Legal Funding Journal is dedicated to informing and engaging the global legal funding community through daily news, insight, analysis and original content.

On Thursday, April 17th, LFJ hosted a virtual town hall featuring key stakeholders in the legal funding for patents and trade secrets markets. The panel featured Anup Misra (AM), Managing Director of IP at Curiam, Robin Davis (RD), Director at Fortress Investment Group, Erick Robinson (ER), Partner and Co-Chair of the PTAB Practice Group at Brown Rudnick, and Scott Davis (SD), Partner at Klarquist Sparkman. The panel was moderated by Salumeh Loesch (SL), Founder at Loesch Patents, LLC.

Below are key takeaways from the panel discussion:

Do you feel like in the litigation world generally, that there is a greater interest in trade secret enforcement and litigation just because of the difficulties with patent enforcement? Do you feel like there's a growing interest from the funder's perspective to fund trade secret cases?

AM: I think every funder is going to be a little bit different on how interested they are in trade secrets litigation. Just to be perfectly candid, for example, Curium has not typically been as interested in this because collectively in our practices and in funding, we haven't had the best experiences with trade secret cases. Other funders, though, probably love trade secret cases.

Now, that's not to say we won't do them. And we certainly see more of them. And we're certainly seeing a lot more sort of combo trade secret / patent litigation, which I think is extremely interesting for funders. And if you can manage that, it really puts your case on the upper shelf of what funders are going to consider.

I want to get a sense of how we should consider the multijurisdictional approach in the patent context and how this applies when you're seeking funding?

RD: Obviously, if you have patents in multiple jurisdictions, the US, Europe, beyond, that is a real asset and obviously something you should be bringing to the attention of a litigation funder if you're seeking investment in your case. The key is going to be to make sure that whatever international strategy you're considering is one that takes advantage of the various strengths and differences between different forums around the world.

For instance, many people have always enjoyed filing in the US because there's the potential for large damages awards. However, US district court litigation, especially with the advent of stays for IPRs, can be slow depending on where you're litigating. There are faster forums in other parts of the world; Germany has long been considered a favorite in that regard. And with the advent of the UPC, the Unified Patent Court, which is now in many of the EU member states, this gives you both a faster timeline to a resolution and a much bigger market now that you've got multiple EU member states that are all able to be adjudicated in a single proceeding.

What are your thoughts on the impact of that [PTAB rule changes], in terms of the changes to the types of cases that may potentially arise in both patent litigation and patent litigation funding.

SD: Discretionary denials are increasing. Just in our own practice, we've seen a dramatic change very quickly on that. And I think that's going to continue as a trend for some time, at least until folks filing petitions figure it out as far as what the rules are and as far as what the standards are and what factors are weighed most heavily in the analysis in order to basically present the best argument they can to keep their petition on track.

Certainly in the short term, discretionary denial is a real thing and it's surging. So there's an opportunity to take advantage of that while the rules shake out and both litigants and the board are trying to adapt and adjust to the new reality.

Do you have any tips for how companies can protect their trade secrets but still obtain litigation funding?

ER: My first advice to companies is to have a trade secret management system. That can be as complicated as having an entire software suite. That can be as simple as having a spreadsheet that has trade secret, date, who came up with it, and additional details.

That actually feeds into the real answer, which is you need to know what the trade secret is. Once you know what the trade secret is, things get easier. And that's easier said than done. I've been in cases where nobody really knew what the trade secret was until throttle, which is what makes it crazy. The good news is that damages are a lot more flexible, for instance, in the patent world; you can get actual losses, you can get unjust enrichment, you can get reasonable royalty, you can get punitive damages. There's just a much broader system of damages.

To view the entire discussion, please click here.

As LFJ reported last week, Google is the target of a €900 million claim brought against the technology giant in the Netherlands over its alleged anti-competitive behaviour. However, that is not the only lawsuit being brought against the company over such allegations, with a new claim being filed at the Competition Appeal Tribunal (CAT) in the UK.

An announcement from Geradin Partners highlights the filing of a new claim brought against Google before the CAT over allegations that the company abused its market dominance to increase prices for Google Ads and harm competitors in the search advertising market. The claim, which has an estimated value of £5 billion, is being brought on behalf of UK-based advertisers who have allegedly suffered losses because of Google’s anti-competitive behaviour. The lawsuit is to represent UK businesses who purchased advertising space on Google search spaces since 1 January 2011.

The opt-out competition damages claim is being brought by Or Brook Class Representative Limited, with Dr Or Brook acting as the proposed class representative. Dr Brook is a competition law expert, currently holding the position of Associate Professor of Competition Law and Policy at the School of Law at the University of Leeds. She is supported by a legal team led by Geradin Partners, with funding for the proceedings being provided by Burford Capital.

Dr Or Brook, provided the following comment on the lawsuit: “Today, UK businesses and organisations, big or small, have almost no choice but to use Google ads to advertise their products and services. Regulators around the world have described Google as a monopoly and securing a spot on Google’s top pages is essential for visibility. Google has been leveraging its dominance in the general search and search advertising market to overcharge advertisers.”

Damien Geradin, founding partner of Geradin Partners, emphasised that “this is the first claim of its kind in the UK that seeks redress for the harm caused specifically to businesses who have been forced to pay inflated prices for advertising space on Google pages.”

The full announcement from Geradin Partners can be read here.

Ever since the Supreme Court’s ruling in PACCAR, it has become a common sight in group proceedings to see defendants bringing appeals over the funding arrangements in these cases. However, a new judgment by the Court of Appeal on one such appeal has offered a significant victory for litigation funders who wish to support these group actions.

A ruling handed down by the Court of Appeal in the case of Justin Gutmann v Apple Inc and others, dismissed appeals brought by Apple over the funding arrangements in the group proceedings brought against the company by Justin Gutmann. 

The Court of Appeal’s judgment related to two grounds of appeal that Apple had raised. Firstly, the CAT’s alleged lack of jurisdiction to make an order to payout a funder’s fees or returns before damages were distributed to class members, and the ability of class representatives to enter into funding agreements that contemplated such orders. Secondly, that the funding agreement in this case ‘created sufficiently perverse incentives that the CAT could not properly authorise’ Mr Gutmann to act as the class representative.

The Court of Appeal’s judgment, led by Sir Julian Flaux Chancellor of The High Court with unanimous agreement from Lord Justice Green and Lord Justice Briss, dismissed Apple’s appeal on both grounds. In the conclusion of his judgment, Flaux wrote that “the CAT does have jurisdiction to order that the funder’s fee or return can be paid out of the damages awarded to the class in priority to the class.” With that fact clearly established, he went on to say that it follows that “that there can be absolutely nothing wrong with the CR entering into a LFA which makes provision for that to happen.”

Leaving no room for any doubt, Flaux stated plainly that “once Ground 2 of the appeal fails, Ground 3 is indeed hopeless.”

Separate appeals brought by Apple over the consequences of the Supreme Court’s PACCAR’s ruling as it relates to LFAs being considered as damages-based agreements, are still yet to be heard. A hearing on this separate ground of appeal is scheduled for June following the Court of Appeal’s lifting of the stay on those appeals on 4 February 2025.

The full judgment from the Court of Appeal in Justin Gutmann v Apple Inc and others can be read here.

Rachel McCarthy has announced that she is taking on a new role as Executive Director of The Milestone Foundation, a 501(c)(3) nonprofit organization that helps people suffering due to a catastrophic accident. 

In a post on LinkedIn, Rachel notes that she has spent the last eight years working at the core Milestone business, where she has been in post as the Director of Strategic Partnerships for the settlement services trustee.  She also explained that this move marks a return to this role on the non-profit side, having served as the foundation’s first Executive Director for three years from 2017 to 2020. 

The Milestone Foundation provides non-recourse consumer litigation funding to families that require financial support to cover basic living expenses during lawsuits. Since the foundation’s beginnings in 2016, it has provided over $4.5 million to more than 600 families and plaintiffs bringing lawsuits across a variety of areas including personal injury, medical malpractice and class actions.

McCarthy said she looks forward to “the new challenges that will come with managing a bigger, stronger non-profit that's committed to helping people who are going through a personal injury lawsuit and need financial support.”

More information about The Milestone Foundation can be found here.

As LFJ covered in February of this year, a landmark deal between Omni Bridgeway and Ares Management Corporation for the establishment of a new fund was progressing smoothly following the initial announcement of the deal in December 2024.

An announcement from Omni Bridgeway revealed that the litigation funder has completed the Fund 9 transaction, which sees Ares Management Corporation acquire a 70% interest in the fund for a total of A$320 million. The final completion of the transaction includes receipt of the final A$45m payment, following Ares’ prior A$275 payment that was announced as part of the fund’s financial close on 25 February 2025. Omni Bridgeway retains a 30% interest in Fund 9, and will remain as the adviser to the fund alongside its management of the legal assets in the fund.

Omni Bridgeway provided additional details on the establishment of Fund 9, explaining that this latest fund has interests in over 150 investments across its other established funds and one remaining balance sheet investment. The funder also noted that the portfolio legal assets in Fund 9 is comprised of both mature investments and those investments that were recently originated over the course of FY25.

Raymond van Hulst, Managing Director and CEO, provided the following statement on the completion of the transaction: 

“We are extremely proud to lead the field together with Ares through this innovative transaction. It is the first continuation fund for legal assets and is highly significant in its scope and size as a secondary market transaction. The transaction demonstrates that deep pools of institutional secondary capital are available to Omni Bridgeway to mitigate the duration risk associated with legal assets. This is driven by our high quality track record built off an institutional-grade asset management platform with a transparent valuation framework. This transaction comes at a formative time for the industry, with (1) growing institutional investor interest in legal assets given the unique asymmetrical and non-correlated returns even during volatile markets, (2) a growing market demand for legal finance, while (3) the industry is maturing and consolidating reflecting the scale, diversification, skills, experience and track record required to be successful over the long term as a manager in this asset class. This transformative transaction positions Omni Bridgeway well for the opportunity set ahead.” 

Jan-Paul Kobarg, Partner at Ares Management, also provided a comment:

“We are pleased to support OBL with this significant transaction, which underscores Ares' ability to deliver bespoke, creative capital solutions at scale. We look forward to working with Raymond and the OBL team as they build on their leadership in an asset class that we believe will be increasingly targeted by institutional investors due to its ability to generate attractive, uncorrelated returns.”

The full announcement which includes an overview of the deal’s strategic rationale and financials can be read here.