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Recent Developments in Litigation Finance (Part 1 of 2)

By Mauritius Nagelmueller

This article aims to provide an overview of the most significant recent developments in the litigation finance industry. Part 1 of this 2-part series discusses the shifting policies in regard to litigation finance in both the U.S. and across the globe, as well as the potential for technological innovation to disrupt the industry in the near future.

Change of Policy

A change of policy, including new rules regarding litigation finance, can be witnessed across several jurisdictions globally.

In the U.S., the legality and enforceability of litigation finance agreements still varies from state to state. Many of the fundamental differences stem from the doctrines of maintenance and champerty, and each states’ respective interpretations of those doctrines. A number of states, including New York, Florida, Texas, Ohio, Maine and Nebraska, are mostly viewed as litigation finance-friendly. In states that are less attractive for – or even hostile to – financing, such as Alabama, Colorado, Kentucky, Pennsylvania, Minnesota and others, choice-of-law and forum selection clauses can sometimes be a lifesaver for a strong case in need of financing.

While great uncertainty remains in many states across the country (especially in regard to the legality of specific forms and details of litigation finance agreements), we can identify the overall trend towards permission of litigation finance across the land. To name two examples, the New York legislature introduced a safe harbor provision[1] in 2004, excluding third party investments in litigation from the champerty prohibition, where a sophisticated investor puts in at least $500,000. To “enhance New York’s leadership as the center of commercial litigation”[2], the provision has been strongly endorsed by New York courts in recent years. Additionally, Ohio installed some regulation of litigation finance through Ohio Rev. Code Ann. § 1349.55, thereby overruling a former Ohio Supreme Court decision[3] voiding a litigation finance agreement.

The phenomenon of legislative actively smoothing the way for litigation finance is happening on an international scale. In Persona Digital Telephony[4], the Irish Supreme Court affirmed in May 2017 that maintenance and champerty remain a bar to litigation finance. The rule against maintenance and champerty is still in force in Ireland, as per the court, and it is up to the government to amend it through legislation. No one has been prosecuted for these offences in Ireland in more than 100 years, and, according to The Sunday Times, a new Contempt of Court Bill, which was published by a government TD in July 2017, would repeal the ancient laws. And the developments in Hong Kong and Singapore will likely have an enormous impact on the dispute finance industry.

Singapore allowed third party funding in international arbitration in early 2017, Hong Kong followed suit only a few months later. In Singapore[5], financing agreements in relation to international arbitration and related court or mediation proceedings are now enforceable. The new law in Hong Kong[6] provides that maintenance and champerty do not apply to third party funding in domestic and international arbitration and mediation. Both jurisdictions add a certain amount of regulation to their new rules, mostly covering conflict of interest and disclosure requirements. Singapore permits only professional funders with a paid-up share capital of not less than SGD 5 million. While the new legislation does not include state court procedures, the covered alternative dispute resolution procedures will serve as a “testbed,” according to Singapore’s Senior Minister of State for Law. Leading litigation finance firms opened new offices in Singapore immediately after their longstanding lobbying efforts in the region turned out to be successful. The first financing of a Singaporean arbitration was announced in late June 2017. The business promises to flourish, especially when first disputes will arise from China’s multi-trillion(!) One Belt One Road trade and infrastructure initiative.

The demand for litigation finance is strong in the global market, and financing providers are aggressive in seizing new opportunities. Numerous jurisdictions feel an urge to become, or remain, a prime venue for dispute resolution in various areas of the law, and legislators are amending their legal frameworks accordingly. Litigation finance will carve its way into more and more jurisdictions, embraced by venues which consider this industry vital to their position as prime dispute resolution centers.

However, others remain critical of litigation finance and its impact on the civil justice system. Various business groups have proposed to amend Federal Rule of Civil Procedure 26, and the Judicial Conference Advisory Committee on Rules of Civil Procedure might discuss a disclosure requirement for litigation finance in a subcommittee.

Technology

Finance, law, and technology are becoming an interdependent complex, and it is advisable to look over the rim of one’s own tea cup to take advantage of these sectors combined. Crowdfunding brings a new twist to litigation finance, artificial intelligence and big data will become vital for sourcing and analyzing cases, and online platforms are growing into a powerful fundraising tool.

In legal crowdfunding, individuals can launch online campaigns to seek funding for legal cases. While this might not be the first choice for plaintiffs in large scale commercial cases, it is particularly interesting for cases in the areas of human rights, criminal justice, or environmental cases. Supporters can be reached with the help of dedicated firms, or also via large social networks. Some have called attention to associated ethical risks, and caution lawyers to use such new tools in light of the long-established rules of professional responsibility.

Online litigation finance platforms also exist for accredited investors who want to invest in specific cases or portfolios. Investors can sign up, access anonymized information about cases, contribute to the financing, and receive a share of the profit. Before the cases are accepted onto the platform, they must first pass the due diligence of lawyers, and in some cases sophisticated software tools. Such tools increasingly utilize artificial intelligence and big data, both for analyzing and sourcing cases, which is another major evolution in the litigation finance market. Algorithms will more and more help to predict the probabilities of case outcomes, in order to minimize uncertainty. Technological innovation combined with human experience and judgment will ultimately enhance the industry’s ability to spread its wings to as yet untapped markets. Adopting quantitative methods of older industries and absorbing the best possible use of data analytics should play an important role in the future of litigation finance. The largest legal databases are boosting their data analytics components, and while it seems unlikely today that the sophisticated expertise of lawyers can ever be replaced by a software, these tools have the potential to make the work of humans much easier and more effective. If rightly used, they can be a game changer. Artificial intelligence and algorithms are on everyone’s lips, but only a few pioneers have started to take advantage of the new opportunities technology brings to the litigation finance table.

Perhaps even further down the road we might see the broader use of case prediction and attorney referral bots, as well as the use of cryptocurrency. Blockchain technology, the enforceability of so-called smart contracts, as well as the use of cryptocurrency (which could serve some interests in litigation finance since privacy can be upheld, but also arouse further criticism for lack of transparency and regulation) are still up in the air, but certainly worth keeping an eye on.

Stay tuned for Part 2 of this 2-part series, which will discuss the rapid growth of litigation finance markets across the globe, as well as its multi-dimensional expansion into diverse markets.

 

Mauritius Nagelmueller has been involved in the litigation finance industry for more than 10 years.

This 2-part article is for general information purposes only and does not purport to represent legal advice. The views and opinions expressed are those of the author and do not necessarily reflect the position of his employer. No reader should act or refrain from acting on the basis of any information related to this 2-part article without seeking the appropriate advice from a lawyer licensed in the recipient’s jurisdiction.

[1] Judiciary Law § 489 (2).

[2] Justinian Capital SPC v. WestLB AG, No. 155 (N.Y. Super. Ct. 2016). In Echeverria v. Estate of Lindner, No. 018666/2002 (N.Y. Super. Ct. 2005) the Supreme Court of the State of New York already clarified in 2005 that the champerty statute is not violated in the first place, if the assignment of a portion of a lawsuit’s recovery is not for the “primary purpose and intent” of bringing a suit on that assignment.

[3] Rancman v. Interim Settlement Funding Corp., 99 Ohio St.3d 121, 2003-Ohio-2721.

[4] Persona Digital Telephony Ltd and another v. The Minister for Public Enterprise and others, [2017] IESC 27.

[5] Singapore Civil Law (Amendment) Act 2017; Civil Law (Third Party Funding) Regulations 2017; new rules in Singapore’s Legal Profession Act and Legal Profession (Professional Conduct) Rules.

[6] Hong Kong Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016.

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Community Spotlight: Scott Davis, Partner, Klarquist

By John Freund |

Scott focuses on intellectual property litigation, representing clients in courts throughout the U.S. He has had great success both obtaining relief for intellectual property owners and defending suits in a wide range of technical fields in cases involving patent, trade secret, unfair competition, employment agreement, copyright, DMCA, trademark, trade dress, product configuration, and false advertising claims.

Scott has litigated cases involving chemical, mechanical, medical device, internet, software, encryption, computer, clean energy, automotive, apparel, food, agricultural, and pharmaceutical technologies. Representing some of the largest companies in the world as well as smaller businesses and start-ups, he has succeeded for clients such as Adobe, British Airways, Columbia River Knife & Tool, Capsugel, Costco, Danner, DexCom, Intuit, Microsoft, Nightforce, Phibro Animal Health Corporation, SAP, SunModo, and Yelp.

Describing his past success and approach with the Klarquist litigation team, IAM Patent 1000 recently lauded Scott’s ability to assess the best strategies and his talent for understanding and simplifying complex technology, and noted that Scott will “always put your objectives first and act like a part of your team.”

Company Name and Description: Klarquist is a full-service intellectual property (IP) law firm with services including IP counseling, patents, trademarks, copyrights, litigation, and post-grant USPTO proceedings. Because we focus our practice exclusively on intellectual property, our prosecution professionals leverage a thorough understanding of our clients’ cutting-edge technology to an extent not seen in general practice firms. Our technical expertise covers biotechnology, physics and optics, chemistry, electrical and mechanical engineering, software and computer science, plants, and semiconductors.

Klarquist is one of the oldest and largest intellectual property law firms in the Pacific Northwest. For more than 80 years, the firm has provided intellectual property legal services to innovators of all stripes and sizes. The firm has over 60 attorneys and patent agents, more than 90% of whom hold technical degrees and many with doctorates in their respective fields. Klarquist professionals are adept at handling all phases of intellectual property matters, from procurement to transfer to litigation of disputes and post-grant review proceedings. Our roster of clients includes some of the most innovative companies and institutions in the world, from Amazon and Microsoft to the U.S. Government, which chooses Klarquist to procure its patents more than any other firm in the nation. As a full-service intellectual property boutique, Klarquist is uniquely equipped to handle any matter, for any innovator, in virtually every area of modern technology.

Website: www.klarquist.com

Year Founded: 1941

Headquarters: Portland, Oregon

Areas of Interest: Dispute resolution, litigation, and patent post grant proceedings.

Member Quote: "Litigation funding provides a key to unlock access to civil justice."

Case Developments Commercial

$170 Million Settlement Approved in Allianz Class Action

By Harry Moran |

A complex Australian class action that emerged through the consolidation of two separate group proceedings has reached a successful conclusion, with the court approving a large settlement and thereby marking a significant win for the litigation funder who backed the case. 

A post on LinkedIn from Balance Legal Capital highlighted the approval of the settlement in the Allianz class action, with the Supreme Court of Victoria approving the A$170 million sum to bring the group proceedings to a close. The class action, which Balance Legal Capital funded, was brought on behalf of over 200,000 Australian customers who purchased a vehicle and were then sold Allianz or Allianz Life “add-on” insurance products by the dealership, alleging that the insurers engaged in misleading or deceptive conduct.

Johnson Winter Slattery (JWS) and Maurice Blackburn Lawyers jointly represented the plaintiffs in the class action. In 2021, the Court had ordered the consolidation of this group proceeding with a similar class action against Allianz, resulting in two representative plaintiffs: Ms Tracy-Ann Fuller and Mr Wilkinson.

The judgment approving the proposed settlement was made today, with the court approving a $30,000 payment to the two plaintiffs. The court also maintained the Group Costs Order (GCO) of 25% of the settlement, with a $42.5 million payment set to be divided between JWS and Maurice Blackburn, with a further sum of up to $4.72 million allocated to Maurice Blackburn for the administering of the settlement distribution scheme. 

On the costs incurred by the law firms, Justice Matthews wrote that they were, “satisfied that the costs are reasonable and proportionate to the issues in dispute and the overall amount in dispute.” The judge went on to highlight that the class action “was a very large and complex proceeding and it is unsurprising that the costs are substantial.”

The full judgment and settlement approval orders can be read here. More information about the case can be found on the Allianz Class Action website.

Case Developments Commercial

Judge Halves Funder’s Legal Costs in Mastercard Case

By Harry Moran |

The dispute between Walter Merricks and Innsworth Capital in the Mastercard claim has been one of the most visible examples of a rift between a class representative and litigation funder. 

An article in The Law Society Gazette provides an update on the ongoing fallout from the settlement in the Mastercard litigation, as the acting president of the Competition Appeal Tribunal (CAT) has described the funder’s legal costs of over £52,000 as “wholly disproportionate and unreasonable”. These comments came in a ruling on costs that Mr Justice Roth had ordered the class representative to pay, relating to the funder’s legal costs for responding to Mr Merricks’ application for a court order (‘Documents Application) that would have prevented the funder from using confidential documents in its intervention.

In his assessment of Innsworth’s submissions on costs, the judge accepted that the funder’s need to oppose the Documents Application was “critical to its ability to participate effectively in opposing the CSAO Application” and went on to say that he had “no criticism of the time spent by the solicitors.” However, Justice Roth did highlight the decision to instruct “both leading and junior counsel to advise on the response” and the fact that in this matter, “Akin Gump is charging at well over double, and in the case of the Grade B solicitor almost three times, the London 1 Guideline Rates.”

The ruling goes on to note that whilst Innsworth “may choose to agree with its solicitors to pay a much higher rate of fees”, it does not automatically follow “that costs incurred at those rates are recoverable from the other side”. Determining the final costs, Justice Roth settled on a reduction of the solicitors’ fees down from £26,355.50 to £12,000, and similarly reduced the counsel fees to £10,000, which he still described as “generous”. As a result, the final sum for Innsworth’s costs was set at £22,000.

The full ruling from Mr Justice Roth can be read here.