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Value in Litigation & Implications for Litigation Finance

The following article is part of an ongoing column titled ‘Investor Insights.’ 

Brought to you by Ed Truant, founder and content manager of Slingshot Capital, ‘Investor Insights’ will provide thoughtful and engaging perspectives on all aspects of investing in litigation finance. 

Executive Summary

  • 3 Phases of Risk:
    • De-Risking
    • Optimum Resolution
    • Re-Risking
  • Optimum risk-adjusted zone is when information is maximized and trial has yet to begin
  • Once a trial begins, outcomes become binary in the absence of a settlement
  • Diversification is critical to investing in the litigation finance sector

Investor Insights

  • In assessing portfolio performance, it’s crucial to determine the extent of trial outcomes
  • Assess settlement performance in the context of industry settlement rates
  • Generally, a high percentage of cases are settled
  • Certain case types have lower settlement rates, so there is not a ‘one size fits all’ approach to analyzing portfolio performance

I was speaking recently with a local litigation finance manager about the value of a piece of litigation in the context of litigation finance.  As I thought more about the discussion and the implications for settlements and maximizing outcomes, I felt compelled to relay the thoughts in an article for other industry participants to consider and argue.  Keep in mind that this is a simplistic view of a piece of litigation, as most litigation has layers of complexity that influence valuation, not to mention precedents in other jurisdictions.

Value

The intrinsic value of a piece of litigation is made up of a number of components that lawyers, plaintiffs and litigation finance managers assess as they underwrite their investment decision, which typically consist of the following:

merits of the casedefense counsel effectiveness
collectability of damagesdefendant’s conduct re: previous litigation
quantum of damagesplaintiff counsel effectiveness
justice considerations (judiciary and jurisdiction)

For the purposes of this article, we will mainly reference early stage, pre-settlement cases.

Editor’s note– the following contribution appears with illustrative graphs and charts here.  

Value is not a static concept in litigation.  Nevertheless, litigation fund managers have to determine approximate value; or a value range at the very early stages of a case when there is a relatively high degree of uncertainty, relatively few facts and little to nothing in terms of judicial proceedings.  In the context of litigation, value varies with time (while time may add value in the short term by virtue of contributing to the amount of information that can be gathered on the case, the longer a case drags on past the point where maximum information is available, the less valuable time becomes due to the time value of money). Value also varies proportionately – or perhaps disproportionately – with risk, which is in turn influenced by information. That is to say, unknown data may come to light that becomes beneficial or harmful to the merits of your case and may influence its outcome and/or quantum. As an example, the ‘certification’ process of a class action in certain jurisdictions has a meaningful impact on whether the class proceeds with the action, and ultimately is a strong determinant of success, typically through settlement.

Of course, in all jurisdictions, another major contributing factor is access to capital so plaintiffs can finance the pursuit of their meritorious claims to the point of collection of damages – enter litigation finance. We will assume for the remainder of this article that all cases have the appropriate amount of financing.

As discussed, the value of a case is determined by two factors: risk and time.  All cases start where risk is at a maximum, as there is relatively little information known about the case and hence a great degree of uncertainty about its outcome. As plaintiff and counsel build their case and proceed through discovery, the case generally becomes ‘de-risked’ as the plaintiff team grows more comfortable about the merits of their case and the quantum of damages. As we move through the case, we enter the zone of ‘optimum resolution’. However, ‘optimum resolution’ is not necessarily a value maximizing concept, but rather a concept of risk-adjusted value maximization.  The risk-adjusted aspect stems from the fact that both sides have about equal information concerning the dispute, and are now able to make a rational decision as to the possible outcomes and damage quantification. At the point where the process moves past the Optimum Resolution phase, the parties enter into a new phase of risk which is reflective of the binary risk nature of litigation, whereby the outcome is determined by a third party judiciary.

As the plaintiff gathers more information regarding his or her case, the case generally increases in value as risk diminishes.  However, at the point where a judicial process commences (and assuming a settlement doesn’t occur between the start of the process and the decision), the investment bifurcates into two potential outcomes on the assumption that there is no resolution after the start of the trial – generally, either a win or a loss outcome.  In certain jurisdictions where they have “adverse costs” or “loser pays” rules, the plaintiff will have to pay the defense costs, and so there is a real financial cost in addition to the lost opportunity associated with a positive outcome. 

Implications

The purpose of this analysis is to focus the plaintiff on the fact that on a risk-adjusted basis, the zone of Optimum Resolution is the most advantageous point in the litigation process to resolve the case, as it reflects the point of most knowledge and least risk.  This is the point in time to cast aside all emotional elements of the case and the impact of damages incurred, and focus on a realistic outcome that can be achieved through negotiation and settlement, regardless of whether it makes the plaintiff “whole” or not.  Of course, as the old saying goes, “it takes two to tango”, and so, if the defense is not of the same opinion, or their analysis is skewed, they may have a very different perspective on the appropriate settlement amount.  In the case of insurance companies as defendants in cases, they may have other considerations such as statutory reserve requirements or corporate strategic reasons to delay as long as possible (time value of money and the impact on their insurance reserves and investment returns).  Nevertheless, the concept applies to both defense and plaintiff, which is the reason for high settlement rates in most litigation in all jurisdictions.

From an investor’s perspective, there should be a recognition that as each case in their portfolio extends beyond the zone of Optimum Resolution, the risk to their portfolio increases.  Accordingly, if you are an institutional investor buying a secondary pool of litigation finance assets, you want to be sure you are not buying a series of old cases where the binary risk is high and you are not getting an appropriate discount to assume the risk.  Of course, there are always exceptions to this rule.  The reason a case has extended for a long period of time may be because the plaintiff has had successive wins at various levels of judiciary and the risk has started to shift away from binary litigation risk toward collection and enforcement risk (Burford’s investment in the ‘Petersen claim’ is a prime example of this phenomenon).

Needless to say, litigation is not a formulaic science, and because of the large degree of human interaction and case complexity, it will be relegated into the “arts” category for the time being.  Perhaps artificial intelligence can add a scientific element to determining value and litigation outcomes, but until the vast knowledge of settlement data becomes publicly available, the industry will depend on ‘gut instinct’ and litigation experience in making its decisions.  From an investment perspective, the important point is that diversification is critical to capture the upside inherent in the asset class, while minimizing the downside inherent in the inevitable losses that will be experienced.

Important Considerations 

Other important factors to consider are the use of contingent fee arrangements and litigation finance, and the impact those characteristics have on the ultimate value of a piece of litigation.  Some in the litigation finance community will argue that they will only consider providing financing to cases where the lawyer is providing their services on a 100% contingent basis (there could be jurisdiction specific constraints to the use of contingent fee arrangements), as this fosters alignment between plaintiff and lawyer to maximize the value of the claim.  Certainly, the alignment argument makes intuitive sense.  However, not every funder is convinced of this fact, and unfortunately, there is not a broad set of data that is definitive in this regard.  Accordingly, until the data determines there is a strong correlation between contingent fee arrangements and outcomes, it remains to be seen.  On one of the panels at the September 2019 LF Dealmakers conference, a litigation funder stated that the company’s empirical data suggests there is no correlation, and hence contingency fee arrangements are not a significant feature to their underwriting process. Yet it’s worth pointing out that many funders feel strongly that the alignment argument is a good one, so they refuse to invest in a case without at least some level of legal counsel fee contingency.

Then there is the existence and use of litigation funding itself.  One could argue that the very existence of a plaintiff’s use of a litigation funder to pursue its case will shift the balance of power and ‘level the playing field’ between the plaintiff and the defendant, especially in a David v. Goliath situation where the defendant is ‘deep pocketed’ and the plaintiff relatively impecunious.  As an investor in the industry, not only do I subscribe to the theory, I have seen the results.  While many would suggest it is difficult to parse the effect of litigation funding from the effect of good legal representation and a meritorious claim, I look at the results of relatively small financings and I can see a correlation between success and short duration, which I, in large part, ascribe to the existence of litigation finance.

Investor Insights:

As a consequence of the above, when I review track records for fund managers one of the metrics I look at is how often the realized outcomes are dependent on a judicial decision (bench, trial or arbitral) as compared to an outcome determined through settlement.  Overall, the data concerning litigation outcomes illustrates that a high percentage of cases (90%+) are settled prior to a judicial decision and so we need to view the results in the context of industry settlement rates. Generally speaking, and depending on the case type and jurisdiction, I have a strong preference for fund managers that have a disproportionate number of settlements in their realized portfolios as opposed to outcomes that were derived from a judicial decision, given the binary nature of those outcomes.  In certain jurisdictions, litigation funders are able to have some influence on the settlement discussions which may tend to favour higher settlement rates, so this issue and my approach to it is not identical in every jurisdiction.  Another influencing factor on settlement rates is case types and case sizes.  Generally speaking, I have noticed that outcomes dependent on judicial/arbitral decisions are correlated with larger cases and certain case types (as an example, International Arbitration cases would be one area where settlement is less likely and hence arbitral outcomes more prevalent).

Edward Truant is the founder of Slingshot Capital Inc., and an investor in the consumer and commercial litigation finance industry.

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Community Spotlights

Community Spotlight: Dean Gresham, Managing Director, Certum Group

Dean Gresham is a Managing Director who oversees the evaluation, underwriting, and risk management of all the company’s risk transfer solutions, including litigation finance and contingent risk insurance. With 25 years of experience in complex litigation and legal risk analysis, Dean ensures rigorous underwriting standards and strategic risk mitigation across the company’s risk transfer solutions.

Before joining Certum Group, Dean was a trial lawyer for more than 21 years handling complex commercial, catastrophic injury, qui tam, and class action litigation across the country. While practicing, Dean litigated on both sides of the docket and developed a keen ability to analyze and assess risk from both the plaintiff’s and defendant's unique perspectives.

In 2020, Dean was awarded the Elite Trial Lawyer of the Year award by the National Law Journal for his trailblazing work on a complicated wrongful adoption case. Dean is consistently chosen by his peers as a Texas Super Lawyer (2009-2024); one of the Best Lawyers in Dallas by D Magazine (2009-2024), one of the Top 100 Trial Lawyers in Texas by the National Association of Trial Lawyers (2011-2024), and in the Nation’s Top One Percent by the National Association of Distinguished Counsel (2019-2024).

Dean is the 2025 Chair of the Dallas Bar Association's prestigious Business Litigation Section and sits on the DBA’s Judiciary Committee.

Company Name and Description: Certum Group offers a next-generation litigation risk transfer platform that provides bespoke solutions for companies, law firms, and funders facing the uncertainty of litigation. Latin for “certainty,” Certum represents the core benefit the company delivers to its clients across its entire suite of risk transfer solutions.  Certum is the full-service funding and insurance partner for law firms and their business clients.

Company Website: www.certumgroup.com

Year Founded: 2014 

Headquarters:  Plano, Texas

Area of Focus: Member: Head of Underwriting and Chair of the Investment Committee.

Member Quote: “Litigation funding doesn’t just fuel cases—it fuels justice. Power should never trump merit.”

Highlights from LFJ’s Virtual Town Hall: Investor Perspectives

By John Freund and 4 others |

On March 27th, LFJ hosted a virtual town hall featuring key industry stakeholders giving their perspectives on investment within the legal funding sector. Our esteemed panelists included Chris Capitanelli (CC), Partner at Winston and Strawn, LLP, Joel Magerman (JM), CEO of Bryant Park Capital, Joe Siprut (JSi), Founder and CEO of Kerberos Capital, and Jaime Sneider (JSn), Managing Director at Fortress Investment Group. The panel was moderated by Ed Truant (ET), Founder of Slingshot Capital.

Below are highlights from the discussion:

One thing that piqued my interest recently was the recent Georgia jury that awareded a single plaintiff $2.1 billion in one of 177 lawsuits against Monsanto. What is your perspective on the health of the mass tort litigation market in general?

JSn: Well, I think nuclear verdicts get way more attention than they probably deserve. That verdict is going to end up getting reduced significantly because the punitive damages that were awarded were unconstitutionally excessive. I think it was a 30 to 1 ratio. I suspect that will just easily be reduced, and there will probably be very little attention associated with that reduction, even though that's a check that's already in place to try to prevent outsized judgments that aren't tied as much to compensatory damages. I expect Monsanto will also likely challenge the verdict on other grounds as well, which is its right to do.

The fact is, there are a whole number of checks that are in place to ensure the integrity of our verdicts in the US legal system, and it's already extraordinarily costly and difficult for a person that files a case who has to subject himself to discovery, prevail on motions to dismiss, prevail on motions for summary judgment, win various expert rulings related to the expert evidence. And even if a plaintiff does prevail like this one has before a jury, they face all sorts of post-trial briefing remedies that could result in a reduction or setting aside the verdict, and then they face appeals. The fact is, I think corporate defendants have a lot of ways of protecting themselves if they choose to go to trial or if they choose to litigate the case.

And I think, oftentimes when people talk about the mass tort space, their disagreement really isn't with a specific case, but with the US Constitution itself, which protects the right to juries, even in civil litigation in this country. The fact is that there is a rich tradition in the United States that recognizes tort is essential to deterring wrongdoing. And ensuring people are fairly compensated for the injuries that they sustained due to unsafe products or other situations. So, broadly speaking, we don't think in any systematic a way that reform is required, although I suspect around the margins there could be modest changes that might make sense.

Omni has made a number of recent moves involving secondary sales and private credit to improve their earnings and cash flow. What is your sense of how much pressure the industry is under to produce cash flow for its investors?

JM: I think there is some pressure for sure, but more than pressure, I think it's a natural thing for self-interested managers to want to give their investors realizations so that they can raise more capital, right?

So, even if no one had ever told me, boy, it would be nice to get money back at some point in the future, that would obviously still be what I'm incentivized to do because the sooner I can get realizations and get cash back, the sooner people can have confidence that, wow, this actually really works, and then they give you 2x the investment for the next vehicle.

So the pressure is, I think, part of it. But for a relatively new asset class like litigation finance, which is still in middle innings, I think, at most, you want realizations. You want to turn things over as quickly as you can, and you want to get capital back.

In terms of what ILFA is doing, do you feel like they're doing enough for the industry to counter some of the attacks that are coming from the US Chamber of Commerce and others?

CC: I think there has been a focus from ILFA on trying to prevent some of the state court legislation from kind of acting as a test case, so to speak, for additional litigation. So there's been, you know, they've been involved in the big stuff, but also the little stuff, so it's not used against us, so to speak.

So I think in that regard, it's good. I wonder at what point is there some sort of proposal, as to if there's something that's amenable, is there something that we can all get behind, if that's what's needed in order to kind of stop these broad bills coming into both state legislatures and Congress. But I think overall, the messaging has been clear that this is not acceptable and is not addressing the issue.

Pretium, a relative newcomer to the market, just announced a $500 million raise. At the same time, it's been rumored that Harvard Endowment, which has traditionally been a significant investor in the commercial litigation finance market, is no longer allocating capital to the Litfin space. What is your sense of where this industry continues to be in favor with investors, and what are some of the challenges?

JSi: On the whole, I think the answer is yes, it continues to be in favor with investors, probably increasing favor with investors. From our own experience, we talk to LPs or new LPs quite frequently where we are told that just recently that institution has internally decided that they are now green lighting initiatives in litigation finance or doing a manager search. Whereas for the past three or four years, they've held off and it's just kind of been in the queue. So the fact that that is happening seems to me that investors are increasingly interested.

Probably part of the reason for that is that as the asset class on the whole matures, individual managers have longer track records. Maybe certain managers are on their third or fourth vintage. And there are realized results that can be put up and analyzed that give investors comfort. It's very hard to do that on day one. But when you're several years into it, or at this point longer for many people, it becomes a lot easier. And so I think we are seeing some of that.

One of the inherent challenge to raising capital in the litigation finance asset class is that even just the term litigation finance itself is sort of shrouded in mystery. I mean, it's very unclear what that even means and it turns out that it means many different things. The media on the whole, not including LFJ obviously, but the media on the whole has not done us many favors in that regard because they often use the term litigation finance to mean one specific thing, oftentimes case finance, specific equity type risk on a single case, when in fact, there are many of us who do all kinds of different things: law firm lending, the credit stuff, the portfolio finance stuff. There's all kinds of different slivers. And so the effect of that is that an LP or factions within an LP may have a preconceived notion about what litigation finance is, which is completely wrong. And they may have a preconceived notion of what a particular manager's strategy is. That's completely wrong.

I also think that litigation finance provokes an almost emotional reaction sometimes. It's often the case that investments get shot down because someone on the IC says that they hate lawyers, or they got sued once, and so they hate lawyers. And so they want nothing to do with litigation finance. And so whether that's fair or unfair is irrelevant. I think it is something that is a factor and that doesn't help. But I'd like to think that on the whole, the good strategies and the good track records will win the day in the end.

The discussion can be viewed in its entirety here.

Manolete Partners Announces New Revolving Credit Facility with HSBC Bank

By Harry Moran and 4 others |

Manolete Partners Plc (AIM:MANO), the leading UK-listed insolvency litigation financing company, is pleased to announce it has signed a new Revolving Credit Facility ("RCF") with its existing provider, HSBC UK Bank Plc ( "HSBC"). 

The new RCF provides Manolete with the same level of facility as the previous arrangement, at £17.5m. However, the margin charged to Manolete by HSBC on the new RCF is at a reduced rate of 4.0% (previously 4.7%) over the Sterling Overnight Index Average (SONIA) and has a reduced non-utilisation fee, from 1.88% to 1.40%. 

The new RCF is a 3.25-year facility with an initial maturity of 27 June 2028. Manolete has the option to further extend the facility on its current terms by an additional year. 

The covenants remain unchanged except for the Asset Cover covenant which has been relaxed for the next six months. 

Steven Cooklin, CEO commented: "We are delighted to have secured a new long-term commitment to the business from HSBC, which is testament to the strong partnership we have established since 2018. The improved terms of the facility demonstrate confidence in the Manolete business." 

This announcement contains inside information as defined in Article 7 of the Market Abuse Regulation No. 596/2014 ("MAR").