Unlocking Uncorrelated Opportunities: The Hidden Benefits of Investing in Litigation Finance

Kelly Park Capital

Investing in litigation financing can diversify a portfolio and potentially offer attractive returns by providing capital to plaintiffs in legal cases in exchange for a share of the settlement or judgment.

Litigation finance, also known as legal funding or litigation funding, is a practice in which a third party (often a specialized fund or company) provides financial support to individuals or entities involved in a lawsuit or legal dispute in exchange for a portion of the potential settlement or judgment. This form of funding is typically non-recourse, which means that if the case is unsuccessful, the litigant is not required to repay the financing provided. Instead, the litigation finance provider bears the risk of losing their investment.

In most cases, litigation funding is non-recourse, meaning that the litigant is not personally responsible for repaying the funding if the case is unsuccessful. Instead, the funder bears the risk of losing their investment. If the case is successful, the funder receives a predetermined share of the proceeds. If the case is unsuccessful, the litigant typically owes nothing to the funder.

Litigation finance can be used to cover various legal expenses, including attorney fees, court costs, expert witness fees, and other litigation-related expenses. This allows litigants to pursue their cases without incurring out-of-pocket costs.

Many investors access this unique strategy through a professionally managed fund which specializes in this type of funding. Generally, this works as follows; The litigation finance provider evaluates the merits of the case to determine if it is suitable for funding. They assess factors such as the strength of the legal claim, potential damages, and the likelihood of success in court. If the litigation finance provider believes the case has merit, the litigant submits an application. The provider conducts due diligence, which may include a thorough review of legal documents, consultation with legal experts, and an assessment of the potential risks and rewards associated with the case. Typically, the funding provider will assess the value of the case upon settlement or adjudication and will use this estimated value to determine how much they are willing to advance against the case. Usually, this amount is in the 10% range. If the provider decides to move forward, they negotiate the terms of the funding agreement with the litigant's legal team. The agreement specifies the amount of funding to be provided, the percentage of any potential settlement or judgment that the funder will receive, and other terms and conditions. Litigation finance providers often work closely with the litigant and their legal team to monitor the progress of the case and provide support as needed. They may offer strategic guidance and resources to help maximize the chances of a successful outcome. If the case results in a favorable settlement or judgment, the litigation finance provider receives its agreed-upon share of the proceeds which may be a share of the settlement or may also be a return of the advance plus an accrued financing rate. This amount is typically paid directly from the settlement or judgment amount before the litigant receives their portion.  After the funder is repaid, any remaining proceeds are distributed to the litigant and their legal team according to the terms of the funding agreement.

It's important to note that the specific terms and conditions of litigation funding agreements can vary widely. The percentage of the settlement or judgment that the funder receives, the timing of repayment, and other terms are typically negotiated between the parties involved.

Here are some key reasons why you might consider investing in a litigation finance fund:
  • Diversification: Litigation finance can be a way to diversify your investment portfolio. It is not directly tied to traditional financial markets, so it can provide diversification benefits and potentially offer returns that are uncorrelated with other investments in your portfolio.
  • High Potential Returns: Successful litigation finance investments can yield substantial returns. If the case you are financing results in a favorable settlement or judgment, you may receive a portion of the proceeds, which could be significantly higher than the initial investment.
  • Risk Mitigation: Since litigation finance is typically non-recourse, your downside risk is limited. If the case is unsuccessful, you usually do not have to repay the invested capital. This risk mitigation feature can make litigation finance an attractive option for investors.
  • Access to Legal Expertise: If investing through a professionally managed fund, litigation finance providers often have a team of legal experts who assess the merits of cases before providing funding. This expertise can help you make more informed investment decisions and minimize the risk of investing in weak cases.
  • Alignment of Interests: Litigation finance providers typically have a vested interest in the success of the cases they fund. They often work closely with the litigants and their legal teams to maximize the chances of winning, which aligns their interests with those of the investors.
  • Portfolio Diversification: Investing in a litigation finance fund can give you exposure to a diversified portfolio of cases. Funds usually spread their investments across multiple cases to reduce the risk associated with any single litigation.

However, it's important to note that litigation finance is not without risks. Legal cases can be highly uncertain, and there is no guarantee of a favorable outcome. Even strong cases can sometimes lose in court. There is also a lack of liquidity as the cases can span several years before being resolved and payouts made. Additionally, the industry is subject to various regulations, and ethical concerns can arise, such as potential conflicts of interest or issues related to champerty and maintenance (laws against excessive interference in others' lawsuits). Evaluating the potential of legal cases requires a certain level of legal expertise, and not all investors may have the necessary knowledge to make informed decisions.

Litigation funding can provide access to justice for individuals and organizations who might not have the financial resources to pursue their legal claims. As an investment the diversification benefits coupled with the potential performance can be compelling, however the cases can be complex and the regulation of litigation funding can vary by jurisdiction, so it's advisable to work with legal funding experts.

This document and the information contained herein is not and must not be construed as an offer to sell securities and is qualified in its entirety by the fund’s private placement offering memorandum. Certain statements included in this presentation, including, without limitation, statements regarding the fund’s investment goals, underlying investment strategies, and statements as to the investment adviser’s beliefs, expectations or opinions are forward-looking statements within the meaning of section 27a of the securities act of 1933 (the “Securities Act”) and section 21e of the securities exchange act of 1934 (the “Exchange Act”) and are subject to risks and uncertainties. The factors discussed herein and throughout this presentation could cause actual results and developments to be materially different from those expressed in or implied by such forward-looking statements. Accordingly, the information in this presentation cannot be construed as to be guaranteed.

Privately offered investment vehicles commonly called hedge funds or private equity funds (“Private Funds,” which include fund of funds) are unregistered private collective investment funds that invest and trade in many different markets, strategies, and instruments (including securities, non-securities, and derivatives). There are substantial risks to investing in Private Funds. You could lose all or a substantial portion of your investment in a Private Fund. You must have the financial ability, sophistication, experience, and willingness to bear the risks of an investment in a Private Fund. An investment in a Private Fund entails risks that are different from more traditional investments and is not suitable or desirable for all investors. Only qualified eligible investors should invest in Private Funds. You should obtain investment and tax advice from your advisers before deciding to invest.

The Fund(s), General Partner, and Investment Adviser have not been recommended or endorsed by any federal or state securities commission or regulatory authority. Furthermore, the foregoing authorities have not reviewed this document and as such have not confirmed the accuracy or determined the adequacy of this document. Any representation to the contrary is a criminal offense.

Any statements about, or presentation of, performance information relating to KPC Funds or Underlying funds or indices are presented for illustration purposes only and are not intended nor may they be construed as indications, predictions, or projections of future performance of the fund or any manager. The fund(s) may be newly formed and may have little or no historical performance record, and the performance data presented herein may not be considered a substitute for the fund’s lack of historical performance.