Mark Behrens, Chair of the Civil Justice Response Committee of the International Association of Defense Counsel (IADC), talks about Commerce Request to Regulate Third Party Funding. The IADC supports the U.S. Chamber of Commerce’s recent petitioning of Federal Rules of Civil Procedure to require disclosure of third party funding in all cases. According to Behrens, mandatory disclosure will help shift the burden of discovery costs away from defendants. Behrens states that litigation is normally about the discovery as opposed to the claim, and “plaintiffs use broad discovery requests as a weapon to try to force settlements unrelated to the merits of the case.”
Litigation Funding News caught up with Steven Friel, CEO of Woodsford Litigation Funding in the United Kingdom. In this 26 minute interview, he informed us how the firm decides what to finance and where the direction of the market is heading.
RD Legal Funding, LLC is seeking to dismiss the lawsuit filed against it, two of its affiliates, and their individual principal in February 2017 by the CFPB and the New York Attorney General in a NY federal district court. It alleges that a litigation settlement advance product offered by the defendants is a disguised usurious loan. Notably, the complaint offered that the transactions violated New York usury laws. They were falsely marketed as assignments rather than loans. Moreover, they could not be assignments because the underlying settlements expressly prohibited assignment of claimant recoveries.
In the complaint, both the CFPB and the NY AG asserted deception and abusiveness claims under Sections 1031 and 1042 of Dodd-Frank. In addition to alleged violations of state civil and criminal usury laws (which were the predicate for one of the CFPB’s deception claims), the NY AG’s state law claims included alleged violations of NY’s UDAP statute.
Insurers more and more often face the prospect of defending legal proceedings, which are commenced by an insolvent plaintiff, but are financed by litigation funders. Litigation funding presents legal and strategic challenges for insurers.The Supreme Court of Queensland has recently made decision in favor of defendants seeking security for costs in proceedings which are financed by litigation funders.
There is a longstanding controversy about existence of a legal principle according to which an application for security for costs should be dismissed, if those who stand to benefit from the insolvent plaintiff’s success offer to be personally liable for the plaintiff’s costs. In contrast to the approach preferred in other jurisdictions, the Court found that no such principle exists. Still, the existence of a litigation funding agreement should be taken into account. The Court considered that presence of a commercial litigation funder that shares in the proceeds but not in the risk of an adverse costs order is a powerful factor in favor of making an order for security for costs.
Plaintiff Grant & Eisenhofer PA, headquartered in Wilmington, Delaware, filed its lawsuit in the U.S. District Court for the Central District of California August 10. The law firm represents a California whistleblower in a False Claims Act lawsuit over the off-label promotion of cancer drugs. It is seeking more than $7 million in fees and costs. The defendants include California resident Beverly Brown and law firms Richard Harpootlian PA and Bienert Miller & Katzman PLC.
Ms Brown, who worked as a Celgene Corp. sales representative, filed her whistleblower complaint in 2010 over the off-label use of drugs Thalomid and Revlimid. According to Celgene, the litigation related primarily to allegations that it promoted Thalomid for off-label uses before its 2006 U.S. Food and Drug Administration approval for newly-diagnosed multiple myeloma, a form of blood cancer that develops in the bone marrow. Celgene reported last month that the pharmaceutical company would pay a total of $280 million to the U.S. federal government, 28 states, the District of Columbia and the City of Chicago.
Litigation Reform is needed to restrict lawsuits undermining conservation. Environmental advocacy groups have exploited federal laws with “sue and settle” arrangements that enrich trial lawyers at the expense of taxpayers. “The idea behind ‘sue and settle’ is to circumvent the normal regulatory, rule-making process so that environmental groups can achieve major policy changes without input from the public or Congress,” said IER president Tom Pyle. “When politically well-connected green groups get to call all the shots with compliant government officials, it leaves no room for accountability and transparency.”
During Obama presidency “sue-and-settle” agreements involving the Environmental Protection Agency and the Interior Department “almost quintupled”. Many of the largest environmental groups get significant rewards without any public disclosure regarding the cost to the taxpayers.
Kent Holsinger, the manager and founder of a Denver-based law firm named Holsinger Law that specializes in lands, wildlife, and water law, was one of several witnesses who appeared before the House Committee on Natural Resources on July 17 to testify on behalf of five new bills aimed at reforming the ESA. He is encouraging members of Congress to take up the Sunshine for Regulatory Decrees and Settlements Act of 2017 as legislative fix to the “abusive environmental litigation” made possible through the EAJA. The bill would require public notice of lawsuits and settlement agreements and provide for transparency in accounting for cost of these agreements.
The lawsuit in this matter was filed in the U.S. District Court for the District of Connecticut. It was alleged that a woman was killed when a faulty airbag device violently exploded during a moderate speed crash. The deceased victim was a passenger in a 2009 Toyota Corolla. Her husband, who was driving car, sustained minor injuries. This lawsuit was filed just after Takata filed for bankruptcy. The Connecticut lawsuit alleges Takata knew its airbags were defective. It did nothing to solve the problem. The injured husband has a long litigation process ahead of him. He may have problems paying litigation costs. “In situations like that, the perfect answer in most cases is to apply for litigation funding,” said Darren Monroe, representative for Litigation Funding Corporation, Michigan.
The Minnesota Attorney General has filed a lawsuit against two pension advance companies. It is alleged that the companies violated Minnesota lending laws by making loans to Minnesota borrowers without being licensed as a lender. The New York Attorney General states that a litigation settlement advance product is usurious. It indicates that pension advance companies and litigation funding companies have become targets of state and local regulators. Certain states are trying label cash advance providers as lenders and their products as loans, as opposed to direct purchases, which would subject them to state and local usury laws.
A $20 million financing deal has been signed with litigation boutique Lewis Baach by Woodsford Litigation Funding. It will offer clients an expedited, one-stop arrangement for the financing of high value litigation. The deal covers matters in any jurisdiction around the world where Lewis Baach Kaufmann Middlemiss offer contingency fee arrangements. Also, it will work where funding is required for the additional litigation expenses, including expert witness fees, e-discovery costs and court and tribunal fees. Brazilian funder, Leste Litigation Finance, also supports the international arrangement between the two. As part of a collaboration agreement announced in March, for any matters with a Brazilian element, Leste and Woodsford will regulate funding jointly.
Third-Party Litigation Funding can help attorneys and clients get results.
Litigation process is often expensive. Some clients cannot afford litigation costs due to various reasons. In this case, litigation funding can pay substantial costs of pursuing a lawsuit from complaint to judgment.
Litigation financing can have similar benefits for attorneys. It provides them greater flexibility. It concerns the cases they take and the way they provide representation.
Meanwhile, it is important for lawyers to understand how to manage a litigation financing transaction. The general advice for a lawyer is not to become part of the loan process when suggesting to a client where he may try to get financial help for individual needs. The lawyer also needs to be careful about providing a litigation finance company with information or opinions about the prospects of the client’s case.