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The 5 Most Popular Episodes of the Litigation Finance Podcast

June 2, 2022

The 5 Most Popular Episodes of the Litigation Finance Podcast

The Litigation Finance Podcast features guests from across the global commercial and consumer litigation funding landscapes. With over 60 podcasts spanning five years of archives, we thought it would be interesting to take a look at the five top podcasts in terms of viewer traffic. It should be noted that the Litigation Finance industry is growing by leaps and bounds, and as new entrants emerge into the space, many come to our site and listen to recent episodes of the LFJ Podcast, hence there is a recency bias in the traffic numbers (the earliest episode on our list comes from March of 2020). That said, below are some key takeaways from our five most popular episodes: #5) Dan Bush, CIO and Director of Innovation, Law Finance Group As CIO and Director of Innovation, Dan Bush wears many hats. He has been with Law Finance for more than a decade, and helped develop one of its most popular products: AR Now. AR Now was created to solve a specific and widespread problem for law firms—clients who won’t, or can’t, pay their bills. Increasingly, clients are approaching law firms demanding steep discounts on legal bills they can’t make good on. Law Finance Group (LFG) offers firms the ability to establish payment plans with clients without impacting the firm’s bottom line. Law firm invoices can be monetized, avoiding sending clients to collections. After all, non-paying clients can impact more than operating budgets. Lines of credit, bonuses, recruitment, even firm salaries may be affected. Perhaps best of all, LFG’s involvement in the creation of payment plans remains clandestine. While this plan was developed due to COVID-related circumstances, Bush sees it outliving the impending return to normalcy. “Everybody was presented with kind of a dire situation, right? With the pandemic, the shutdown, all the economic fallout from that really provided the impetus to get this going. We really see how the product works beyond the COVID pandemic to help law firms help their clients while still bringing money into the firm.” LFG works with firms of all sizes from boutique to leading law firms. It will look at cases in any stage of the litigation process, to see how funding can help. LFG has the equity needed to invest in a wide array of cases and portfolios. It may even offer terms with partial recourse to keep fees down and percentages low. As Bush explains, flexibility is key. “A lot of firms are taking more risks than they would in the past–taking some contingent upside risk, if not a full contingency. They’re coming up with hybrid arrangements, taking some percentages of the hourly fees, which has some contingent upside.” Firms can apply to the AR Now program with a short application that is followed by due diligence and the signing of an NDA. AR Now agreements may cover a single client, small groups, or other arrangements as needed. The bottom line is that firms can take more risks when facilitating payments. It’s a ‘better late than never’ philosophy that works for firms and their clients alike. #4) Elena Rey, Partner, Brown Rudnick In addition to being a Partner at Brown Rudnick, Elena Rey is a member of the Litigation Funding Working Group—which, at the time of this interview, was in the process of creating standardized documentation for funding contracts. Why focus on standardized documentation? Rey explains: “We’ve been seeing a number of trends in the Litigation Finance market in Europe recently. This includes the diversification for funders. So, besides the core of traditional litigation funders, more and more lenders are coming into the space.” Standardizing funding documentation promises many benefits, including shortening the onboarding process and allowing firms to services a wider range of case types. It increases the level of protection for all parties, and speeds the development of secondary markets. Standardized documentation can also be used as part of the negotiation process, as a viable starting point when hammering out details. The current working group has grown into 80 members, including major funders, family offices, insurers, leading law firms and barristers, and private funders. Essentially, professionals from all over the industry are making their voices heard—with the unexpected advantage of encouraging cross-disciplinary discussion on major industry issues. And there is certainly a need for flexibility. As Rey details, all funding is bespoke at its core. Client needs are unique to each case. Commercial funders may be most impacted by standardized documentation, which promises to improve transparency and the quality of terms overall. The first set of documentation from the Working Group is set to be released as early as June of this year. It will focus on insurance, and will serve to demonstrate how impactful this advancement can be on the overall industry.  #3) Christopher DeLise, Chief Executive Officer, Delta Capital Partners  Having been founded in 2011, Delta was an early entrant into the funding industry. Delta sets itself apart by getting term sheets to potential clients with blazing speed after a very short vetting process. Many cases at Delta are vetted and have funding deployed within 48-hours—an extremely fast turnaround in the Commercial Litigation Finance space. The use of standardized documentation also leads to greater clarity and speed—helping clients make more informed decisions about their options. DeLise explains that when it comes to funding, the speed of the process can have a huge impact on origination and client satisfaction. Because Delta has been in the funding game for so long, the company has been at the forefront of the industry’s development since its inception. DeLise explains, “Part of the excitement of this industry, for me personally, is having been an early pioneer and seeing all the changes that have occurred.” In the beginning, much time was spent educating law firms and investors about the benefits of funding—now, that’s less necessary, as funding has grown increasingly popular. Some of the more sweeping changes in the funding industry include an increased number of products available, as well as the trend of personalizing funding terms to better meet client needs. Because more recent graduates and old-school industry pros are becoming more aware of the benefits of working in Litigation Finance, sourcing new talent is easier than it’s ever been. COVID has impacted all aspects of Litigation Finance. As DeLise says, “liquidity is tightening up globally.” This increases the need for funding—particularly commercial funding. This, in turn, leads to commercial entities eschewing traditional lines of credit in favor of non-recourse funding. DeLise expects that trend to continue into the future.

#2) Ben Moss, Asset Manager and Portfolio Advisor, Orchard Global Asset Management

Orchard Global is, as the name implies, a global finance entity with operating centers in the US, UK, and Singapore. Currently, Orchard Global has about 6.5 billion in assets under management. In this interview, Moss explained Orchard Global’s basic investing philosophy and ideal investment size. Expounding on this, Moss detailed Orchard’s commitment to diverse portfolios, and a commitment to making room for non-traditional funding offerings. In Europe, increased demand for litigation funding, particularly in the EU, Germany, and the Netherlands, as well as US markets, has flourished through the rise of collective actions and insolvency matters. As Moss explains, “In Europe, we see an increased awareness, appetite, and adoption of Litigation Finance.” As the legal stage is set for a post-COVID return to normalcy (hopefully), backlogs are slowly being resolved. Class actions in particular were stymied by delays and closures—though some of this was mitigated through remote working and advancements in legal and financial tech. Moss opines that COVID has actually been helpful in terms of advancing Litigation Finance, particularly commercial funding. “In terms of opportunity going forward, we see a high demand for Litigation Finance for two reasons: There will be more claims generally, and also the increased use of Litigation Finance as a tool to fund claims.” Orchard Global sets itself apart from competitors with a small team and clearly defined roles. Team members often take cases from origination through to completion—rather than handing off clients to different departments at different stages of the case. This, in turn, promotes client confidence and improves the experience of investors and clients alike. The industry is buzzing with news of upcoming attempts at standardized documentation, which promises to increase transparency and worker efficiency. Arriving as quickly as Q2, these standardized documents will outline terms for a number of types of funding. This brings about concerns regarding bespoke agreements, and the overall need for flexibility. Ultimately, Moss is expecting great things for the future of Litigation Finance, as it flourishes and develops in exciting new ways.

#1) Cesar Bello, Partner in charge of alternative asset and portfolio management, Corbin Capital Partners

Corbin Capital specializes in commercial multi-strategy and bespoke global portfolio investing. Currently, Corbin has nearly nine billion in assets under management. In this interview, Bello summarizes the appeal of Litigation Finance as an investment, saying, “It’s particularly attractive in times of market volatility, where you expect more fat tails. We think there’s a good change that type of environment will persist in the near term.” The potential for outside returns and the sought-after nature of uncorrelated assets only enhances its appeal. Describing what fund managers look at in terms of vital metrics, he explains that methodology, track record, and valuation are at the forefront. Knowing one’s place in the industry is an essential part of finding your market and sourcing cases. Risk assessment is also important, especially how risk is structured and whether or not it’s seen as completely binary, or more nuanced. On the subject of ESG investing, Bello is clear that tackling environmental, social, and governmental issues through funding is an important factor in increasing access to justice. This can include mass torts, though the Volkswagen emission case was a very public miss. Still, the thoughtful application of funds toward ESG issues is vital for clients—and for investors looking toward lucrative investments that also support the public good. Looking ahead, the industry can expect growth and price compression in the near future. Bello predicts that secondary markets will become increasingly important going forward.

Commercial

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Commercial

Litigation Funding Ethics: What Attorneys Must Weigh Before Saying Yes

By John Freund |

Third party litigation funding has evolved from a niche financing option into a mainstream tool for law firms seeking to manage risk and pursue complex or capital intensive cases. As funding becomes more accessible, attorneys are increasingly evaluating whether outside capital can support growth, extend runway, or enable representation of clients who might otherwise lack resources. However, the expansion of litigation finance has also brought renewed scrutiny to the ethical considerations lawyers must address before entering into funding arrangements.

An article in JD Supra outlines several critical issues attorneys should consider when evaluating third party funding. One of the most significant distinctions is between contingent funding arrangements and traditional non recourse loans. In contingent structures, funders receive a percentage of any recovery, which can raise concerns under long standing prohibitions against fee sharing with non lawyers and doctrines such as champerty. While a handful of jurisdictions have relaxed these rules, most states continue to prohibit arrangements that resemble equity participation in legal fees. Attorneys operating across jurisdictions must be particularly cautious to ensure compliance with applicable professional conduct rules.

Even traditional funding structures can present ethical challenges. Although non recourse loans are generally more widely accepted, conflicts can arise if a funder’s financial interests diverge from those of the client. For example, a lender may prefer an earlier settlement that ensures repayment, while a client may wish to pursue prolonged litigation in hopes of a larger recovery. The article emphasizes that lawyers must retain full independence in decision making and ensure that funding agreements do not give funders control over litigation strategy or settlement decisions.

Client consent and transparency are also central considerations. Attorneys should disclose funding arrangements where required, obtain informed client consent before sharing any information with funders, and remain mindful of evolving court disclosure requirements.

Announcements Case Developments Commercial

High Court Refuses BHP Permission to Appeal Landmark Mariana Liability Judgment 

By John Freund |

Pogust Goodhead welcomes the decision of Mrs Justice O’Farrell DBE refusing BHP’s application for permission to appeal the High Court’s judgment on liability in the Mariana disaster litigation. The ruling marks a major step forward in the pursuit of justice for over 620,000 Brazilian claimants affected by the worst environmental disaster in the country’s history. 

The refusal leaves the High Court’s findings undisturbed at first instance: that BHP is liable under Brazilian law for its role in the catastrophic collapse of the Fundão dam in 2015. In a landmark ruling handed down last November, the Court found the collapse was caused by BHP’s negligence, imprudence and/or lack of skill, confirmed that all claimants are in time and stated that municipalities can pursue their claims in England. 

In today’s ruling, following the consequentials hearing held last December, the court concluded that BHP’s proposed grounds of appeal have “no real prospect of success”. 

In her judgment, Mrs Justice O’Farrell stated:  “In summary, despite the clear and careful submissions of Ms Fatima KC, leading counsel for the defendants, the appeal has no real prospect of success. There is no other compelling reason for the appeal to be heard. Although the Judgment may be of interest to other parties in other jurisdictions, it is a decision on issues of Brazilian law established as fact in this jurisdiction, together with factual and expert evidence. For the above reasons, permission to appeal is refused”. 

At the December hearing, the claimants - represented by Pogust Goodhead - argued that BHP’s application was an attempt to overturn detailed findings of fact reached after an extensive five-month trial, by recasting its disagreement with the outcome as alleged procedural flaws. The claimants submitted that appellate courts do not re-try factual findings and that BHP’s approach was, in substance, an attempt to secure a retrial. 

Today’s judgment confirmed that the liability judgment involved findings of Brazilian law as fact, based on extensive expert and factual evidence, and rejected the defendants’ arguments, who now have 28 days to apply to the Court of Appeal.  

Jonathan Wheeler, Partner at Pogust Goodhead and lead of the Mariana litigation, said:  “This is a major step forward. Today’s decision reinforces the strength and robustness of the High Court’s findings and brings hundreds of thousands of claimants a step closer to redress for the immense harm they have suffered.” 

“BHP’s application for permission to appeal shows it continues to treat this as a case to be managed, not a humanitarian and environmental disaster that demands a just outcome. Every further procedural manoeuvre brings more delay, more cost and more harm for people who have already waited more than a decade for proper compensation.” 

Mônica dos Santos, a resident of Bento Rodrigues (a district in Mariana) whose house was buried by the avalanche of tailings, commented:  "This is an important victory. Ten years have passed since the crime, and more than 80 residents of Bento Rodrigues have died without receiving their new homes. Hundreds of us have not received fair compensation for what we have been through. It is unacceptable that, after so much suffering and so many lives interrupted, the company is still trying to delay the process to escape its responsibility." 

Legal costs 

The Court confirmed that the claimants were the successful party and ordered the defendants to pay 90% of the claimants’ Stage 1 Trial costs, subject to detailed assessment, and to make a £43 million payment on account. The Court also made clear that the order relates to Stage 1 Trial costs only; broader case costs will depend on the ultimate outcome of the proceedings. 

The costs award reflects the scale and complexity of the Mariana case and the way PG has conducted this litigation for more than seven years on a no-win, no-fee basis - funding an unprecedented claimant cohort and extensive client-facing infrastructure in Brazil without charging clients. This recovery is separate from any damages award and does not reduce, replace or affect the compensation clients may ultimately receive. 

Case Developments Commercial

Homebuyers Prepare Competition Claims Against Major UK Housebuilders

By John Freund |

A group of UK homebuyers is preparing to bring competition law claims against some of the country’s largest housebuilders, alleging anti competitive conduct that inflated new home prices. The prospective litigation represents another significant test of collective redress mechanisms in the UK and is expected to rely heavily on third party funding to move forward.

An announcement from Hausfeld outlines plans for claims alleging that leading residential developers exchanged commercially sensitive information and coordinated conduct in a way that restricted competition in the housing market. The proposed claims follow an investigation by the UK competition regulator, which raised concerns about how housebuilders may have shared data on pricing, sales rates, and incentives through industry platforms. According to the claimant lawyers, this conduct may have reduced competitive pressure and led to higher prices for consumers.

The claims are being framed as follow on damages actions, allowing homebuyers to rely on regulatory findings as a foundation for civil recovery. The litigation is expected to target multiple large developers and could involve tens of thousands of affected purchasers, given the scale of the UK new build market during the relevant period. While damages per claimant may be relatively modest, the aggregate exposure could be substantial.

From a procedural perspective, the case highlights the continued evolution of collective competition claims in the UK. Bringing complex, multi defendant actions on behalf of large consumer groups requires significant upfront investment, both financially and operationally. Litigation funding is therefore likely to be central, covering legal fees, expert economic analysis, and the administration required to manage large claimant cohorts.