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Should Courts Encourage Litigation Funding?

By Ken Rosen |

Should Courts Encourage Litigation Funding?

The following was contributed by Ken Rosen Esq, Founder of Ken Rosen P.C. Ken is a frequent contributor to legal journals on current topics of interest to the bankruptcy and restructuring industry.

In many Chapter 11 cases, the debtor’s estate holds valuable litigation claims, which can be a key source of recovery. However, pursuing these claims can be daunting when the defendant has substantially greater financial resources. Well-funded defendants may use aggressive litigation tactics to exploit the estate’s limited means.

Unsecured creditors, often receiving only token recoveries, may be hesitant to approve further legal spending. Debtor’s counsel, wary of nonpayment if litigation fails, may also be reluctant to pursue claims. Contingency fee arrangements can reduce estate risk, but they shift risk to counsel—particularly when facing a resource-rich defendant.

To gain creditor support, more than the committee counsel’s confidence may be needed. Litigation funding can bridge the gap. It provides capital to pursue claims without draining estate resources, helping to fulfill Chapter 11’s core goals: preserving going concern value and maximizing creditor recovery, as recognized by the Supreme Court.

Litigation funding is especially valuable when the estate lacks liquidity. It enables the debtor to pursue meritorious claims against stronger opponents, discouraging defense strategies aimed at exhausting the plaintiff through expensive discovery and motion practice.

The Funder’s Evaluation Process:

  1. Legal Merits – Assessing the strength of claims based on facts, evidence, and precedent.
  2. Recovery Potential – Estimating damages or settlement value to ensure adequate return.
  3. Litigation Costs – Forecasting expenses to trial or resolution.
  4. Risk Analysis – Evaluating the defendant’s ability to pay, jurisdictional issues, and delays.
  5. Independent Review –Funders conduct rigorous due diligence before committing capital.

A funder’s involvement serves as a “second opinion” validating the case. Their willingness to invest can bolster confidence in the claim’s merits and justify some estate contribution. It can serve as a soft endorsement of the litigation’s potential value. When a party seeks authorization for litigation funding it should be viewed by the Bankruptcy Court as weighing in favor of approval.

Whether or not funding is obtained, the terms of any arrangement should be redacted/sealed and remain confidential—shared only with the Court and key constituent counsel. The rationale for proceeding without funding should likewise remain undisclosed. Keeping defense counsel in the dark preserves strategic advantage.

Conclusion:

Litigation funding can be a powerful tool for Chapter 11 estates, enabling pursuit of valuable claims, minimizing financial strain, and supporting reorganization efforts. This strategy aligns with Chapter 11’s purpose and can significantly enhance the likelihood of a successful outcome. Key constituents and the court should recognize that.

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Ken Rosen

Ken Rosen

Commercial

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Burford’s Q2 Profits Surge on New Capital

By John Freund |

Burford Capital has delivered its strongest quarterly performance in two years, buoyed by a swelling pipeline of high-value disputes and a fresh infusion of investor cash.

A press release in PR Newswire reveals that the New York- and London-listed funder more than doubled revenue and profitability in the three months to 30 June 2025. CEO Christopher Bogart credited “very substantial levels of new business” for the uptick, noting that demand for non-recourse financing remains “as strong as we’ve ever seen.”

The stellar quarter follows a lightning-quick, two-day debt offering in July that raised $500 million—capital Burford says will be deployed across a growing roster of commercial litigations, international arbitrations, and asset-recovery campaigns. Management also highlighted significant progress in portfolio rotations, underscoring the firm’s ability to monetise older positions while writing new ones at scale. Investors will get a deeper dive when Burford hosts its earnings call today at 9 a.m. EDT.

Burford’s results arrive amid heightened regulatory chatter in Washington and Westminster, yet the numbers suggest the industry’s largest player is unfazed—for now—by talk of disclosure mandates and tax levies. The firm emphasised that its legal-finance, risk-management and asset-recovery businesses remain uncorrelated to broader markets, a pitch that continues to resonate with pension funds and endowments hunting for alternative yield.

For litigation-finance insiders, Burford’s capital-raising prowess and improving margins could have ripple effects: rival funders may face stiffer competition for marquee cases, while law-firm partners might leverage the firm’s deeper pockets to negotiate richer portfolio deals.

Australian High Court Ruling Strengthens Class-Action Funders

By John Freund |

Australia’s litigation-funding industry just received the judicial certainty it has craved.

Clayton Utz reports that the High Court, in Kain v R&B Investments [2025] HCA 26, unanimously held that the Federal Court may impose common-fund orders (CFOs) or funding-equalisation orders at settlement or judgment—ensuring all class members, not just those who signed funding agreements, contribute to a funder’s commission.

The Court reaffirmed Brewster’s bar on early-stage CFOs but found late-stage CFOs fall within the “just” powers of ss 33V(2) and 33Z(1)(g) of the Federal Court Act. Crucially, the bench rejected “solicitor common-fund orders,” ruling that any CFO benefiting plaintiff firms would contravene the national ban on contingency fees outside Victoria.

For funders, the decision cements the enforceability of commissions in nationwide class actions and removes a major pricing risk that had lingered since Brewster. For plaintiff firms, however, the ruling slams the door on a hoped-for new revenue channel.

The Court’s reasoning—tying funding commissions to equitable cost-sharing rather than contingency returns—will likely embolden funders to back larger opt-out claims, knowing a CFO safety-net is available at settlement. Meanwhile, plaintiff firms may redouble lobbying efforts for contingency-fee reform, particularly in New South Wales and Queensland, to reclaim ground lost in today’s judgment. Whether lawmakers move on that front will shape Australia’s funding market in the years ahead.

Locke Capital Backs Sarama in US $120 Million ICSID Claim Against Burkina Faso

By John Freund |

A junior gold explorer is turning to third-party capital to fight what it calls the expropriation of a multi-million-ounce deposit.

According to a press release on ACCESS Newswire, ASX- and TSX-listed Sarama Resources has drawn down a four-year, US $4.4 million non-recourse facility from specialist funder Locke Capital II LLC. The proceeds will pay Boies Schiller Flexner’s fees and expert costs in Sarama’s arbitration against Burkina Faso at the International Centre for Settlement of Investment Disputes (ICSID).

Sarama alleges the government retroactively revoked its Tankoro 2 exploration permit in 2023, halting development of the flagship Sanutura project. An arbitral tribunal chaired by Prof. Albert Jan van den Berg held its first procedural hearing on 25 July; Sarama’s memorial is due 31 October, and the company is seeking no less than US $120 million in damages.

Under the Litigation Funding Agreement, Locke’s recourse is limited to arbitration proceeds and the ownership chain of Sanutura; Sarama’s other assets remain ring-fenced. Repayment occurs only on a successful award or settlement, with Locke’s return calculated on a multiple-of-invested-capital basis and adjusted for timing.

The deal underscores the continued appetite of specialist funders for investor-state claims, particularly in the mining sector where treaty protections offer a clear legal framework and potential nine-figure payouts.