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Litigation Finance

Litigation finance is a new and growing industry in the US comprised of institutional investors, private investment funds and finance firms that invest in commercial litigation by providing financing, typically on a non-recourse basis, in return for a share of any recovery received by the claim holder by way of a settlement, judgment award or otherwise. The claimant may seek funding for a variety of reasons, none of which are about the merits of the claim.

Rather, claimants typically request funding to cover litigation costs because litigation is very expensive and the claimant (i) lacks sufficient capital to cover the costs of litigation, (ii) does not want to divert cash-flow from its business to cover the costs of litigation, or (iii) wants to mitigate the risk of litigation by selling a portion of the potential upside to be derived from the claim. Regulators and judges have praised litigation financing because it provides access to justice for many plaintiffs who would otherwise be unable to vindicate their rights.

Modern commercial litigation finance began about 20 years ago in Australia and thereafter migrated to the UK and several other European jurisdictions. Growth within the industry has been most rapid in those jurisdictions that have not allowed attorneys to represent a claimant in litigation on a partial or full-contingency fee basis (e.g., the UK). However, now nearly all jurisdictions support litigation finance in some form, including the US, where the industry is growing rapidly. Typical claims funded by commercial litigation financiers include, among others, those arising out of commercial or corporate disputes, investments or financings, intellectual property or environmental matters, and judgment and arbitral award enforcements.

The current market for litigation finance is segmented based on (i) the subject matter in which litigation financiers invest (i.e., personal injury and other tort-related claims versus commercial claims), as well as (ii) how litigation financiers manage such investments, passively or actively. Passively managed investments involve the funder providing only capital to the claimant and/or its legal counsel; whereas actively managed investments involve the funder providing capital as well as certain services intended to facilitate successful outcomes (e.g., sourcing and managing service providers, assisting with investigations or enforcement actions, facilitating settlement). However, even in actively managed investments, litigation financiers do not render legal advice nor represent claimants in court or arbitrations as such representation is always performed by outside legal professionals with exceptional subject-matter expertise and experience.

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