INSIGHTS INTO LITIGATION FINANCE

Financial 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:

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Champerty, Maintenance, and Barratry

Boaz Weinstein

Champerty, maintenance, and barratry are related doctrines that trace their roots back to medieval England. The United States Supreme Court has succinctly described the three doctrines as follows: “Put simply, maintenance is helping another prosecute a suit; champerty is maintaining a suit in return for a financial interest in the outcome; and barratry is a…

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Ethical Considerations for Counsel

Boaz Weinstein

As we discussed in our article on the process of securing commercial litigation finance, the first step in the litigation finance process typically involves a decision by a company, perhaps with its counsel, that it makes sense to explore whether litigation finance is an attractive option. Let’s view this from counsel’s perspective. Imagine the following…

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Protecting Privilege in Litigation Finance

Boaz Weinstein

As we discussed in our articles on the process of securing commercial litigation finance and claim valuation, litigation funders perform due diligence on potential investment opportunities, including evaluating the merits of the claim, the likely damages, the likely duration of the claim, and other factors. This diligence process typically includes the exchange of documents and…

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How 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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What to Expect When Raising Litigation Finance

Lee Drucker

The first step in the litigation finance process typically involves a decision by a company, perhaps together with its counsel, that it makes sense to explore whether litigation finance is an attractive option.  There are many reasons why a company may choose to do so.  Consider, for example, a company that has been wronged but…

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Transaction Structures in Litigation Finance

Lee Drucker

While the adoption of commercial litigation finance is on the rise, the particulars of the practice are still not widely understood. How are litigation finance deals structured? How do lawyers and clients work with funders without jeopardizing the attorney-client relationship? How are litigation-related assets valued? How relevant are champerty issues?

We at Lake Whillans Litigation Finance will be addressing these and other questions; discuss topics of interest around commercial litigation finance; and spark an informative dialogue. We will kick things off by shedding some light on a few frequently asked questions about the structure of litigation finance deals.

Q. Who are the parties to a transaction?

Generally, litigation finance companies transact directly with the claimholder. While the claimholder’s counsel is typically involved throughout the investment process—helping to answer due diligence questions and providing a case budget, for example—the investment contract is structured as a bilateral agreement directly with the claimholder. The attorney-client relationship remains exclusive to the claimholder and its attorney.

Q. Can litigation finance provide capital for activities other than litigation?

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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.