(Bloomberg) — In a corner of finance that rarely generates headlines, investors are busy mapping out paths to huge returns as they contemplate the fallout of new laws in Europe.
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The area in question is litigation finance, and the focus is alleged ESG transgressions. Regularly bankrolled by hedge funds and other alternative investors, the lawsuits target supposed corporate misdeeds such as broken environmental pledges, exploited workers or corporate governance failings. A successful case can leave a litigation funder with returns well in excess of 25%.
Last year, citizens in the European Union won access to the kinds of class-action lawsuits that have long fueled litigation in the US. Another piece of EU legislation close to finalization exposes firms to unprecedented legal risk if environmental or human-rights violations are detected in their supply chains. And in the UK, litigation funders face a “spike” in inquiries thanks to new ESG fund rules, according to Kate Gee, a partner at Signature Litigation.
Among hedge fund managers allocating capital to litigation funding is Connecticut-based Gramercy Funds Management, which recently unveiled a £450 million ($570 million) investment in London law firm Pogust Goodhead. The money is intended to help pursue mass claims against carmakers involved in the so-called Dieselgate scandal, as well as investor suits against BHP Group Ltd. and Vale SA for their role in the Mariana dam disaster in Brazil.
More regulation in Europe “will bring more litigation,” Ana Carolina Salomão, chief investment officer and partner at Pogust Goodhead, said in an interview. Increasingly, investors are also drawn to the “feel-good factor” of such cases, she also said.
Salomão said the EU’s Corporate Sustainability Due Diligence Directive, which won provisional backing from the EU Parliament and Council in December, is key.
“There will be much more information available in the public domain, so bigger scrutiny,” she said. It will “become more evident when a company has failed” on an ESG issue, and “we are seeing big institutionals seeking compliance with regulation.”
Steven Friel, chief executive officer of Woodsford Group Ltd., which operates a large litigation funding businesses, says his ESG team is “closely monitoring” the regulatory development in Europe, which he says is “highly likely” to shape his firm’s work.
Cases currently on Woodsford’s books include a suit against Airbus SE, in which institutional investors are fighting out their claim in front of a Dutch court. They want compensation after claiming the company’s shares slumped because of a bribery and corruption scandal that was settled in 2020. Woodsford also is helping investors fight a case against Standard Chartered Plc related to sanctions violations, as well as an investor lawsuit against Boohoo Group Plc tied to allegations of modern slavery.
The work represents a “high-risk venture for which handsome rewards are available if it’s done well,” Friel said in an interview. “We go in when there’s a catastrophic breakdown in ESG in major companies with losses for shareholders or customers. We mobilize them, engage with the company, seek a settlement or litigate.”
Litigation funding surfaced two decades ago in Australia, and has since become prominent in the US and increasingly in the UK. Swiss Re says the industry may reach $31 billion of investments by 2028 as investors are lured by returns of 25% or more.
In some cases, returns can be hundreds of times an initial investment. Burford Capital, a litigation funder based in New York, stands to collect more than $6 billion after allocating $16.6 million to help fund a case targeting Argentina’s nationalization of energy company YPF.
With such huge sums at stake, litigation funders are starting to draw the attention of lawmakers.
Axel Voss, a member of the European Parliament, accuses the industry of operating “in the shadows,” while raking in a disproportionate share of any award. He’s the architect of a legislative proposal now before the EU Parliament that seeks to rein in overzealous litigation funders. Among recommendations is a cap of 40% on any litigation finance award.
“Funders are always working in their own economic interests rather than that of claimants,” Voss said. “I don’t want to see the legal system becoming a playground for profit seekers.”
Corporate insurers, meanwhile, fear that third-party financing can prolong a lawsuit, increase the cost of claims and drive up premiums. Swiss Re Institute has estimated that in US cases, up to 57% of legal costs and compensation go to lawyers and funders, compared with an average of 45% in typical tort liability cases. And that has implications for what the industry is willing to insure, according to Penny Seach, group chief underwriting officer at Zurich Insurance.
The Swiss insurer won’t back contracts “if we feel the risk is one we can’t model or understand,” she said in an interview.
In the UK, the supreme court ruled last year that litigation funders aren’t allowed to strike deals in antitrust class-action cases in return for a cut of the damages won. The decision means that law firms and their backers will need to “renegotiate funding arrangements and develop a new model going forward,” according to law firm Slaughter & May.
Even in the US, there’s growing pressure on litigation funders to operate in less opaque ways. A bipartisan bill has been introduced in Congress seeking the disclosure of foreign entities that invest in litigation in federal courts. And the Chamber of Commerce is pushing for more regulation of legal financiers’ activities.
So far, investor cash is continuing to flow into ESG litigation.
Aristata Capital, a London-based firm backed by the Soros Economic Development Fund and Capricorn Investment Group of Palo Alto, California, has raised £52 million and aims to finance 20 legal claims over seven years. Its focus is the social and environmental damage that they claim companies unleash, often in developing countries, though the cases are likely to be filed in western jurisdictions where the target companies are headquartered.
Law firm Leigh Day said in 2022 it had secured “significant” funding from Bench Walk Advisors to lead a case against UK water companies for allegedly overcharging customers while discharging sewage into public rivers and beaches.
There are now more than 100 litigation funders operating in Europe, according to Insurance Europe, an industry group. That includes more US firms setting up shop in Europe.
“These claimant law firms are working hand in hand with litigation funders to identify potential claims and build ‘books’ of claimants,” lawyers at Jones Day, a multinational law firm based in Washington, said in a recent report. “With advertisements on the London Underground, national newspapers and social media, they are recruiting interested or indicative claimants, to illustrate the viability of a claim to the court.”
Rob Ryan, who as CEO of Aristata is currently overseeing the financing of six ESG lawsuits, says the goal is “to change corporate behavior in the long run.”
And there are “many claims in our sweet spot,” he said.
–With assistance from Frances Schwartzkopff.
(Adds lawyer comment in sixth and seventh paragraphs.)
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