasoned financiers, must remain vigilant and adaptable, ready to adjust their strategies to maintain compliance and ethical integrity. This proactive stance is crucial not just for navigating today’s regulatory challenges but also for shaping the future of ethical litigation finance.

Conclusion

In the rapidly shifting landscape of litigation finance, the value of a partnership with a well-respected financier cannot be overstated. Such collaborations are critical not only for steering through the regulatory complexities but also for shielding a firm against potential legal liabilities, including malpractice claims. As the industry continues to evolve, the guidance of experienced financiers becomes an indispensable asset, enabling law firms to anticipate changes, adapt strategies, and maintain compliance. This partnership does more than protect; it empowers firms to thrive amidst challenges, ensuring that their commitment to justice and client service is upheld. In the end, the journey through the ethical and regulatory intricacies of litigation finance is one best undertaken with a trusted financier by your side, crafting a future where the legal profession and its principles stand resilient.

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£878M Opt-Out Claim Brought Against Royal Mail, Backed by £10M in Funding 

By Harry Moran |

A new claim has been brought against International Distribution Services, the owner of Royal Mail, over allegations that it ‘prevented competition for bulk mail delivery services’ which in turn led to end-customers being overcharged for these services. The opt-out claim is being brought on behalf of any customers who purchased bulk mail services since January 2024, with an estimated 290,000 potential class members seeking up to £878 million in compensation for these overcharges.

An article in the Financial Times reveals that the application to bring collective proceedings was filed at the Competition Appeal Tribunal (CAT) on Thursday, with the action being led by the Proposed Class Representative, Robin Aaronson and supported by law firm Lewis Silkin. According to the Bulk Mail Claim website, it has secured £10 million in funding from ‘a specialist litigation funder to bring the claim’ and has ‘put in after the event (ATE) insurance to cover its liability to pay Royal Mail’s costs if the claim is unsuccessful.’

In a press release announcing the filing of the claim, Robin Aaronson said:

“Where there has been an abuse of dominant position, as has occurred in this case, it is important that those suffering loss are able to obtain redress. A collective claim is the only fair and efficient form of redress in this case, given that there are hundreds of thousands of affected customers and it would be commercially unviable for them to bring individual proceedings.”

Andrew Wanambwa, Partner in the Dispute Resolution team at Lewis Silkin, also provided the following comment:

“Royal Mail abused its dominant position, resulting in hundreds of thousands of bulk mail customers being overcharged. The purpose of this claim is to hold Royal Mail accountable for its actions and secure compensation for affected customers.”

Responding to the announcement of the filing, Royal Mail confirmed that it had received the application and said, “We consider [the claim] to be without merit and we will defend it robustly.” The draft Collective Proceedings Order can be read here.

Rockhopper Exploration Announces Receipt of Tranche 1 Funds for the Ombrina Mare Monetisation Transaction

By Harry Moran |

Rockhopper Exploration plc is pleased to provide the following update in relation to the monetisation of its Ombrina Mare Arbitration Award (the "Transaction") announced on 20 December 2023.

Having satisfied all precedent conditions to the Transaction as announced on 17 June 2024, the Company confirms that the Tranche 1 payment has been received.

Rockhopper has received €19 million of the €45 million Tranche 1 payment. As previously disclosed, Rockhopper entered into a litigation funding agreement in 2017 under which all costs relating to the Arbitration from commencement to the rendering of the Award were paid on its behalf by a separate specialist arbitration funder (the "Original Arbitration Funder"). That agreement entitles the Original Arbitration Funder to a proportion of any proceeds from the Award or any monetisation of the Award. The balance of €26 million has gone to Original Arbitration Funder in order to fully discharge the Company of all of its liabilities under the agreement with the Original Arbitration Funder. Tranches 2 and 3 of the Award remain payable to Rockhopper upon a successful annulment outcome.

As previously disclosed, success fees of approximately €4 million are owed to Rockhopper's legal representatives if Rockhopper win the claim, meaning liability is established and Italy is required to pay more than a nominal sum in damages (either by way of award or settlement in an amount equal to or more than €25 million).

Following receipt of the Tranche 1 payment, Rockhopper's cash balance is approximately $27 million.

Please refer to the Company's announcement on 20 December 2023 for further details on the Ombrina Mare Arbitration Award. Capitalised terms shall have the same meaning as in the 20 December 2023 announcement.

Samuel Moody, CEO, commented:

"We are delighted to have received the Tranche 1 payment under the Ombrina Mare monetisation agreement.  This cash gives us the strongest balance sheet we have had for a number of years, and we remain confident in the merits of our legal case as we await the decision of the Ad Hoc Panel on the annulment request from the Italian Republic."

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Industry Leaders React to House Committee Hearing on Funding Disclosure

By Harry Moran |

As LFJ covered earlier this week, a recent hearing in the US House Judiciary Committee reignited arguments around the appropriate level of disclosure required when third-party funders are involved in patent lawsuits. Whilst the hearing largely highlighted the arguments in favour of more stringent disclosure requirements, legal professionals and funders are now offering their own differing perspectives on these contentious issues.

An article in IAM looks at last week’s House Judiciary Committee hearing, focusing on the testimonies from witnesses called before the committee and examining the counter-arguments from industry professionals who are opposed to the introduction of excessively broad disclosure rules for litigation funders. As the article explains, the main point of contention around this issue relates to the level of disclosure required, with most third-party funding participants being open to the disclosure of a funder’s identity, but opposed to the disclosure of the financial details of funding agreements.

Erick Robinson, attorney at Spencer Fane, told IAM that mandating disclosure of the particulars of any funding agreement would be incredibly damaging for plaintiffs in patent infringement lawsuits. Robinson argued well-resourced defendants would “run modeling and be able to reverse engineer the budget based on their knowledge of funding agreements”, which would lead to these defendants dragging out the lawsuit to deplete the funder’s budget. Robinson also questioned the justification for providing defendants with this level of detail, claiming that “there's no legitimate reason any defendant should ever get strategic financial information.”

Anup Misra, managing director at Curiam Capital, concurred with Robinson’s arguments and acknowledged that whilst they would be open to allowing a judge to review the funding agreement, “we just wouldn’t want the economics of a funding agreement to be sent to the defence counsel.” Misra went on to question the idea that third-party funding introduces ‘unknown unknowns’ to the court, as it was described by one witness at the hearing. Misra argued that it should be left to the judge in any given case to decide if they require more information around the involvement of funders, suggesting that “if something were to happen during pending litigation, I'm sure those judges would then determine whether they wanted to see a funding agreement.”