Insights

New York – April 1, 2021: Crowell & Moring and Kibbe & Orbe have joined forces effective today to provide expanded service offerings to clients in the financial services industry.  Twenty-four lawyers from the storied financial law firm are now part of Crowell & Moring’s New York, London, and Washington, D.C. offices, including Jennifer Grady, managing partner and chair of the firm’s executive committee, who will co-chair Crowell & Moring’s Corporate practice; three founding partners, Jonathan Kibbe, William Orbe, and Michael D. Mann, and the managing partner of the London office, Andrew M. Martin.

On February 20, 2024, the Supreme Court finally brought the curtain down on the Kirschner v. JPMorgan Chase Bank, N.A. et al., action when it denied Plaintiff’s petition for certiorari that challenged the Second Circuit Court of Appeal’s determination that syndicated bank loans were not “securities.” While the Second Circuit made that decision in August, fears of significant market disruption were raised again in December, when the plaintiff asked the Supreme Court to review the case. But, as a result of the denial of cert, the Second Circuit decision stands, and for the time being, syndicated term loans will not be subject to securities regulation.

In this alert we discuss recent developments in the regulation of third party funding since R (on the application of PACCAR Inc & Ors) v Competition Appeal Tribunal & Ors [2023] UKSC 28, (“PACCAR”) which we discussed in our prior alert. In Alex Neill Class Representative Limited v Sony Interactive Entertainment Europe Limited et al. [2023] CAT 73, the first analysis of a third-party litigation funding agreement (“LFA”) to take place since PACCAR, finding that an optional payment mechanism based on a cut of damages “only to the extent enforceable and permitted by applicable law” will not render the whole LFA an unenforceable damages-based agreement (“DBA”). Meanwhile, the government intends to enact a legislative amendment to make non-lawyer LFAs for group opt-out competition proceedings enforceable, but calls have quickly begun for the government to go further.

In R (on the application of PACCAR Inc & Ors) v Competition Appeal Tribunal & Ors [2023] UKSC 28, the U.K. Supreme Court has declared litigation funding agreements based on a cut of damages to need to comply with the Damages-Based Agreements Regulations 2013, while the Court of Appeal in Evans & O’Higgins v Barclays [2023] EWCA Civ 876 expands the scope of likely competition opt out litigation approval.

Paul Haskel spoke at the 6th Annual LF Dealmakers Forum which was held on September 26 – 28, 2023 in New York City. The LF Dealmakers is an exclusive litigation finance forum dedicated to the litigation finance industry. On September 28, Paul spoke on the panel, “Successful Models in Cost & Risk Sharing: From Boutique to Biglaw.” This panel discussed creating a client-focused pricing strategy and models, evaluating funding sources: recourse vs non-recourse, considerations in case vs portfolio arrangements and managing the litigation: budget, team and strategy.