Three Case Studies (Series: Commercial Litigation Funding 101)

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Practical and entertaining education for
attorneys, accountants, business owners
and executives, and investors.
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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 the information
it publishes is accurate, Financial Poise™ makes no guaranty in this regard.
About this PowerPoint: if you are looking at this PowerPoint without the benefit of
listening to the conversation that surrounded it then you are doing yourself a disservice.
This PowerPoint was prepared in contemplation of being viewed in conjunction with
listening to a one hour webinar on the topic
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MEET THE FACULTY
Moderator:
Jeremy Waitzman – Sugar Felsenthal Grais & Helsinger LLP
Panelists:
Joel Cohen – Stout
Ken Epstein – Bentham IMF
Evan Fried – Greybridge Capital LLC
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ABOUT THIS WEBINAR:
Three Case Studies
As the legal funding market evolves, so too do the legal/ethical jurisprudence, strategic
decisions inherent in utilizing funding, financial instruments used for funding, and nature
of funder/funded relationship. In this webinar, a panel of experienced litigation funding
professionals examine three live legal funding deals, and discuss how they impact
considerations of (i) disclosure of litigation funding, (ii) fee-splitting and non-attorney
ownership of law firms, and (iii) financial engineering of innovative funding deals.
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ABOUT THIS SERIES:
Commercial Litigation Funding 101
Once a fledgling industry predominantly used in the Commonwealth nations, litigation funding
has over the past ten years becomes 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.
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EPISODES IN THIS SERIES
3/13/19 Episode #1:
An Introduction to a New Yet Old Funding Alternative
4/10/19 Episode #2:
A Menu of Products for Investors and Lawyers
5/8/19 Episode #3:
Three Case Studies
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Dates shown are premiere dates.
All webinars will be available
On Demand approximately 4 weeks
after they premiere.

Episode #3:
Three Case Studies
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OUTLINE
• Background on litigation funding
• Three case studies
✓ Gharabe v. Chevron / Disclosure of Litigation Funding
Arrangements
✓ PWC’s Law Firm / Non-Attorney Ownership of Law Firms
✓ “Around the Horn”: Petersen claims, MagCorp, New York
legislation
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LITIGATION FUNDING: AN OVERVIEW

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.”
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LTIGATION FUNDING: APPLICATIONS
• Single-case fundings
• Portfolios of law firm and plaintiff cases
• Law firm loans
• Equity ownership of law firms
• Defense funding
• Litigation insurance
• Special situations trades
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CASE #1: GHARABE V. CHEVRON /
DISCLOSURE OF LITIGATION FUNDING
ARRANGEMENTS

DISCOVERABILITY OF LITIGATION
FUNDING AGREEMENTS: WORK PRODUCT
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What is work product?

FUNDING AGREEMENTS: WORK PRODUCT
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How does Work Product surface in Litigation Funding?

FUNDING AGREEMENTS: WORK
PRODUCT
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Should litigation funding arrangements be discoverable?

GHARABE V. CHEVRON
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GHARABE V. CHEVRON (cont’d)
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What was the plaintiff’s defense?

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What is special about class action litigation?

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Did the litigation funding arrangement matter?

LITIGATION FUNDING DISCLOSURE:
OPIOID MDL
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OPIOID MDL (cont’d)
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What did the court order?

OPIOID MDL (cont’d)
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What did the court prohibit?

LITIGATION FUNDING DISCLOSURE
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What about other areas of law?
• Patents
• Bankruptcy

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CASE #2: PWC’S LAW FIRM/NON-ATTORNEY
OWNERSHIP OF LAW FIRMS

PWC’S LAW FIRM / NON-ATTORNEY
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How has non-attorney ownership of
law firms been historically
prohibited?

NON-ATTORNEY OWNERSHIP OF LAW
FIRMS
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How does the UK differ from the US?
•Endorsed litigation funding as a
mechanism for leveling the playing field
•Ushered in alternative business structures
•Reformed draconian fee shifting of legal
fees, expenses, and insurance premiums
•Made available damages based fee
agreements

FIRMS
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How does the UK differ from the US?

NON-ATTORNEY OWNERSHIP OF
LAW FIRMS (cont’d)
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How does Washington D.C.
differ from the 50 states?

FIRMS (cont’d)
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How can an attorney in a
Model Rule jurisdiction
partner with an attorney in a
non-Model Rule
jurisdiction?

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What did PWC do?

OWNERSHIP OF LAW FIRMS (cont’d)
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Will the rules on fee-splitting
become more liberal?

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CASE #3: “AROUND THE HORN”: THREE HOT
STORIES

“AROUND THE HORN”: SECURITIZATION
OF LITIGATION FUNDING CLAIMS
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“AROUND THE HORN”: MAGCORP SALE
OF JUDGMENT TO LITIGATION FUNDER
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“AROUND THE HORN”: NEW YORK
LEGISLATION ON CONSUMER LITIGATION
FUNDING
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ABOUT THE FACULTY
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Jeremy Waitzman – jwaitzman@sfgh.com
Jeremy Waitzman advises his clients on significant transactions and operational issues in their
businesses. Described by clients as “an essential business advisor” and “a partner in the success of
my business,” Jeremy has substantial experience representing businesses of all types and sizes from
inception, guiding them through significant growth, and often through ownership’s exit. His clients
include privately-held middle market and emerging growth companies, family offices/funds,
investors, C-level executives, boards of directors, family-owned businesses and entrepreneurs.
Jeremy counsels clients in the areas of corporate law, mergers & acquisitions, private placements,
general contract law and often acts as outside general counsel for his clients. Jeremy represents
individuals, closely held businesses, start-up companies and serves as outside counsel to several
large corporations. His work with companies often includes strategies for creation of enterprise
value.
To read more, go to https://www.financialpoise.com/financialpoisewebinars/faculty/jeremy-
waitzman/
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Joel Cohen – JCohen@stout.com
Joel Cohen is a Managing Director in the Dispute Consulting group at Stout. Joel has over 17 years of
experience in the dispute, forensic, and insolvency practice areas, most specifically focused in the financial
services and asset management industries. His experience encompasses a number of significant cross-border
insolvency and litigation matters, where he has served as financial advisor and consulting expert to fiduciaries,
offshore liquidators, bankruptcy, and litigation trustees. He has assisted these clients in a variety of litigation
consulting services, including asset tracing, fraud, Ponzi schemes, industry custom and practice for investment
managers, and forensic analysis. Joel has also led several internal investigations within the context of family
office, investment advisors, and various corporate structures.
To read more about Joel Cohen, please visit:
https://www.financialpoise.com/financialpoisewebinars/faculty/joel-cohen/
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Ken Epstein – kepstein@benthamimf.com
Ken Epstein is an investment manager and legal counsel at Bentham IMF, responsible for
leading the company’s investments in bankruptcy and insolvency-related matters. He serves as
a resource for debtors, creditors (including hedge funds, private equity funds and alternative
asset managers), bankruptcy estate representatives and other stakeholders seeking to
maximize the value of litigation claims.
Ken has extensive experience advising and managing debtors-in-possession, individual
creditors and creditor groups (ad hoc and UCC’s) and financial institutions in insolvency and
bankruptcy-related litigation matters nationally and internationally. He began his career as a
lawyer in the financial restructuring group of Cadwalader, Wickersham & Taft. Prior to joining
Bentham IMF, he was managing director in the restructuring and remediation group at MBIA,
a publicly listed financial institution.
To read more, go to https://www.financialpoise.com/financialpoisewebinars/faculty/ken-
epstein/
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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
funding. 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.
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QUESTIONS OR COMMENTS?
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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.
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ABOUT FINANCIAL POISE
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