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Practical and entertaining education for
attorneys, accountants, business owners and
executives, and investors.
Disclaimer
The material in this webinar is for informational purposes only. It should not be considered
legal, financial or other professional advice. You should consult with an attorney or other
appropriate professional to determine what may be best for your individual needs. While
Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate,
Financial Poise™ makes no guaranty in this regard.
3
An Introduction to a New Yet Old Funding Alternative (Series: Commercial Litigation Funding)
Meet the Faculty
MODERATOR:
Evan Fried - Greybridge Capital LLC
PANELISTS:
Dai Wai Chin Feman - Parabellum Capital
Christopher Freeman - Burford Capital
Jeffery Lula - GLS Capital, LLC
5
About This Webinar
An Introduction to a New Yet Old Funding Alternative
Litigation funding is an increasingly-popular tool for attorneys and clients to share the risk and
reward of litigation with third-party investors, and for investors to capitalize on the
uncorrelated returns generated by legal-driven revenue. This webinar is intended to provide
an overview of the topic generally, touching on the “who,” “what,” “where,” “when,” “why” and
“how’s” behind litigation funding.
6
About This Series
Commercial Litigation Funding 101
This webinar series discusses advanced topics in the field of litigation funding. Once a fledgling
industry predominantly used in the Commonwealth nations, litigation funding has over the past ten
years become a well-accepted and prevalent practice in the United States. As the industry has
evolved, so too have the menu of available products, strategic decisions made by funders and
practitioners, and types of investors. This three-part series is geared towards educating attorneys
and clients on legal/ethical, strategic, and business decisions when considering litigation funding,
and investors seeking to learn about an increasingly mainstream asset class. Panelists include
preeminent experts in the field of litigation funding, including academics who have written on the
topic, investment managers at preeminent litigation funders, litigators who have used funding
products, and independent litigation funding advisors.
Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and
executives without much background in these areas, yet is of primary value to attorneys, accountants, and other
seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to
entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that
participants will enhance their knowledge of this area whether they attend one, some, or all episodes.
7
Episodes in this Series
#1: An Introduction to a New Yet Old Funding Alternative
Premiere date: 3/11/20
#2: A Menu of Products for Investors and Lawyers
Premiere date: 4/8/20
#3: Three Case Studies
Premiere date: 5/6/20
8
Episode #1
An Introduction to a New Yet Old Funding Alternative
9
Litigation Funding: A Broad Definition
Litigation or legal funding is the “funding of litigation activities by entities other than
the parties themselves, their counsel, or other entities with a pre-existing
contractual relationship with one of the parties.”
 Source: American Bar Association Commission on Ethics 20/20, “White Paper on Alternative
Litigation Finance”
10
Legal Doctrines Related to Litigation Finance
 Maintenance
 Champerty
 Barratry
 Usury
 Attorney-client privilege
 Work product immunity
11
Maintenance, Champerty, and Barraty Defined
 Maintenance: an arrangement where a party supports another to enable him or her to
further a legal claim.
 Champerty: a type of maintenance, where an unrelated party strikes a bargain with a
litigant to financially support the litigation in return for a share of the proceeds from that
claim.
 Barratry: the encouragement of another to bring or continue a claim.
12
Maintenance, Champerty, and Barraty
 In medieval England, maintenance and champerty was used by the elite as a means of
settling scores. Feudal lords and other privileged members of society would support
legal disputes of others against the funder’s personal or political enemy. Most colonies
that imported their laws from England passed laws designed to protect litigants from
“officious intermeddling” and profiteering from the sale of legal claims to third parties.
Today, the modern view is to permit maintenance, champerty and barratry as these
doctrines are predominantly viewed by the courts as obsolete since other effective
means of controlling abuses of the legal system exist.
13
Maintenance, Champerty, and Barraty
 The American civil justice system increasingly recognized that access to justice
depends upon the broad availability of legal representation for all socioeconomic levels.
The public policy for increasing access to the legal system for those that could least
afford it overrode the concerns underlying the medieval doctrines in many states.
According to the modern view, widespread exceptions to these doctrines recognize that
financial considerations often influence access to justice. Most states now permit
maintenance, champerty and barratry as they refuse to void contracts based on these
outdated doctrines.
14
Usury
 Historically, the lending of money with interest. Today, the charging of an illegal rate of
interest.
15
Attorney-Client Privilege and Attorney Work
Product Immunity
 The attorney-client privilege is a legal concept that protects certain types of
communications between attorney and client from disclosure to the opposition. Work-
product immunity protects materials prepared by attorneys and third parties in
anticipation of litigation from discovery.
 Issues regarding the waiver of the attorney-client privilege apply to only a small class of
information. The privilege applies only to communications between a client and the
attorney, not any communication about the lawsuit. The client is free to tell a prospective
funder anything other than what the client communicated to the attorney, without
waiving the privilege. An investor can expect to receive substantial information from the
plaintiff about the claim without ever creating waiver problems.
16
Typical Litigation Funding “Parties”
 Plaintiffs
 Attorneys and Law Firms
 Investors
17
Interest by Plaintiffs in Litigation Funding
 Allows plaintiffs with financing issues to bring meritorious cases by financing litigation
expenses
 Provides for capital injections for existing cases without sufficient funding
 Reduces the risk of a settlement for less than cases are worth
 Allows business plaintiffs to continue to use cash for working capital rather than litigation
expenses
 Allows individuals to not divert personal funds
 Permits companies to maintain performance on balance sheets by excluding litigation
costs
 Permits greater access to top legal representation
18
Interest by Attorneys and Law Firms in Litigation
Funding
 Expands scope of potential clients who otherwise could not afford their fees
 Allows third party (rather than law firm) capital for litigation expenses, including expert
witness fees
 Provides funding source so clients will not run out of money during litigation
 Allows attorneys to offer different types of flexible payment arrangements to
prospective clients
 Provides funding for plaintiffs’ working capital and personal expenses, potentially
resulting in other types of legal work
 Permits recoveries that are more in line with case merits and damage
19
Interest by Investors in Litigation Funding
 Access to new type of investment and asset class
 Investment is uncorrelated to capital markets
 Historical returns tend to be outsized compared with other alternative asset classes
 Liquidity timeframe is typically more moderate as opposed to other alternative
investments
20
Litigation Funding: Demand Among Attorneys
 Two typical justifications:
 Solves pressures of high cost of litigation:
“Protracted discovery is expensive and is a drain on the parties’ resources. Where a
defendant enjoys substantial economic superiority, it can, if it chooses, embark on a
scorched earth policy and overwhelm its opponent.” Miller v. Caterpillar 17 F.Supp.3d
711 (N.D. Ill. 2014).
 Provides access to justice:
“There is a proliferation of alternative litigation financing in the United States, partly due to
the recognition that litigation funding allows lawsuits to be decided on their merits, and
not based on which party has deeper pockets or stronger appetite for protracted
litigation.” Lawsuit Funding LLC v. Lessoff, 2013 NY Slip Op 33066(U) (Sup. Ct. N.Y.
County December 4, 2013).
21
Litigation Funding: Demand Among Attorneys
 Less obvious, more practical considerations:
 Heightened scrutiny of outside legal bills and price competition by law firms
 Increased prevalence of alternative fee arrangements among BigLaw firms
 Post-recession proliferation of new litigation boutiques who require capital
 Increasing curiosity about tax benefits of litigation funding
22
Litigation Funding: Supply Among Investors
 As the legal funding market has matured, investors have flooded the market:
 Attracted to returns that are uncorrelated to the debt and equity markets
 Asset manager have generated outsized returns, often in excess of 25% IRR
 Growing deal size and asset pools has attracted major institutional investors
 Increased deal flow means opportunity for diversification
 Entrance of institutional investors means more competitive cost of capital
 Opportunity to allocate that fits particular risk-reward parameter of investor
 Increased deal flow means opportunity for diversification
 Entrance of institutional investors means more competitive cost of capital
 Opportunity to allocate that fits particular risk-reward parameter of investor
23
Litigation Funding: Segmentation
 Consumer vs. Commercial Funding
 Early vs. Late Stage Funding
 Domestic vs. International Funding
 Funder Structures
 Attorney Characteristics
24
Risk to Industry Generally
 Oversaturation of parties chasing returns
 Availability of “good” investments
 Change of tax laws
 Mandatory disclosure of litigation funding arrangements
 Legislation
 e.g. Ethics Opinions (e.g. NY City Bar Association 2018 opinion) becoming
binding law
25
Metrics for Analysis: Risk
 “Risk” is the probability of occurrence of losses relative to the expected return on any
particular investment
 Litigation is an inherently risky underlying investment
 Risk varies dramatically based on type of litigation -- e.g., contract, intellectual
property, antitrust
 Litigation risk is not constant, but rather fluctuates based on litigation
developments
 Sellers may own diversified litigation risk, depending on the circumstances
 Risk also includes headline and regulatory risk
26
Metrics for Analysis: Use of Proceeds
 “Use of Proceeds” -- will refer to how the funded party (the plaintiff or the attorney)
intends to use the legal funding
 Proceeds may be used for direct litigation costs, i.e., attorneys’ fees and/or costs
 “Hard costs” includes discovery costs, experts’ fees, filing costs; basically
anything other than attorneys fees
 Funding arrangements may be used for non-litigation needs, such as operational
needs of plaintiff or so that plaintiff can recognize revenue
 In other situations, attorneys may seek funding for use across firm-wide activity,
not just one specific litigation
27
Metrics for Analysis: Alignment
 “Alignment” is the extent to which investor and investee have parallel incentives:
 Popular new “buzzword” in investing world
 Investors’ desire to protect downside by not dis-incentivizing funded party
 Protection against information asymmetry between buyer and seller
 Preserve upside in high-end, best-case scenarios
 Create opportunity for recurring or repeated business
28
Metrics for Analysis: Cost of Capital
 “Cost of Capital” is the required rate of return on a portfolio’s existing securities
 Used to evaluate new projects of an investor
 Minimum return investors expect for providing capital--thereby setting a
benchmark
 Impacts the types of investments palatable to institutional investors
 Impacts the “pricing” of individual funding products offered by funder to clients
29
Metrics for Analysis: Fee-Splitting Doctrine
• Model Rule 5.4(a) (“Professional Independence of Lawyer”):
“A lawyer or law firm shall not share legal fees with a nonlawyer …”
 New York Courts have interpreted such prohibition as permitting attorneys to share
with a “percentage of … gross revenue” to the law firm, so long as (i) it is tied to more
than one case and (ii) ultimately signifies a capped multiple of investment, and not an
equity percentage of any given case. See Hamilton Capital VII, LLC, I v. Khorrami
LLP, 48 Misc.32 1223(A) (Sup. Ct. N.Y. County Aug. 17, 2015).
30
Metrics for Analysis: Funded Party Profile
 “Funded Party” -- for purposes of this presentation -- will refer to the party, i.e., the
attorney or the plaintiff, who receives funds from the Litigation Funder
 Decision is driven by a variety of factors
 Volume and diversification of litigation risk owned by Funded Party
 Appetite for risk-sharing by the Funded Party
 Willingness to contribute additional collateral to funding arrangement
 Legal/ethical considerations--including champerty and attorney fee-splitting
31
Potential Risk for Funded Party
 Change in perception of value of dispute given the need to split proceeds
 Real or perceived pressure from third party funder (notwithstanding contractual
restrictions on interference)
 Adequate representation in the context of non-law firm Funded Party
32
Investment Structure Types
 Single case
 Portfolio
 Others- Loans, “insurance like” products, factoring
33
Return Structure
 Typically involves some kind of waterfall where capital outlays are returned followed by
some metric of additional return
 Return metric could be tied to some kind of multiple or percentage or calculated based
on an internal rate of return
34
About the Faculty
35
About The Faculty
Evan Fried - efried@grbridge.com
Evan Fried is an attorney who has worked in litigation finance since 2007. He is currently a
Principal at Greybridge Capital LLC, a commercial litigation funding outfit, and Slarskey LLC,
a boutique commercial litigation firm. Mr. Fried was previously a partner at 1624 Capital, a
specialty finance company focused on investments in technology/intellectual property
litigation. He has written and spoken on ethical considerations of litigation finding. Mr. Fried
began his career in the New York office of Winston & Strawn LLP and a family office that was
an early player in litigation finance. Mr. Fried received his J.D. from New York University
School of Law and his B.S. in Industrial and Labor Relations from Cornell University.
36
About The Faculty
Dai Wai Chin Feman - daiwai@parabellumcap.com
Dai Wai is responsible for the development and execution of Parabellum’s commercial litigation
investment strategies. Prior to joining Parabellum, Dai Wai was a litigation partner at Dorsey & Whitney
LLP, where he specialized in commercial and antitrust litigation. Dai Wai has broad experience in
complex disputes concerning breaches of contract, competition, tortious interference, trade secrets,
restrictive covenants, licensing, rights of first refusal, shareholder oppression, soft intellectual property,
and securities. He has advised and represented clients ranging from Fortune 100 companies to closely-
held family businesses through all phases of litigation, from case assessment through trial, appeal, and
enforcement proceedings. While in private practice, Dai Wai was named a Super Lawyers Rising Star in
Business Litigation for four consecutive years. Dai Wai received his A.B., cum laude, from Georgetown
University and his J.D. from New York University School of Law. He is active in the Asian American Bar
Association of New York, where he is a board member, Vice-Chair of the Judiciary Committee, and
former Co-Chair of the Litigation Committee. He is also a Fellow of the New York City Bar Association
Leadership Council on Legal Diversity, a member of the New York City Bar Association’s Litigation
Funding Working Group, and a member of the New York City Bar Association’s Professional Ethics
Committee.
37
About The Faculty
Christopher Freeman - CFreeman@burfordcapital.com
Christopher Freeman is a Vice President with responsibility for assessing and underwriting
legal risk in patent matters. As part of Burford’s investment team, Christopher evaluates
intellectual property cases and patent monetization campaigns and crafts investment
structures that align incentives between funder, law firm and claimant. Prior to joining Burford,
Christopher was Vice President and Head of Litigation at Blackbird Technologies, a company
he co-founded in 2014. At Blackbird, Christopher oversaw all business operations and
successfully built and managed one of the most prominent patent acquisition and licensing
entities in the US, growing the firm to a dozen employees and a portfolio of over 100 patents
and applications. Earlier in his career, Christopher was an IP partner at Kirkland & Ellis and
practiced at Latham & Watkins and at Quinn Emanuel. Christopher graduated from the
Boston University School of Law and earned an undergraduate degree from Northwestern
University in Industrial Engineering and Economics.
38
Jeffery Lula - jlula@glscap.com
Jeffery Lula serves as a Principal at GLS and is responsible for due diligence and monitoring of commercial
litigation and arbitration-related investments.
Prior to joining GLS, Jeff was a litigation partner at Kirkland & Ellis LLP in Chicago. During his nine years at
Kirkland, Jeff’s practice focused on a wide variety of complex commercial litigation, including contract
disputes, bankruptcy litigation, corporate mismanagement, fraudulent transfer litigation, and insurance
litigation. His experience extends to all stages of litigation and appeal, and he also counseled clients during
internal investigations prior to litigation or arbitration. He has represented clients in a variety of fields, including
private equity firms, insurance carriers, and large Chapter 11 debtors.
Jeff holds a J.D. from the University of Chicago Law School, where he served as an Articles’ Editor of the
University of Chicago Law Review, and a B.S. from University of Illinois.
39
About The Faculty
Questions or Comments?
If you have any questions about this webinar that you did not get to ask during the live
premiere, or if you are watching this webinar On Demand, please do not hesitate to email us
at info@financialpoise.com with any questions or comments you may have. Please include
the name of the webinar in your email and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes
only. It has been prepared primarily for attorneys and accountants for use in the pursuit of
their continuing legal education and continuing professional education.
40
About Financial Poise
41
DailyDAC LLC, d/b/a Financial Poise™ provides
continuing education to attorneys, accountants,
business owners and executives, and investors. It’s
websites, webinars, and books provide Plain English,
entertaining, explanations about legal, financial, and
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An Introduction to a New Yet Old Funding Alternative (Series: Commercial Litigation Funding)

  • 1. 1
  • 2. 2 Practical and entertaining education for attorneys, accountants, business owners and executives, and investors.
  • 3. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 3
  • 5. Meet the Faculty MODERATOR: Evan Fried - Greybridge Capital LLC PANELISTS: Dai Wai Chin Feman - Parabellum Capital Christopher Freeman - Burford Capital Jeffery Lula - GLS Capital, LLC 5
  • 6. About This Webinar An Introduction to a New Yet Old Funding Alternative Litigation funding is an increasingly-popular tool for attorneys and clients to share the risk and reward of litigation with third-party investors, and for investors to capitalize on the uncorrelated returns generated by legal-driven revenue. This webinar is intended to provide an overview of the topic generally, touching on the “who,” “what,” “where,” “when,” “why” and “how’s” behind litigation funding. 6
  • 7. About This Series Commercial Litigation Funding 101 This webinar series discusses advanced topics in the field of litigation funding. Once a fledgling industry predominantly used in the Commonwealth nations, litigation funding has over the past ten years become a well-accepted and prevalent practice in the United States. As the industry has evolved, so too have the menu of available products, strategic decisions made by funders and practitioners, and types of investors. This three-part series is geared towards educating attorneys and clients on legal/ethical, strategic, and business decisions when considering litigation funding, and investors seeking to learn about an increasingly mainstream asset class. Panelists include preeminent experts in the field of litigation funding, including academics who have written on the topic, investment managers at preeminent litigation funders, litigators who have used funding products, and independent litigation funding advisors. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 7
  • 8. Episodes in this Series #1: An Introduction to a New Yet Old Funding Alternative Premiere date: 3/11/20 #2: A Menu of Products for Investors and Lawyers Premiere date: 4/8/20 #3: Three Case Studies Premiere date: 5/6/20 8
  • 9. Episode #1 An Introduction to a New Yet Old Funding Alternative 9
  • 10. Litigation Funding: A Broad Definition Litigation or legal funding is the “funding of litigation activities by entities other than the parties themselves, their counsel, or other entities with a pre-existing contractual relationship with one of the parties.”  Source: American Bar Association Commission on Ethics 20/20, “White Paper on Alternative Litigation Finance” 10
  • 11. Legal Doctrines Related to Litigation Finance  Maintenance  Champerty  Barratry  Usury  Attorney-client privilege  Work product immunity 11
  • 12. Maintenance, Champerty, and Barraty Defined  Maintenance: an arrangement where a party supports another to enable him or her to further a legal claim.  Champerty: a type of maintenance, where an unrelated party strikes a bargain with a litigant to financially support the litigation in return for a share of the proceeds from that claim.  Barratry: the encouragement of another to bring or continue a claim. 12
  • 13. Maintenance, Champerty, and Barraty  In medieval England, maintenance and champerty was used by the elite as a means of settling scores. Feudal lords and other privileged members of society would support legal disputes of others against the funder’s personal or political enemy. Most colonies that imported their laws from England passed laws designed to protect litigants from “officious intermeddling” and profiteering from the sale of legal claims to third parties. Today, the modern view is to permit maintenance, champerty and barratry as these doctrines are predominantly viewed by the courts as obsolete since other effective means of controlling abuses of the legal system exist. 13
  • 14. Maintenance, Champerty, and Barraty  The American civil justice system increasingly recognized that access to justice depends upon the broad availability of legal representation for all socioeconomic levels. The public policy for increasing access to the legal system for those that could least afford it overrode the concerns underlying the medieval doctrines in many states. According to the modern view, widespread exceptions to these doctrines recognize that financial considerations often influence access to justice. Most states now permit maintenance, champerty and barratry as they refuse to void contracts based on these outdated doctrines. 14
  • 15. Usury  Historically, the lending of money with interest. Today, the charging of an illegal rate of interest. 15
  • 16. Attorney-Client Privilege and Attorney Work Product Immunity  The attorney-client privilege is a legal concept that protects certain types of communications between attorney and client from disclosure to the opposition. Work- product immunity protects materials prepared by attorneys and third parties in anticipation of litigation from discovery.  Issues regarding the waiver of the attorney-client privilege apply to only a small class of information. The privilege applies only to communications between a client and the attorney, not any communication about the lawsuit. The client is free to tell a prospective funder anything other than what the client communicated to the attorney, without waiving the privilege. An investor can expect to receive substantial information from the plaintiff about the claim without ever creating waiver problems. 16
  • 17. Typical Litigation Funding “Parties”  Plaintiffs  Attorneys and Law Firms  Investors 17
  • 18. Interest by Plaintiffs in Litigation Funding  Allows plaintiffs with financing issues to bring meritorious cases by financing litigation expenses  Provides for capital injections for existing cases without sufficient funding  Reduces the risk of a settlement for less than cases are worth  Allows business plaintiffs to continue to use cash for working capital rather than litigation expenses  Allows individuals to not divert personal funds  Permits companies to maintain performance on balance sheets by excluding litigation costs  Permits greater access to top legal representation 18
  • 19. Interest by Attorneys and Law Firms in Litigation Funding  Expands scope of potential clients who otherwise could not afford their fees  Allows third party (rather than law firm) capital for litigation expenses, including expert witness fees  Provides funding source so clients will not run out of money during litigation  Allows attorneys to offer different types of flexible payment arrangements to prospective clients  Provides funding for plaintiffs’ working capital and personal expenses, potentially resulting in other types of legal work  Permits recoveries that are more in line with case merits and damage 19
  • 20. Interest by Investors in Litigation Funding  Access to new type of investment and asset class  Investment is uncorrelated to capital markets  Historical returns tend to be outsized compared with other alternative asset classes  Liquidity timeframe is typically more moderate as opposed to other alternative investments 20
  • 21. Litigation Funding: Demand Among Attorneys  Two typical justifications:  Solves pressures of high cost of litigation: “Protracted discovery is expensive and is a drain on the parties’ resources. Where a defendant enjoys substantial economic superiority, it can, if it chooses, embark on a scorched earth policy and overwhelm its opponent.” Miller v. Caterpillar 17 F.Supp.3d 711 (N.D. Ill. 2014).  Provides access to justice: “There is a proliferation of alternative litigation financing in the United States, partly due to the recognition that litigation funding allows lawsuits to be decided on their merits, and not based on which party has deeper pockets or stronger appetite for protracted litigation.” Lawsuit Funding LLC v. Lessoff, 2013 NY Slip Op 33066(U) (Sup. Ct. N.Y. County December 4, 2013). 21
  • 22. Litigation Funding: Demand Among Attorneys  Less obvious, more practical considerations:  Heightened scrutiny of outside legal bills and price competition by law firms  Increased prevalence of alternative fee arrangements among BigLaw firms  Post-recession proliferation of new litigation boutiques who require capital  Increasing curiosity about tax benefits of litigation funding 22
  • 23. Litigation Funding: Supply Among Investors  As the legal funding market has matured, investors have flooded the market:  Attracted to returns that are uncorrelated to the debt and equity markets  Asset manager have generated outsized returns, often in excess of 25% IRR  Growing deal size and asset pools has attracted major institutional investors  Increased deal flow means opportunity for diversification  Entrance of institutional investors means more competitive cost of capital  Opportunity to allocate that fits particular risk-reward parameter of investor  Increased deal flow means opportunity for diversification  Entrance of institutional investors means more competitive cost of capital  Opportunity to allocate that fits particular risk-reward parameter of investor 23
  • 24. Litigation Funding: Segmentation  Consumer vs. Commercial Funding  Early vs. Late Stage Funding  Domestic vs. International Funding  Funder Structures  Attorney Characteristics 24
  • 25. Risk to Industry Generally  Oversaturation of parties chasing returns  Availability of “good” investments  Change of tax laws  Mandatory disclosure of litigation funding arrangements  Legislation  e.g. Ethics Opinions (e.g. NY City Bar Association 2018 opinion) becoming binding law 25
  • 26. Metrics for Analysis: Risk  “Risk” is the probability of occurrence of losses relative to the expected return on any particular investment  Litigation is an inherently risky underlying investment  Risk varies dramatically based on type of litigation -- e.g., contract, intellectual property, antitrust  Litigation risk is not constant, but rather fluctuates based on litigation developments  Sellers may own diversified litigation risk, depending on the circumstances  Risk also includes headline and regulatory risk 26
  • 27. Metrics for Analysis: Use of Proceeds  “Use of Proceeds” -- will refer to how the funded party (the plaintiff or the attorney) intends to use the legal funding  Proceeds may be used for direct litigation costs, i.e., attorneys’ fees and/or costs  “Hard costs” includes discovery costs, experts’ fees, filing costs; basically anything other than attorneys fees  Funding arrangements may be used for non-litigation needs, such as operational needs of plaintiff or so that plaintiff can recognize revenue  In other situations, attorneys may seek funding for use across firm-wide activity, not just one specific litigation 27
  • 28. Metrics for Analysis: Alignment  “Alignment” is the extent to which investor and investee have parallel incentives:  Popular new “buzzword” in investing world  Investors’ desire to protect downside by not dis-incentivizing funded party  Protection against information asymmetry between buyer and seller  Preserve upside in high-end, best-case scenarios  Create opportunity for recurring or repeated business 28
  • 29. Metrics for Analysis: Cost of Capital  “Cost of Capital” is the required rate of return on a portfolio’s existing securities  Used to evaluate new projects of an investor  Minimum return investors expect for providing capital--thereby setting a benchmark  Impacts the types of investments palatable to institutional investors  Impacts the “pricing” of individual funding products offered by funder to clients 29
  • 30. Metrics for Analysis: Fee-Splitting Doctrine • Model Rule 5.4(a) (“Professional Independence of Lawyer”): “A lawyer or law firm shall not share legal fees with a nonlawyer …”  New York Courts have interpreted such prohibition as permitting attorneys to share with a “percentage of … gross revenue” to the law firm, so long as (i) it is tied to more than one case and (ii) ultimately signifies a capped multiple of investment, and not an equity percentage of any given case. See Hamilton Capital VII, LLC, I v. Khorrami LLP, 48 Misc.32 1223(A) (Sup. Ct. N.Y. County Aug. 17, 2015). 30
  • 31. Metrics for Analysis: Funded Party Profile  “Funded Party” -- for purposes of this presentation -- will refer to the party, i.e., the attorney or the plaintiff, who receives funds from the Litigation Funder  Decision is driven by a variety of factors  Volume and diversification of litigation risk owned by Funded Party  Appetite for risk-sharing by the Funded Party  Willingness to contribute additional collateral to funding arrangement  Legal/ethical considerations--including champerty and attorney fee-splitting 31
  • 32. Potential Risk for Funded Party  Change in perception of value of dispute given the need to split proceeds  Real or perceived pressure from third party funder (notwithstanding contractual restrictions on interference)  Adequate representation in the context of non-law firm Funded Party 32
  • 33. Investment Structure Types  Single case  Portfolio  Others- Loans, “insurance like” products, factoring 33
  • 34. Return Structure  Typically involves some kind of waterfall where capital outlays are returned followed by some metric of additional return  Return metric could be tied to some kind of multiple or percentage or calculated based on an internal rate of return 34
  • 36. About The Faculty Evan Fried - efried@grbridge.com Evan Fried is an attorney who has worked in litigation finance since 2007. He is currently a Principal at Greybridge Capital LLC, a commercial litigation funding outfit, and Slarskey LLC, a boutique commercial litigation firm. Mr. Fried was previously a partner at 1624 Capital, a specialty finance company focused on investments in technology/intellectual property litigation. He has written and spoken on ethical considerations of litigation finding. Mr. Fried began his career in the New York office of Winston & Strawn LLP and a family office that was an early player in litigation finance. Mr. Fried received his J.D. from New York University School of Law and his B.S. in Industrial and Labor Relations from Cornell University. 36
  • 37. About The Faculty Dai Wai Chin Feman - daiwai@parabellumcap.com Dai Wai is responsible for the development and execution of Parabellum’s commercial litigation investment strategies. Prior to joining Parabellum, Dai Wai was a litigation partner at Dorsey & Whitney LLP, where he specialized in commercial and antitrust litigation. Dai Wai has broad experience in complex disputes concerning breaches of contract, competition, tortious interference, trade secrets, restrictive covenants, licensing, rights of first refusal, shareholder oppression, soft intellectual property, and securities. He has advised and represented clients ranging from Fortune 100 companies to closely- held family businesses through all phases of litigation, from case assessment through trial, appeal, and enforcement proceedings. While in private practice, Dai Wai was named a Super Lawyers Rising Star in Business Litigation for four consecutive years. Dai Wai received his A.B., cum laude, from Georgetown University and his J.D. from New York University School of Law. He is active in the Asian American Bar Association of New York, where he is a board member, Vice-Chair of the Judiciary Committee, and former Co-Chair of the Litigation Committee. He is also a Fellow of the New York City Bar Association Leadership Council on Legal Diversity, a member of the New York City Bar Association’s Litigation Funding Working Group, and a member of the New York City Bar Association’s Professional Ethics Committee. 37
  • 38. About The Faculty Christopher Freeman - CFreeman@burfordcapital.com Christopher Freeman is a Vice President with responsibility for assessing and underwriting legal risk in patent matters. As part of Burford’s investment team, Christopher evaluates intellectual property cases and patent monetization campaigns and crafts investment structures that align incentives between funder, law firm and claimant. Prior to joining Burford, Christopher was Vice President and Head of Litigation at Blackbird Technologies, a company he co-founded in 2014. At Blackbird, Christopher oversaw all business operations and successfully built and managed one of the most prominent patent acquisition and licensing entities in the US, growing the firm to a dozen employees and a portfolio of over 100 patents and applications. Earlier in his career, Christopher was an IP partner at Kirkland & Ellis and practiced at Latham & Watkins and at Quinn Emanuel. Christopher graduated from the Boston University School of Law and earned an undergraduate degree from Northwestern University in Industrial Engineering and Economics. 38
  • 39. Jeffery Lula - jlula@glscap.com Jeffery Lula serves as a Principal at GLS and is responsible for due diligence and monitoring of commercial litigation and arbitration-related investments. Prior to joining GLS, Jeff was a litigation partner at Kirkland & Ellis LLP in Chicago. During his nine years at Kirkland, Jeff’s practice focused on a wide variety of complex commercial litigation, including contract disputes, bankruptcy litigation, corporate mismanagement, fraudulent transfer litigation, and insurance litigation. His experience extends to all stages of litigation and appeal, and he also counseled clients during internal investigations prior to litigation or arbitration. He has represented clients in a variety of fields, including private equity firms, insurance carriers, and large Chapter 11 debtors. Jeff holds a J.D. from the University of Chicago Law School, where he served as an Articles’ Editor of the University of Chicago Law Review, and a B.S. from University of Illinois. 39 About The Faculty
  • 40. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 40
  • 41. About Financial Poise 41 DailyDAC LLC, d/b/a Financial Poise™ provides continuing education to attorneys, accountants, business owners and executives, and investors. It’s websites, webinars, and books provide Plain English, entertaining, explanations about legal, financial, and other subjects of interest to these audiences. Visit us at www.financialpoise.com Our free weekly newsletter, Financial Poise Weekly, updates you on new articles published on our website and Upcoming Webinars you may be interested in. To join our email list, please visit: https://www.financialpoise.com/subscribe/