Trending Now
LFJ Conversation

An LFJ Conversation with Wieger Wielinga, Managing Director of Enforcement and EMEA, Omni Bridgeway

By John Freund |

Wieger Wielinga is responsible for Omni Bridgeway’s investment origination in (sovereign) awards and judgments globally and its litigation funding efforts both in EMEA and the UK.

Below is our LFJ Conversation with Wieger.

You have been working in the funding industry for over 25 years and are the president of ELFA. In that capacity you are at the forefront of discussion about regulating funding. Can you provide a short summary of the status of the regulatory discussion in the EU at this moment?

Perhaps the starting point here is to understand who wants regulation and why. It appears to Omni Bridgeway that a clear formulation of the perceived problems, and who would benefit from solving them, should take place before moving to the question of solutions and whether regulation is part of that.

Some of the more understandable concerns that were raised as our industry was developing and gaining spotlight over the past years concerned (i) potential conflicts of interest which could unintendedly occur if arbitrators are not aware who is funding one of the parties and perhaps to some extent (ii) the financial standing of funders and their ability to cover their financial obligations.

The issue of conflict of interest is solved by all institutions nowadays requiring disclosure of funders and the issue of financial standing has been tackled by funders associations obliging their members with respect to capital adequacy and audited accounts etcetera. See for istance https://elfassociation.eu/about/code-of-conduct.

Powerful industries like big tech, pharma, and tobacco have faced successful claims from parties who would never have succeeded without the backing of a funder.  That rebalancing of powers appears to have triggered efforts to undermine the rise of the litigation funding industry. Arguments used in the EU regulatory discussion against funding include suggestions on the origin of the capital and principal aims of the funders, often referring to funders coming from the US or “Wall Street”. It is not a proper argument but opponents know a subset of the EU constituency is sensitive to the predatory undertone it represents.

So the suggestion that Litigation Funding is a phenomenon blowing over from the US or at least outside the EU is misleading?

Indeed. What many don’t realize is that litigation funding was well established as a practice for over a decade on the European continent without any issues before UK funders started to become established. Some funders, like Germany’s Foris AG, were publicly listed, while others emerged from the insurance sector, such as Roland Prozessfinanz and later Allianz Prozessfinanz. At Omni Bridgeway, we have been funding cases since the late 1980s, often supporting European governments with subrogation claims tied to national Export Credit Agencies and since the turn of the century arbitrations and collective redress cases. So it does not come “from” the US, or Australia or the UK. It has been already an established practice since the early 90s of the last century, with reputable clients, government entites, as well as multi nationals and clients from the insurance and banking industry.

Only later, as of around 2007, we witnessed the entry of more serious capital with the entry of US and UK litigation funders. Only as of that moment, questions came about champerty and maintenance issues and in its slipstream, a call for regulation and the abovementioned narrative started being pushed.

Another related misunderstanding is the size and growth of the litigation funding industry. It is in my view often overstated. In absolute terms, it remains small compared to other high-risk asset classes like private equity or venture capital. Sure, it is a growing industry and good funders have interesting absolute returns to provide its institutional LPs whilst doing societal good, especially in the growing ESG litigation space, but one should be suspicious of parties that speak of a “hedge fund mecca” or similar incorrect exaggerations.

So what about the actual risk for frivolous or abusive litigation by or due to litigation funders?

We are in the business of making a return on our investments. Because our financing is non-recourse (unlike a loan) we only make a return if the matters we invest in are won and paid out. Whether there is a win is determined by courts and arbitrators and as such out of our hands but you will understand we put in a lot of time and effort to review matters and determine their likelihood of success. Any matter that makes it through our rigorous underwriting process is objectively worth pursuing and is unlikely to be frivolous. That does not mean all matters we invest in are sure winners, but these are matters that deserve the opportunity to be heard and very often our funding is the only way in which that is possible.

So, in response to the argument of abusive litigation I would put the argument of access to justice. It is not uncommon for legal fees in relatively straightforward commercial matters to exceed EUR 1 million, let alone the adverse cost exposure. If we want a society where the size of your bank account isn’t the only determining factor for whether you can pursue your rights, we have to accept funding as a fact of life.

A related argument that continues to be recycled by the opponents of TPLF is that funded party’s need protection against the funders pricing and /or control over the litigation. This is also a misconception, for which there is zero empirical basis. After all these years of funding in the EU, thousands of funded cases, there are no cases where a court or tribunal has indeed decided a funder acted abusively, neither in general nor in this particular respect. This is partly because the interests between funder and funded party are typically well aligned. Off course there is always a slight potential for interests starting to deviate between client and funder with the passage of time, as in all business relationships. These deviations in interest are, however, almost never unforeseeable, and typically as “what ifs” addressed in advance in the funding agreements. Both parties voluntarily enter these agreements and accept their terms. Nobody is forced to sign a funding agreement.

That may be true, but how about consumers, who may be less sophisticated users of litigation funding?

A fair question. However, there are two other realities as well: First, there is already a plethora of consumer protecting rules codified in EU directives and national legislation of member states.[1] Second, consumers tend not to be the direct, individual, clients of third-party litigation funders, as they almost always end up being represented by professional consumer organizations, who in turn have ample legal representation and protect the interest of their claimant group.

Interestingly the European Consumer Organization BEUC has just published their view on litigation funding in a report “Justice unchained | BEUC’s view on third party litigation funding for collective redress”. The summary is crystal clear: “Third party litigation funding has emerged as a solution to bridge a funding gap” and “provides substantial benefits to claimant organisations”. Also: “Assessment of TPLF needs to be evidenced by specific cases.” And “The potential risks related to TPLF for collective redress are already addressed by the Representative Action Directive.”  It concludes by saying “additional regulation of TPLF at EU level should be considered only if it is necessary.”  See https://www.beuc.eu/position-papers/justice-unchained-beucs-view-third-party-litigation-funding-collective-redress.

So what do you think will be the ultimate outcome of the regulatory discussion in the EU and will this impact the Funding market in the EU?

So, in summary, when it comes to European regulation, Europe knows that it is crucial to focus on fostering a competitive environment where innovation thrives, accountability is upheld, and access to justice is ensured. This all requires financial equality between parties, ensuring a level playing field. The EC cannot make policies on the basis of an invented reality, of created misunderstandings. That is why the mapping exercise was a wise decision. We should expect regulation, if any, will not be of a prohibitive nature and hence we do not see an adverse impact to the funding market.

In the meantime, there is this patchwork of implementations of the EU Directive on Representative Actions for the Protection of Consumer Rights. Will funders and investors be hesitant to participate in the EU?

Indeed the EC has left implementation of the directive to the member states and that leads to differences. In some jurisdictions funders will have large reservations to fund a case under the collective regime and in other jurisdictions it will be fine. This is best illustrated by comparison of the implementation in The Netherlands and the one in Germany.

The Dutch opt out regime under the WAMCA rules allows a qualified entity to pursue a litigation on behalf of a defined group of consumers with court oversight on both what is a qualified entity, its management board, the way it is funded and how the procedure is conducted.  Over 70 cases have been filed now in the WAMCA’s short history. The majority of those cases concern matters with an exclusively idealistic goal by the way. Although there is clearly an issue with duration, as it typically takes over 2 years before standing is addressed, the Dutch judiciary is really trying to facilitate and improve the process. Any initial suspicion of the litigation funders is also coming to an end now the industry has demonstrated that its capital comes from normal institutional investors, its staff from reputable law firms or institutions and IRRs sought are commensurate to the risk of non recourse funding. Once the delays are addressed with the first guiding jurisprudence, the process will probably be doing more or less what it is supposed to do. Almost all cases funded under the WAMCA have an ESG background by the way.

By contrast, Germany chose to “implement” the EU Representative action directive by adopting an opt-in system. It too is meant for qualified entities, but it is questionable whether it fulfills the purpose intended by the European Commission. The issue which makes it rather unsuitable for commercial cases is that the funder’s entitlement is capped at ten percent (sic!) of the proceeds from the class action at penalty of dismissal. Here it seems the lobby has been successful. No funder can fund a case under that regime on a non-recourse basis.

So does that mark the end of Germany as a market for funding collective actions and what does it hold for other member states?

No, in practice it means cases will not be financed under this regime. Funders will continue funding matters as they have in the past, avoiding the class action regime of 13 October 2023.  It should serve as a warning though for other member states where discussions are ongoing concerning the implementation of the representative action directive, such as Spain.  Indeed it would have been better if the EC would have given clear guidelines towards a more harmonized set of collective actions regimes throughout Europe.

[1] See, for instance, British Institute of International and Comparative Law, “Unfair Commercial practices (National        Reports)”          (November            2005),  available           at: https://www.biicl.org/files/883_national_reports_unfair_commercial_practices_new_member_states%5Bwi th_dir_table_and_new_logo%5D.pdf. See also, EY “Global Legal Commercial Terms Handbook 2020” (October 2020), available at: https://www.eylaw.be/wp-content/uploads/publications/EY-Global-Legal- Commercial-Terms-Handbook.pdf. Furter, the Belgian Code of Economic Law defines an “abusive clause” as “any term or condition in a contract between a company and a consumer which, either alone or in combination with one or more other terms or conditions, creates a manifest imbalance between the rights and obligations of the parties to the detriment of the consumer”; such clause is prohibited, null, and void (Article VI.84 Belgian Code of Economic Law). Article 36 of the Danish Contracts Act stipulates that agreement can be set aside if they are unreasonable or unfair. Article L.442-1 of the French Commercial Code (applicable to commercial contracts) prohibits significant imbalance provisions, such as a clause that results in one party being at an unfair disadvantage or disproportionately burdened as compared to the other party. Section 242 of the German Civil Code also obliges the parties to abide by the principle of good faith an

About the author

John Freund

John Freund

More LFJ Conversations

View All
LFJ Conversation

An LFJ Conversation with Steve Nober, Founder/CEO of Consumer Attorney Marketing Group

By John Freund |
Steve Nober, the founder and CEO of Consumer Attorney Marketing Group (CAMG), has been a significant force and innovator in the legal marketing industry for over 15 years. Often hailed as the Mass Tort Whisperer℠, Nober earned his reputation through over a decade of spearheading successful mass tort campaigns and fostering close relationships with top handling firms, showcasing unparalleled expertise in the mass tort arena. He is a sought-after speaker, presenting at over 40 conferences annually, across the United States and globally, covering a range of topics, including best marketing practices, ethics in advertising, and litigation funding. Under Nober’s leadership, CAMG has grown into the largest fully integrated legal marketing agency in the United States, steadfastly committed to its core values of ethics first, transparency, innovation, and efficiency. With a remarkable career spanning over 30 years, Steve Nober has demonstrated executive leadership and innovation in marketing, media management, and digital and computer technologies. His experience includes managing mergers and acquisitions, corporate turnarounds, and startups. In the advertising sector, his specialties include direct response marketing, digital and offline advertising, and lead generation strategies, as well as media buying and analysis, particularly focused on the legal sector. Below is our LFJ Conversation with Steve Nober: CAMG breaks down mass tort claims into early, mid and late stage. These are segmented by expected time to settlement, with early being 30-48 months, mid being 18-30 months, and late being 6-18 months.  How does the value-add of CAMG change as cases make their way from early to mid to late stage?   The value CAMG brings to each stage is a bit different and I will explain. The first value proposition CAMG bring to clients for early-stage cases is similar to the answer to your question 3 below in regards the modeling, leveraging historical data, targeting and projecting what the origination costs will look like is key to being ready to jump into a new and early tort. Also, understanding criteria that leadership handling law firms would like to see used to qualify an injured victim is critical to have knowledge before starting.  Also, in this early stage knowing who the key handling law firms that are going to make a move to be in leadership for the various torts is a key decision that needs to be made as all things are set up to begin.   These are all part of the CAMG process to help our clients begin deploying capital into the early stage torts.
I am often referred to as “The Mass Tort Whisperer®” which really means we are usually very early in hearing about early new torts, late-stage torts that may be settling soon, etc.
This information can be traded on so it’s quite valuable as we can help our clients use much of this information to make capital deployment decisions. The value for mid stage is a combination of value we bring for early and some of the value propositions mentioned in late stage. Knowing the handling firms that have been really serious about the tort and in leadership is key.  The modeling financials can get more detailed with projections and less guessing since the tort will have moved from early to mid-stage.  Following the tort activity in the litigation is key to understanding the direction that leadership sees for each tort and how bullish they are is key to an investor deciding to deploy capital for the tort.    Our value for the mid stage is key being the tort is mid-way thru the life cycle and so many variables need to be considered prior to investing. The value of late stage is knowing which law firms would be considered the best handling firm to work with that can maximize settlement values or which firms are in settlement negotiations and can still take more cases would be two good examples. Also, having the data to model out what fallout/attrition looks like with late-stage cases is key since it may be higher than the earlier stages.   The late-stage torts are a great opportunity but financial modeling and picking the right partners are key.  Also, the marketing/origination of cases needs to be handled very precise and almost scientific like to make sure cases can still be acquired at costs that make sense taking the criteria in mind of the possible handling firms.  There’s quite a bit of value we bring to these late-stage campaigns for our clients. At which stage of the case life are you currently finding the most attention from litigation funders?  Where is there the most room for growth?  The most attention goes to late-stage torts due to the projected shorter time to settlement vs. the early and mid-stage torts.  If there’s more capital to spend annually, we see more diversification with the heavy weight still on late stage and smaller percentages of total capital going to the mid and early stages. We educate our clients on costs and risk for each stage tort.  The late stage is typically higher, but risk of a settlement is much lower since it’s a mature tort, there’s more history and analysis that can be done on how the tort has progressed.   The early torts are just emerging or will have recently passed Daubert so being early the costs are much lower and risk a bit higher since the litigation will be early in starting.  Mid stage gives you a bit of all with costs not as high as late stage and risks a bit lower than the torts just starting out.
There are a limited number of injured victims in each tort, and we always need to be careful not to put more capital than we project we can spend, or costs of a case will drive higher pretty fast.
With larger capital clients we are moving into other torts whether late stage as well or mid and early stages to help diversify. One interesting note as we diversify clients is deploying capital into some torts that are closer to personal injury cases vs. traditional mass torts like Asbestos and Sex Abuse as two examples.  The time to settlement in these are closer to what we see in auto accidents being around 18 months, these are interesting torts to diversity capital and see shorter settlement times that some of the longer mass torts. The answer to the question about where room for growth is would be from the early-stage torts in being that there typically has not been a large amount of marketing yet to acquire cases so the possible total cases available would be quite high and with costs being fairly low.   This is usually where we can deploy the most capital vs. the other stages. When it comes to modeling out the expected costs, timeline and return, you look at a variety of factors here.  Can you explain what those factors are, and how do you weight each of those from case to case (is there a standard algorithm, or is the weighting bespoke to each case?)  When modeling out the expected costs, timeline, attrition and projected return, we consider a variety of factors to ensure a comprehensive analysis. These factors can include:
  1. Historical Data: Past performance and outcomes of similar cases provide a baseline for expectations.
  2. Targeting Data: We subscribe to very sophisticated targeting and demographic syndicated services such as Kantar and Neilson.  Once we have targeting details on who the injured victims are, these targeting services help is see which advertising mediums and channels index the highest to reach them.
  3. Active Campaigns: We are typically running active campaigns for most of the more popular mass torts so building up recent cost details is something we are looking at every day to optimize the performance response data which keeps costs of origination lower by being very quick to move capital where response and quality of cases are best and stop the capital spend in areas that are not showing a response that makes sense to continue.  This is Moneyball for Marketing, and I speak about this often at conferences.
  4. Market Conditions: Current trends in the legal market and any external factors that might affect the case.
  5. Attrition or Fallout: This is key with modeling out costs of originating a real quality case.  We watch very close as the tort matures from early to mid to late stage how the fallout or attrition of the new signed case is trending.  Once a claimant is signed with a law firm, some of these will not turn into a case as all of things are verified.  Medical records for example will always have a percentage of cases where there are no medical records or the records show a different injury, etc.  These need to be projected into the modeling at the very beginning and they vary from tort to tort.
  6. Intel from Leadership Firms: Our relationship with firms in leadership allow us to receive regular updates on the estimated timeline and estimated settlement values.
As for the weighting of these factors, it tends to be bespoke rather than algorithmic. Each case is unique, and while we do use historical data and standard metrics as a starting point, the specific circumstances of each case require a tailored approach.  The key metrics are seeing where the full costs are to originate compensable case and what the projected settlement range looks like so the various torts can be compared from an ROI analysis. You provide a wealth of intelligence through your Legal Marketing Index.  What can law firms and litigation funders expect to find there, and how is this intelligence useful?  We publish what we call the Legal Marketing Index or LMI for short and this is what we use to provide some of the data we collect that we share with the industry.  This data is broken down by each mass tort and includes extensive details that we have aggregated from large case volume so the data tends to be spot on as a baseline on what we see and can be expected if a law firm or fund wants to move to be active in a particular tort.  We are publishing date on topics such as injury details, demographics, geographics, case concentration in cities around the country, media details, call details, etc. Some of the intelligence is useful and some just interesting to review.  An example of how the data is critical to know before moving into acquiring cases for a tort would be the following:  If you wanted to acquire hernia mesh cases but knew that only a few manufactures are defendants and the rest of the hernia mesh devices do not make sense hold onto as a case, knowing what percentage of cases of every 1,000 are which manufacturer’s would be key to calculating the real costs of finding the right hernia mesh cases with the right manuf. Product vs. all others not making sense to keep.    People who have had hernia mesh surgeries usually have no idea which manufacture mesh device was used so when signing these cases there is no way to know how many are actually going to be what you were looking for until medical records are pulled which can me many months down the line.  So, being able to predict before starting what those percentages will be is critical to calculating costs on cases and to see if the ROI is enough to move ahead or not. One more example would be Talc cases which cause ovarian cancer and defendant is Johnson & Johnson.  This litigation has gone on for quite a while so now many of the cases signed end up not being a good case to keep so there’s fallout or what we call attrition after medical records are pulled.  Having this recent fallout data from the medical records with a sampling of a large pool of records is key to the modeling ahead of time and again, to see if ROI makes sense to move ahead given the fallout may be quite high. A third example would be for the litigation PFAS and the leadership handling firms have set a fixed criteria on which cancers they would accept and sign a claimant vs. others they would not sign.  We collect the data on “type of cancer” for thousands of calls and have published the breakdown of each cancer callers have in descending order.  A review of this data would help see for every 10 or 100 calls from victims who may qualify, how many from the total would have a qualifying cancer.  Again, this helps project out costs of a case to sign using the data to help model correctly. These are just a few quick examples of how some of the data we publish is quite valuable to firms looking to move into the various mass torts. What are some of the main questions / concerns you receive from litigation funders, and how do you address these?  Here are a few of the more common questions we get from litigation funders: What are your investment minimums? While we have no minimums, we don’t think the funding program makes sense for less than $2m-$3M as a minimum if that helps the fund with getting started.  Averages tend to be more like $5m-$10M as first run and many come to us with $20M+ as first year to start.   How long does it take for you to deploy capital? That depends on market conditions and performance of each tort but typically we are starting and originating cases within a week of receiving capital so it’s usually quite fast to start.   We have weekly meetings with our clients to discuss the most intelligent deployment strategy taking all things into consideration at that time. We are always sensitive to scaling while keeping acquisition costs within the forecasted range What is your primary role? The primary role is to manage the curated program which includes many pieces.  I would say the actual origination of cases which includes the marketing, call center screening & case signing is primary.   Not to take away from how critical the financial modeling, handling firm choices and leveraging our relationships with these handling firms is key.  There are many key value pieces we bring to a client of ours so tough to answer since we think all are so important. Does a funder client of CAMG have to use a handling law firm CAMG introduces or can we they use their own existing relationships?
We are happy to collaborate with your existing law firm relationships, but we really try to stick to the requirements we think make for a great handling firm and we would want to see if the law firm you may want to use meets the standard.
The key things we look for are the following:
  • Are they in leadership in the MDL for the tort being discussed.
  • Are they a real trial firm with a rich history of litigating cases and a threat to the defendants?
  • Do they have the infrastructure to take on more cases from this program
  • Will they agree to an equity split on the partnership that we think makes sense
  • Are they good people to work with in general
Choosing the right handling firm has never been more important considering how many of the settlements have been structured the last few years.
LFJ Conversation

An LFJ Conversation with Sam Dolce

By Sam Dolce |

As an attorney and VP at Milestone, Sam Dolce provides in-depth, comprehensive consultations with attorneys about how to save their firms time and money. Sam is a regular speaker and presenter at academic and legal conferences across the country regarding post-settlement innovation.

Milestone is a high-touch settlement solutions firm on mission to bring efficiency, transparency, and education to law firms and their clients after settlement. An innovator in mass tort and multi-party litigation, Milestone has developed Pathway®, the leading tech solution in the post-settlement space. Milestone was founded in 2012 and is headquartered in Buffalo, New York.

Below is our LFJ Conversation with Sam Dolce:

Milestone has launched an innovative mass tort settlement administration platform. What are the main value-adds here? Why should users consider this product?

Milestone’s Pathway® platform shortens case duration in mass tort litigation by digitizing the post-settlement process.

In addition to providing a more streamlined, accommodating, and informed post-settlement process for claimants, Pathway also serves law firms’ bottom lines. The platform saves law firms time and money, relieving them of the administrative burden of managing post-settlement. Pathway is also the first solution to provide real-time visibility into the settlement process for both claimants and attorneys, fostering transparency and trust and ensuring all parties know where money is at any given time.

By engaging and implementing Pathway, law firms are able to allocate resources more effectively and focus on core competencies. The automation of time-consuming tasks frees attorneys and support staff up to handle more complex legal matters and provide higher-quality client service.

How would litigation funders benefit specifically from Milestone's new platform?

Pathway’s competencies serve the interests of litigation funders in impactful ways.

By speeding up the post-settlement process, Pathway can help litigation funders realize faster returns on their investments. Reduced operational costs through automation and efficiency also lead to higher profit margins. A streamlined post-settlement process can reduce the risk of errors, disputes, and delays.

Pathway’s backend, real-time dashboard is also a game changer for litigation funders, giving them the ability to check in on cash flow or case performance at any given time.

Additionally, law firms that use Pathway can position themselves as more efficient and technologically advanced, attracting top talent and more clients.

What are some of the current trends in settlement administration in the mass tort space, and how is Milestone addressing those?

As corporate negligence shows no signs of slowing down any time soon, we are seeing the number and scale of mass tort cases trending steadily upward across the board. Milestone’s Pathway virtually eliminates any strain that this increased workload could place on law firms by processing tens of thousands of claims in record time and getting full dockets paid in a matter of weeks or months.

Another trend is that with these expanding dockets, attorneys have less and less time to provide individualized attention and guidance to each claimant. With this, it is becoming more common for claimants to lose out on the opportunity to financially plan with their settlement monies, as many don’t become aware of this possibility until it is too late. Pathway ensures that education around settlement planning is baked into the administration process, meaning that claimants get an elevated, customized post-settlement experience, ultimately increasing overall client satisfaction for the law firm.

What have users been saying about the product?  Can you share any feedback?

Numerous law firms have praised Pathway for its efficiency, accuracy, and ease of use. Testimonials from both law firms and claimants highlight the positive impact of the platform on the post-settlement experience.

“All directions and steps were easy to follow regarding a payment, and the support team can be easily reached when having issues or need to get into contact with somebody.” - Claimant who went through Pathway

“What an incredible company! These folks CARE about their clients...I'm not an attorney, but if I were I would certainly be going through Milestone for any mass tort settlement planning!! On the side of customer service—WOW!! I am thoroughly impressed with the stark professionalism and friendliness I experienced throughout the process!” - Claimant who went through Pathway

“The work that Milestone does is absolutely vital to the success of multi-district litigation. Getting to a number in litigation is very hard, but that’s only part of the battle. How you then get that distributed to clients is the other. How do you communicate with 200,000 people and make sure they have access to the money and understand what’s going on with their cases?” - Attorney client

“Faster than AI, they're totally raising the bar.” - Claimant who went through Pathway

Litigation funding and mass torts are growing more interconnected. How do you see these two sectors evolving over the coming years?

Litigation funding and mass torts are both prominent forces in shaping the legal landscape today and into the future, so it makes sense that they’ll grow more interconnected as the years go on.

As more mass torts arise, more substantial financial backing will be needed for firms to be able to take on cases of such large scale. Litigation funders will also likely play a more active role in early case evaluation, helping law firms identify which mass torts to take on. The influx of litigation funding will likely also lead to more innovative fee arrangements between mass tort law firms and their clients. And with litigation funders providing financial backing, we’re likely to see more mass tort firms pursuing litigation rather than being swayed to settle early.

There are countless challenges that come along with this intertwined trajectory, but along with those come many opportunities. Milestone is dedicated to ensuring that ethical considerations and the good of the plaintiff remain at the heart of mass tort operations while simultaneously increasing revenue for litigation funders and law firms.

LFJ Conversation

An LFJ Conversation with Stuart Price

By Stuart Price |
Stuart Price is the Chief Executive Officer, Managing Director and co-founder of CASL. Mr Price worked in the United Kingdom, the Middle East and Australia during his 30+ year career in banking and investment banking, legal and litigation finance. Mr Price has held senior positions in litigation finance for over a decade with a career highlight being the resolution of a class action against the Queensland State Government for ‘Stolen Wages’ for $190m, on behalf of over 12,000 First Nations peoples.   Mr Price was instrumental in the establishment of The Association of Litigation Funders of Australia (ALFA), where he was the inaugural CEO and Managing Director from 2018. Mr Price continues as a Director of ALFA. Mr Price has a 1st Class Honours Degree in Applied Mathematics from the University of St. Andrews, is a Fellow of the Institute of Chartered Accountants in England & Wales, a member of the Institute of Chartered Accountants in Australia & New Zealand, a Fellow of the Governance Institute of Australia and a Fellow of FINSIA. At CASL, we actively pursue opportunities to apply our financial and intellectual resources in situations where they can serve as a means of accountability for claimants against those who hold wealth and power. Below is our LFJ Conversation with Stuart Price. What makes Australia an attractive jurisdiction for litigation funders? What are the advantages of funding in Australia vs. other notable jurisdictions? 

Australia has an adversarial legal system in which the Courts apply active case management discipline throughout the life cycle of each proceeding. This generally provides that civil and commercial cases have a timely and predictable trajectory to mediation and hearing. In addition, most jurisdictions operate in accordance with the ‘loser pays’ principle, meaning that the litigant who loses the case must pay the opponent’s legal costs; this provides a strong incentive for both sides to settle prior to hearing. Finally, the legality of third-party funding is well-established in Australia, and we have a mature class action jurisdiction with a strong thread of precedent legitimating funders’ entitlement to directly share in claim proceeds, subject to the Court’s satisfaction with the fairness of such arrangements on a case-by-case basis.

Some of the major trends in the industry involve an increased regulatory push, the inclusion of insurance products, funders getting more involved in arbitration and mass torts, etc. Which major global trends would you say are most salient in the Australian market, and which are less applicable? 

Regulation of litigation funding in Australia peaked in 2020-21, under the previous federal parliament. Reforms included extending the consumer protections available to investors in managed investment schemes (MIS) to participants in class actions, and a proposed minimum return to class members. Both reforms were in search of an actual systemic problem and proved redundant in practice, and were ultimately revoked by the successive parliament upon taking office in early 2022.

You have a background in finance, having been the CEO and founder of an investment bank. From an underwriting perspective, what are the most challenging aspects of funding a claim?  What are the red flags that you watch out for, which might indicate that a meritorious claim isn't worth financing? 

CASL’s due diligence process for potential investments doesn’t focus solely on the legal arguments of a claim, it also involves an assessment of whether the litigant and their legal team will be sufficiently aligned with CASL’s commercial objective to achieve a feasible resolution as quickly and as cheaply as possible.

With that in mind, claims that have sound legal merits may still represent an uncommercial proposition to CASL for three main reasons. Firstly, the amount of funding required for the legal costs estimated to run the matter may be disproportionate to the likely size of the claim; often this will be a factor in cases that involve many defendants. Secondly, there may be particular characteristics of a case that entail a substantial potential for delay in achieving resolution; this could include novel legal issues which increase appeal risk, or litigants prone to intractable rather than commercial conduct. Finally, we may be unable to reach an acceptable level of confidence in the defendant’s capacity to meet a settlement or judgment sum.

Your website indicates that you finance class actions, arbitration, insolvency and commercial claims. How do you think about these varying legal sectors in terms of capital allocation? Are some riskier than others (broadly speaking), and therefore you won't commit more than a certain percentage of your portfolio to that legal sector? Or do you rate each claim on its own merits, regardless of legal sector? 

Generally speaking, CASL’s approach is to assess each claim on its own merits, as we don’t perceive certain types of claims as inherently riskier than others, and don’t target a particular composition of the portfolio by claim type.

Whilst class actions typically have a longer life cycle than other types of case, that of itself does not increase their relative risk profile; in any class action, as indeed any type of case, the level of risk will primarily arise from the underlying legal and factual questions the Court is being asked to determine. For that reason, we gauge concentration risk in the portfolio by reference to the existence of any overlap in the legal questions being litigated across existing investments, rather than by type of case.

What do you view as the key drivers of industry growth over the coming years? 

The litigation finance industry is a reflection of the evolution of the civil justice system rather than a driver itself. The civil justice system is adapting and responding to a growth in disputes arising in areas such as privacy and data breaches, consumer claims including product liability, and climate including greenwashing. These types of claims are prominent or growing in other jurisdictions throughout the world, and Australia will benefit from these experiences or will lead the development of such claims given the strength of the legal system and its capacity to adapt.

As a result of the global relevance of certain claims, the law firms and funders are forging closer relationships across borders to ensure the efficient prosecution of claims.

Inevitably the law plays ‘catch-up’, but it is vitally important that law firms and funders continue to push legislators to design effective laws to require accountability, responsibility and high levels of governance within the social fabric to benefit society as a whole.