A topic that invariably comes up in discussions is the common case of wide dispersion between gross and net returns in commercial litigation finance (this is not typically an issue within consumer litigation finance). It’s a problem that is somewhat unavoidable and somewhat explainable!

In part one of this two-part series, we explored the importance of partnerships and we started to discuss elements of portfolio construction.  In part two, we further delve into portfolio construction issues and then discuss the appropriateness of utilizing debt within the context of commercial litigation finance.

In Part 1 of this two-part series, I compared litigation finance to private equity (i.e. leveraged buy-out) and the deployment problem endemic to litigation finance and the impact it has on the effective cost of management fees. In Part 2, I drill deeper into the operating costs inherent in running a litigation finance strategy.

Over the past few years, I have noticed a distinct change in the appetite of litigation funders when it comes to getting involved in patent litigations. It used to be the case that patent litigation was viewed negatively by the litigation funding community…

As with any new industry, there is much risk and trepidation with respect to whether (i) the concept will work, (ii) the concept will be profitable, (iii) the concept will be scalable and (iv) the concept will attract investment support. Oh, and in the case of litigation finance, (v) whether the concept is in fact legal.

As Covid-19 has taken the planet and the legal community by surprise, I think there are some lessons learned from private equity that can be applied to litigation finance. In short, focus on cash – its collection, generation, distribution and availability.