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Therium Makes Case for Monetization of Corporate Litigation Assets in New Publication

September 29, 2020

Therium Makes Case for Monetization of Corporate Litigation Assets in New Publication

Therium, a leading global provider of litigation, arbitration and specialty legal finance, is pleased to announce the launch of a new publication aimed at educating corporations and their legal departments on the importance of monetizing their litigation assets through structured affirmative recovery programs. A Good Offense: The Therium Guide to Creating an Affirmative Recovery Program, is available as a progressive eBook, beginning today with the release of chapter 1, which introduces the concept of affirmative recovery and delves into its history. New chapters will be released during the last week of each month moving forward.

The legal departments of the world’s corporations were created out of necessity. Legal has always been viewed as a cost center, defending potentially costly claims against the company as efficiently as it can, and ensuring that transactions and other contractual matters are structured properly. Legal departments, however, regularly bypass potentially valuable litigation claims because the financial and other risks required to monetize litigation assets are viewed as too steep. That was already the case in a strong economy, let alone the current downturn. COVID-19 and the subsequent economic downturn are causing corporations to lose value each day, leading to tighter budgets and greater pressure on all departments. At the same time, they must find revenue wherever they can.

“Corporate legal departments have the potential to become drivers of revenue if they can successfully monetize litigation claims,” said Eric Blinderman, CEO of Therium US and one of the publication’s co-authors. “In this economy it is more important than ever that they do just that. We developed this eBook to assist in-house counsel in identifying potential high-value claims and mitigating a broad range of internal and external risks as they formalize a program for initiating plaintiff-side litigation.”

After using the first chapter to lay the groundwork for the story of affirmative claims, future chapters will include:

  • Structuring an affirmative recovery program
  • Identifying claims
  • Selecting claims and managing risk
  • Financing litigation
  • Managing outside counsel
  • Making settlement decisions
  • Achieving buy-in (and maintaining it)

Chapter 1 Abstract 

In 2004, the legal department of E.I. du Point de Nemours and Co. launched an initiative to maximize its recoveries and contribute to the company’s bottom line. “When a certain amount is at stake,” DuPont’s then-assistant general counsel Tom Sager said, “we have an obligation as counsel to the company to pursue claims.”

To those outside the legal profession, this posture may sound unremarkable. But historically, recovering such funds has not been a priority. DuPont’s strategy changed all that. In 2004, its law department recovered $100 million for the company. Within a decade, it had recovered more than $2.6 billion. That figure is enough to establish the obvious benefit of a program like DuPont’s, known as “affirmative recovery programs.” And they have many additional advantages. Among them is the satisfaction of achieving the oft stated but rarely realized goal of making a legal department a profit center rather than a cost center.

Which raises an obvious question: why aren’t more companies following their lead?

In recent years, corporate legal departments have taken tentative steps toward adopting a more aggressive mindset. Three-quarters of the Fortune 500 have filed lawsuits as plaintiffs in what could be called “affirmative recovery” matters. But a much smaller portion of the Fortune 500 have created their own programs.

Complacency and tradition are the two most basic forces that have kept legal departments from asserting legal claims. Conventional wisdom has long held that it’s not the general counsel’s job to make money for the company. Instead, lawyers served the singular function of defending the company from legal risk. And the generally defensive orientation of in-house legal departments made a comfortable fit with the risk-averse nature of its lawyers.

Despite the forces keeping legal departments from bringing lawsuits, they have gradually begun to adopt a plaintiff’s mentality. We can trace the origins of the movement as far back as the 1980s, when a financial crisis led Texas Instruments and IBM to turn to their legal departments for patent licensing revenue. These and similar efforts revealed that legal departments could do more than protect companies from risk. They could become strategic actors generating meaningful revenue.

With the Great Recession of 2008, companies came under great pressure to reduce costs, and legal departments were no longer immune. The field of “legal operations,” devoted to imposing discipline on the spending of corporate legal departments, was born. Corporate legal budgets now needed defending, and previously untouchable decisions came under scrutiny. In short, corporate legal departments began to be judged on business terms. Today, the timing is right for another leap in the adoption of affirmative recovery programs. The impediments to bringing affirmative claims have largely eroded, and the riddle of funding affirmative cases has been addressed by the use of litigation funding. And the thirst for revenue from corporate legal departments has not been this palpable since the Great Recession.

About Therium

Therium is a leading global provider of litigation, arbitration and specialty legal finance active in England and Wales and internationally since 2009.  Over that period, Therium has funded claims with a total value exceeding £34 billion including many of the largest and most high profile funded cases.  The firm has investment teams in the UK, USA, Australia, Spain, Germany and Oslo, supplementing its resources in its corporate headquarters in Jersey, Channel Islands.

Therium has established a track record of success in litigation finance in all forms including single case litigation and arbitration funding, funding law firms and funding portfolios of litigation and arbitration claims.  This track record enabled the firm to raise the then single largest investment into litigation finance of £200 million in 2015. Therium has raised over $1 billion since its foundation, which includes the latest £325 million fund raised in February 2019.

Therium has consistently been at the forefront of innovation in litigation finance, pioneering the combined use of insurance tools alongside funding vehicles, and introducing portfolio funding products into the UK.  The firm’s ability to develop innovative funding arrangements and bespoke financial solutions for litigants and law firms complements its unmatched experience and rigorous approach to funding a wide range of commercial disputes throughout the world.

www.therium.com

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Announcements Commercial People Moves

Pogust Goodhead Appoints Gemma Anderson as Partner, Strengthening Mariana Leadership Team 

By John Freund |

Pogust Goodhead today announces the appointment of Gemma Anderson as partner, a standout addition that reflects the firm’s continued growth and investment in senior talent as the Mariana case advances through the High Court in London. 

Gemma will work on the Mariana litigation alongside Jonathan Wheeler, who leads the case for the firm. Her appointment reunites the pair after fourteen years working together at Morrison & Foerster, where they collaborated on numerous high-stakes disputes. 

Gemma is a highly experienced commercial litigator specialising in complex cross-border disputes. She joins PG from Quinn Emanuel’s London office, where she has spent the last two years as a partner focused on significant, high value commercial cases.  

Alicia Alinia, CEO at Pogust Goodhead, said: “Gemma’s appointment is a fantastic moment for Pogust Goodhead. Her arrival is a clear signal of the team and platform we are building for the future - deep expertise, strong leadership, and the capacity to run major international cases at scale. We’re delighted to welcome her as a partner”. 

Jonathan Wheeler, partner and lead for the Mariana litigation, said: “Gemma is an exceptional disputes lawyer and a natural fit for the Mariana team. We worked closely for fourteen years at Morrison & Foerster, and I’ve seen first-hand the rigour and relentless drive she brings to complex cross-border matters. Her appointment strengthens our ability to deliver for clients as we build on the milestone liability decision and move into the next phase of the case.” 

Gemma Anderson said:  “I’m thrilled to be joining Pogust Goodhead at such a pivotal moment for the Mariana litigation. This is a truly landmark case - not only for the communities affected, but for what it represents globally on access to justice and corporate accountability. I’m looking forward to working with Jonathan and the wider team to help secure a fair outcome for hundreds of thousands of victims.” 

The Mariana proceedings in England involve over 600,000 Brazilian individuals, businesses, municipalities, religious institutions and Indigenous communities affected by the 2015 Fundão dam collapse in Minas Gerais, Brazil. Following the English court’s decision on liability on 14 November 2025, the case is now in its second stage, focused on damages and the quantification of losses. 

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. 

Announcements Commercial Fundraising

Sigma Funding Secures $35,000,000 Credit Facility, Bryant Park Capital Serves as Financial Advisor

By John Freund |

Bryant Park Capital (“BPC”) announced today that Sigma Funding has recently closed a $35 million senior credit facility with a bank lender. Sigma Funding is a rapidly growing litigation finance company focused on providing capital solutions across the legal ecosystem.

Sigma’s experienced executive team oversees a portfolio of businesses spanning insurance-linked litigation and other sectors, bringing a proven track record of successful growth and meaningful exits.

Bryant Park Capital, a leading middle-market investment bank, served as financial advisor to Sigma Funding in connection with the transaction.

“Bryant Park Capital was an indispensable advisor to Sigma and worked closely with our management team throughout the process,” said Charlit Bonilla, CEO of Sigma Funding. “BPC’s experience in the litigation finance space was critical in identifying potential banking partners and ultimately structuring our credit facility. Their extensive industry knowledge helped bring this deal to a successful close, and we are grateful for their support. We look forward to doing more business with the BPC team.”

About Sigma Funding

Founded in 2021, Sigma Funding is a leading New York–based litigation funding platform that provides pre- and post-settlement advances to plaintiffs involved in contingency lawsuits, as well as financing solutions for healthcare providers and attorneys. The company is the successor to the founders’ prior venture, Anchor Fundings, a pre-settlement litigation funder that was acquired by a competitor. 

For more information about Sigma Funding, please visit www.sigmafunding.com.

About Bryant Park Capital

Bryant Park Capital is an investment bank providing M&A and corporate finance advisory services to emerging growth and middle-market public and private companies. BPC has deep expertise across several sectors, including specialty finance and financial services. The firm has raised various forms of credit and growth equity and has advised on mergers and acquisitions for its clients. BPC professionals have completed more than 400 engagements representing an aggregate transaction value exceeding $30 billion.

For more information about Bryant Park Capital, please visit www.bryantparkcapital.com.