INSIGHTS INTO LITIGATION FINANCE

How-To Win Clients and Influence Funders: A 2-Part Series

Marla Decker | December 20, 2016

As a member of the litigation finance community, I’ve had the opportunity to work with a varied cross-section of attorneys and one truth has emerged: business development is a pressure every practitioner is facing. Perhaps your New Year’s Resolution this year will include improving the efficacy of your business development efforts. If so, this series is for you. In Part I of this series, I’ll share my observations about what I’ve seen work in winning business. In Part II, I’ll share my thoughts on the related skill of how to best present your client’s case to a funder.

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UK High Court Affirms Arbitral Ruling that Party Can Recover Litigation Finance Costs

Marla Decker | October 3, 2016

The High Court decided an appeal brought by Essar Oilfield Services, which challenged an award granted in an ICC arbitration to Norscot Rig Management, in which the arbitrator directed Essar to pay not only Norscot’s damages and attorneys’ fees, but also Norscot’s costs of litigation financing. In the dispute between the two oil and gas companies, Norscot used financing to pay for its £647,000 in attorneys’ fees, and, as a result of the successful arbitration, Norscot was obligated to the funder for the greater of three-times that amount or 35% of the damages award. (The amount of the damage award has not been reported.) Essar challenged the arbitrator’s authority to award the litigation finance costs in the High Court.

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Defend Trade Secrets Act of 2016

Marla Decker | June 8, 2016

Many of the investments that we make at Lake Whillans involve supporting innovators and entrepreneurs who are seeking to protect trade secrets. We have found this group to be particularly vulnerable to more well-heeled competitors seeking to gain an unfair advantage in the market place. Naturally, we were curious about the new rights enacted by Congress in the Defend Trade Secrets Act of 2016. We turned to Jonathan Patchen and Max Twine of Taylor & Company Law Offices, LLP, named to our recently published list of the White Sandal Elite: The Go-To Law Firm Firms of the Silicon Valley, to educate us and ATL readers on the basics of the new legislation:

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David v. Goliath: A Conversation with Jane Kim

Lee Drucker | May 18, 2016

I’ve definitely been involved in situations where new approaches, and particularly litigation finance, would have helped to level the playing field against a well-resourced opponent. Without getting into specifics, our firm has represented bankruptcy estates where a major asset was a litigation against well-heeled defendants. A significant part of the defendants’ litigation strategy was a scorched-earth tactic designed to prolong the litigation, with the knowledge that the bankruptcy estate had a finite and shrinking pool of funds, to pressure the bankruptcy estates and creditors to accept a less attractive settlement of meritorious claims. Litigation funding could certainly have helped to shift the leverage and not allow the costs of litigation to become a barrier to obtaining the right result.

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Litigation Finance: Creating a Code of Conduct

Lee Drucker | March 22, 2016

In mature industries, there is usually a set of rules outlining best practices for individuals and organizations. In newly developing industries, however, best practices are less clear, and once established spread more slowly. In order to promote the development of best practices in litigation finance, we recently identified key aspects of a funding arrangement that we believe will lead to the best results for a claimholder. Companies considering a litigation financing offer should consider the following principles and their importance:

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Delaware Recognizes Distinction Between Litigation Finance and Champerty

Marla Decker | March 15, 2016

Last week, the Delaware Superior Court held that a litigation finance arrangement does not run afoul of the medieval doctrines prohibiting champerty and maintenance. These laws, which were originated by medieval kings who were annoyed by vexatious litigation of feudal lords, are still recognized in Delaware though their application has been very much limited.

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Litigation Finance, a Success Story

Marla Decker | January 27, 2016

More than five years after a small family-owned company based in England filed suit against U.S. construction machinery giant Caterpillar Inc. for breach of contract and trade secret misappropriation of its “Bug coupler” technology (specialized equipment used with hydraulic excavators), the journey has paid off. In December, after an eight-week trial, a jury awarded plaintiff Miller UK Ltd. (“Miller”) $74.6 million in damages (including $49.7 million in exemplary damages); an award that Miller’s attorneys contend is the largest ever under the Illinois Trade Secret Act.

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Three Ways Litigation Finance Changes Your Job: Inside & Out

Lee Drucker | January 20, 2016

This post was contributed by Bill Patterson; he was the general counsel of Business Logic where he oversaw a “bet-the-company” litigation. He now manages complex litigation at Swanson, Martin & Bell. You can contact Bill at bpatterson@smbtrials.com.

Litigation finance is here to stay. Having worked as outside counsel, in-house and now as outside counsel again, I can confidently make that statement. There are three fundamental ways litigation finance changes your job, whether you’re inside or out.

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Lake Whillans’ Life Sciences Law Firm Index

Lee Drucker | January 13, 2016

In order to help entrepreneurs in the life sciences sector, we are creating an annual ranking of the top law firms that help these entrepreneurs protect their interests throughout the lifecycle of their business.

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The Maple Tree is Growing: Commercial Litigation Funding in Canada

Marla Decker | December 14, 2015

The litigation finance industry in the U.S. is relatively new compared to the more mature markets that exist in Australia, the U.K. and other parts of Europe. Continuing the growth trend in North America is now Canada, which has begun to adopt litigation finance on its own terms.

Like its Commonwealth sister Australia, litigation finance in Canada found its initial toehold in class action funding, in response to the ever-increasing costs of litigation and the risks of a loser-pays system. Over the last few years, Canadian courts have approved litigation funding agreements in the class litigation context despite long-standing adherence in Canada to the champerty and maintenance doctrines. In fact, the province of Quebec took the unique step of establishing a public fund that is used to finance class lawsuits as discussed by University of Montreal Professor Catherine Piché at last month’s symposium on litigation finance at NYU. Ontario has a similar fund.

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The best way for companies and their counsel to determine if litigation finance is an attractive option is to discuss it with us.