Last August, when prominent litigation funding firm Burford Capital Ltd. was hit with as securities class action lawsuit, I published a post highlighting the new suit. In a post in which I arguably had some fun at Burford’s expense – the post was entitled “Isn’t It Ironic? Litigation Funding Firm Hit With Securities Suit” – I detailed the shareholder plaintiff’s allegations. Having drawn readers’ attention to the lawsuit, it seems only fair for me now to point out to readers what subsequently happened in the lawsuit. The fact is, the plaintiff has voluntarily dismissed the lawsuit, albeit without prejudice.
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In a development that some may find more than a little bit ironic, U.K.-based litigation finance firm Burford Capital has been hit with a securities class action lawsuit following a drop in its share price after a short seller published a report questioning the company’s financial reporting. Burford has denied the short seller’s allegations and has also raised interesting questions about trading in its securities at the time of the research report’s release. A copy of the August 21, 2019 complaint filed against the company and certain of its executives can be found here.
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It is big news when one of the most successful plaintiff-side corporate and securities lawyers decides to walk away from the game, but that is exactly what Stuart Grant of Grant & Eisenhofer, the Delaware shareholder litigation firm, is going to do. According to Alison Frankel’s interesting June 25, 2018 Reuters article and interview (here), Grant is leaving his firm effective June 30, 2018, because, in his own words, he doesn’t like losing, as he has been doing in the past few years. Both Grant’s reasons for leaving and his plans for what comes next are interesting. In his interview with Frankel, Grant also had a number of interesting things to say about a number of corporate and securities litigation topics.
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One of the many issues under discussion when the question of litigation financing regulation comes up is whether parties’ use of litigation financing must be disclosed. One federal district court has implemented provisions requiring the disclosure of litigation financing, and the state of Wisconsin recently adopted measures requiring litigation financing disclosure. The federal Advisory Committee on the Rules of Civil Procedure is separately studying measures that would require disclosure. In the meantime, other courts continue to struggle with the disclosure issue. The federal district court judge in Ohio presiding over the multidistrict opioid litigation has fashioned his own litigation financing disclosure approach; Northern District of Ohio Judge Dan Aaron Polster has ordered the litigants in the opioid litigation to provide litigation funding disclosure to the court itself, rather than to the parties. Interestingly, this approach has drawn praise from a leading third-party litigation funder, as discussed below. Judge Polster’s May 7, 2018 order can be found here.
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Third-party litigation funding has its critics and detractors (refer, for example, here and here). The fact is that third-party litigation funding is now well-established and is here to stay. A recent survey by one of the leading funding firms, discussed below, confirms that the acceptance and use of litigation funding is growing rapidly. The more interesting question at this point is — what are the implications?
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filefoldersMost observers of the current litigation scene are well aware of the recent rise in litigation funding, both in the U.S. and around the world. Indeed, according to a recent memo from the Skadden law firm (here), in 2016, “the worldwide market for third-party litigation financing was estimated to exceed $1 billion.” The industry is likely to continue to grow. The rise of litigation funding has not been without its concerns, however; with the increasing role of litigation funding have come calls for regulation of various kinds. One recurring issue has been with respect to the requirement of mandatory disclosure of litigation funding.
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us capitolIn the early days of the Trump presidency, the new administration has made it clear that it is going to tackle perceived regulatory excess. The new President has also made it clear that he intends to reform the Dodd-Frank Act. In keeping with these initiatives, a Republican congressman has now introduced a legislative proposal to reform class action litigation. According to his February 10, 2017 press release (here), Rep. Rob Goodlatte (R-Va.), the Chairman of the House Judiciary Committee, introduced the Fairness in Class Action Litigation Act (H.R. 985) to “keep baseless class action suits away from innocent parties, while still keeping the doors to justice open for parties with real and legitimate claims.” The Bill, which is a grab bag of proposed procedural reforms clearly intended make class action litigation more difficult, addresses a host of concerns and includes some surprising features, including, among other things, a provision that would address third party litigation funding.
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ndcal1The recent rise of litigation funding, frequently noted on this site, has been accompanied with rising uneasiness, at least in certain quarters, as well as calls for some form of regulation. Litigation funding is in fact subject to regulation in some countries, including those where there is a longer history of third-party litigation financing; in Canada, for instance, it has become an accepted practice that litigation funding must be disclosed and judicially approved. There have been various calls in this country for litigation funding to be regulated, but up until now, now there have been no affirmative steps toward regulation. However, on January 23, 2017, the Northern District of California adopted new rule  — the first of its type — requiring the automatic disclosure of third-party funding agreements in proposed class action lawsuits.
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gavel1Any question that litigation funding has become a very big business was completely eliminated by the December 14, 2016 announcement of the merger between Burford Capital Ltd., the world’s largest publicly traded litigation funding firm, and GKC Holdings, LLC, the parent company of Gerchen Keller Capital, the largest privately held litigation funding firm. When the combination is completed the merged company will have $2 billion committed to litigation and a current portfolio of more than $1.2 billion in litigation investments, with hundreds of millions of dollars of capital available for further litigation investments. 
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australiaClass actions have been a big deal in the U.S. for a long time now, but what is really interesting is that class actions (and other forms of collective action) are now becoming a big deal outside of the U.S. One place in particular where class actions have become a very big deal indeed is in Australia. As detailed in a recent study, class actions have in recent years become a well-established part of Australia’s litigation landscape. Recent judicial developments seem likely to make Australia an even more attractive jurisdiction for class action litigation.
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