In the first portion of this two-part series focusing on S&P's recent settlements with various U.S. entities, we discuss how litigation finance provided in Australia by our parent company, IMF Bentham, helped light the powder keg of subsequent lawsuits and regulations that sought to make ratings agencies accountable for their part in the global financial crisis.
Insurance companies and Big Business took note when an Indiana jury handed down the largest defamation award in U.S. history - $14.5M ($17M after interest) - in favor of Joseph Radcliff and against State Farm Fire & Casualty Co. Pivotal to Radcliff's ability to withstand the course of litigation and subsequent appeals was the assistance of litigation funding from Bentham IMF. In an effort to prevent litigation finance companies from continuing to help average Joe's hold Goliath Industries accountable for their wrongdoing, Big Business is pushing to pass HB 1340 in Indiana, which upon a close reading, is overbroad, unduly restrictive, and anti-business.
In honor of our parent company, IMF Bentham, and the birthplace of the commercial litigation finance industry, Bentham's Los Angeles office hosted an Australia Day party at a pub in downtown LA. Good cheer and good grub attracted Bentham's friends and colleagues to celebrate a significant Australian holiday.
Through crowdfunding on the Internet, "Joe Public" has arrived to help David beat Goliath. David’s damages are usually under $1million, too small for consideration by Bentham but significant to David. Goliath is often the type of mighty corporate behemoth Bentham finds in larger cases. Funding these types of cases through the Internet allows Joe the opportunity to help “David” hold “Goliath” accountable.
It has been a great year for Bentham IMF and the development of the litigation funding industry in the United States. We look forward to continued success and progress in 2015!
In light of the recent decision over a litigation funder's liability for a defendants' costs on an indemnity theory in Excalibur Ventures LLC ("Excalibur") v. Psari Holdings et al (which arose out of the Excalibur v. Texas Keystone Inc, et al matter), Bentham Europe's Jeremy Marshall discusses the benefit of giving some control to a funder during the course of litigation in the December issue of Litigation Funding magazine.
Say it’s not so. Opponents of litigation funding have cried out that litigation funding will bog down the courts with an avalanche of unnecessary lawsuits. Now we have statistics compiled by Australia’s Monash Business School that the number of class actions has not increased since the introduction of litigation funding in 2001 (pioneered by Bentham, of course -- one of the reasons Bentham's founders were named one of "The Top 50 Innovators in Big Law in the Last Fifty Years".).
Professor Stephen Gillers has referenced Samuel Beckett’s absurdist play, Waiting for Godot, in choosing the title of this article that debunks two misconceptions in litigation financing. He enumerates the numerous ways there currently exist for non-lawyer involvement in litigation and surveys arguments that litigation funding gives rise to more expensive settlements and wasteful trials. Not only is Professor Gillers brilliant in his analysis and commentary but we find that in his choice of this title, he has a good sense of humor.
Bentham has been, and always will be, committed to the principle that all individuals have the right to have access to justice. Indeed, this tenet is built into Bentham’s “Code of Best Practices” which specifically sets forth that “the funder shall devote executive time and resources to pro bono projects for those unable to pay for their own legal services.” In Australia, we see this carried out in Bentham’s support of the Public Interest Advocacy Centre (“PIAC”).
Bentham IMF is pleased to announce that on Thursday, October 30, 2014, senior Investment Manager Jim Batson will be leading a Continuing Law Education program with the Practicing Law Institute entitled “Accessing Justice: Ethics and Lawsuit Financing in a New Era.” As most attorneys know, the expense of bringing a case to trial for attorneys, firms, and the parties themselves can be astronomical. In this engaging and informative program, James Batson, an attorney with over 20 years of litigation expertise, will introduce the use of litigation funding as a modern means to ensure that meritorious cases get the commitment of resources they deserve. In addition to introducing the basics of litigation funding and how it can be integrated into every step of litigation strategy, Jim will address numerous Rules of Professional Responsibility and how they intersect with litigation funding.
A decade ago, Bentham’s Senior Investment Manager Jim Batson won a historic legal verdict that continues to reverberate throughout the world of litigation. That case, Zubulake v. UBS Warburg, was the first time a court opined how e-discovery such as emails should saved, managed, and produced in discovery. The case was so historic that the ABA Journal in its September 2014 issue revisits the case and Batson’s pivotal role in it. Inconceivably, prior to Zubulake, emails were not always considered “documents” under discovery rules. Today, with ever-increasing numbers of emails and other types of e-discovery (including the explosion of discoverable evidence from social media sources such as from Facebook and Twitter), the need for proper funding resources – including the use of litigation financing - to prepare one’s case is essential.
The financial and retail markets now know no borders. Corporate branding and access to social media and the Internet allow a Japanese equity trader to trade in the US markets at night from his home in Tokyo, an athlete to buy Nike’s almost anywhere in the world, and a family to eat at McDonald’s wherever they travel. This globalization will increase corporate liability to international claims, and a corollary to that will most likely be an increase the need for litigation funding. Bentham, the only litigation funder with offices on three continents, is ready to meet this need.
The strong sentiment about the advantages of arbitration has been disproven in three recent cases. In many instances, arbitration is mandatory but when there is a choice, you must carefully weigh the risk-reward of arbitration versus litigation. It isn’t always what you think.
It is one thing to claim that you are transparent but it is another thing to be transparent. In this blog we've taken a selfie together with our parent company in Australia. We discuss two recent investments in cases that have been realized and where litigation funding provided access to justice.
Since its launch in 2001, Bentham IMF has served as a thought leader for the commercial litigation finance industry. This past year, Bentham IMF in the US has initiated a series of roundtables, where distinguished academics and lawyers discussed critical issues and best practices for the industry. In the first half of 2014, Bentham IMF co-hosted a roundtable at Stanford University’s Center for the Legal Profession. The results of our thinking coming out of this roundtable were interesting.
You can take it with you, or perhaps you cannot take it with you. Is unfinished business the property of a defunct firm that has closed involuntarily and therefore subject to attachment by creditors or is unfinished business the property of the partners of a firm that closed voluntarily and who have moved on to a new firm? We’ve reviewed four decisions where the circumstances of a firm’s closing impacts the right to unfinished business profits.
In the fall of 2013 Bentham IMF invited Professor Charles Silver and a group of distinguished academics, senior litigators and commercial litigation funders to discuss the evolution of litigation funding, the ethical and legal issues in the field and the efforts to increase acceptance. Professor Silver holds the Roy W. and Eugenia C. McDonald Endowed Chair in Civil Procedure at the School of Law at the University of Texas at Austin. In these interviews he discusses the similarities and differences between litigation funding and liability insurance.
Bentham IMF agrees with the recent article "Claims Without Merit are the Problem, Not Trolls" published in the April/May 2014 issue of GENERAL COUNSEL by Marla R. Butler, a partner at Robins, Kaplan, Miller & Ciresi LLP. The article takes attention surrounding patent litigation reform away from patent trolls to focus on the real issue at hand -- meritless claims. Ms. Butler gives a succinct summary and explanation on those activities that lend to meritless, problematic claims and identifies how individual States are taking action.
In previous blogs we have discussed whether or not availability of funding means that there will be an increase of frivolous law suits. Certainly from reviewing Bentham’s track record, we believe that the courts feel that Bentham is funding meritorious claims. Now we turn to a discussion of whether or not the relaxing of ‘loser pays’ rules in the United States will increase the demand for litigation funding. Whether or not we see an increase of patent claimholders seeking to share in the risk of a potential ‘loser pays’ scenario, we note that for the past twelve years, Bentham has been funding cases in Australia where the ‘loser pays’ scenario applies to all litigation.
Jim is the newest addition to the Bentham IMF team. It will be obvious to you once you read his bio why we are so excited to have him. Not only is he a seasoned litigator but he has financed litigation and consulted to a litigation finance firm. What you won't know until you meet him in person is that he is very tall. At 6'4" and an athlete, he will be a powerful team member if anyone challenges the Bentham group to a game of basketball, tennis or baseball.
