Readers of our previous issues understand that litigation finance is a tool for the legal department to control spending and help contribute to the company’s bottom line. Indeed, companies with litigation portfolios are more frequently using litigation funding to manage budgetary pressures and mitigate litigation risk.
Notwithstanding the growth in this market, the companies still exploring litigation finance have questions about how it works and whether it can advance their strategic interests. This two-part series will answer some of the most prevalent questions from corporate legal departments that are considering litigation funding for their affirmative claims.
The United States has long purported to be a champion of arbitration. This stance is embodied both in the “pro-arbitration” Federal Arbitration Act enacted by Congress nearly a century ago and in U.S. treaties providing for the recognition of international arbitration awards. The U.S. likewise boasts rich jurisprudence regarding personal jurisdiction, defining when parties can be hauled into court in this country. But what happens when these two principles collide, for example, when a foreign losing party to an international arbitration merges into another entity that has property in the U.S. that can be used to satisfy an adverse award?
Litigation finance’s presence in the bankruptcy industry is in its early stages. However, given the overall size of capital that litigation funders control and how this capital is deployed across case types, its presence in the marketplace will continue to expand -- particularly as the market becomes more familiar with the process, funders grow comfortable with investing in the distressed debt market, and the pace of corporate filings increase in the next economic downturn.
On Aug. 16, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion widely anticipated in the international arbitration and award enforcement communities, involving numerous disputes between the Kingdom of Spain and renewable energy investors from other European nations.
In its ruling in NextEra Energy Global Holdings BV v. Kingdom of Spain, the D.C. Circuit provided a glimmer of hope that award holders might succeed in U.S. courts — at least from a technical legal standpoint.
At the same time, the court lit a path for foreign sovereigns to render any such victories economically meaningless.
Stubborn judgment debtors routinely look for ways to delay or increase the cost of collection. Aided by a vibrant “asset protection” industry in certain U.S. jurisdictions, they frequently turn to LLCs in those jurisdictions to retain the benefit of their property while shielding it from creditors, hoping that enforcement courts will defer to those states’ LLC acts and prevent turnover of membership interests. But a recent decision by the U.S. Court of Appeals for the Second Circuit provides some reason for optimism that, at least for debtors subject to personal jurisdiction in New York, these corporate shell games may not be entertained by courts in America’s financial hub.
Judgment and award creditors often fret that US courts are unfriendly and the tools to unravel complicated asset protection schemes are inadequate. In an encouraging ruling refuting this sentiment, the Southern District of New York recently reiterated its endorsement for reverse veil piercing as a remedy for unsatisfied judgment creditors seeking to hold corporate entities responsible for judgment liabilities of shareholders and directors.
The National Law Journal featured discussion from Jeff Newton on implementing judgment enforcement strategies at the outset of a litigation or arbitration and why plaintiffs should consider the endgame before the opening bell is rung.
Amy Geise and Sarah Jacobson explain how law firms can use multi-case or open law firm portfolios as a strategic measure to stimulate growth, increase market share and mitigate risk.
John Harabedian makes the case for companies to view their affirmative claims as a revenue-generating opportunity through the use of litigation funding.
Law360’s recent article on trends in international arbitration highlights the benefits of a combined litigation funding and judgment enforcement team. With our longstanding track record of assisting and funding judgment enforcement campaigns, you may not be surprised to learn that we agree! Gabe Bluestone and Jeff Newton discuss how having a judgment enforcement team as part of your litigation strategy makes good business sense.
In the five-page opinion authored by Judge Jacques L. Weiner, Jr., the court found that the appellant-debtor in In re Dean lacked standing to challenge a funding agreement approved by a Texas Bankruptcy Court. The Fifth Circuit found that the debtor was not “directly, adversely, and financially impacted” by the funding agreement or the bankruptcy court’s order.
Omni Bridgeway investment manager Ken Epstein discusses how the Anti-Money Laundering Act can be beneficial to whistleblowers and explains how litigation finance may be utilized.
Omni Bridgeway Investment Manager John Harabedian explains how law firms can smooth cash flow, enhance their alternative fee arrangement options to clients, and finance new hires and operational expenses with portfolio financing.
As patent litigation has become increasingly global in recent years, the cost of managing complex IP matters has risen too. Omni Bridgeway investment manager Sarah Tsou discusses what considerations parties should keep in mind when handling cross-border matters and how we are well-suited to finance global patent disputes.
In part two of our blog series about the legal finance process, Omni Bridgeway Associate Investment Manager Sarah Jacobson dives into the latter phases, including the negotiation of the funding agreement and what to expect from funders during the monitoring of a funded matter.
Omni Bridgeway Associate Investment Manager Sarah Jacobson addresses the litigation finance process in this 2-part step-by-step blog series. In part 1, she discusses NDAs, term sheets, the due diligence phase, and queries in specialized practice areas.
