SHAREHOLDER CLASS ACTIONS IN AUSTRALIA: UNCERTAINTY FOR THE FUTURE OF MARKET-BASED CAUSATION

The following article was contributed by Kirstine Rogers, Legal Director at Certum Group, and Molly Pease, Managing Director at Curiam Capital.

Both are also on the steering committee for Women of Litigation Finance (WOLF). WOLF is an organization intended to give women in and around the litigation finance field a space for support, mentorship and connections. WOLF holds quarterly zoom meetings focused on specific relevant topics and hosts various networking events throughout the year.  Please find out more through our LinkedIn page or by contacting any member of the steering committee. WOLF welcomes the support and participation of all industry members. 

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As our country continues to debate the pros and cons of diversity, equity, and inclusion programs in the government and private sectors, the litigation finance industry would be well served by remembering that diverse teams make companies better.  Indeed, several studies have explored the link between diversity initiatives and increased profitability in organizations and found that a more diverse workforce can positively impact business performance, innovation, and profitability.

There are many reasons for this.  First, representation matters.  Whether it is getting a phone call for a potential new investment opportunity from a female general counsel who wants to see diversity in the team she might be working with or being able to hire top talent who want to work with a diverse team, better opportunities present themselves to litigation finance market participants when those firms present a diverse and capable team.  Second, a diverse team allows for more diverse networking opportunities, which encourages investment opportunities from a wide variety of sources.  And finally, and potentially most importantly, diversity of backgrounds, skills, and expertise allows for a risk assessment in underwriting investment opportunities that is less likely to miss potential risks or pitfalls that a more narrow-minded team might not see.  Better underwriting decisions result in better investments, which results in more revenue for the company.

Diversity need not be a mandate for it to be an intentional and profitable choice.

“If you build it, they will come.” 

Does your company reflect the world of your counterparty or their counsel?  

Research has shown that consumers are more likely to buy from or engage with businesses that appear to understand their specific needs, often through shared demographic traits like race, gender, or age.  Businesses that reflect their target consumers' characteristics and values are more likely to foster trust and client loyalty.   The same is true in commercial transactions with counterparties and their counsel.  In entering into a funding agreement, you are forming a potentially long-term partnership.  Communication and trust are essential to the success of that relationship.  You only maximize the likelihood of that success with the diversity of the decision makers on your team.   

Companies with inclusive environments are also more likely to attract top talent and retain employees.  Why wouldn’t a firm cast the widest net possible?

“Nobody puts baby in a corner.” 

Having a diverse workforce also increases opportunities for connection and visibility in the market.  It provides a vehicle for commonality – a shared experience, history, or perspective.  This is because similar backgrounds make it easier to communicate, share common goals, and find mutual interests, which in turn can lead to individual career opportunities and company-wide growth.

Diversity-based industry groups like the Women of Litigation Finance (WOLF) facilitate interaction between market peers, provide leadership and speaking opportunities, and lead to collaboration between companies seeking to work together.  Bar associations also frequently have smaller diversity-based committees that provide a smaller community from which to network and form connections.  Bigger fish. Smaller pond.  Stronger bond.  And these genuine connections formed on shared experiences can lead to exponential networking growth.  A familiar face at one industry event only leads to more familiar faces at the next one.  

This is true for thought leadership too.  If every member of a panel of speakers looks the same and does not reflect the different faces in the audience, there are people in that audience your panel is not reaching.  If every article is written from the same perspective, there are readers who are not listening.  

“You’re gonna need a bigger boat.” 

At its core, the litigation finance industry assesses risk.  The better a firm can do that – whether it is a funder, a broker, or an insurer – the more profitable it will be.  Risk assessment involves seeing things that others might miss and making sure no stone gets left unturned.  

There are many components of a due diligence risk assessment, including reviewing the strength of the legal merits of the claims, assessing the credibility and testifying potential of key witnesses, and predicting what arguments or defenses will be presented by opposing counsel.  A diligence team with diverse backgrounds, experiences, and perspectives will be better at identifying risks and assessing the value of potential claims.  For example, a funder will often speak extensively with key witnesses to assess how they would present testimony at trial and whether a jury would find that testimony credible and persuasive.  If a trial team were conducting a mock jury to test these points, it would assemble a diverse panel of men and women from different ages and backgrounds to get various views on the testimony.  Similarly, a funder trying to make its own internal assessment will be better served by a diverse team with a variety of perspectives.  If everyone in the room has the same basic background, characteristics, and experiences, they are likely to see things similarly and thus miss key factors that could be important in determining the impact of the testimony.  And this is only one aspect of a risk assessment.  Each step of the diligence and risk assessment process would benefit from analysis by a diverse team.  The biggest concern in the litigation finance industry is that a funder, broker, or insurer misses a significant risk in their assessment of a legal asset and finds themselves funding an investment that has a low chance of success in hindsight.  A diverse team will protect against this outcome and therefore drive revenue for industry participants.

"You talkin' to me?" 

At the end of the day, the value of meaningfully implemented diversity initiatives is clear.  Having the benefit of differing experiences and perspectives makes companies better.  And, as to litigation finance in particular, diversity without question strengthens the return on investments. 

But just having a diverse workforce does not necessarily result in a better company or improved profitability.  The company needs to foster an inclusive environment where diverse perspectives are valued and integrated into decision-making processes and where those selected as thought leaders demonstrate how diversity is implemented, prioritized, and integrated into company culture.

In honor of International Women’s Day, make this a call to action – what can you do at your company to ensure you have the broadest perspectives represented?  Ask yourself, does the panel you are sponsoring completely reflect your target client base?  Does your leadership team include those with different perspectives?  Does your company provide women with networking and mentoring opportunities? 

After all, diversity presents an opportunity for someone at your company to collaborate with other market participants to write an article just like this.  

About the authors:

Molly Pease is Managing Director and Chief Compliance Officer at Curiam Capital, and Kirstine Rogers is Legal Director at Certum Group. They both serve on the Steering Committee for WOLF, the Women of Litigation Finance.  They can be reached at molly.pease@curiam.com and krogers@certumgroup.com.