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Commercial Deals

LF Dealmakers Panel: Ask the Experts: An Insider’s Approach to Getting the Best Deal

September 27, 2023

LF Dealmakers Panel: Ask the Experts: An Insider’s Approach to Getting the Best Deal

Ted Farrell, Founder of Litigation Funding Advisors moderated a panel which included Fred Fabricant, Managing Partner of Fabricant LLP, Molly Pease, Managing Director of Curiam Capital, and Boris Ziser, Partner at Schulte Roth and Zabel. The topics covered in this panel discussion were:
  • Getting up to speed on funding & insurance products
  • How to fast track diligence and deal with exclusivity
  • Negotiating key terms and spotting red flags
  • Benchmarking numbers & making the waterfall work for you
The topic of insurance came up first. Molly Pease began the discussion by noting that it isn’t always the case that funders are looking to lower risk in every situation. “It’s not always the case that we’re looking to minimize risk with insurance, because that comes with a cost,” Pease noted. “We don’t necessarily want to cut into our return, so there has to be a good fit for the insurance product.” The moderator, Ted Farrell then pointed out that starting a litigation funder isn’t exactly about lowering risk.  So, risk mitigation is important, but not the primary driver of investment decision making. Boris Ziser agreed, yet noted how insurance opens the door to lot of other investors.  “More than half of our mass tort deals have insurance,” said Ziser, “with either the entire deal or a tranche of deals being insured.” Getting wrapped by a single A-rated carrier allows certain investors to participate in the investment. On the issue of judgement preservation in the IP space, Fred Fabricant explains that in the patent space, he hasn’t seen a lot of insurance products in the pre-judgement section of the case. “There are too many uncertainties, and it is very hard to assess the risk in this phase of the case.”  Fabricant is looking forward to insurance products in this phase. “In post-judgement, much easier for insurance to assess the risk, because you’ve eliminated lots of uncertainties.”  For his part, Fabricant is interested in insurance products to mitigate risk, especially in portfolio funding cases, though he hasn’t had much experience with insurance products yet. Further topics discussed included exclusivity (Fred Fabricant noted he doesn’t shop deals between funders, in order to maintain long term relationships), funder communication with clients (funders want to move just as quickly or even more quickly than lawyers and claimants—the process can be slow sometimes if claimants need to vet whether the terms are appropriate), and funder due diligence (it’s always better to be upfront about the risks of a case, since the funder will find those out eventually anyway—and every case has risks, no sense in pretending you have a panacea of a legal claim). In the end, it was an expansive panel discussion that covered a range of topics pertinent to securing a litigation funding deal.

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Commercial

WinJustice Sees MENA Litigation Funding Go Mainstream by 2026

By John Freund |

Litigation funding in the Middle East and North Africa is expected to move decisively into the mainstream by 2026, as regulatory clarity, arbitration reform, and growing commercial awareness reshape how disputes are financed across the region. What was once viewed as a niche or unfamiliar concept is increasingly being recognized as a practical tool for managing risk, unlocking claims value, and improving access to justice in complex commercial matters.

An article in WinJustice Knowledge Hub outlines how litigation funding is evolving into a recognized asset class within the MENA legal ecosystem. The piece highlights how improved regulatory environments and more sophisticated arbitration frameworks are helping normalize third-party funding, particularly in international arbitration and cross-border disputes. Claims are increasingly assessed not simply as legal battles, but as financial assets that can be monetized and strategically managed. This shift is especially relevant for businesses facing capital constraints or seeking to preserve cash while pursuing high-value disputes.

The article also emphasizes the role of localized expertise in accelerating adoption. WinJustice positions itself as a regional player focused on aligning international funding practices with local legal cultures, court systems, and arbitration centers. By working closely with regional law firms and dispute resolution institutions, funders are helping bridge the gap between global capital and local claimants. Insolvency-related disputes and asset recovery cases are identified as particular areas of growth, reflecting broader economic and restructuring trends across the region.

As litigation funding becomes more familiar to courts, counsel, and corporate clients, the MENA market appears poised for accelerated growth. Increased competition among funders and greater sophistication among claimants may also lead to more standardized pricing and structures.

Commercial

Legal Firm Pogust Goodhead Flags Financial Uncertainty

By John Freund |

Pogust Goodhead, the high-profile claimant law firm behind a number of major group actions, has warned of material uncertainty over its ability to continue as a going concern after publishing long-overdue financial accounts. The disclosure adds another layer of scrutiny to a firm that has been at the centre of some of the largest and most complex funded claims currently working their way through the courts.

An article in City A.M. reports that Pogust Goodhead filed its accounts for the year ending December 31, 2022 well past the statutory deadline, with the documents including a statement from directors acknowledging significant financial uncertainty. According to the filing, the firm remains dependent on securing additional funding and successfully progressing large-scale litigation in order to meet its obligations as they fall due.

The accounts show that Pogust Goodhead continues to operate at a loss, reflecting the capital-intensive nature of large group actions that can take years to reach resolution. The firm has been involved in headline cases, including environmental and consumer claims, where substantial upfront legal costs are incurred long before any recovery is realised. Directors noted that delays, adverse rulings, or difficulties in accessing external capital could materially affect the firm’s financial position.

Despite these warnings, the firm stated that it is actively engaged with funders and other stakeholders and believes there is a reasonable prospect of obtaining sufficient support to continue operations. The accounts were prepared on a going concern basis, although auditors highlighted the uncertainty as a key area of emphasis rather than issuing a qualification.

The disclosure comes at a time when claimant firms and their funders are facing heightened scrutiny from regulators, politicians, and critics of litigation finance. Financial transparency, funding arrangements, and risk allocation between law firms and third-party capital providers are increasingly under the spotlight, particularly in the context of large, cross-border group actions.

Commercial Regulatory Issues

New Litigation Finance Trade Group Aims to Counter Hill Attacks

By John Freund |

A new trade association has launched with the goal of giving the litigation finance industry a stronger and more coordinated voice in Washington as lawmakers renew scrutiny of third-party funding. The American Civil Accountability Alliance has been formed to push back against what its founders describe as growing political and legislative hostility toward litigation finance, particularly on Capitol Hill.

An article in Bloomberg Law reports that the alliance was announced in early January by lawyers Erick Robinson and Charles Silver, who say the organization will focus on educating lawmakers and policymakers about the role litigation funding plays in promoting access to justice. According to the founders, third-party capital allows plaintiffs to pursue complex and costly claims that would otherwise be financially out of reach, helping to balance disparities between individual or corporate claimants and well-resourced defendants.

The group is launching at a time when litigation finance has faced an uptick in proposed regulation. In 2024, Senate legislation nearly imposed a steep tax on litigation funding profits, a proposal that funders warned would have severely damaged the industry had it passed. Although that measure was ultimately removed from a broader legislative package, additional proposals continue to circulate in Congress, including bills aimed at mandating disclosure of funding arrangements and restricting foreign investment in U.S. litigation.

The American Civil Accountability Alliance plans to position itself as an active counterweight to these efforts. The organization intends to hire a Washington-based lobbyist and expand its membership beyond funders to include law firms, litigators, and other stakeholders involved in the civil justice system. In doing so, it joins the International Legal Finance Association as one of the few organized advocacy groups representing the industry’s interests at the federal level.