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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Omni Bridgeway Posts Strong FY25 After ‘Transformational’ Year

By John Freund |

Omni Bridgeway has reported a step-change year, pairing robust investment performance with a balance sheet reset that positions the platform for its next growth phase. The ASX-listed funder highlighted headline income of $651.3 million, a $3.6 billion portfolio (up 29% year over year), and A$5.2 billion in assets under management. Returns were anchored by a 2.5x MOIC across 60 full and partial completions, while operating discipline showed through with a 6.2% reduction in cash opex. Management framed FY25 as both a consolidation of strategy and a proof point for the firm’s fair value marks.

An article in PR Newswire notes the year also brought 52 new investments totaling A$517 million in commitments and A$525.9 million added to fair value. Crucially, Omni executed its Fund 9 transaction with Ares—fully deleveraging and “significantly derisking” the balance sheet—while also validating its model with third-party institutional capital. CEO Raymond van Hulst called FY25 “a positive year with excellent investment returns and a transformative transaction,” adding that the platform is well placed for continued growth.

For a sector navigating evolving regulation and disclosure debates, the numbers matter—but so does capital formation. Omni’s ability to recycle capital, expand AUM and originate across jurisdictions reinforces the durability of legal assets as an alternative class.

Apex Litigation Finance Appoints Gabriel Olearnik as Head of Legal

By John Freund |

Apex Litigation Finance has strengthened its leadership team with the appointment of Gabriel Olearnik, a highly experienced litigation funding professional with a global track record in high-value dispute resolution and complex commercial matters.

Over the past five years, Gabriel has originated and reviewed more than 451 litigation funding cases worldwide with an aggregate value exceeding $116 billion, closing deals worth over $700 million. His recent work includes the successful settlement of a high-profile BIT matter as well as executive employment claims in the UK.

Gabriel’s career spans senior roles in UK, US and European litigation funders, where he was instrumental in structuring high-value transactions, securing strategic court orders and conducting multi-jurisdictional investigations. In 2023, he closed a £268 million litigation funding deal in just three weeks, underscoring his ability to deliver results under tight timelines.

Recognised by Lexology as one of only 66 lawyers worldwide to receive the Thought Leaders in Third Party Funding accolade, Gabriel has been involved in matters that have attracted daily media coverage and required innovative dispute strategies. His experience extends to training legal teams, advising on politically sensitive disputes, and executing complex enforcement actions.

“Gabriel brings exceptional global experience, deep sector knowledge, and a proven ability to deliver in high-stakes environments,” said Maurice Power, CEO of Apex Litigation Finance. “His appointment further enhances Apex’s market position and it’s ability to originate, evaluate and fund complex commercial claims for our clients.”

“I am delighted to join Maurice and the team at Apex,” said Gabriel. “Apex’s strong financial backing and their speed of execution make this a natural alignment. I look forward to building on the strong foundation set out by my predecessor, Stephen Allinson, and contributing to the future success of the business.”

Gabriel’s appointment reflects Apex’s ongoing growth in funding small to mid-sized UK commercial disputes and builds on the company’s commitment to delivering fast, fair, and competitive non-recourse litigation funding solutions to claimant’s who may be prohibited from pursuing meritorious cases due to cost and/or financial risk.

Cartiga’s $540M SPAC with Alchemy

By John Freund |

Cartiga, a long-standing player in consumer and attorney funding, is heading to the public markets. The company agreed to combine with Alchemy Investments Acquisition Corp. 1 in a transaction pegged at $540 million in equity consideration, positioning the platform to scale its data-driven approach to underwriting and portfolio management. Management frames the move as about reach and efficiency: tapping a listed currency, broadening investor access to the asset class, and accelerating inorganic growth.

An article in MarketWatch reports that the proposed business combination would take Cartiga public via Alchemy’s SPAC, with the parties emphasizing how a listing could support growth initiatives and acquisitions. The piece notes the strategic rationale—public-market transparency and capital flexibility—as the platform seeks to deepen its footprint in funding for legal claims and law firms.

While final timing remains subject to customary steps (including the shareholder vote and regulatory filings), the announcement marks one of the most significant U.S. litigation-finance capital-markets events of the year.

Cartiga’s trajectory reflects a broader institutionalization of legal finance: more data, more discipline, and more diversified funding channels. The company’s model—providing non-recourse advances to plaintiffs and working capital to law firms—relies on proprietary analytics and scale to manage risk and returns across cycles. A public listing, if completed, would put Cartiga alongside other listed peers globally and provide investors with another pure-play exposure to the asset class’s uncorrelated return profile.