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.Read More
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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 More
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.Read More
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.Read More
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 email@example.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.Read More
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.Read More
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.Read More
Developing a new product or business in the energy space is rife with complexity. Whether it be creating a new alternative energy device or innovative software platform, energy entrepreneurs must identify a valuable opportunity, assemble a dedicated and talented team, and potentially invest years and abundant resources in R&D – all of which may occur before navigating government regulations, finding manufacturing partners or even knowing whether you have a viable product for the market.Read More
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 More
As the litigation finance market has developed in the U.S., the number of firms offering financing has likewise grown. Indeed, in recognition of the growing field of players, Above the Law recently surveyed readers about their experiences with the most significant commercial litigation finance firms. But beyond word of mouth, how might one choose among litigation funders, particularly if they are offering ostensibly equivalent economic terms? Like choosing attorneys best suited to litigate a case, there are a number of considerations that will enable claimholders and their counsel to differentiate between their options.Read More