In our last post, we examined how state law has addressed litigation finance, reviewing key cases in four states. We discussed the ongoing national trend towards removing perceived obstacles and clarifying that properly structured funding arrangements do not violate state law. Naturally, counsel exploring litigation finance options should be mindful of case law in their…

At Lake Whillans, we frequently field questions about the legal issues surrounding litigation finance.  One question that frequently comes up is whether legal doctrines such as champerty and maintenance impede litigation finance arrangements.  For the most part, the doctrines of champerty and maintenance do not impede litigation finance arrangements.  But the answer will depend significantly…

Counsel who have not been through the process of raising litigation funding often have questions about the risks of disclosing confidential information about their client’s case. The process of obtaining litigation funding necessarily involves sharing information about the facts, legal theories, damages and defenses of a claim, often coupled with discussions about the claimholder or counsel’s views on the strengths and weaknesses of each. Cases are more likely to get funded when a robust dialogue is established on these topics. Nonetheless, counsel should be aware of where the boundaries lie, and how to protect their clients from inadvertent waivers and fulfill their professional responsibility obligations.

The potential benefits of litigation funding are increasingly well-known to litigators and in-house counsel. But until you have been through the process of raising funding, it can be difficult to know what to expect. Lake Whillans has years of experience introducing claimholders and counsel to the funding process and helping to determine whether litigation finance makes sense for their claim. In this article, we outline the main steps in raising funding.

In Part I of this double post, we reviewed some of the key issues raised in the American Bar Association Best Practices for Third-Party Litigation Funding document released in August 2020. In this Part II, have excerpted parts of a Q&A that I did with Above the Law that compares the ABA’s recommendations and to current standards practiced by reputable funders.

In August 2020, the American Bar Association released its Best Practices for Third-Party Litigation Funding. In this Part I of a two-part post, we highlight some of the key issues the ABA raises and suggest how counsel might best interpret the document. In the upcoming Part II, I will do a Q&A style article discussing the ABA’s recommendations and how they compare to current standard practices among reputable litigation funders.

Bankruptcy filings have dropped precipitously in the last decade (from more than 60,000 in 2009 to 22,000 last year) — but that trend has reversed as companies deal with the devastating consequences of the pandemic. Law firms are reportedly scrambling to hire bankruptcy attorneys to help with the flood of expected filings. Litigation finance may be a creative and viable option for restructuring attorneys and advisors to consider throughout the bankruptcy process especially as traditional sources of financing by outside lenders, creditors and law firms are constrained by the current environment.

Litigation finance can preserve or increase estate resources for creditors and enable additional recoveries. But its use is not limited to a debtor or potential debtor. Financing can be useful for creditors in intercreditor disputes or other matters and especially useful for a litigation or liquidation trust seeking to prosecute ongoing claims. Here are some examples where litigation finance may be an attractive option (although creative restructuring professionals may find it useful in a host of other circumstances):

By now you’ve likely heard about litigation finance and some of the advantages it can offer to claimholders (in a nutshell, the flexibility to pursue a claim without having to pay attorneys’ fees or other costs from the company’s balance sheet, as well as the ability to monetize all or a portion of a claim). “Sounds great,” you might be thinking, “but how much is this going to cost me?”

This article will review the basic pricing structures that litigation funders typically employ and the reasons why a claimholder may prefer one approach over another. At Lake Whillans, we have transacted using each of these pricing structures, and approach each transaction flexibly with the mindset of utilizing whatever structure works best for the claimholder. Further, we provide pricing early in the process; you can generally expect to have terms from us within 5-10 days of reaching out to discuss your matter.