Litigation funding inherently involves some degree of risk. Typically, financiers provide non-recourse funding, meaning that they lose their investment if there is no recovery from the underlying lawsuit. Litigation finance firms must make the determination whether the case has an acceptable likelihood of succeeding and also whether financial analysis of the potential recovery on the legal claim meets a sufficiently high level of valuation.
Risk
Can a Prevailing Party in Arbitration Recover its Litigation Funding Costs?
Marla Decker
In addition to providing finance for commercial litigation cases in the U.S. and Canada, Lake Whillans routinely funds claimants in arbitrations. In recent years there has been increasing attention to litigation funding arrangements in arbitrations, and a number of arbitral institutions have inserted rules to address the practice, both to increase transparency and to promote fairness to both sides. One emerging question in the field, where cost-shifting to the losing party is a typical part of awards, is whether tribunals will award a prevailing claimant the value of its litigation funding costs, in addition to damages and other legal costs. The confidential nature of most commercial arbitral awards makes it difficult to know how often this occurs (or has even been sought), but tribunals have permitted claimants to recover funding costs in some instances. And there is growing precedent to indicate that where tribunals award funding costs, courts will not second-guess the decision — at least for arbitrations sited in England and Wales.
Read MoreLitigation Finance: Creating a Code of Conduct
Lee Drucker
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:
Read MoreLitigation Finance; a Financial Perspective
Lee Drucker
On November 20th, the Center on Civil Justice at NYU School of Law hosted an in-depth conference dedicated to the subject of litigation finance, Litigation Funding: The Basics and Beyond. It was a great opportunity to interact with many of the people that are devoting their time and energy to thinking about and building this new ecosystem of law and finance. David Lat (among others) covered the event, and you can read some of his takeaways here.
Personally, I was able to glean from the perspective of other professionals in the industry; some perspectives were new and interesting, and other perspectives I disagreed with, but in either case it was it was worthwhile to learn what perspectives others were bringing to bear. One of the big take-aways for me was that each funder seems to be taking a slightly different approach to the industry. Next week, I will write an article to distill these differences.
Read MorePick the Right Lawyer for a Royalty Contract
Lee Drucker
Role play with me for a moment. Imagine you’re going in for surgery and you can choose between two surgeons: a doctor who performs that surgery twice a year, or one that does it twice a month?
It’s a no brainer. The same should apply to lawyers – particularly when it comes to the mission-critical task of negotiating royalty contracts. These key agreements will make or break a company. Plus, if things go bad between your company and other parties, these documents will be what separates losing millions (and sometimes more) and remaining intact.
Here are some ways to vet your attorneys to see which ones know enough about royalty agreements.
Read MoreLitigation Finance: 10 Questions to Help Advise Your Client
Lee Drucker
We, at Lake Whillans, have been writing a lot about litigation finance in order to provide lawyers and claimholders with a framework for thinking about its use and potential benefits. I thought it might be time to take a break from writing, and provide an analytics tool to help claimholders and their lawyers determine whether litigation finance makes sense for the business.
Read MoreCost of Capital in Litigation Funding
Lee Drucker
At Lake Whillans, I spend most of my time valuing litigation related assets. There are many considerations in this exercise, some of which I wrote about here.
Today, I am going to write about cost of capital, which is a key component in valuation. Aswath Damodaran recently wrote:
“If there were a contest for the most measured number in finance, the winner would be the cost of capital. Corporate finance departments around the world compute it as an integral part of investment analysis. Appraisers estimate it as a step towards estimating intrinsic or discounted cash flow value. Analysts spend disproportionate amounts of their time working on it, though not always for the right reasons or with the right inputs.”
Portfolios of Legal Claims
Lee Drucker
In our last post we discussed the analysis a CFO might undertake when considering whether to raise capital for a litigation. We touched upon the fact that many companies do not have a portfolio of litigation – a fact which makes it difficult to mitigate the risk of investing in a legal claim. Today, we will focus on that insight and dive more deeply into idiosyncratic risk and the value of diversification.
Generally speaking, an investor must be compensated for the time value of money and risk. The risk that an investor must be compensated for is the risk that the return on an asset will be lower than the expected return. While any investment in a litigation has substantial risk, the vast majority of that risk is what would be termed in modern portfolio theory as “idiosyncratic risk.” Idiosyncratic risk is asset-specific risk that has little or no correlation with the market. This risk can therefore be substantially mitigated or eliminated through adequate diversification. By contrast, “systematic risk” (in modern portfolio theory parlance) is risk that is inherent to the entire market or an entire market segment, and cannot be mitigated through diversification. To illustrate the difference between these two types of risk, idiosyncratic risk manifests if a company suffers a major factory closure due to a natural disaster (in which case the price of its stock will likely decline while the rest of the market remains unaffected) while systematic risk manifests if the global economy slows down (in which case the price of a company’s stock will likely decline, but so will the price of the larger market).
Read MoreFinancial Analysis of Litigation Funding
Lee Drucker
The emergence of litigation finance has enabled CFOs to better manage and finance a once dormant asset – potential litigations. Many of the companies that we finance are emerging businesses with promising new products that have the ability to transform an industry. Businesses such as these are often characterized by a high ROI (return on investment) and a constrained budget (often having recently raised capital from the venture community). Imagine that the wrongful conduct of a third party has damaged such a business, and the company now faces the prospect of an expensive and lengthy litigation if it is to secure compensation. Before litigation finance, the decision might well have been between bringing litigation or not – now the decision is between self-financing or third party financing.
In order to determine which option is preferable, the CFO would likely attempt to value the potential litigation. In an older post (which you can find here), we discussed the framework for valuing a litigation. For the sake of simplicity let us assume that the expected damages are $30 million, and the chances of losing the case are estimated to be 30% – therefore the estimated value is $21,000,000.
Next, the CFO would likely attempt to calculate the cost of monetizing the asset. In order to estimate the true cost of allocating capital to the litigation, a CFO might undertake the following analysis:
Read MoreHow to Value a Litigation or Legal Claim
Lee Drucker
When pricing a litigation or Legal Claim (sometimes referred to as a litigation-related asset), there are four primary components of analysis. The first component is the probability of success on the merits. Litigation is inherently uncertain. Each side has its own story, which may or may not be fully revealed at the time of evaluation.…
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