LionFish Group Ltd
2 Experts
10 Contributions by LionFish Group Ltd Experts
PRACTICE NOTES
Although every litigation funding agreement (LFA) and the papers that sit alongside it differ by funder and the nuances of the dispute being financed, certain core points must still be tackled through the various stages of negotiation, in any event. This Practice Note forms part of a concise series by Tanya Lansky and Tets Ishikawa, Managing Directors at LionFish Group Ltd, intended to equip those involved in the negotiation and assessment of LFAs and related documents with clearer insight into the key considerations.
Co-funding
As the market has matured and inflation has pushed up funding budgets, it is now far more commonplace for funders to spread the investment exposure in any given case with one or more peers. Some funders agree to the full LFA and later novate or dispose of sub-participation interests over a portion of their exposure to other funders or
Restructuring & Insolvency
PRACTICE NOTES
Although every litigation funding agreement (LFA) and its accompanying papers will differ according to the funder and the nuances of the case being backed, there are core matters that must be tackled during the various stages of negotiation. This Practice Note forms part of a concise series by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, designed to equip those negotiating or evaluating LFAs and their related documents with a clearer appreciation of the issues in play.
Dispute resolution
No party ever expects to rely on a dispute resolution clause in a commercial contract. Within the litigation funding sphere, most disagreements about the LFA are ordinarily sorted out between the participants. As a result, it is tempting to default to boilerplate wording submitting ‘to the exclusive jurisdiction of the courts of England and Wales’, or whatever the parties typically adopt. Yet turning to the
Restructuring & Insolvency
PRACTICE NOTES
Although every litigation funding agreement (LFA), together with its ancillary papers, will differ according to the funder and the nuances of the funded matter being financed, there are core issues that must be addressed throughout the various negotiation stages of all litigation funding documentation. This Practice Note forms part of a series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, designed to give those negotiating and considering LFAs and their related documents a clearer grasp of the factors in play.
Overriding objective
Managing drawdown arrangements is an administrative task, often non-billed, and all too easily overlooked. Yet a well-defined drawdown procedure can conserve a substantial amount of time, costs and resources for all parties involved over the duration of an LFA. The principal objective of any drawdown process is to eliminate ambiguity and minimise
Restructuring & Insolvency
PRACTICE NOTES
Although every litigation funding agreement (LFA) and the papers that sit alongside it will differ by funder and by the nuances of the case supported, there are core points that must be dealt with throughout the stages of negotiation, at each phase and juncture.
This Practice Note forms part of a concise series by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, intended to equip those closely negotiating or assessing LFAs and their companion documents with a clearer grasp of the dynamics at play in practice.
Termination clauses
Termination clauses are, by design, severe; that severity is inherent, as they represent an ultimate fallback that compels the funder to crystallise losses which instantly depress performance—whether measured at a fund level for those who manage funds, or on a P&L basis for principal investors. Consequently, a funder will not look to invoke a
Restructuring & Insolvency
PRACTICE NOTES
While every litigation funding agreement (LFA) and its related documents will differ according to the funder and the specificities and nuances of the funded matter, there are core issues that must be addressed during the various stages of negotiation and documentation. This Practice Note forms part of a short series by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, designed to equip those negotiating or evaluating LFAs and their accompanying papers with a clearer understanding of the factors at play.
Representations and warranties
A lengthy representations and warranties (R&W) provision can appear onerous and, at first glance, disproportionate. However, in any commercial contract its breadth typically correlates with the complexity of the underlying investment; and because litigation is, by nature, complex, comprehensive R&W are ultimately unavoidable. Conversely, the more burdensome the R&W regime, the more limited the level of ongoing
Restructuring & Insolvency
PRACTICE NOTES
Although every litigation funding agreement (LFA) and its related papers differ by the funder and the nuances of the claim being financed, certain core matters must be dealt with through distinct stages of negotiation. This Practice Note forms part of a concise series from Tanya Lansky and Tets Ishikawa, Managing Directors at LionFish Group Ltd, designed to equip participants negotiating or evaluating LFAs and their ancillary documents with a clearer grasp of key dynamics. It highlights the considerations at play for practitioners across negotiation phases. Emphasis rests on identifying issues common to most LFAs despite case-specific features and differing funder approaches.
Adverse costs risks for funders
Solicitors invariably warn clients about potential exposure to adverse costs should litigation ultimately fail. The emergence of the after-the-event insurance (ATE) market offered claimants a means to hedge these hazards where an insurer considered the prospects
Restructuring & Insolvency
PRACTICE NOTES
Although every litigation funding agreement (LFA), together with its associated documents, will differ according to the funder and the particularities of the matter being financed, there are recurring issues that must be addressed throughout the negotiation stages. This Practice Note is part of a short series of Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, created to give those negotiating or assessing LFAs and their accompanying documents a clearer grasp of the factors in play.
Control
A frequent question for stakeholders considering litigation funding is how a funder’s involvement in a financed case might translate into control. Funders should not be directing a funded claim; this is commonly handled by an express clause confirming that the litigant retains sole conduct of the proceedings. However, when negotiating an LFA, one should be alert to the nuances that can attach to any such
Restructuring & Insolvency
PRACTICE NOTES
Although every litigation funding agreement (LFA), along with its related papers, will in practice differ based on the financier and the nuances of the case being financed, there are core matters that must be tackled during the distinct stages of negotiation.
This Practice Note forms part of a concise series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors at LionFish Group Ltd, designed to give participants involved in negotiating and assessing LFAs and their ancillary documents a clearer grasp of the relevant dynamics at play.
Investment top-ups
One plans for, and trusts, that the budget settled at the start of an LFA will suffice in full. Yet, because litigation is uncertain, there is always a possibility the initial budget proves materially insufficient, prompting a requirement to increase the investment sum agreed.
Whilst some prefer to address top-up arrangements only if and when
Restructuring & Insolvency
PRACTICE NOTES
Although every litigation funding agreement (LFA) and its related papers will differ based on the funder and the nuances of the case being backed, there are core matters that must be tackled during the stages of negotiation. This Practice Note forms part of a concise series by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, designed to give those negotiating or evaluating LFAs and their accompanying documents a clearer grasp of the considerations involved and the factors at play...
Priorities agreements
A priorities agreement (often also called the waterfall) is the instrument that expressly determines the order in which the returns from the funded claim are distributed if the case succeeds. Though it only bites upon a positive result, differing models adopted by funders and bargained for by funded parties over time have created fertile ground for
Restructuring & Insolvency
PRACTICE NOTES
Although each litigation funding agreement (LFA) and its related documents will differ according to the funder and the nuances of the matter being financed, there are key issues that must be addressed at the various stages of negotiation. This Practice Note is part of a series of concise Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, intended to give those negotiating or evaluating LFAs and their accompanying documents a clearer understanding of the factors involved.
Pricing structures
In the formative period of litigation funding, funders’ returns were set as a percentage of the damages (percentage pricing). That mirrored how risk-taking US law firms run contingent matters and echoed early investors’ view of litigation investing as comparable to Series A venture capital, which often involves a percentage stake in a company. As the market expanded, funders introduced terms based on
Restructuring & Insolvency
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