Although litigation finance parallels venture capital finance in many ways, one major marketplace difference is the (current) lack of reputation markets in the litigation finance world. Reputation is valuable for funders seeking to differentiate themselves in a marketplace that is … Continue reading
The draft model contract includes a fiduciary duty provision we recommend access-to-justice plaintiffs bargain for. The fiduciary duty supplements the conflict of interest disclosures the contract requires. However corporate finance plaintiffs do not need such protection, and may not be … Continue reading
This post concludes our analysis of the terms of the litigation finance contract used to insure the risk of adverse cost orders in a Canadian shareholder class action (Dugal) and the draft model, and briefly touches on several topics: champerty, … Continue reading
This post continues our series contrasting the terms of the contract financing the Canadian shareholder class action in Dugal with the draft model. This one looks at the terms relating to conflicts of interest and buyer’s remorse. Our draft model contract requires disclosure … Continue reading
For the reasons discussed below, we are amending our draft model contract to make the default provision when bridge financing becomes necessary to be good faith negotiations. However, we leave intact, as an alternate, the concepts of Accelerated and Supplement … Continue reading
We begin this blog post with a few suggestions on nomenclature. For purposes of this post, we introduce the use of the terms “triad” and “dyad” to discuss and differentiate the possible combinations and permutations of conflicts inherent in any … Continue reading
In defining the award, the proceeds of which pay the investors, we had two objectives. One, was to define it broadly enough for the funders to get the value they bargained for. The other, was to reduce litigation funding’s propensity to … Continue reading
Ultimately, I agree with your conclusion that the parties to a litigation funding agreement must contractually negotiate the scope of their respective duties. I believe, however, that for several reasons those duties should be contractual and tailored to the specific … Continue reading
As Victoria Shannon notes, one of the options we propose parties consider in order to solve some of the conflicts of interest among the plaintiff, litigation counsel and the funder is to make the funder a fiduciary of the client … Continue reading
Funders and plaintiffs can have multiple conflicts of interest as detailed in this essay. Beyond imposing a fiduciary duty between funder and plaintiff, one of the most direct ways to address these conflicts is through disclosure so that plaintiffs can … Continue reading
