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Commercial Deals

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 Special Features

LFJ Podcast: Stuart Hills and Guy Nielson, Co-Founders of RiverFleet

By John Freund |

In this episode, we sat down with Stuart Hills and Guy Nielson, co-founders of RiverFleet, a consultancy business specialising in the global Legal Finance market.  

RiverFleet works with clients to help navigate the complexities and idiosyncratic characteristics of the Legal Finance market and make the most of the financial opportunities and risk solutions the market has to offer for business and investment. 

RiverFleet has a highly experienced team, with specialist litigation, finance and structuring, and investment and portfolio management expertise.  They offer a broad range of legal finance services tailor-made for a global client base, including investors, litigation finance funds, claimants, corporates, insolvency practitioners and law firms.

Watch the episode below:

https://www.youtube.com/watch?v=qb1ef7ZhgVw
Commercial Regulatory Issues

Insurers Intensify Offensive Against Litigation Funders

By John Freund |

In a fresh salvo that lays bare the brewing turf war between two sophisticated risk-transfer industries, a cadre of major U.S. insurers is doubling down on efforts to hobble third-party litigation finance.

An article in Bloomberg Law reports that carriers including Chubb, Liberty Mutual, Nationwide and Sentry are leveraging their Washington lobbying muscle—and, critically, their underwriting leverage—to choke off capital flows to funders. Executives have signaled they will refuse to place policies for firms that invest in, or even trade with, outside funders, arguing that those investors fuel “social inflation” and nuclear verdicts that drive casualty-line losses. The aggressive posture follows the industry’s failed push to tack a 40% excise tax on litigation finance profits into the Trump administration’s sweeping budget bill earlier this month.

Yet the campaign has its detractors—even within the insurance ecosystem. Ed Gehres, managing partner at Invenio LLP, calls the stance “logically inconsistent,” noting that insurers themselves underwrite contingent-risk cover that is often purchased by the very funders they now vilify. Marsh McLennan, Lockton and others already offer bespoke judgment-preservation and work-in-progress (WIP) policies that dovetail neatly with funder portfolios. Daniela Raz, a Marsh SVP and Omni Bridgeway alum, underscored that such products can allow litigants to “retain more proceeds than they would in an uninsured litigation-finance transaction,” blurring any bright line insurers try to draw between their own risk-transfer solutions and funder capital.

Insurers’ hard-line rhetoric may complicate capacity-placement for funders and plaintiff firms, but it also highlights litigation finance’s growing systemic relevance. If carriers continue to walk the talk—declining placements or hiking premiums for funder-adjacent risks—expect a rise in alternative instruments (captives, bespoke wrap policies, even reinsurer-backed facilities) and deeper collaboration between funders and specialty brokers to fill the gap. The skirmish could ultimately accelerate product innovation on both sides of the ledger.

Case Developments Commercial

Court Shields Haptic’s Litigation-Funding Files From Apple

By John Freund |

A Northern District of California decision has handed patent plaintiff Haptic Inc. an important procedural win in its infringement fight with Apple over the iPhone’s “Back Tap” feature.

An article in eDiscovery Today by Doug Austin details Judge Jacqueline Corley’s ruling that work-product protection extends to Haptic’s damages analyses and related documents that were shared with a third-party litigation funder during due diligence.

Although Apple argued that those materials might reveal funder influence over strategy or settlement posture, the court held that Apple showed no “substantial need” sufficient to overcome the privilege. The opinion also rejects Apple’s broader bid for a blanket production of Haptic-funder communications, finding the parties had executed robust NDA and common-interest agreements that preserved confidentiality and avoided waiver. Only royalty-base spreadsheets directly relevant to Georgia-Pacific damages factors must be produced, but even those remain shielded from broader disclosure.

Judge Corley’s order is the latest in a string of decisions limiting discovery into financing arrangements unless a defendant can identify concrete, case-specific prejudice. For funders, the ruling underscores the importance of tight contractual language—and disciplined information flows—in preserving privilege. For corporate defendants, it signals that speculative concerns about control or conflicts will not, standing alone, open the door to funder dossiers.