LFJ Conversations is an original content series produced by the Legal Funding Journal editorial team, and featuring key thought leaders from throughout the global legal funding community.

Jamie is a Naval Academy graduate with a Johns Hopkins’ Masters in Finance. He served on a ground combat tour in Iraq, on hazardous duty in the Arabian Gulf and at the Pentagon managing an $800 million tech fund before entering the civilian sector as the CFO of a multi-million-dollar startup. He later became the COO of a 1,000-employee company owned by a NYSE listed entity. Allen then transitioned to the litigation finance sector in 2021 with the founding of Allen & Calabro. Below is our LFJ Conversation with Jamie Allen: I understand you made the transition from service member to litigation finance investor. What drove you to make this transition, and what about litigation finance has surprised you the most?  Following graduation from the US Naval Academy, I spent nearly eight years on active duty in assignments around the world.  After my service, I attended Johns Hopkins for business school (finance) and began consulting for “David like” plaintiffs in disputes stemming from the crisis of 2008.   During my own experience as an entrepreneur and an executive of a NYSE listed entity, litigation and funding thereof became my focus.  After successes with investments in probate, employment, and RICO claims, it made sense to make the transition to a full-time investor and to operate a fund, as I had managed an $800 million tech portfolio while serving at the Pentagon.  Additionally, my dad, a Navy Veteran, lawyer and seasoned entrepreneur, and J. Toji Calabro, Esq., a coast-to-coast litigator, were available to join as my co-founders.  Together, we are “business, litigation and finance,” the three staples of commercial litigation finance. The thing that has been the most surprising is the amount of open space for investments with smaller contingency based, plaintiff counsel.  Many such offices are unfamiliar with litigation finance for commercial disputes. What types of cases does Allen Calabro invest in, and what differentiates you from other funders in the market? We focus on whether the claim is meritorious first and foremost.  After that, we like small to medium investments where a small business owner or entrepreneur is out of business—or their only assets are the legal claims against the wrongdoer.  We have been in those shoes and came out successfully—and want to help our clients do the same. How does your past military and business experience inform your partnerships with your clients? The military helped me learn how to listen to varying ideas--getting along with others that may not share the same viewpoints or opinions and those with diverse backgrounds.  Listening to our clients and understanding their challenges when their backs are against the wall—enabling them with the resources to carry out the battle plan to defeat Goliath and sharing how to adapt and overcome. What are the key questions / concerns that clients ask when considering a funding partnership, and how do you allay those concerns? Clients want to know their rights and responsibilities. The amount and timing of our investment are of keen interest. We review and discuss the proposed budget explaining our risk analysis that includes the complexity of the case, defenses, the defendant’s ability to pay and an estimate of the duration of the investment among other things. The generally non-recourse nature of our investment and our willingness to provide advice from our experiences, if requested, allay many concerns. Our clients know we’ve been in “their shoes” and through our empathy and emotional support they identify with us. What are some interesting trends we should be aware of in the litigation funding space?  How do you see this sector evolving over the coming years? The trends we see are more ominous than interesting. First, there are seemingly more and more defendants that disregard the “rule of law.”  They commit clear wrongs with the knowledge that the wronged party has little ability to pursue the claim and/or “remain in the fight” as they unnecessarily prolong and add expenses to the proceedings. Second, as smaller law firms and sole practitioners become more comfortable with commercial litigation funding, we see an improvement in civil justice.  Unfortunately, we also see the potential for an economic downturn like 2008.  That will increase the demand for commercial litigation funding, and we will be there to help our “Davids.”

Byron Sumner is the CEO and Co-founder of Ignite, a specialist litigation insurer built on its founding members' significant litigation and reinsurance expertise. Ignite offers large capacity limits on 'A' rated paper across various case types, along with an extensive product suite tailored to each stakeholder's unique needs. Their solutions range from straightforward contract disputes up to multi-billion pound international arbitrations. Ignite's mission is to transform the legal expenses insurance experience by providing swift and simplified solutions, transparent communication, tailored problem-solving, and unwavering support to help clients achieve their desired outcomes. Byron’s experience over the past decade includes a plethora of cross-class responsibilities within the (Re)Insurance industry, having held both analytical and transactional roles at several leading insurance organisations, including Argo Syndicate 1200, Chubb, and Aon. As well as founding an analytics and targeted client acquisition business, Byron has supported the capacity acquisition, product development, and growth strategies of several market leading MGAs. Byron’s commitment in the co-founding of Ignite is driven by a strong appetite to further develop the harmonisation of Insurance and Commercial Litigation. Below is our LFJ Conversation with Byron Sumner: Can you please provide the basics on Capital Protection Insurance (CPI)? At its most basic level, how does it work, whom does it protect, and what are the benefits?  At its core, a CPI policy safeguards an agreed portion of a funder’s outlay. A CPI policy can be purchased for a single piece of litigation, or across several litigation assets that form a portfolio of investments. Simply put, if the agreed portion of capital is not generated by a specified date outlined in the policy wording, the insurer is obligated to pay a claim in line with the deficit between the funder’s return and the policy’s limit of indemnity. The benefits of CPI go beyond the scope of most conventional insurance products, which primarily focus on the provision of ‘sleep easy’ downside protection. When leveraged efficiently, CPI offers litigation funders the opportunity to unlock a wider pool of potential investment partners and more attractively priced debt capital. How does the rise of CPI within the legal services landscape impact litigation funders when it comes to their case selection and underwriting approach?  The CPI policy does not intend to allow funders to dilute their DD approach to cases. Ignite collaborates with top-tier litigation funders who are not only expected to maintain the same high level of DD, whether insured or not, but are also obligated to adhere to specific case selection criteria and other underwriting processes to satisfy the policy’s requirements. Eligible only for discerning customers, Ignite’s CPI policy is designed to be a highly utilisable safety net in the event of an unexpected loss rather than an instrument employed to eliminate legitimate litigation risk in its entirety. What would you say the interest level is from litigation funders around your CPI product? What sorts of questions are they asking you / what concerns do they have - and how do you allay those concerns?  Interest in CPI products has steadily increased over the past three to five years. While most prospective insured partners encountered by Ignite are funders seeking to protect a portion of their capital, we now see requests for additional cover such as insured premiums and ‘upside protection’, which involves ensuring the return of a portion of capital in excess of the principal investment (>1X MOIC). The primary concern of litigation funders and their LPs/financiers regarding CPI revolves around the insurer’s ability to pay a claim in the event of a large loss. This concern is largely mitigated by Ignite’s capacity partners’ A- rating and market-leading internal underwriting team. Through adept policy structuring and procedural stipulation, we reduce the risk of a lost case to a minimum. When Ignite partners with litigation funders, what criteria are you looking for in your diligence? Ignite’s DD is extensive, and underwriting portfolio CPI ‘wrappers’ is a more complex, bespoke process when compared to single case, open market policies. Transparency is critical to the process; working in partnership with its prospective customers, Ignite’s underwriting team will initially explore a fund manager’s historical track record, as well as their internal experience and expertise, including that of their investment committee. To gain an early understanding of viability, Ignite’s team also evaluates a funder’s IRR and MOIC expectations underpinned by their assumptions around case success rate and associated recoverability. How do you see the continuing emergence of insurance products within the litigation funding sector contributing to the evolution of litigation finance over the coming years, and how will Ignite play a role in that ongoing story?  Utilisation of insurance is still a relatively new concept to many funders, particularly in the context of CPI over more traditional ATE products such as adverse costs cover. I am confident that insurance products will play a significant role in the future of litigation funding and Ignite’s increased receipt of insurance applications unequivocally attests to this upward trend. A CPI policy can not only facilitate a reduced cost of capital for funders, but also unlock the litigation asset class through the utilisation of an investment grade rating for traditionally risk-averse investors such as pension funds and insurance companies. As a result of the growing harmonisation of insurance and commercial litigation, I anticipate a greater influx of appropriately priced capital and access to justice for those claimants/plaintiffs with meritorious claims. Ignite will continue to play a leading role in this evolution by providing specialist insurance products that fulfil the needs of our customers. Ignite’s offering, which itself is always evolving, aims to work back-to-back with funders on baskets of cases which are cross collateralised, allowing insurers to benefit from the familiar benefits of diversification. As litigation funders explore new avenues to mitigate risk, the role of insurance products like CPI becomes increasingly significant. Could you share some insights into how Ignite caters to the needs and expectations of litigation funders in this changing environment? Ignite dedicates a significant amount of time and resources to developing a profound understanding of its target market. The company collaborates closely with some of the world’s premier funders to explore innovative and well-established strategies to assist in the management of their portfolios to utilise their capital more efficiently to drive better returns for all stakeholders. Ignite’s success is intricately linked to the success of its insureds, and this dynamic serves as a solid foundation for future collaborations. For example, this strong working relationship typically manifests in the seamless adaptation of standard policy documentation to cater to the specific individual needs of the funder client. Ignite consistently maintains a sharp focus on delivering a catalyst for an increase in successful case outcomes, which, ultimately benefits plaintiffs and claimants.

Reid is the CEO of Gain, the fastest-growing SaaS-based, AI enhanced, medical lien servicing and legal funding company in the United States. He is an industry expert on optimizing the utilization of technology in personal injury cases and in maximizing reimbursements in a challenging environment. Reid has been featured on national and local media outlets throughout his career, including Inc. and Becker’s Hospital Review. He was named the 2022 Ernst and Young Entrepreneur of the year in the Southeast Region, an award given for his entrepreneurial spirit, purpose, growth and impact. Reid is passionate about making a difference by connecting, mentoring, opening doors and leading people.

1. Why the recent rebrand to Gain? What was the motivation for this change?

The recent rebrand from Cherokee Legal Holdings to Gain was driven by the need for clarity and unification of our various brands under a single, cohesive go-to-market identity. This change aims to unite our entire organization under a shared mission: to facilitate access to quality medical care for individuals who have suffered injuries through no fault of their own, regardless of their financial or insurance situation. In 2011, I founded Cherokee with the aim of offering financial options to personal injury victims awaiting settlement. Over time, that mission has expanded to include innovating and transforming the personal injury space to truly level the playing field for personal injury plaintiffs as they battle big insurance companies. Gain Servicing, a subsidiary of Cherokee Legal Holdings, was established as an AI-enabled platform to do exactly that and to provide Letter of Protection (LOP) servicing and collections to doctors. Our technology simplifies the process for doctors to accept LOPs as payment, allowing them to focus on delivering quality medical care to individuals in need, particularly those who lack health insurance or sufficient savings. In 2022, Gain Servicing accounted for a significant portion of Gain's total revenue, and this is expected to grow even further in the future, highlighting the need for the innovations we are prioritizing. By consolidating all of our capabilities under one unified brand, we now provide comprehensive solutions for every facet of personal injury, with a steadfast focus on the plaintiff at the heart of all of our endeavors. In essence, the rebrand to Gain represents the company's dedication to supporting personal injury victims – by providing resources to access quality medical care, and by making it more accessible to those who would otherwise be limited by financial or insurance challenges. It reflects Gain's mission to create a fairer insurance system and a more equitable healthcare model for all Americans.

2. Gain is seeking to streamline the medical lien process for healthcare providers. What are the challenges at play here, and how does Gain address those issues?

Treating personal injury patients who may not have the financial means to pay upfront can make it a challenging process for healthcare providers. The main challenges in this context are:

1. Delayed payment: Healthcare providers often have to wait for an extended period of time to receive payment for their services, which can strain their cash flow.
2. Administrative complexity: Managing a portfolio of liens and receivables associated with legal cases can be administratively burdensome, diverting resources from patient care.
3. Collection efforts: Collecting on these liens and receivables can be time-consuming and challenging, leading to potential write-offs.
4. Risk management: Healthcare providers may also face the risk of not being compensated if the legal case does not result in a settlement or judgment in their favor.

Gain has developed solutions to address these specific lien challenges: Lien Management Services: Our team of experts takes on the responsibility for full revenue cycle management services, including negotiation and collection of medical liens associated with Letters of Protection (LOP). Leveraging data from our AI-enhanced LOP servicing platform and industry experience, we help practices reduce write-offs and enhance collections. On average, our approach yields approximately 900 basis points more than practices that self-manage lien receivables. Medical Billing Partial Advance: We offer healthcare providers the option to receive partial payment at or near the time of treatment for personal injury patients with pending legal cases. By blending a partial advance of future cash flows, combined with additional payments at the time of collection, we increase healthcare providers cash flows while improving reimbursements over selling these liens outright. Bulk Lien Purchase: For healthcare providers with outstanding liens, we offer a bulk purchase program. This allows them to receive cash immediately, eliminating the time and stress associated with managing and collecting lien receivables. Gain is dedicated to simplifying and expediting the medical lien process, empowering healthcare providers to focus on providing quality patient care while ensuring they receive timely and fair compensation for their services. We understand the unique challenges faced by providers in this space, and our solutions are designed to alleviate those challenges and improve their financial stability.

3. How does Gain's AI technology help attorneys and healthcare providers? Can you give us an example of how Gain's AI can be used for enhanced efficiency or business intelligence?

Gain's AI technology plays a pivotal role in assisting both attorneys and healthcare providers by revolutionizing the management of complex medical claims. Here's how our AI technology enhances efficiency and provides valuable business intelligence: Efficiency Enhancement

• Imagine a personal injury case where various parties, including attorneys and healthcare providers, need to collaborate seamlessly to ensure the best outcome for the injured patient. Our AI-powered platform streamlines this process. For instance, it offers a patient record center, simplifying the updating and retrieval of information and documents. This feature alone saves valuable administrative time, ensuring that nothing gets missed in the case.
• Our AI-enhanced dashboard and reporting capabilities provide real-time insights into case status and financials. This means better monitoring, quicker decision-making and enhanced efficiency in managing personal injury cases. The messaging and notifications feature further streamlines communication among all stakeholders involved.

Business Intelligence

• Our AI technology equips attorneys and healthcare providers with predictive analytics capabilities, which provide invaluable business intelligence. AI-enhanced reports shed light on payor sources, case characteristics, jurisdictions, third-party liability carriers, financial outcomes and other vital decision-making factors.
• For instance, attorneys and healthcare providers can gain insights into case volumes, treatment costs, reimbursement rates, duration and more. They can drill down to obtain detailed information on cases, attorneys, healthcare providers or individual patients. Moreover, Gain's database of similar cases helps in understanding standard treatment costs, reductions and reimbursement rates. All of this information empowers those providing services to personal injury plaintiffs to make better decisions and optimize their approach to specific cases.

Collaboration and Communication

• Effective collaboration and communication are vital in personal injury cases. Gain's secure document storage and messaging system make it incredibly easy to share important documents and updates related to cases securely. This not only saves administrative time but also ensures that critical information is readily accessible.
• Real-time notifications and status updates keep medical and legal teams in sync as cases progress, enabling them to take timely actions and prioritize tasks efficiently.

Gain's AI technology is a powerful platform that brings attorneys and healthcare providers together, simplifying the management of personal injury cases. It enhances efficiency by providing tools for streamlined collaboration, offers valuable business intelligence for informed decision-making, and ensures that all stakeholders are well-informed throughout the process. We're proud to be recognized for our commitment to innovation and our mission to provide access to care and financial solutions to those in need.

4. How is Gain pursuing fairness and equity in the Consumer Legal Finance and Medical Lien spaces?

Gain is committed to pursuing fairness and equity in the Consumer Legal Finance and Medical Lien spaces by addressing the challenges faced by both personal injury plaintiffs and healthcare providers. Our goal is to create a more balanced and efficient system for all stakeholders involved.

• Supporting personal injury plaintiffs – and those who support them: For personal injury plaintiffs who lack the financial means to pay for essential bills and necessary medical treatment, navigating the insurance system can be incredibly challenging. This is where Gain steps in to offer assistance. We specialize in managing Letters of Protection (LOP), collections and funding, providing the support needed to ensure plaintiffs receive the care they deserve. Our AI-enhanced platform simplifies the handling of LOP agreements, personal injury receivables and medical liens. It facilitates better communication between personal injury attorneys and healthcare providers, streamlining document sharing, case updates and financial transactions. Through the platform, we also compare reimbursement amounts to thousands of similar lawsuits, ensuring fair payment for services provided.
• Enhancing efficiency with AI: Our AI technology plays a crucial role in achieving fairness and healthcare equity. It empowers healthcare providers and attorneys with predictive analytics capabilities, providing valuable business intelligence. Attorneys and healthcare providers can access AI-enhanced reports that offer insights into payor sources, case characteristics, jurisdictions, third-party liability carriers, financial outcomes, duration and more. This data equips professionals with the information they need to make informed decisions, ultimately leading to better patient care and fairer financial outcomes.
• Fighting back with a wholistic team approach – Managed Services: Gain's Managed Services team is dedicated to managing personal injury receivables and medical liens. They work closely with healthcare providers to monitor progress, follow up on key items and ensure that cases are advancing toward settlement. This partnership helps push back on reductions, reduce write-offs and increase collection amounts. Leveraging our third-party status also helps minimize the risk of being targeted in legal proceedings.

Gain is fiercely committed to creating a fairer and more equitable system in the Consumer Legal Finance and Medical Lien spaces. Our suite of services, including our AI technology, managed services and funding solutions, coupled with our commitment to transparency and efficiency all contribute to this mission. We believe that everyone deserves access to quality care and fair financial outcomes, and we are actively working to make this a reality in the personal injury space.

5. Gain is leaning into AI and Legal Technology heavily. What has the response been from claimants, attorneys and healthcare providers? Do you plan to continue making investments in Legal Tech initiatives going forward?

The response to Gain's heavy investment in AI and legal technology has been incredibly positive from claimants, attorneys and healthcare providers. Our innovative approach to managing complex medical claims through advanced AI solutions has garnered recognition and appreciation within the legal and healthcare industries. Just within the last few months, our AI platform has been recognized by the Technology Association of Georgia as a most innovative company of 2023 and by the Software & Information Industry Association as a Best Healthcare Technology Solution. This recognition further validates our dedication to helping injured patients by revolutionizing the management of medical claims. Attorneys have found tremendous value in our AI platform, which accurately assesses case values and informs them of available funds for reimbursements. This empowers attorneys to collaborate more effectively with healthcare providers, resulting in higher reimbursements and improved outcomes for their clients. Our technology has also been welcomed by healthcare providers. Gain's platform streamlines the process of accepting LOPs as a form of payment, allowing providers to focus on delivering superior clinical outcomes and ensuring access to high-quality medical care for everyone, regardless of their payor source. This has made a significant difference in the efficiency of their practices and their ability to provide care to those in need. As for our future plans, we are fully committed to continuing our investments in legal tech initiatives. We believe that technology is the key to driving meaningful change in the legal and healthcare sectors. Our goal is to further enhance and evolve our technology, making it even more efficient and effective in serving the needs of claimants, attorneys and healthcare providers. We are dedicated to advancing our mission and ensuring that everyone receives the care and support they deserve.

Viren Mascarenhas is a Partner in the Litigation and Arbitration Practice at Milbank LLP based in New York.  He specializes in construction, commercial and investment arbitration, and has represented investors in investment arbitrations against the governments of Argentina, Azerbaijan, Bosnia-Herzegovina, Bolivia, Ecuador, India, Italy, Mexico, Nigeria, Peru, the Philippines, the Russian Federation, Timor-Leste, Uruguay, and Venezuela. Viren has special expertise in commercial disputes in the energy and mining sectors, and construction disputes over energy infrastructure.  He has been ranked in international arbitration by Chambers Global, Chambers USA, Legal 500, Lawdragon 500, Who’s Who Legal, Euromoney Legal Media, Latinvex, and Law 360, and has been recognized more generally for his accomplishments as a lawyer by The New York Law Journal, Crain’s New York Business, the American Bar Association, the US National South Asian Bar Association, and the US LGBT Bar Association. Milbank is a full-services, international law firm, with offices in the US (New York, Los Angeles, and Washington DC), Brazil, Europe (London, Munich, and Frankfurt), and Asia (Beijing, Hong Kong, Singapore, Seoul and Tokyo).  Its Litigation and Arbitration practice thrive on complex cases in federal and state courts throughout the US, English courts, and arbitral tribunals. Below is our LFJ Conversation with Viren Mascarenhas: What first interested you in litigation finance? What experiences (positive or negative) have you had interacting with the sector?  My first encounter with the litigation finance industry goes back to 2011, when a funder instructed the firm where I was then an associate to assess the likelihood of an investor prevailing in a potential investment treaty arbitration against a South American state regarding the denial of a mining concession.  The experience helped me cut out the noise; focus on the key elements of an alleged wrongdoing; review the key evidence; and then use my judgment to assess the likely outcome.  As lawyers, we want to tell the full story when pleading a case—sometimes to a fault.  Litigation funders—like judges and arbitrators—rigorously try get to the heart of the matter quicker. My experience with the sector has always been positive.  In addition to being instructed by funders to do risk assessment, I have been able to secure funding successfully for my clients over the past decade from several different funders.  These were all meritorious matters in which my clients would not have been able to get a shot at justice without funding.  And their claims always have become stronger and more compelling based on insights shared by experienced funders during the due diligence/underwriting phases and exchanges during the arbitral proceedings. What trends are you seeing pertaining to arbitration funding of various legal sectors? How is the landscape evolving?  The trends I have seen are:

1. Funders have become more selective about funding investment treaty claims.  The increased selectivity usually is unrelated to the merits of the cases—which often times are compelling—but concern over the length of time tribunals are taking to render awards, and subsequent time thereafter to enforce the award if the respondent state does not comply willingly with the award.  The profile of the sovereign defendant (are they likely to pay; do they have enforceable assets) has become critical to the funding assessment.
2. By contrast, funders are increasingly keen to fund commercial and construction arbitrations.  They are very eager to work with corporates that likely have a portfolio of arbitrations at any given time.
3. More players exist in the market now to buy a stake or all of an arbitration award than a decade ago.

What are the regional issues that arise when funding arbitration disputes?  It is becoming increasingly clearer in certain jurisdictions, especially in Asia, about the extent to which litigation funding is permitted and under what terms because of recent legislative or common law developments in those jurisdictions.  However, clients from those jurisdictions who are seeking litigation funding sometimes have “sticker shock” when reviewing funding terms being offered to them either to fund their matters or to “buy” their awards.  They need more handholding when it comes to understanding the economics of litigation funding, largely because of a lack of familiarity with the litigation funding market. Sometimes, local law firms that have strong relationships with local clients may have difficulty securing funding either because they are not known to the funders (relationships matter) or because they have not represented their clients in specialized arbitrations, such as construction or investment arbitrations.  In these circumstances, local law firms have reached out to me to serve as lead or co-counsel during the funding process and then subsequently in the arbitrations. What are the challenges presented in terms of compliance with the losing party during an arbitral award, and how do you navigate those?  Enforcement of international arbitration awards has got a relatively bad rap now because of investment arbitration.  Increasingly, sovereign states seek annulment of an award as a matter of course, just to tie things up in annulment proceedings for several years to demonstrate to their voting constituents that the government used all options available to it.  And even after an award survives annulment challenges, some states still do not pay up, resulting in years of enforcement litigation chasing after those state assets that are not protected by sovereign immunity. The challenges are much fewer in commercial and construction arbitration.  Unless the stakes are very high (a “bet the company” arbitration), award debtors do not frequently seek annulment of an award given the low chances of ultimately being successful.  Unless the award debtor is a true deadbeat, it will tend to comply with the award or at least offer to settle the award at a discount.  Often, these commercial actors have long-standing relationships with each other, so the arbitration outcome is just one component of the business relationship with the counterparty and overall reputation in the industry. What are the trends / key developments you are keeping an eye on in relation to litigation/arbitration funding that impact how you think about your international arbitration portfolio?  The main developments that I focus on are:

• New mining claims from investors in the critical minerals industry. These are minerals that are essential to the energy transition (such as lithium, which is used in battery storage). Governments all over the world, such as in Argentina, Bolivia, Chile, Mexico, Zimbabwe, and Zambia, are enacting new measures to regulate and control these critical minerals.  Many of the mining companies or their investors (such as electric vehicle automakers) are new to the mining sector and/or are junior or small mining companies.  They likely will need third-party funding for their claims—and there will be claims in the next few decades given the commercial and geo-political fights over critical minerals in the supply chains.
• More arbitrations in the renewables sector (commercial, construction, and investment arbitrations) all over the world as governments continue to implement their obligations under the Paris Agreement and fulfill their Nationally Determined Contributions to invest in renewable energy, low carbon, and hydrogen projects. As has been the case in Italy, Spain and other European countries, governments may change a key economic input (such as the price of feed-in tariffs) that led to foreign investment in the renewables sector, resulting in investment treaty disputes.  There will also be more commercial disputes as new technologies in the sector evolve and the limits of existing technologies in long-term projects (wear and tear) are tested.
• My firm Milbank frequently serves as counsel to lenders in financing projects. If the project company is tied up in disputes, lenders need comfort on recovering their loans, which requires ballparking damages and obtaining protections in the form of insurance products or indemnities. This has led to me facilitating more conversations between my finance/restructuring partners and litigation funders.
• Discussions with clients over whether to secure ATE insurance even if an arbitration is not seated in a jurisdiction such as England that adopts a default principle of “loser pays.” We are seeing more adverse costs awards against unsuccessful claimants in the investment arbitration space.  So, a client may want to consider whether to obtain ATE insurance in addition to third party funding, even though this might mean more overall borrowing.

Wendy Chou is the Founder and CEO of Dealmakers Forums, operating with 20+ years of experience in marketing, communications, events, and business development. She created the first series of intellectual property monetization and finance conferences starting in the early 2000s — a number of those conferences are still being held on an annual basis. That’s what sparked her interest in the sectors where legal, finance, and tech converge. Since then, Wendy has served as CMO for a financial services firm, led a marketing agency, and in her various roles, has produced over 100 successful events in IP, litigation finance, and other complex markets. She’s become a big believer in the power of events. If designed and executed well, she believes an event experience can bring people together, build community, stimulate thinking and creativity, advance both personal and professional objectives, and even move industries and markets forward. Dealmakers Forums curates meaningful event experiences and content for senior executives in the legal, finance and technology industries, bringing together a selection of organizations and individuals who are working at the forefront of the industries we serve to facilitate deep discussions onstage and offstage, and to make valuable new connections that lead to collaborations and strengthen existing relationships. For ten years our IP Dealmakers Forum has been the “must-attend” event for decision makers driving IP transactions. Upon its debut in 2018, our inaugural LF Dealmakers event likewise became the “go-to” conference for litigation finance. In 2022 Wendy created LINE, a digital publishing platform, to share perspectives from our community year-round. Find out more at: DealmakersForums.com Below is our LFJ Conversation with Wendy Chou: This is the 6th annual LF Dealmakers Forum! Hard to believe it has been six years already. What have you noticed in terms of how the industry has evolved over the years? Absolutely, it’s remarkable to think that this marks the sixth annual LF Dealmakers Forum! During this time, we’ve witnessed significant transformations within the litigation finance industry. One of the most striking changes has been the overall growth in both size and scope of the industry. In addition to an increased acceptance of litigation finance as a legitimate and valuable tool, the industry has evolved into a multifaceted ecosystem with a diverse range of players and products. In just six years, we’ve gone from primarily talking about single-case funding to discussions involving various insurance products, co-investing partnerships, innovative deal structures, and even secondary market transactions. The industry has also become more global in scope, with cross-border partnerships and international cases becoming more prevalent. It's truly exciting to witness the growth and evolution of this industry. Having said that, there are of course the challenges and controversies inherent in a maturing industry that benefit from having a space for continued dialogue. That’s why I believe LF Dealmakers has grown alongside the industry, as we provide a necessary forum for discussion, debate, and dealmaking. What can we expect at this year's conference? Any speakers or agenda items you'd like to highlight? This year's LF Dealmakers promises to be our most impactful event yet, featuring a diverse range of sessions and discussions. One of the sessions I’d like to highlight is, "The Great Debate: Trust and Transparency in Litigation Finance." In this session, we'll bring together leading experts who hold differing perspectives for an open dialogue and insightful exchange on critical issues such as disclosure, control, ethics, and conflicts of interest. We’re particularly excited to have the U.S. Chamber of Commerce participating in the discussion via their Institute for Legal Reform. They are not typically a participant in public debate on this topic, and I feel honored to host them at LF Dealmakers. I think you’ll be surprised to hear what they have to say. These aren’t always easy discussions, but we don’t shy away from reality and controversy, especially when it is necessary and can be productive to the advancement of industry practices. Alongside this, we've curated a lineup of distinguished speakers who are experts in various facets of litigation finance and the broader landscape of legal finance and risk management. Our agenda is filled with panel discussions covering topics ranging from emerging trends to navigating regulatory challenges to best practices and lessons learned. I’d say that over the years of LF Dealmakers the discussions have become much more advanced, and often provide practical takeaways for funders, funded parties, and others, including how to negotiate the best deals and address the inevitable issues that arise post-funding. So we are looking forward to hearing about those aspects of the industry and much more this year. The industry is facing some headwinds at the moment. How will issues like the recent UK Supreme Court ruling and the impact of inflationary pressure factor into this year's conference? The recent UK Supreme Court ruling and the challenges posed by inflationary pressures are indeed significant concerns within the industry, both of which will certainly come up in discussions this year. We also have dedicated sessions specifically addressing the headwind issues including a policy briefing session covering the latest in US federal, state, and forum-specific (e.g. Delaware) treatment of litigation funding as well as the industry response. A prominent expert and lobbyist from the American Legal Finance Association will address both the consumer and commercial fronts and where pending legislation and efforts would impact both. We believe that openly discussing these challenges and exploring solutions will help attendees navigate these headwinds more effectively. How would you recommend that litigation funding stakeholders make the most of this year's conference? First of all, I’d like to note that we’ve expanded the event this year, to include a pre-conference workshop on navigating the mass tort landscape and an opening reception the evening before, so attendees should plan on getting to NYC early to attend those events. Other than that, I would advise litigation funding stakeholders to come prepared to engage in robust discussions and networking opportunities. Take advantage of the diverse perspectives shared by our speakers and fellow attendees, attend the sessions to gain practical insights that can be applied directly to your strategies and most importantly, don't be afraid to ask questions and participate actively in the panels. It wouldn’t be a Dealmakers event without mentioning the one-to-one meetings. As in past years, attendees will have the opportunity to book 30-minute meetings with one another to occur throughout the event, and because the audience is curated, there should be plenty of options for productive discussions with new and existing clients and partners. The conference is a prime opportunity to foster connections, share knowledge, and explore new collaborations. What is it like for you--the conference organizer--during this multi-day event? Do you have time to enjoy the discussions and networking, or are you overwhelmed with last minute hiccups? Well, as they say, it’s not my first rodeo. Seriously, as the conference organizer, these multi-day events are both exhilarating and demanding. The key is that I've built a fantastic team that helps manage the logistical details. This allows me to actively engage in the discussions and networking opportunities. Of course, there are always last-minute hiccups that require quick thinking and problem-solving, but I've come to embrace these challenges as part of the experience. Ultimately, witnessing the exchange of ideas, the forging of partnerships, and the enthusiasm of attendees makes all the hard work incredibly rewarding. Who was it that said change is the only constant in life? I believe that wholeheartedly. Once you accept that, your mind shifts from thinking “why are there waves” to “how can I best ride these waves” (and yes, I took up surfing on one of my post conference vacations)!

LegalPay is the only company in India which provides different financing solutions to businesses for their legal services and/or litigations. Founded by Kundan Shahi in 2019, LegalPay now has a team of more than 100 staff managing more than USD 400 million of claims under management.

Kundan Shahi is an alumnus of IIM Bangalore's startup incubator, NSRCEL and had perviously founded a LegalTech company. He deeply believes in relieving the burden on Indian judiciary, and to further that cause he supports Bharat Disputes Resolution (BDR), India’s largest online dispute resolution platform.

Below is our conversation with Mr. Shahi:

What is the litigation funding landscape like in India? What are the unique challenges and opportunities for funders operating there? 

At present, litigation finance in India is at an embryonic stage, reflective of its burgeoning legal expense market. A combined total of around 40 billion dollars encompasses both individual and business legal expenditures, a figure poised for further escalation with the country's rapid economic expansion and the surge in cross-border transactions. The imminent ascension of India to become the world's third-largest economy is projected to further amplify the legal expense market's growth. Distinguishing India from other jurisdictions is the absence of a contingency fee model, necessitating the demand for alternative financing avenues. The concept of third-party funding (TPF) was initially alien to the legal landscape, often perceived as illicit by legal practitioners. The awareness around litigation finance has been minimal until recently.

What types of cases does LegalPay fund? What case aspects do you look for? What are some of the things you look to stay away from?

LegalPay has made substantial investments to cultivate awareness within the business sphere, elucidating the financial dimensions of litigation. This concerted effort has yielded a notable increase in litigation finance inquiries from businesses. In contrast to conventional jurisdictions where stakeholder interests are aligned (plaintiff, lawyer, funders), in India, only funders and plaintiffs share a common interest. We are a low trust society with price sensitivity. Consequently, possessing deep pockets alone does not guarantee access to lucrative opportunities. To navigate this landscape, an innovative blend of technology and distribution strategies is imperative for robust deal origination.

One of the major concerns for funders is case duration. India is not known for speedy case resolutions. How do you manage this risk factor?

The reputation of India's judicial system for protracted case resolutions is acknowledged, yet empirical data reveals incremental improvements. While perceptions linger, the expansive realm of disputes provides ample room for astute selection. Adaptation is key in this price-sensitive climate; prioritizing plaintiff interests ensures risk management remains a cornerstone. Businesses have started understanding the financial perspective of litigation which encourages them to opt for alternative disputes resolutions.

You recently launched Contract Defense, a free service protecting businesses from disputes arising from BNPL. What can you tell us about this? 

Our recent introduction of "Contract Defense" serves to bolster trust and provide businesses with a safety net against disputes arising from the contract bought using our framework. This innovative offering extends an interest-free credit line to manage legal expenses and covers initial legal costs stemming from contractual agreements facilitated through our BNPL platform. This engagement serves as a prelude to forging robust relationships, positioning us to offer litigation finance when needed. To use Contract Defense, all the customer needs to do is create a contract through any lawyer or law firm in India and pay for it using our BNPL payment method. If any legal disputes arising from the contract, the customer can simply transfer the legal expense to LegalPay, and we will cover the cost of all possible disputes.

What are your predictions for the future of litigation funding in India? How will this market evolve?

Forecasts for the litigation funding landscape in India remain resoundingly positive. As awareness burgeons, businesses are keen to transfer the financial risk of litigation to platforms such as ours. The aftermath of a Delhi High Court judgment has triggered heightened discussions and inquiries, attracting international funders and law firms seeking symbiotic collaborations. The expansive market paves the way for coexistence and flourishing among several prominent litigation funders, contingent upon their adept adaptation to the intricacies of the Indian landscape.

In conclusion, the canvas of litigation funding in India is unfolding with remarkable potential. The convergence of economic growth, legal dynamics, and the desire for risk transfer converge to paint a promising trajectory for this evolving sector.

For more than a century, Parker Poe has represented many of the Southeast’s largest companies and local governments in transactions, regulatory issues, and complex litigation.

On Thursday, Litigation Finance Journal held a special digital conference on how litigation funding and the broader legal services sector have been impacted by COVID-19. Ed Truant of Slingshot Capital moderated an expert panel, which included Eric Blinderman, CEO (U.S.) of Therium Capital, Paul Haskel, Partner at Richards, Kibbe & Orbe, LLP, and Ralph Sutton, Founder and CEO of Validity Finance.  The conversation opened on the macro implications of the COVID-19 pandemic, and how the broader legal industry is being impacted. Paul Haskel, the one practicing attorney on the panel, opened the discussion by explaining that firms are experiencing a decline in revenue, and anticipate that continuing. Staff reductions and hiring freezes have become commonplace. And due to financial scarcity, firms that have never before considered third party funding, are now taking a close look at industry utilization. In line with what's happening across industries, law firms both large and small are also focusing on investing in tech tools to reduce costs, and reevaluating the need for real estate, as working from home becomes more palatable for many roles.  Mid-way through the hour-long conference, the topic shifted to COVID-19's impact on litigation funding. Below is a small sampling of the Q&A that took place:   Ed: How do you see the changes in Force Majeure claims in the future, given that many such contracts don’t include clauses specific to pandemics? Paul: Force Majeure has to be specifically cited, and it’s rare to see a clause that refers to a pandemic. Historically these claims have been read narrowly. What will be fascinating to see, is how courts interpret this going forward. What happens if a contract wasn’t specific about pandemics, and was this unforeseeable?  Ed: Are Force Majeure claims a good bet for lit funding? Or are they too subjective in nature? Eric: This turns on the four pillars of underwriting. Likelihood of success on the merits, damages, timing of recovery, judgment of the lawyers. Most FM clauses still trigger payment obligations even if other obligations are negated. The question then becomes whether or not they have the ability to pay.  Ralph: I think firms that only dabble in funding would do better to focus on their own houses.There will likely also be fewer new firms getting into lit fin for the foreseeable future. Those who are funding can be much pickier as there will be so many opportunities to fund. Ed: How will hedge funds impact the markets?  Paul: Over the last five years, hedge funds have created platforms in litigation finance. Overall, everyone is waiting to see what happens with the market. I represent a lot of multi-strategy hedge funds, and they are all hesitant to enter into new investments right now. I agree that there is much more opportunity out there, it just depends on who is putting capital to use.  Ralph: I would expect that hedge funds that dabble in litigation finance and don't have an entire dedicated unit, but maybe just one person or two people looking at the space, that they'd rather focus on their corse business and ensure that they are keeping their powder dry to focus on things they understand much better. I also think there will be fewer new litigation finance companies launched in the near future, because the capital will be more frightened of folks who do not have track records. That said, folks with strong track records can expect to find limited partners willing to fund them. Ed: Where would you expect to see the most activity over the next 6-12 months? Ralph: The majority of claims for us are still commercial. 25% or so is patent, which will probably continue. I think we’ll do a lot more insurance recovery. Eric: There’s an immediate need to look for revenue streams, and insurance policies is an area everyone is turning to. We can expect a wave of class action suits as well. People are hurting and plaintiff-side lawyers are looking for someone to blame. Ed: For new opportunities, have your underwriting procedures changed at all, or is there more emphasis on certain underwriting aspects today than there was a month or two ago.  Ralph: We haven't changed our criteria at all. Most funders turn down over 90% of the opportunities that come to them. I don't think that's going to change dramatically. Eric: I agree exactly with what Ralph said. The fundamentals matter. There's no shortcuts, no secrets. You need to focus on the core basics of what makes you successful, and if you do that, you'll make it through this crisis. Ed: Last question, if there is a significant increase in cases, is there sufficient capital in the marketplace to meet demand? Paul: There will be less capital in the market, and what’s there will be more selective and seeking a higher rate of return than is currently there. So I think there will be an opportunity for funders to be even more picky, going forward.  Eric: I agree with Paul, although I don't generally foresee us changing our capital structure. We're pricing risk. There is a tremendous ability for litigation finance companies to be more selective, as opposed to less. Ed: What about you, Ralph, are you going to run out of money or are you good? Ralph (laughs): I think we’re good.