Inside This Issue
- Update from John Byrne and Neil Purslow, Co-Founders, Therium Capital Management
- Therium exceeds $1 billion milestone following the latest fundraise from global institutional investors
- Therium launches “Therium Access” to provide not-for-profit funding to improve access to justice in the UK
- Therium launches full service litigation funding operations in Australia
- Louise Hird joins Therium Capital Management in Melbourne from the Australian Competition and Consumer Commission
- Therium appoints Stephen Akers to lead its global insolvency practice
- The New York City Bar Association Ethics Committee issued Formal Opinion 2018-5, by Eric Blinderman, Head of Therium Inc
- Keynote events
- Press highlights
- In the spotlight: Q & A with J. Richard Supple Jr., Partner, Hinshaw & Culbertson LLP
The demand for our litigation finance services continues at pace in all our jurisdictions across the world and we are delighted to have recently been able to announce that we have now raised more than $1billion of funds, following our latest raise of £325 million from three global institutional investors. It is Therium’s largest fund and follows the £200 million raised in February 2018.
On 1 January this year, we launched a full service offering in Australia. Therium Australia is based in Melbourne and headed by Simon Dluzniak, who was recently joined by Louise Hird. Simon has worked in litigation funding in Australia and the UK since the early 2000s. Louise is also highly experienced and came from the Australian Competition and Consumer Commission. Therium has been funding claims in Australia since 2011 and is currently funding a number high profile shareholder class actions.
In February, Therium was named as one of the two leading litigation and arbitration funding firms in the UK by legal and business directory Leaders League, in its 2019 ranking of litigation funding. Therium was also ranked as excellent in the US ranking.
And in March, we launched “Therium Access”, www.theriumaccess.org which will provide not-for-profit funding dedicated to improving access to justice. Therium Access was launched in the UK first and we will be announcing our first grants this month. This initiative will be rolled out to other jurisdictions shortly.
In line with the ongoing growth of the business, we have continued to build our team. Last August, Elizabeth Korchin joined as an investment officer in New York. Previously, Elizabeth was a partner at Hogan Lovells, where she focused on high-stakes complex commercial litigation and arbitration, as well as intellectual property disputes, on behalf of Fortune 500 clients.
In November, we appointed Stephen Akers to lead our insolvency funding practice, which is a strong area of focus for the firm. Based in London, Stephen is one of the world’s leading insolvency practitioners, with a career stretching more than three decades, in which he has worked on some of the most complex, multi-jurisdictional insolvency cases involving substantial litigation. Stephen joined Therium from Grant Thornton where he was a partner for 16 years.
Stephen’s appointment came hot on the heels of our ‘Insolvency Litigation Funder of the Year’ accolade, won at the Turnaround Restructuring and Insolvency awards in London in recognition of our cross border insolvency funding expertise and track record.
Thank you for your interest in Therium. If you haven’t already opted-in to receive The Brief and further communications from us, please do so by using our consent form.
Finally, we would like to extend our thanks to J. Richard Supple Jr., Partner, Hinshaw & Culbertson LLP, for being our ‘In the spotlight’ guest and for sharing his insights on the year ahead.
2. Therium exceeds $1 billion milestone following the latest fundraise from global institutional investors
Jersey, Channel Islands, 25 March, 2019. Therium Group Holdings Limited, a leading global provider of litigation, arbitration and specialty legal finance, today announced that it has exceeded an important $1billion milestone of funds raised, following a latest fund raise of £325 million from three global institutional investors, including a sovereign wealth fund, to finance litigation and arbitration globally. It is Therium’s largest fund and follows the £200 million raised in February 2018.
John Byrne, Co-Founder and CEO of Therium Capital Management Limited, said: “We are thrilled to announce the closing of our latest fund, Therium’s largest to date. Raising over $1 billion is an important milestone for the industry and underscores Therium’s leading position in the litigation finance industry globally. Interest from high quality institutional investors was stronger than ever, driven by the rapid growth of the firm, the very strong outlook for our business globally and our track record. We are delighted to have the backing of world leading institutional investors in our new fund and we are very excited about the ongoing high growth opportunity ahead for Therium, which is now in its 11th year.”
Neil Purslow, Co-Founder and Chief Investment Officer of Therium Capital Management Limited, said: “The demand for our litigation and arbitration funding continues at pace across all of our jurisdictions. The benefits of funding are becoming increasingly widespread across the world; from claimants that would not otherwise have the capital to launch their claims, to the largest corporates that use funding to transform claims into financial assets. In line with this, we are seeing a steady rise of single case funding as well as litigation and arbitration financing across multiple dispute types.”
Therium recently announced the opening of an office in Australia, to serve Asia-Pacific, where the firm has been funding cases since 2011. The firm also has investment teams in the UK, USA, Germany, Spain and Norway. Therium was the first commercial litigation funder to have operations on the ground in Germany and Scandinavia and it was the first European firm to launch a full service business in the US.
Therium will use the new funds to continue to invest in litigation and arbitration cases globally across sectors including financial services, energy and mining, industrials, technology, media and entertainment, and across all forms of commercial litigation and arbitration. Therium invests in a broad range of complex commercial disputes, from securities and shareholder actions, international arbitration, competition and anti-trust cases, through to intellectual property, insolvency and group and class actions. Furthermore, demand for Therium’s specialty legal finance solutions from corporates and law firms continues apace across jurisdictions. The new fund is expected to be deployed within two years.
In November 2018, Therium won the ‘Insolvency Litigation Funder of the Year’ award at the Turnaround Restructuring and Insolvency awards in London in recognition of its cross border insolvency funding expertise and leading track record.
In Chambers and Partners’ inaugural litigation support directory 2018, Therium was ranked as a Tier 1 litigation funder, and Neil Purslow was named a leading individual in the litigation funding industry. Therium is a founder member of the Association of Litigation Funders of England and Wales.
Last month, Therium Capital Management was top ranked as one of the two “Leading” litigation and arbitration funding firms in the UK by legal and business directory Leaders League, in their 2019 ranking of litigation funding. Therium was also ranked as “Excellent” in the 2019 US ranking.
Case highlights, which are in the public domain, include:
- Sharp and others v Lloyds Banking Group (re Lloyds’s acquisition of HBOS)
- Noel Edmonds v Lloyds Banking Group
- Consumers v VW re Dieselgate
- Road Haulage Association v Truck manufacturers
- Richard Lloyd v Google Inc (re data protection)
- UK retailers v Mastercard and Visa (re interchange fees)
- PCP Capital Partners v Barclays Bank plc
- Bates & Ors v Post Office Ltd
- Atlant Entreprenor v City of Oslo
- Webb v GetSwift Ltd
- Shareholders v Commonwealth Bank of Australia Ltd
3. Therium launches “Therium Access” to provide not-for-profit funding to improve access to justice in the UK
- First initiative of its kind dedicated to facilitating access to justice in the litigation funding industry
- Lord Falconer, former Lord Chancellor, Secretary of State for Constitutional Affairs and Secretary of State for Justice will chair the Advisory Committee
- First round of grants to be announced in April 2019. Deadline for the next round of grant applications is 30 August www.theriumaccess.org
- The launch of Therium Access coincides with Therium’s 10 year anniversary
Jersey, Channel Islands, 11 March, 2019. Therium Group Holdings Limited, one of the world’s leading providers of litigation, arbitration and specialty legal finance, today announced the launch of Therium Access, which will provide not-for-profit funding in order to facilitate access to justice.
Therium Access is the first-of-its-kind initiative in the litigation funding industry. Grants awarded by Therium Access are intended to provide access to justice to those who lack the funds necessary to pursue or defend claims, as well as to projects that seek to improve access to justice.
Therium Access is the primary expression of Therium’s corporate and social responsibility programme. Therium Access dispenses with the criteria of funding for profit and has the sole purpose of facilitating access to justice by funding cases and projects which could not usually be funded on a commercial basis. Therium Access is a mark of Therium’s wider commitment to the pursuit of justice and the rule of law, and its launch coincides with the firm’s 10th anniversary.
John Byrne, Co-Founder and CEO of Therium Capital Management Limited, said: “We are delighted to announce the launch of Therium Access, which is dedicated to improving access to justice by providing not-for -profit funding for cases and projects of public interest. Therium is ten years old this year and the making of the first Therium Access grants in April will be a fantastic way to mark the firm’s 10th anniversary.”
Lord Falconer, Chairman of Therium Access Advisory Committee, said: “I am delighted to chair this important initiative, which is a first for the litigation funding industry and will hopefully lead the way for further initiatives. The choking of legal support that we have witnessed in this country as a result of unprecedented cuts to legal aid has had drastic consequences on the vulnerable who are being denied access to justice, and on those individuals and organisations who work tirelessly to support them. The not-for-profit funding that Therium Access will provide through grants for cases and projects is urgently required to make some contribution towards restoring the right to legal support, which is the bedrock of our justice system.”
The first grants will be announced in April. The deadline for the submission of the next round of grant applications is 30 August 2019. Applications need to be made by legal representatives or the entity seeking a grant. The board of Therium Access will be assisted by an Advisory Committee which will be chaired by Lord Falconer, former Lord Chancellor, Secretary of State for Constitutional Affairs and Secretary of State for Justice. Further appointments to the advisory committee will be announced in due course.
Therium Access aims to support access to justice in the broadest terms and considers applications that further the following causes (in no particular order):
- The right to legal representation or due process;
- The proper and efficient administration of justice;
- The advancement of human rights;
- The promotion of equality of rights and diversity;
- The protection of children, the elderly, the disabled, minorities, asylum seekers and other vulnerable or disadvantaged groups;
- The advancement of environmental protection or improvement;
- The promotion of legal education that furthers the causes listed above; and
- Any other case or project in which a person, group, or entity will not have access to justice without financial assistance.
- Therium Access is intended to be a global initiative, its initial focus will be on the UK and it will be rolled out in other jurisdictions in a number of planned phases
Melbourne/ London, Monday 15 October 2018. Therium Capital Management, a leading provider of litigation finance globally with over $800 million of assets under management, announced today that it is planning to launch a full service offering in Australia on 1 January 2019. Therium Australia will be based in Melbourne. Founded in 2009, Therium Capital Management is one of the largest and most established litigation financing firms in the world. The firm has funded claims valued at $36 billion.
Therium’s full service operations in Australia will be headed by Simon Dluzniak, an experienced litigation funding professional, who has worked in the industry in both Australia and the UK since the early 2000s.
Within Australia, Therium will finance class actions and general commercial, insolvency and arbitration claims. Therium Australia will also seek to develop the country’s emerging corporate funding and portfolio funding markets. Outside of Australia, Therium Australia will look to fund arbitration claims in Hong Kong and Singapore, both of which are emerging markets for litigation finance.
Therium has funded claims in Australia since 2011 and is currently funding high profile shareholder class actions against Commonwealth Bank of Australia Ltd, as well as delivery management software company GetSwift Ltd.
Neil Purslow, Co-Founder and Chief Investment Officer of Therium, will be speaking about litigation funding at a Herbert Smith Freehills class action panel in Melbourne on 17 October. He said: “We know the Australian litigation funding market well as we have been active in the country for several years. We are seeing a healthy demand for our services across a range of litigation areas and industries in Australia, so it is the natural moment for us to open an office in the country.
“The market in Australia for litigation funding of class actions, general commercial cases and insolvency matters is both well-established and currently very buoyant. There is also a very substantial opportunity for Australian corporates to use funding as a form of off balance sheet finance, and for us to also provide portfolio funding to them – and the law firms that act for them. Both of these are established funding practices in the UK and the USA.”
Therium has operations across Europe, including in the UK, Germany, Italy, Spain and Scandinavia, and in the USA. Therium was the first commercial litigation funder to be have operations on the ground in Germany and Scandinavia and it was the first European firm to launch a full service business in the USA.
Litigation funding allows individuals and companies to take on litigation and arbitration cases that they might not otherwise be able to afford, and/or to hedge the costs and risks involved in such matters. Therium pays for all of the costs, including adverse costs in the event that the case is lost, and only receives payment if the case is won.
5. Louise Hird joins Therium Capital Management in Melbourne from the Australian Competition and Consumer Commission
- Therium launched full service litigation funding operations in Melbourne on January 1, headed by Simon Dluzniak
Melbourne/ Jersey 30 January 2019. Therium Capital Management, a leading global provider of litigation finance, announced today that Louise Hird has been appointed to the firm as an investment manager. Louise joins Therium from the Australian Competition and Consumer Commission (ACCC), where she was a director leading investigations focused on consumer and competition law.
Founded in 2009, Therium is one of the largest and most established litigation financing firms in the world. The firm has funded claims valued at $36 billion.
Therium Capital Management Australia Pty Ltd is headquartered in Melbourne and is led by Simon Dluzniak, who has worked in the funding industry in Australia and the UK since 2003.
Therium has funded claims in Australia since 2011 and is currently funding high profile shareholder class actions against the Commonwealth Bank of Australia Ltd and Spotless Group Holdings Ltd, as well as delivery management software company GetSwift Ltd. Therium Capital Management Australia will continue to finance class actions and general commercial, insolvency and arbitration claims. The firm will also seek to develop the country’s emerging corporate funding and portfolio funding markets, as well as investigate the funding of arbitration claims in Hong Kong and Singapore, both of which are emerging markets for litigation finance.
Simon Dluzniak, Head of Therium Capital Management Australia, said: “We are very excited about launching our office in Melbourne and delighted that Louise has joined the team. Her competition experience will be invaluable as we continue to deliver innovative funding solutions for our clients. Whilst our business has been very successful in Australia for some time and we are funding some major cases, having a team on the ground ensures that we are closer to our clients, and better positioned to capitalise on market opportunities in Australia and the Asia-Pacific region more broadly.”
Louise Hird, Investment Manager at Therium Capital Management Australia, said: “I have known of Therium for many years and have been hugely impressed. The team has tremendous experience in funding highly complex, often cross border cases, both claimant and defendant side, and has been at the forefront of developing the industry globally. I am very excited to join the firm and look forward to building the business further in Australia and the wider region, as well as working with our international teams to leverage Australia’s long standing experience of funding.”
Prior to joining Therium, Simon spent 12 years with another international funder, leading on cases in Australia and the UK. He has significant funding experience, particularly in relation to class action and insolvency litigation, having managed a number of high-profile funded cases in both jurisdictions. Previously, Simon worked with corporate regulators in Australia and the UK, and at Ernst & Young. He graduated from La Trobe University with degrees in Arts (BA) and Law (LLB) in 1997.
At the ACCC, Louise led a wide variety of investigations into misconduct in various industries. She has advised at a high level on enforcement strategy and case formulation in complex matters, and managed proceedings in the Federal Court of Australia. Louise has a Bachelor of Arts from the University of Melbourne and a Master of Laws (Juris Doctor) from Monash University.
Therium has operations across Europe, including in the UK, Germany, Italy, Spain and Scandinavia, and in the US. Therium was the first commercial litigation funder to have operations on the ground in Germany and Scandinavia and it was the first European firm to launch a full service business in the US.
Litigation funding allows individuals and companies to take on litigation and arbitration cases that they might not otherwise be able to afford, and/or to hedge the costs and risks involved in such matters. Therium pays for all of the costs, including adverse costs in the event that the case is lost, and only receives payment if the case is won.
London, 20 November, 2018 – Therium Group Holdings Ltd., a leading provider of litigation finance globally with over $800 million of assets under management, has appointed Stephen Akers to lead its insolvency funding practice, based in London.
Stephen is one of the world’s leading insolvency practitioners, with a career stretching more than three decades, in which he has worked on some of the most complex, multi-jurisdictional insolvency cases involving substantial litigation. He has considerable experience of litigating in not just the UK but also in New York, Paris, Cayman Islands, BVI, Bermuda, Jersey and Guernsey, involving cases that have successfully recovered or defended many billions of dollars.
Stephen joins Therium from Grant Thornton where he was a partner for 16 years, following 15 years as a partner at Deloitte.
Neil Purslow, Co-Founder and Chief Investment Officer of Therium, said: “Stephen is one of the world’s preeminent insolvency professionals and we are delighted that he has joined Therium to lead our global insolvency litigation funding practice, which is a strong area of focus for the firm. He has tremendous global experience, having worked on some of the most high profile, multi-jurisdiction insolvency matters. We look forward to him leading our growing insolvency litigation funding practice, where we see huge opportunity.”
Stephen’s high profile insolvency cases include:
Saad Group of Companies. Liquidator regarding the winding up of mainly Cayman Islands companies within the Saudi Saad Group that in 2009 defaulted on a $2.8bn revolving credit facility advance by a syndicate of banks led by Barclays. After seven years, including a lengthy trial in Cayman, interlocutory applications, and a huge investigatory and forensic analysis, the liquidation group convinced the Cayman Court that the companies’ owners and controllers had carried out the world’s largest Ponzi scheme, with loans of $330bn being churned over nearly three decades, impacting over 100 banks.
Bank of Credit and Commerce International SA. Liquidation of BCCI, once the world’s seventh largest bank, which failed in 1991. The bank was riddled with fraud and money laundering and was closed following coordinated action by the UK, US and Luxembourg regulators. It was the largest bank failure of its time, involving $10bn of liabilities worldwide. Stephen was a liquidator of the UK business, which represented the largest part of the group balance sheet.
Madoff Securities Limited. UK liquidation of the only Madoff entity outside of the US, used to wash funds through London as part of the $68bn Ponzi scheme.
Kaupthing Bank hf. Roles for Icelandic bank Kaupthing’s Winding-Up Committee, including matters involving Vincent Tchinguiz’s and Robert Tchenguiz’s family trusts, and liquidations of BVI companies involved with credit default swaps with Deutsche Bank.
Therium is one of world’s leading litigation financing firms. The firm has funded claims valued at $36 billion and has operations across Europe, including in the UK, Germany, Italy, Spain and Scandinavia, and in the US. Therium was the first commercial litigation funder to be have operations on the ground in Germany and Scandinavia and it was the first European firm to launch a full service business in the US. In October, Therium announced that it plans to launch operations in Australia in January 2019.
In Chambers and Partners’ inaugural litigation support directory this year, Therium was ranked as a Tier 1 litigation funder.
Litigation funding allows individuals and companies to take on litigation and arbitration cases that they might not otherwise be able to afford, to hedge the costs and risks involved in such matters and to monetise the value of claims.
7. The New York City Bar Association Ethics Committee issued Formal Opinion 2018-5
By Eric Blinderman, Head of Therium Inc.
On July 30, 2018, the New York City Bar Association Ethics Committee issued Formal Opinion 2018-5 (the “Opinion”). The Opinion stated that a “lawyer may not enter into a financing agreement with a litigation funder … under which the lawyer’s future payments to the funder are contingent on the lawyer’s receipt of legal fees or on the amount of legal fees received in one or more specific matters.” In short, the Opinion concluded that any such agreement violates Rule 5.4 of the New York Rules of Professional Conduct prohibition on fee sharing with non-lawyers.
The Opinion, while advisory in nature only, has nevertheless generated a fair amount of controversy. Primarily, such controversy surrounds the fact that the Opinion blesses lawyer-funder arrangements in which the funding arrangement is recourse to the law firm and involves the payment of a set interest rate, but on the other hand bars such arrangements when the funding arrangement is non-recourse (i.e., where payment to the funder is not required if a matter is lost) or if the amount payable to the funder varies depending upon the amount which the law firm recovers. Secondarily, the Opinion is controversial because it seemingly ignores at least three recent court opinions addressing this same issue, all of which have reached in essence the exact opposite conclusion. See Lawsuit Funding, LLC v. Lessoff, 2013 WL 6409971 (Sup. Ct. N.Y. County Dec. 4, 2013); Heer v. North Moore St. Developers, L.L.C., 140 A.D.3d 675 (1st Dep’t 2016); Hamilton Capital VII, LLC, I v. Khorrami, LLP, 2015 N.Y. Slip. Op. 51199(U) (Sup. Ct. N.Y. County Aug. 17, 2015).
With respect to the first issue, the Opinion attempts to parse out a distinction between (i) recourse funding in which the funder receives a set interest payment and has the ability to seize the law firm’s assets upon default, and (ii) non-recourse funding where the law firm pays nothing if the case(s) securing the funding fail, or funding arrangements where the amount payable to the funder varies depending upon the results in the case(s) securing the funding. In attempting to make this distinction, the Opinion observes that “the lawyer in both scenarios will pay the lender from the firm’s revenues (i.e., legal fees).” Notwithstanding, the Opinion concludes that the latter arrangements somehow violate Rule 5.4 because the non-lawyer funder would then have a stake in legal fees from particular matters which in theory could supposedly grant the funder an incentive or opportunity to influence improperly the lawyer.
The arbitrariness and inherent inconsistency at the core of this attempted distinction is apparent upon the most cursory of analysis and renders the Opinion fatally flawed. First, the common law doctrines of champerty and maintenance embedded in New York law would void any litigation funding agreement granting a funder control over a matter. As such, non-recourse litigation funding agreements include specific provisions which expressly disclaim the right of any funder to control or influence a litigation. Second, and more importantly, the non-recourse nature of litigation financing arrangements ensures that the lawyer’s independence is unequivocally preserved. Simply put, if the lawyer loses a case backed by a non-recourse funding arrangement, they pay the funder nothing, whereas recourse products with a set interest rate expose the attorney to the risk of losing assets (including a home or business) if they are not able to pay the lender according to the loan documents. It is readily apparent that a lawyer struggling to make financial payments to a traditional lender is intrinsically more likely to behave differently when handling a matter if a negative result would cause the lawyer to lose a home or business upon default. Contrast this to the traditional non-recourse funding arrangement, which presents no such risk.
With respect to the second issue, the Opinion offers no analysis whatsoever about the policy and binding legal precedents cited by the New York courts, which concluded that non-recourse and contingent funding arrangements do not violate Rule 5.4. Instead the Opinion cites the inapposite judicial rulings in a footnote and dismisses them in a single sentence as contrary to the language and history of Rule 5.4. This failure of intellectual rigor renders the Opinion’s conclusions circumspect and fatally incomplete.
Recognizing these self-evident shortcomings and intellectual inconsistencies, however, is not enough to provide comfort to attorneys and practitioners who require access to non-recourse and/or contingent financing to grow their practices and serve their clients. The end result, therefore, is that the Opinion injects wholly unwarranted and unfounded uncertainty into the litigation funding industry and (at its most pernicious) closes the courthouse doors to law firms and their clients who are not significantly well heeled to qualify for traditional bank loans. In so doing, the Opinion undermines the very protections embedded in the Rule, which in turn needlessly harms the integrity of the judicial process itself.
Therium is regularly invited to attend and speak about litigation funding at law firms, barristers’ chambers and industry events. Do get in touch if you are interested in us speaking to your colleagues, or at one of your events.
Our recent engagements include the following:
4 April, Frankfurt
Neil Purslow and Simon Dluzniak spoke on litigation funding internationally at the DRRT 11th Annual Global Investor Loss Recovery Conference. Therium sponsored the event.
4 April, Singapore
Stephen Akers and Nicholas Moore attended the INSOL Annual Regional Conference
4 April, Copenhagen
Tim Mayer and Henrik Berg attended the Danish Institute of Arbitration’s Copenhagen Arbitration Day
4 April, New York
Eric Blinderman spoke about regulation at the Litigation Funding Forum.
3 April, Boston
Eric Blinderman spoke at the Harvard Litigation Finance Symposium about litigation finance and its role in the justice system.
2 April, Boston
Elizabeth Korchin spoke at the Harvard Litigation Finance Symposium about careers in litigation finance.
26 March, Dubai
Eric Blinderman and Elizabeth Korchin spoke at and moderated a panel at the 2nd International Litigation Legal Conference.
13-14 February, London
John Byrne addressed law students at the LSE on litigation funding in arbitration.
7-9 January, Cayman Islands
Tim Mayer and Stephen Akers attended the 2019 Caribbean Insolvency Symposium, organised by the American Bankruptcy Institute and the Recovery and Insolvency Specialists Association.
6 December, London
Neil Purslow spoke on a panel about Funding Securities Litigation at KNect365’s Securities Litigation summit.
28 November, Paris
Tim Mayer spoke at the 6th GAR Live summit on funding and its impact on the arbitration firm’s business model.
22 November, Madrid
Ignacio Delgado spoke at the Fourth Spanish ICC Forum on Arbitration.
19 November, Madrid
Tim Mayer spoke at the Fifth International Conference for a Euro-Mediterranean Community of International Arbitration.
19 November, New York
Therium sponsored the Serle Court International Trusts and Commercial Litigation Conference.
6 November, London
Neil Purslow spoke at the Cyber Risk Summit at the America Square Conference Centre.
19 October, Chicago
Eric Blinderman spoke at the 2018 ABA Class Action Institute.
17 October, Melbourne
Neil Purslow spoke at a Herbert Smith Freehills class action panel event.
The media follows Therium’s news and views. Below is a selection of recent press highlights
American Lawyer/Legal Week. Litigation Funder Therium Announces $430M Fund, Pushes Investments Past $1BN
The Australasian Lawyer. Global litigation funder exceeds $1 billion milestone
BBC Business. Noel Edmonds’ legal backer raises £325m
The Lawyer. Therium commits £1m per year to pro bono work
ITV News. Litigation firm Therium to fund not-for-profit cases as legal aid slashed
Financial Times. Therium sets up pro bono scheme to tackle legal aid gaps
Australasian Lawyer. Therium ramps up Australian presence and attracts ACCC director
Bloomberg. Stephen Akers appointment features in Bloomberg
Global Insolvency. Therium Appoints Stephen Akers to Lead its Global Insolvency Practice
Litigation Finance Journal. Therium Appoints Stephen Akers to Lead its Global Insolvency Practice
Litigation Funding. A changing landscape. Jeunesse Mensier on security for costs in funded investment arbitration
Australasia Lawyer. Therium to set up full-service shop down under amid ‘very buoyant’ market
Do you think the recent NYC ethics opinion regarding portfolio funding is reasoned correctly?
No, it’s reasoned poorly, as numerous ethics practitioners have already opined. Most fundamentally, the opinion tries to distinguish so-called “traditional recourse loan agreements,” where a law firm pledges its fee receipts, from litigation funding agreements where payment to the funder is contingent upon an actual recovery in one or more cases. The distinction, however, is without a principled difference. As one of the cases cited in the opinion itself states, there is “no real ethical difference” between the two scenarios so far as Rule 5.4 is concerned since, in every instance, the ethics rules ensure that lawyers will zealously advocate for their clients.
If decided incorrectly, what do you think the opinion is missing?
The opinion badly misunderstands applicable New York case law. To cite just one example, the Hamilton Capital case, cited by the bar committee in a footnote, expressly approves of the very kind of litigation funding agreement for contingency fee cases that the opinion condemns. Obviously, decided cases trump bar opinions. Indeed, the court in Hamilton Capital implied that the issue was not really close, noting that “other courts have analyzed the legality of similar financing arrangements” and “held them not to run afoul of the applicable ethical rules.”
Do you believe that portfolio funding conflicts with Rule 5.4?
No, not in any modern sense of the rule. Read literally, Rule 5.4 could be interpreted to prohibit any agreement where a law firm pledges its receivables to secure financing. Not even the opinion goes that far. Courts have long interpreted ethics rules as rules of reason. In the case of litigation financing, numerous decisions from courts around the country, including at least one of the decisions cited in the opinion, emphasize that Rule 5.4 must be read in light of the public policy need to make “justice accessible to all, regardless of wealth.”
Besides the opinion, what other ethical issues do you think might impact the litigation funding industry in the coming year?
Since – the opinion aside – challenges to litigation funding grounded on Rule 5.4 objections are, for the most part, being rejected, I believe disclosure is the next major ethical issue to come to the fore. As litigation funding continues to gain broad acceptance in the United States, there will increasingly be demands by courts, defendants and legislators to require disclosure of litigation funding terms at some early point in litigation. Some of that is already happening. The industry’s challenge will be to persuade courts and legislatures that any new rules relating to disclosure bake in protections for communications and document exchanges between parties and funders during the due diligence phase. Currently, the work product protection doctrine helps to prevent adverse entities from rummaging those communications and exchanges to learn something about the funding recipient’s strategies. Any new disclosure-related rules should further cement those protections.
Your most important regular read: columnist, journalist, blogger or newspaper?
The “conservative” columnists in the New York Times – Ross Douthat, Bret Stephens and David Brooks. I live in Park Slope and from time-to-time need to get out of my liberal bubble.
Best book you read recently?
Five Days at Memorial, by Sheri Fink. Reports masterfully on the fascinating and terrifying health care rationing dilemmas faced by doctors and nurses working in a New Orleans hospital in the immediate aftermath of Katrina.
Best film or box set?
Last King of Scotland. Forest Whittaker’s portrayal of a megalomaniac Idi Amin is, in my view, the greatest film performance ever.
And your favourite lunch spots are?
The halal food cart on the NW corner of 3rd Avenue and East 49th Street.