Certum Blog

Lawdragon Recognizes Six Certum Professionals as Litigation Finance Leaders

Tue, 14 Apr 2026 13:00:29 GMT

Lawdragon, a leading independent legal research company, has recognized six Certum Group professionals to its 2026 Lawdragon 100 Global Leaders in Litigation Finance. The Guide recognizes the leading practitioners in the field of legal risk assessment and litigation funding.

The six members of the Certum team recognized were Patrick Dempsey , Joel Fineberg , Dean Gresham , William Marra , Tyler Perry , and Kirstine Rogers .

Certum was recognized for a breadth of offerings, including not only litigation finance but also the range of Certum’s insurance offerings including litigation buyout and judgment preservation insurance.

Lawdragon also profiled Marra as part of its 2026 rankings, highlighting his ability to “assess legal claims as assets and create pathways forward to pay lawyers to win strong cases.”

The full rankings list is available here.

October 23, 2025

W. Tyler Perry

What Is Settlement Counsel and Why You Should Care

Tue, 07 Apr 2026 14:18:16 GMT

In the latest episode of the Alternative Litigation Strategies podcast, Kevin had the privilege of interviewing Settlement Counsel and Mediator, Christopher Nolland. They discuss Christopher's career as a pioneer as settlement counsel, including recovering over $800 million for plaintiffs and saving tens of millions on the defense side, along with recognition from The American Lawyer, Texas Lawyer, and the National Law Journal.

They discuss how Christopher's interest in negotiation evolved into a full-time ADR and settlement counsel practice, and what differentiates the role from litigators and mediators, namely, a singular focus on resolution strategy. Christopher explains why litigators often struggle with settlement due to cognitive bias and over-advocacy, and why early involvement of settlement counsel can significantly improve outcomes by shaping strategy and avoiding stalled negotiations.

They also touch on the internal dynamics between litigation and settlement teams, and how a coordinated approach can drive better results, before reflecting on the growing adoption of settlement counsel in high-stakes disputes. You don’t want to miss this episode!

Kevin Skrzysowski

April 7th, 2026

The Three C’s: Tips for Law Firms Working With Funders

Tue, 24 Mar 2026 13:00:18 GMT

Litigation funding is no longer novel, but for many law firms it remains unfamiliar. A significant number of the firms we work with— including large and sophisticated practices—are engaging with a litigation funder for the first or second time.

When firms ask how best to navigate these relationships, our guidance consistently centers on three principles: Confidentiality, Conflicts of Interest, and Control . Addressed early and thoughtfully, these issues help preserve the integrity of the lawyer-client relationship while allowing funding arrangements to function as intended.

Confidentiality

To get your case funded, you’ll likely need to share certain confidential case information with a funder. (For an overview of what you’d want to include in a memo requesting funding, see this article with helpful tips.)

Before sharing confidential information, lawyers must ensure they have their client’s informed consent. Ethical rules—including ABA Model Rules of Professional Conduct, Rule 1.6 and its state analogues—generally prohibit disclosure of client confidential information absent client authorization or implicit authorization arising from the representation.

Once client consent is obtained, counsel should enter into a non-disclosure agreement with each funder before sharing substantive information. While the absence of an NDA does not mean that a defendant can obtain information shared with a funder—and courts generally deny discovery into litigation funding—NDAs remain an important tool for protecting confidentiality and reducing the risk of later discovery disputes.

For an overview of what’s in an NDA, see this article on the subject).

Best Practice Tip: Consider addressing litigation funding explicitly in engagement letters, including advance authorization to share confidential information with funders at the client’s direction.

Conflicts of Interest

Litigation funding should not create conflicts between a law firm and its client. While the lawyer-client relationship is paramount, it often overlaps with economic arrangements—hourly fees, contingency fees, or hybrid structures—whether or not funding is involved.

For that reason, many claimholders elect to retain independent deal counsel to negotiate funding agreements. These negotiations frequently involve corporate, tax, and financial issues that fall outside the core expertise of trial counsel. Separating deal negotiation from litigation strategy can help preserve alignment and avoid conflicts.

Best Practice Tip: Claimholders should consider using independent counsel—rather than litigation counsel—to negotiate funding agreements.

Control

In funded cases, claimholders retain control over litigation strategy and settlement decisions. Many regulatory proposals and court disclosure rules focus on whether a funder has approval rights over such decisions, reflecting the principle that third-party funding should not compromise attorney independence. For example, court rules in the District of New Jersey and disclosure requirements imposed by Chief Judge Connolly in the District of Delaware require disclosure of whether a third party has approval rights over litigation or settlement decisions.

While funders are entitled to information about case developments—and may retain limited termination rights in circumstances such as fraud or material breach—they do not direct litigation or settlement strategy.

Best Practice Tip: Clearly memorialize the funder’s lack of control rights in both the funding agreement and the engagement letter, using language that mirrors applicable disclosure rules where appropriate.

Beyond the Basics: Building Successful Partnerships

Beyond these core principles, successful partnerships between law firms and litigation funders depend on:

Early Engagement: Involving funders early in case evaluation can provide valuable insights and streamline the funding process.
Transparency: Regular conversations among counsel, client, and funder create alignment without compromising control.
Realistic Expectations: Understanding the typical funding process timeline and requirements helps manage client expectations.

October 23, 2025

W. Tyler Perry

Tips for Creating and Sticking to Legal Budgets

Tue, 17 Mar 2026 13:00:27 GMT

Litigation is inherently complex, dynamic, and increasingly expensive. Outcomes are difficult to predict, shaped by variables ranging from jurisdiction and judge to opposing counsel, discovery disputes, and motion practice that often unfolds in unexpected ways. In a volatile economic environment, forecasting the cost of a case can feel more like art than science.

Yet budgeting remains one of the most important—and most overlooked—components of successful litigation.

In the litigation finance context, budgets do more than estimate costs. They establish the financial architecture of a case. Funders commit a capped amount of capital for legal fees and case expenses. Law firms allocate resources within that constraint—and are typically responsible for any legal fees incurred above the budget. Meanwhile, claimholders are typically responsible for case expenses incurred above the budget, while their ultimate recoveries may depend on how closely spending tracks expectations.

A budget that is too optimistic risks early depletion of funds. A budget that is overly conservative may deter funding altogether or unnecessarily suppress a client’s net recovery.

Sound budgeting, by contrast, allows a case to be litigated through key inflection points—and, if necessary, to conclusion—without surprises that undermine strategy or alignment.

Why Litigation Budgeting Is Hard—and Essential

Despite its importance, budget creation is rarely taught in law school and is often learned only through experience. Most lawyers work on an hourly fee without a capped budget. Thus many excellent litigators have spent years trying cases without ever being required to forecast costs across an entire lifecycle.

Litigation finance forces that discipline early. A funding request typically requires counsel to articulate not only the merits of a claim, but also the cost required to prosecute it and the relationship between spend, risk, and expected recovery.

A commonly used rule of thumb is that expected damages should substantially exceed the amount of requested funding. While a 10:1 ratio is often the proposed rule of thumb, a meaningful spread between potential recovery and projected spend helps ensure that funders can achieve target returns, clients can realize meaningful net recoveries, and law firms can be compensated for their work without undue financial strain.

What a Litigation Budget Typically Covers

In funded matters, budgets generally distinguish between legal fees and case expenses , often with separate caps for each.

Legal fees reflect hourly rates and anticipated staffing across phases of the case. Funders may cover a portion of those fees up to a cap, with law firms responsible for the balance and for any spend exceeding agreed limits.

Expenses typically include items such as expert witnesses, discovery vendors, travel, local counsel, and court costs. These expenses are often funded at a higher percentage, again subject to caps. Clear allocation of responsibility above those caps is essential to avoid disputes later in the case.

Core Questions That Drive Realistic Budgets

Effective budgets begin with a clear understanding of the case itself. Among the most important questions:

Scope of the case. How many claims are asserted? Are they tightly focused or sprawling?
Nature of the claims . Certain claims—such as antitrust or patent matters in federal court—are typically more resource-intensive than straightforward commercial disputes.
Jurisdictional considerations . Venue, procedural rules, and potential jurisdictional challenges can materially affect cost and duration.
Damages theory and collectability . How will damages be proven? Are there risks to collection? Are non-monetary outcomes possible?
Expected defense strategy . Will the defendant pursue aggressive motion practice or discovery tactics designed to increase cost and delay?
Staffing model . What mix of partners, associates, and specialists is optimal at each stage?
Time to resolution . Is the case likely to resolve early, or should it be budgeted through trial and appeal?

Discovery: The Largest Variable

Discovery is often the single largest expense—and the hardest to predict.

When budgeting for discovery, it is critical to consider:

The scope of discovery permitted in the jurisdiction

The volume and sources of potentially relevant documents

The complexity of collection, review, and production

The number and location of depositions

The need for expert testimony, often among the most expensive components of a case

The availability and accessibility of key witnesses

Thoughtful planning at this stage can materially reduce cost without compromising litigation objectives.

The Role of Funders in Budget Discipline

Experienced funders can play a constructive role in budget management—not by directing litigation strategy, but by helping track spend against expectations and flagging deviations early.

Regular reporting and periodic check-ins allow counsel and clients to address emerging issues before they become financial problems. Funders also bring cross-case experience across jurisdictions, industries, and claim types that can inform contingency planning and resource allocation.

Tips for Creating and Sticking to Budgets

Effective litigation budgets are not static documents. They are management tools—designed to impose discipline, anticipate inflection points, and align incentives as cases evolve. In practice, several mechanisms can help law firms and clients create budgets that are both realistic and durable:

Budget precedents . Where available, budgets from comparable matters—whether maintained by the law firm or the funder—can provide a valuable reality check. Historical data from similar cases often reveals cost drivers that are easy to underestimate in the abstract.
Monthly flat-fee structures . Some firms have moved away from pure “fees-as-incurred” models in favor of monthly flat fees. When appropriately calibrated, this approach can smooth cash flow for the firm during slower periods while reducing the risk of budget overruns during more intensive phases of litigation.
Staged funding . Staging capital by phase—such as through a motion to dismiss, summary judgment, or trial—can help ensure that spending remains tied to progress and performance. Phase-based caps encourage early reassessment without forcing premature strategic decisions.
Reallocation flexibility . In some cases, budgets permit limited reallocation between categories, such as legal fees and expenses. When used carefully, this flexibility can accommodate unforeseen developments without requiring wholesale renegotiation of the budget.

Taken together, these tools reinforce what effective budgeting is ultimately about: creating a financial structure that supports the litigation strategy, rather than constraining it.

October 23, 2025

W. Tyler Perry

The Systemic Case for Mass Torts

Thu, 12 Mar 2026 13:00:30 GMT

The American civil justice system is premised on the existence of real and enforceable rights. Yet for a significant category of harm—injuries that are widespread in aggregate but modest when considered individually—this premise often fails in practice. Rights without practical remedies are rights in name only. And when the gap between entitlement and enforcement operates at scale, the consequences are not just individual—they are systemic.

In a prior post , I traced the procedural evolution of mass actions from their equitable origins, through Rule 23, to the modern dominance of the MDL. That article explained how the American legal system developed tools to aggregate claims. This post asks why those tools matter.

Consider a consumer injured by a defective product. If the injury is catastrophic, the economics of litigation may justify individual pursuit. But if the injury is less severe, or the causal chain complex, the calculus changes. The costs of prosecution (with lawyers billing hundreds if not thousands of dollars an hour) regularly exceed the potential recovery. In that common situation, the economically rational response is to do nothing—even when the claim is valid and the defendant culpable (e.g., 3M Combat Arms earplug litigation where claim value was as low as $5,000). This is not a doctrinal failure; it is a structural failure: Bilateral litigation assumes rough proportionality between claim value and litigation cost. When that proportionality breaks down, the system produces under-enforcement at scale.

Mass tort aggregation mechanisms exist precisely to solve this problem. Contrary to the arguments of repeat defendants and their lawyers, mass torts are not procedural innovations designed to manufacture litigation where none should exist . They are a structural response to a structural deficiency—and a key way to ensure that the American civil justice system lives up to its core premise of equal access to justice.

The Economics of Under-Enforcement

Three categories of expense drive the access problem in complex litigation. First, discovery in product liability cases can generate millions of pages of documents requiring substantial attorney time and technology to analyze. Combined with related motion to compel and deposition practice, this is the billable-hour lifeblood of many defense firms. While extremely profitable for the well-placed defense lawyer , it is essentially unaffordable for most injured plaintiffs, pricing them out of justice. Second, expert witness expenses add another layer of cost. As background, establishing defect and causation in pharmaceutical, toxic exposure, and product defect cases demands specialists whose development, report drafting, and testimony can easily reach six or seven figures in hourly fees. In such situations, it is economically irrational for an individual plaintiff to hire an expert to opine on their injury given the anticipated ratio of cost to recovery. This reality is complicated by the fact that the class action mechanism, and its concomitant sharing of costs, is generally unavailable for personal injury mass torts . Third, time horizons exacerbate everything. It is not unusual for certain torts to run from five to ten years, with Talc being a key example . This means that attorney time (or funding) is advanced without guarantee of return with significant duration risk.

These economic considerations are further aggravated by informational asymmetries between plaintiffs and defendants. Institutional defendants maintain in-house expertise, established relationships with specialized counsel, and the documents and data plaintiffs must obtain through discovery. They are repeat players who approach each case with experience accumulated over frequent litigation of the same issues. Individual plaintiffs, by contrast, are one-shot participants dependent on attorneys who often themselves face tremendous informational disadvantages.

The result is a collective action problem. If pursuing a claim costs more than its expected value, rational actors will not sue—even when aggregate harm is substantial. Free-rider dynamics compound the problem: If one plaintiff invests in developing evidence, others benefit without bearing costs, reducing everyone’s incentive to act first. Defendants who cause diffuse harm face reduced liability exposure, and the incentive to invest in safety diminishes accordingly (e.g., the Opioid crisis where defendants ignored obvious safety risk). Crucially, the erosion of deterrence is not merely an individual injustice—it is a public welfare concern that compounds with every claim that goes unfiled.

How Aggregation Restructures Litigation Economics

The MDL process addresses these dynamics by restructuring litigation economics to make otherwise impractical individual claims economically rational.

Shared discovery is perhaps the most significant efficiency. Corporate document productions occur once, not thousands of times. Depositions of key witnesses are taken for the consolidated proceeding and made available to all parties. The marginal cost of discovery for any individual plaintiff thus drops dramatically once centralized infrastructure is in place.

Common motion practice produces similar efficiencies. Legal issues that recur across cases (e.g., preemption, general causation) are resolved through consolidated briefing. Coordinated expert development addresses the expense problem directly: plaintiff leadership invests in scientific evidence that benefits every plaintiff in the litigation. An individual whose claim could never justify a $500,000 expert investment can benefit when costs are shared across thousands of claimants.

The cumulative effect is cost reduction. Claims that would be economically irrational to pursue individually become viable when aggregated. The collective action problem is solved, not by changing substantive law or lowering evidentiary standards, but by restructuring the economics of claim pursuit.

Bellwethers and Informational Efficiency

The economic efficiencies of the MDL process are mirrored by their informational efficiencies. Bellwether trials (representative cases selected for full trial proceedings) serve critical functions in this structure. They generate information that disciplines settlement negotiations. Before bellwethers, both sides operate with imperfect knowledge about litigation value. Bellwether outcomes provide hard data on how claims perform in actual adjudication, allowing both sides to update their assessments and negotiate from common informational foundations.

Bellwethers also serve a quality-control function. Claims that cannot survive trial are revealed as such, and plaintiffs with similar claims must adjust expectations or withdraw. The process operates as a filter separating viable claims from those that cannot withstand adjudication.

Addressing the Overreach Critique

Critics contend that aggregation inflates claim values, coerces settlements regardless of merit, and manufactures litigation where none should exist. While ultimately outweighed by the benefits, these concerns deserve thoughtful engagement.

The critique rests on an implicit comparison to bilateral litigation as baseline. But as the preceding analysis shows, bilateral litigation systematically under-enforces valid claims when harms are diffuse. If critics call aggregation “inflation,” we should recognize bilateral under-enforcement for what it is: deflation. If we accept that the bilateral baseline is itself distorted—producing under-enforcement rather than accurate enforcement—then aggregation’s effects look different. Enabling claims that would otherwise be impractical is not inflation; it is correction.

The concern about settlement pressure similarly assumes defendants are coerced into paying for weak claims. But settlement in mass litigation is heavily mediated by information and procedural safeguards. Daubert motions screen expert reliability, summary judgment tests legal sufficiency, and bellwether losses expose plaintiff theories that cannot withstand adjudication. Defendants facing weak claims have ample opportunity to expose that weakness before settlement pressure materializes.

Finally, the critique conflates access with abuse. That aggregation enables more claims does not mean it enables more frivolous claims . Centralized proceedings concentrate scrutiny on claim quality in ways bilateral litigation disperses. A transferee judge managing thousands of cases has strong incentives to identify deficient claims. MDL structure provides quality-control mechanisms bilateral litigation lacks.

Conclusion

Mass tort aggregation restructures litigation economics to make diffuse-harm claims practical. It does this by correcting asymmetries that would otherwise favor institutional defendants (with deep pockets and, at times, questionable judgment ). And by solving collective action problems that would otherwise produce under-enforcement.

The alternative to aggregation is not a pristine bilateral system. The alternative is under-enforcement of rights and a free pass for corporate negligence . In that world, valid claims go unfiled, wrongdoing goes unaddressed, deterrence erodes, and the civil justice system serves institutional defendants more effectively than the common citizen consumer. Ignoring this dynamic—and its political ramifications—is dangerous. As Judge Learned Hand warned :

“If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.”

October 23, 2025

W. Tyler Perry

Will Marra Featured in Law.com Article on Litigation Finance Disclosure Rules

Tue, 10 Mar 2026 13:00:17 GMT

Law.com recently interviewed and quoted Certum Group’s William Marra in an article examining a proposal by the Pennsylvania Civil Rules Committee that would permit discovery into litigation finance agreements.

In the article, Marra explained that most courts have recognized that litigation funding agreements generally are not the proper subject of discovery. Courts have often concluded that these agreements are protected by the work product doctrine and are not relevant to the merits of the underlying dispute.

The debate over litigation finance disclosure continues to evolve across federal and state courts. While some jurisdictions have adopted narrow disclosure requirements designed to identify potential conflicts of interest, courts have frequently rejected broader attempts to obtain litigation funding agreements through discovery.

Marra emphasized that any disclosure rules should remain narrowly tailored to address legitimate concerns without creating strategic advantages for defendants.

“Cases should be decided on the merits and any rules that we have in this regard, I would recommend should ensure that the parties are going to focus litigation on the merits rather than on potential expensive sideshows about the terms of someone’s financing agreements,” Marra told Law.com.

Certum has previously addressed this issue in its recently-published model brief opposing discovery into litigation funding agreements, which highlights the doctrinal and policy reasons courts have declined to compel disclosure of funding arrangements.

The Law.com article is available here .

October 23, 2025

W. Tyler Perry

Above the Law Features Certum’s Litigation Finance Fellowship

Thu, 05 Mar 2026 14:00:15 GMT

Above the Law, a leading blog focused on the legal industry, recently highlighted Certum Group’s litigation finance fellowship, noting the opportunity for law students and business students to gain “a four-week, hands-on immersion in what it actually looks like when capital meets complex litigation.”

“To succeed, lawyers need to understand not only doctrine but also finance. Law schools are beginning to reflect that shift, and students want to understand it,” Certum’s William Marra told Above the Law. “Our Summer Fellowship is about opening that door for both law and business students, and giving them meaningful exposure to the capital side of litigation.”

Applications for the fellowship are due on March 31, 2026, and should include a resume, law school transcript, and a brief 250-word statement of interest. Applications should be sent to SummerFellowship@CertumGroup.com .

Above the Law’s coverage is available here , and Certum’s application page for the fellowship is available here .

October 23, 2025

W. Tyler Perry

Certum Group Opens Application Window for its Summer Litigation Finance Fellowship

Mon, 02 Mar 2026 14:14:00 GMT

For the third consecutive year, Certum Group will host one or more summer fellows, introducing accomplished law students and business students to the growing field of litigation finance.

The Certum Group Litigation Finance Fellowship provides top law students with an opportunity to gain hands-on experience in the rapidly growing fields of litigation finance and litigation insurance.

Fellows will evaluate litigation funding submissions, draft memoranda analyzing legal and damages issues, help structure and negotiate funding agreements, and contribute to marketing and business development initiatives. They will work closely with Certum’s experienced team of litigation finance, litigation insurance, and investment professionals.

Throughout the program, Fellows will develop a practical understanding of how claimholders, law firms, insurers, and capital providers assess litigation risk — and how capital can be deployed as a strategic tool in complex disputes.

Further information about the fellowship and instructions about how to apply are available here.

October 23, 2025

W. Tyler Perry

Will Marra on Columbia Law School Blog: Litigation Finance Plays an Important Role in Capital Markets

Tue, 24 Feb 2026 14:01:04 GMT

Columbia Law School’s blog on corporations and the public markets, The CLS Blue Sky Blog, recently featured the scholarly work on litigation finance written by Indiana University Business School Professor Suneal Bedi and Certum’s William C. Marra.

In their blog post, Bedi and Marra discuss their article Litigation Finance in the Market Square , which was recently published in the Southern California Law Review. Their work reframes litigation finance as a capital markets innovation rather than solely a civil justice mechanism.

While much of the public debate has centered on questions of disclosure, control, and settlement incentives, Bedi and Marra emphasize that legal claims often represent significant but illiquid contingent assets on a firm’s balance sheet.

When policymakers regulate litigation finance, they are regulating not just the legal business but the capital markets. And they are regulating capital markets in a way that is more likely to harm small and medium-sized enterprises (SMEs) while protecting large companies from competition.

The full blog post is available here.

October 23, 2025

W. Tyler Perry

Unlocking Hidden Value Ahead of an M&A Transaction

Mon, 23 Feb 2026 23:28:31 GMT

The Problem

A technology company preparing for a major M&A transaction realized that its portfolio of valuable patents would not be credited in the acquisition valuation . The acquirer viewed the IP as non-core and declined to ascribe material value to it. The company’s management and investors sought a way to monetize the patent assets without delaying or complicating the pending deal—but lacked the expertise and capital to pursue enforcement or sale on their own.

The Certum Solution

Certum Group stepped in to purchase the company’s valuable patents outright, providing immediate liquidity and removing the patents from the transaction perimeter. Certum then partnered with the company to retain leading patent-litigation counsel and develop a comprehensive monetization strategy—targeting both licensing opportunities and enforcement actions.

This structure allowed the company to pursue its M&A transaction unencumbered , while still capturing meaningful value from the patents it had developed over years of R&D.

The Result

The company successfully completed its sale on schedule, while also realizing a significant cash return from the patent divestiture . Through Certum’s acquisition, the company unlocked an asset class that otherwise would have gone unrecognized—transforming stranded IP into shareholder value and demonstrating how Certum’s capital solutions can support both transactional efficiency and strategic monetization .

Allowing a law firm to expand its contingent fee litigation practice

Mon, 23 Feb 2026 23:28:29 GMT

The Problem

A leading litigation firm had built a strong pipeline of high-value cases on a contingent-fee basis . While the portfolio offered significant potential upside, it also exposed the firm to material downside risk—millions in unreimbursed fees and expenses if the cases underperformed. The firm also had additional promising matters it wanted to pursue but was constrained by capital and internal risk tolerance.

The Certum Solution

Certum Group structured a multi-year, non-recourse financing facility that allowed the firm to:

De-risk its existing contingent-fee inventory by converting a portion of its expected future recoveries into upfront capital; and
Deploy new capital to originate and litigate additional contingent-fee cases.

Beyond providing financing, Certum leveraged its industry network to refer new plaintiff-side opportunities to the firm, expanding the firm’s pipeline and strengthening its market position. The arrangement aligned incentives and provided flexible draw capacity across multiple matters.

The Result

The firm reduced downside exposure, stabilized cash flow, and secured the resources to pursue new high-value claims. Certum’s partnership enabled the firm to scale its contingent-fee practice strategically —diversifying its portfolio, enhancing profitability, and positioning it for long-term success in the affirmative-litigation market.

Helping a Small Business Pursue a Mission-Critical Trade Secret Claim

Mon, 23 Feb 2026 23:28:27 GMT

The Problem

A growth-stage technology company discovered that a former joint-venture partner had misappropriated its proprietary trade secrets. The company had a strong claim, but fully litigating it through trial would cost more than $8 million —capital the business needed for product development and expansion. Neither management nor its investors wanted to divert finite resources from R&D to litigation.

The Certum Solution

Certum Group provided non-recourse litigation funding , giving the company the financial strength to pursue its claim without jeopardizing operations. With Certum’s support, the company retained one of the nation’s top trial lawyers from a leading AmLaw firm, ensuring that its legal strategy matched the strength of its underlying case. The arrangement allowed the company to pursue justice while preserving internal bandwidth and balance-sheet flexibility.

The Result

The company successfully prosecuted its trade secret claim and protected its core intellectual property—all without risking the capital it continued investing in R&D and growth. Certum’s financing transformed a daunting legal challenge into a strategic opportunity, aligning litigation success with the company’s long-term business objectives.

Negotiating a Funding Agreement: A Guide for Claimants and Counsel

Wed, 18 Feb 2026 01:34:37 GMT

You signed an NDA and shared case materials with your funder.

Then you negotiated and signed a term sheet .

Now it’s time to negotiate the litigation funding agreements.

Funding agreements sit at the intersection of law, finance, and business. They’re not equity transactions, and they’re not debt transactions either. For most people, they’re new: Most funded parties we encounter—even the most experienced operators—have never before negotiated or signed a funding agreement.

Here are some tips as you navigate the funding agreement process.

Make Sure the Funding Agreement Tracks the Term Sheet

The term sheet sets the commercial deal, but the funding agreement is the binding contract. The funding agreement should accurately reflect the economics and key terms you agreed to. Pay close attention to ensure the return structure, waterfall, and budget closely track what was agreed to in the term sheet.

Small deviations from the term sheet can have big economic consequences. Confirm that the final agreement memorializes the deal you negotiated.

Control and Decision-Making

Litigation funders do not control litigation strategy or settlement decisions. Some court rules, including those in the District of New Jersey , request a disclosure that a funder’s approval is not necessary for case strategy or settlement. Certum’s contracts expressly disclaim control. Consider whether an express disclaimer of control, frequently tracking the language of the District of New Jersey rule, is appropriate.

As repeat players in the litigation space , litigation funders can and do still provide valuable advice to funded parties, who are often involved in their first and only litigation. Thus although funders cannot control litigation, funded parties typically consult with funders for advice during the course of the litigation.

Define “Case Proceeds” Clearly

Litigation funding agreements are typically non-recourse, which means the funder recovers only if there are case proceeds. So the definition of “case proceeds” is quite important, and it’s something you should pay close attention to.

Cash recoveries are straightforward, but not all litigations resolve solely or exclusively for cash. What happens if there is a non-cash settlement—for example, if the funded party receives stock, real estate, IP rights? What happens if the settlement is structured as a payment over time? Or if there is a sanctions award entered against the defendant?

It’s best to address all these issues ex ante at the time of the funding agreement. Funding agreements typically provide a mechanism for valuing consideration other than an immediate payment of cash from the defendant to the plaintiff. Resolving this issue today can help avoid ambiguity tomorrow.

Address Other Customary Provisions

Several boilerplate provisions deserve attention:

Representations and warranties: As with all financial transactions, the recipient of funds needs to provide certain customary representations and warranties. Make sure you study those reps and warranties, to ensure you can stand behind them.

Termination rights: When can the funder withdraw? Funders typically have termination rights, for example in instances where the funded party commits a material breach of the agreement. Make sure you understand the consequences of a termination.

Consider Hiring Experienced Deal Counsel

Litigation funding agreements are specialized contracts. They combine elements of finance, litigation, and insurance. Most generalist lawyers—and even many litigators—have never negotiated one.

Certum typically recommends that funded parties retain an independent deal counsel who understands the funding market. Experienced advisors can streamline the process and increase the likelihood that the deal will close. And you can typically negotiate with the funder to have the deal counsel’s fees covered as a closing cost of the investment.

October 23, 2025

W. Tyler Perry

Mass Actions, Mass Torts, and the Rise of Multidistrict Litigation

Wed, 11 Feb 2026 15:04:16 GMT

When Americans think about civil litigation, we tend to imagine its bilateral form: Company A sues Company B, or John Roe sues Jane Doe. That model works when disputes are discrete, parties are evenly matched, and harms are easily traced. It breaks down, however, when injuries are widespread, claims are too small to justify individual pursuit, and thousands of plaintiffs confront a single, well-resourced defendant.

Those conditions gave rise to what we now call mass actions—procedural mechanisms that aggregate claims without extinguishing individual rights. This post traces the evolution of American mass actions from their equitable origins, through Rule 23 class actions, to the modern dominance of multidistrict litigation (“MDL”). Its purpose is to explain how, across each stage of its development, the system moved and evolved in order to tackle the same core problem: how to capture the efficiencies of collective adjudication while preserving individualized justice.

The Equitable Origins of Mass Actions

For roughly the first 150 years of American civil practice, what we would now recognize as class actions existed in equity, borrowing from English Chancery traditions. Former Equity Rule 48 permitted representative litigation where a common or general interest affected a class so numerous that joinder was impracticable. Courts used these bills in equity to cluster related claims, creating an early—if imperfect—form of aggregation.

These tools, however, were ill-suited to large-scale disputes. Among other things, they offered no uniform standard for representation, limited mechanisms for managing individualized issues, and little guidance for balancing efficiency against fairness, including whether absent parties would be bound. As collective harms grew larger and more complex, these limitations became more pronounced.

The Adoption of Rule 23 and the Birth of the Class Action

The adoption of Federal Rule of Civil Procedure 23 in 1938 marked a turning point. Rule 23 replaced ad hoc equitable practices with a codified framework defining when a small number of plaintiffs could litigate on behalf of many. Rule 23 introduced a new codified framework in 1938, later refined by the 1966 amendments into today’s familiar certification requirements—numerosity, commonality, typicality, adequacy, predominance, and superiority—meant to ensure that aggregation serves both efficiency and fairness.

Rule 23 works best where common questions truly drive the case. But as mass disputes expanded—particularly in products liability and antitrust—its limitations became apparent. Variations in exposure, injury, causation, damages, and governing law strain the class model. Under Rule 23(b)(3), courts certify a class only if common questions predominate—a demanding standard that frequently defeats certification in mass torts. Beyond doctrine, this mismatch raises fairness and due-process concerns, as aggregation risks resolving individualized questions of liability and damages through procedural shortcuts ill-suited to protect either side’s substantive rights.

The Creation of the JPML and the Rise of the MDL

Congress responded in 1968 by creating the Judicial Panel on Multidistrict Litigation. That structure authorizes transfer of civil actions with common factual questions to a single federal court for coordinated pretrial proceedings. Unlike class actions, MDLs preserve the separateness of each plaintiff’s case while centralizing work that benefits from scale, including motions to dismiss, summary judgment, and Daubert proceedings.

In practice, transferee judges appoint leadership counsel, coordinate discovery, resolve common dispositive and evidentiary motions, conduct bellwether trials, and facilitate global settlement discussions. The MDL’s central innovation is procedural coordination without substantive consolidation. Each plaintiff formally retains an individual claim, remedy, and trial right, while the system avoids duplicative rulings and inconsistent outcomes and preserves Article III adjudication of individual disputes.

Amchem, Ortiz , and the Limits of Settlement-Only Class Actions

Supreme Court decisions in Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. sharply limited the availability of settlement-only mass tort class actions . The Court held that Rule 23’s requirements apply with full force even when certification is sought solely to effect a global settlement, emphasizing rigorous scrutiny of adequacy, predominance, and intra-class conflicts in heterogeneous litigations. In other words, settlement convenience could not cure structural mismatches between the class device and the individualized nature of mass tort claims.

These decisions did not eliminate class actions. But they underscored why mass torts rarely fit comfortably within them—and why MDLs emerged as the system’s primary alternative. Their practical import was to effectively close the door to using Rule 23 as a vehicle for mandatory, one-shot global peace in tort, channeling resolution toward MDL-based private ordering—bellwethers, negotiated matrices, and opt-in inventory settlements—while preserving each plaintiff’s trial right. They also shifted innovation elsewhere: toward issue classes under Rule 23(c)(4) , parens patriae actions by sovereigns, and, in some instances, bankruptcy or “Texas two-step” strategies to obtain non-class global resolutions—developments that further entrenched the MDL as the central forum for mass tort resolution.

Why MDL Endures

MDL’s durability reflects institutional alignment rather than doctrinal accident. For plaintiffs, MDLs offer scale—shared discovery, coordinated motion practice, and settlement leverage—without forfeiting individual claims or trial rights. For defendants, they provide predictability and efficiency by centralizing pretrial proceedings, reducing duplicative costs, and mitigating inconsistent rulings across jurisdictions. For courts, MDLs conserve scarce judicial resources while preserving adjudicatory limits by restricting consolidation to the pretrial phase. For the justice system, MDLs supply a flexible framework that absorbs heterogeneity without collapsing into either unmanageable fragmentation or overinclusive aggregation. That convergence explains why the MDL has become the default architecture for modern mass tort litigation—and why it has proven resilient despite critique.

The Design Challenge That Endures

Modern practice selects among procedural tools based on fit. Class actions remain essential where common issues predominate. MDLs dominate where common facts justify coordination but individualized harms demand separation. Together, these mechanisms keep the civil justice system workable—and meaningful—when harms scale beyond the individual case. The enduring challenge is deploying these tools with discipline, judiciously retaining the benefits of individual justice, while capitalizing on the benefits of aggregation.

October 23, 2025

W. Tyler Perry

What To Expect When You’re Negotiating a Term Sheet

Wed, 04 Feb 2026 18:23:42 GMT

When a claimant and a litigation funder agree that a case merits further consideration, the next step in the funding process is typically the issuance of a term sheet.

Term sheets are familiar instruments in finance, M&A, and investment transactions. In litigation finance, they serve a similar function: outlining the key economic and structural terms of a proposed funding arrangement before the parties incur the time and expense of full diligence and documentation.

Most litigation finance term sheets are short—often just a few pages—and non-binding. They are designed to confirm alignment on the principal terms of a transaction, not to finalize it.

What a Term Sheet Is — and Is Not

A term sheet is not a funding agreement. It does not obligate either party to proceed with a transaction. Instead, it provides a framework for diligence and negotiation by identifying the essential elements of a proposed deal.

At a minimum, a litigation finance term sheet typically addresses:

The parties to the proposed transaction
The specific claims or cases to be funded
The amount of capital to be committed
How that capital will be used
How proceeds will be distributed if the case resolves successfully

While many provisions are later refined, the term sheet sets expectations that shape the remainder of the process.

Scope of Funding

One of the first items addressed is the scope of the funded matter.

The term sheet will identify which claims or cases are included—particularly important where a claimant or law firm submits a portfolio for consideration. Not every case under review necessarily meets a funder’s underwriting criteria, and the term sheet should make clear which matters are included and which are not.

Amount and Use of Capital

The term sheet will specify the total amount of capital the funder proposes to commit and how that capital is allocated.

In most funded matters, capital is earmarked for:

Legal fees , often funded in part, with the law firm responsible for the balance (e.g., 50% of its fees) and subject to a cap. The law firm is typically responsible for all fees incurred above the cap.

Case expenses , such as experts, discovery vendors, and court costs, often funded at a higher percentage but also subject to a cap. The claimant is usually responsible for all case expenses incurred above the cap.

Claim monetization / working capital , in appropriate cases. This is non-recourse financing that may be used by the claimant for general corporate purposes, secured by the funded matter.

The term sheet allocates both the amount of fees and costs, and responsibility for costs incurred above agreed caps. These provisions underscore the importance of a realistic litigation budget, as overruns are typically borne by the law firm or claimant rather than the funder.

Returns and Waterfalls

A central feature of any term sheet is the return structure—how proceeds will be distributed if the case resolves successfully.

Most term sheets include a waterfall, a priority-based distribution mechanism commonly used in finance. While structures vary, waterfalls typically provide that:

Funders recover their deployed capital before profits are distributed

Law firms may recover deferred fees or earn contingent compensation

Claimants receive the balance of proceeds, often representing the largest share of the recovery

The precise sequencing and economics depend on the risk profile of the case, the amount of capital deployed, and the parties’ respective contributions. Importantly, waterfalls matter most in downside or mid-range outcomes. In strong recoveries, the parties often reach their target economics well before the waterfall’s final tiers come into play.

Additional Common Provisions

Term sheets may also address:

Transaction or underwriting fees payable upon closing

Exclusivity periods during diligence

Rights of first refusal relating to future matters

Circumstances under which either party may withdraw, and whether withdrawal results in a break fee payable by the claimant.

These provisions are typically refined during diligence and documentation but are useful to surface early.

From Term Sheet to Funding Agreement

After a term sheet is executed, funders usually enter an exclusivity period—often 30 to 45 days—during which they conduct comprehensive diligence and negotiate a definitive funding agreement.

That agreement, not the term sheet, governs the parties’ rights and obligations. Understanding the term sheet, however, is essential to navigating what follows.

Closing Thought

A well-drafted term sheet does not merely summarize economics. It reflects a shared understanding of risk, incentives, and strategy at an early—but critical—stage of the litigation.

Approached thoughtfully, the term sheet process can set the foundation for a productive funding relationship aligned with the goals of both counsel and client.

October 23, 2025

W. Tyler Perry

NDAs: What to Expect at the First Step of the Funding Process

Mon, 26 Jan 2026 22:33:26 GMT

Our legal system has long recognized that candid communication between client and counsel is essential to the fair administration of justice.

The U.S. Supreme Court has recognized that the attorney-client privilege has a noble purpose—“to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice.”

The same is true of the work product doctrine: the Supreme Court has recognized that it protects against “unwarranted inquiries into the files and the mental impressions of an attorney,” and that “the interests of the clients and the cause of justice would be poorly served” if the work-product doctrine were violated.

These doctrines exist for a simple reason. Clients must be able to share complete and unvarnished information with their legal representatives in order to receive sound advice and effective representation. Attorney–client privilege and work-product protection are the legal mechanisms that make that possible.

Extending Confidentiality to Litigation Funding

As litigation finance has become a more established feature of the civil justice system, courts have increasingly recognized that communications between litigants and litigation funders warrant similar protection from disclosure.

Courts have generally rejected attempts to obtain discovery into communications between funded parties and their capital providers, recognizing that confidentiality is essential to securing the resources necessary to retain top-tier counsel and prosecute complex claims. In this way, confidentiality in the funding process serves the same systemic function as privilege itself: it preserves access to justice.

The Critical First Step: Non-Disclosure Agreements

The foundation for protecting confidentiality in the funding process is laid at the very beginning of the relationship.

Before any substantive information is exchanged, claimholders and prospective funders should enter into a non-disclosure agreement (NDA). An NDA establishes clear ground rules for how sensitive information will be treated and helps ensure that communications made during diligence do not later become targets of discovery.

NDAs promote precisely the “full and frank communication” the Supreme Court has deemed essential to effective legal representation. They allow parties to speak openly while reducing the risk that defendants will later argue—often opportunistically—that confidentiality has been waived.

Key Components of an Effective NDA:

1. A Precise Definition of “Confidential Information”

At the core of any NDA is a clear definition of what constitutes confidential information.

Most litigation finance NDAs are mutual, protecting information shared by both the claimholder and the funder. They may be limited to a single matter or drafted broadly to cover multiple cases under evaluation.

Information shared under NDAs typically include:

• Case theory and legal analysis

• Evidence and documentation

• Financial models and damage calculations

• Settlement discussions and valuation

• Funding terms and negotiations

NDAs also typically exclude information that is already public or independently known to the receiving party.

2. Information Sharing Protocols.

Effective NDAs address how confidential information may be shared in the ordinary course of diligence.

They usually permit disclosure to affiliated entities, outside diligence counsel, and potential investors—provided those recipients are bound by confidentiality obligations at least as protective as those in the NDA itself. This allows funders to conduct thorough diligence without compromising the claimant’s confidentiality interests.

3. Provisions Tailored to the Litigation Context.

Litigation finance NDAs often include provisions that would be unusual in a generic commercial NDA.

For example, they may acknowledge that the parties share a common legal interest in the litigation, reinforcing arguments against waiver. They also typically allow disclosure if required by court order or law. Because of these litigation-specific considerations, experienced funders generally rely on bespoke NDAs rather than off-the-shelf templates.

Moving Forward with Confidence

NDAs rarely require extensive negotiation. In most cases, they reflect a shared understanding that confidentiality is a prerequisite to meaningful engagement—not a point of contention.

When thoughtfully drafted and properly used, NDAs serve as the essential first step in a collaborative process aimed at evaluating risk, allocating capital, and pursuing a fair resolution on the merits.

At Certum, we treat client information with the same seriousness we bring to legal and financial risk. Our approach to litigation finance is grounded in both capital discipline and information security—making us trusted partners throughout the litigation journey.

Certum Legal Solutions - A Managed Services Organization with Asim Badaruzzaman

Thu, 22 Jan 2026 13:49:49 GMT

In this episode of Alternative Litigation Strategies, host Kevin Skrzysowski is joined by Asim Badaruzzaman, CEO of Certum Legal Solutions, to discuss how managed services organizations are emerging as a critical response to the growing operational complexity of mass tort and personal injury litigation.

Kevin and Asim explore how Certum Legal Solutions was built inside of a working mass torts practice and produced their first go-to-market solution – an end-to-end operational platform for high-volume group claims and single event litigation that was built by trial lawyers for trial lawyers.

Kevin Skrzysowski

January 21st, 2026

Certum Publishes Model Brief Against Disclosure of Litigation Funding

Mon, 12 Jan 2026 20:19:00 GMT

Litigation finance has become an essential tool for modern litigation strategy — but with its growth has come a wave of discovery requests seeking information about funding arrangements. These requests are improper, burdensome, and legally unsupported.

To help lawyers and litigants push back with confidence, Certum has released a new Model Brief Opposing Discovery of Litigation Funding—a comprehensive, practitioner-oriented document designed to equip litigators with the strongest arguments, cases, and frameworks available.

This publication is now available for free download .

The Model Brief is part of Certum’s growing library of thought leadership and practical guidance on litigation finance and insurance. That library includes Certum’s Guide to Litigation Funding and its annual survey of in-house counsel .

Across federal and state courts, parties continue to seek discovery into litigation funding sources and materials, often as a tactic rather than a legitimate inquiry into claims or defenses. These efforts raise serious issues:

Privilege and work-product concerns
Chilling effects on access to justice
Attempts to shift focus away from the merits
Increased litigation costs and delays

Yet for many lawyers, responding to these requests requires reinventing the wheel.

Certum’s model brief solves that problem. It provides a structured, persuasive, and research-backed response that can be adapted swiftly to any case.

Click here to download the brief.

Will Marra Featured in Bloomberg Article About Litigation Finance Disclosure

Tue, 06 Jan 2026 15:11:57 GMT

Bloomberg recently interviewed Certum Group’s William Marra as part of its coverage of efforts by commercial liability insurers to require the disclosure of third-party litigation funding agreements.

Marra explained to Bloomberg that “[t]he disclosure of litigation funding risks putting impecunious litigants at a systematic disadvantage in our legal system,” adding mandatory disclosure “can disclose to defendants very valuable information, including who has funding, and critically, who does not have funding.”

Marra further responded to the argument that litigation funders might fuel frivolous litigation.

“To the contrary, the evidence shows that funders serve as a very effective screen, only backing the most meritorious cases, and if anything, likely resulting in fewer weak cases getting filed,” Marra said. This statements builds on arguments Marra previously advantaged in a Vanderbilt Law Review article about litigation funding.

The Bloomberg article is available here .

Certum’s Will Marra Elected to ILFA Board of Directors

Wed, 17 Dec 2025 11:00:04 GMT

Certum’s William Marra has been elected to the Board of Directors of the International Legal Finance Association, the litigation finance industry’s leading advocacy group.

Will joins five other new members of ILFA’s Board, including:

Marcel Wegmüller, the co-founder and CEO of Nivalion;
David Perla, the Vice Chair of Burford Capital;
Erik Bomans, the CEO of Deminor Recovery Services;
Kacey Wolmer, the CEO of Contingency Capital;
Rob Rothkopf, the founder and Managing Partner of Balance Legal Capital.

“We are honored to welcome Marcel, David, Erik, Kacey, Rob, and William to ILFA’s Board of Directors,” said Paul Kong, the Executive Director of ILFA. “Each brings exceptional expertise, deep industry insight, and a demonstrated commitment to the responsible growth of legal finance. Their leadership will strengthen ILFA’s work to promote transparency, expand access to justice, and support the continued global development of our industry.”

“I am delighted to join ILFA’s Board and assist with its important public policy work,” Will Marra said. “Litigation finance helps level the playing field and ensures cases are resolved based on their merits, not the size of a party’s checkbook. LFA’s advocacy for claimholders who need litigation finance is more important now than ever before.”

The International Legal Finance Association (ILFA) represents the global commercial legal finance community, and its mission is to engage, educate and influence legislative, regulatory and judicial landscapes as the voice of the commercial legal finance industry. It is the only global association of commercial legal finance companies and is an independent, non-profit trade association promoting the highest standards of operation and service for the commercial legal finance sector. ILFA has local chapter representation around the world.

Goldilocks and the Three Bears: A Litigation Finance Story

Mon, 15 Dec 2025 11:00:57 GMT

The world has its big holiday traditions—Hess Trucks, Starbucks red cups, and Hallmark ornaments—and its slightly less monumental ones, like Certum’s annual fairy tale about litigation finance.

This holiday season, grab your cocoa and gather around a warm fire for Goldilocks and the Three Bears: A Litigation Finance Story.

In this year’s tale, the Bear family faces real harms—stolen porridge, broken furniture, and an empty wallet when it comes time to pursue justice.

After finding that traditional hourly fees are “too high” and pure contingency fees “too risky,” the Bears discover Certum’s hybrid litigation-finance solution is “just right.”

The story also features our newest resource: Certum’s Model Brief Opposing Discovery of Litigation Funding, accessible via QR code inside the book.

The Three Little Pigs and Rapunzel had their shot at justice, and now it’s the Three Bears’ turn.

Bloomberg, Law360 Feature Certum’s Expansion Into the MSO Space

Thu, 11 Dec 2025 16:28:33 GMT

Bloomberg and Law360 have highlighted Certum Group’s recent launch of a managed services organization, Certum Legal Solutions, to help law firms handle critical day-to-day operations.

Last week, Certum Group announced the launch of an MSO as part of Certum Group’s next-generation risk transfer platform. The MSO complements Certum’s existing businesses providing litigation finance and litigation insurance solutions to law firms and claimholders on both side of the “v.” Certum is the only company in the nation providing litigation funding, litigation insurance, and MSO services.

Bloomberg reported that “[i]nterest in MSO deals [is] on the rise,” while emphasizing that Certum Legal Solutions “will handle case intake and discovery support tasks done by a mix of attorneys and non-lawyers.”

Law360 highlighted Certum’s move into the MSO space “makes it the only litigation funder to offer a one-stop shop” with funding, insurance, and operations all under one roof.

The Bloomberg article is available here .

The Law360 article is available here .

Certum Group Expands Platform to Include Operational Services with Launch of Certum Legal Solutions

Thu, 04 Dec 2025 15:38:32 GMT

Certum Group, a leader in litigation risk management, is pleased to announce the launch of Certum Legal Solutions (CLS), a managed services organization (MSO) that helps law firms handle their day-to-day operations. CLS expands Certum Group’s platform beyond litigation finance and insurance into technology-driven operational support for law firms. With this launch, Certum is now the only provider to offer funding, insurance, and operational services through a single, integrated platform.

Built by trial lawyers and experienced legal operations professionals, CLS delivers end-to-end support for mass tort and single-event litigation practices, including intake, pre-litigation investigation, plaintiff discovery support, settlement claims processing, and client communications. The CLS platform leverages proprietary and heavily customized tools such as integrations for rapid medical record collection, a mobile client app, automated document workflows, electronic signature systems, and an in house call center to streamline case management and boost efficiency. CLS currently manages thousands of cases for law firm clients across the United States and is designed to scale quickly to meet changing caseloads while maintaining control and delivering a consistent client experience.

“Our clients have long relied on Certum to mitigate litigation risk and financial risk; with Certum Legal Solutions, we can now mitigate operational risk as well,” added David Diamond, Managing Director at Certum Group.

“Because CLS is built the way trial lawyers think about building cases, from intake to resolution, firms get a turnkey, technology forward solution that measurably improves efficiency and outcomes,” said Asim M. Badaruzzaman, CEO of Certum Legal Solutions.

CLS originated from a services operation launched in 2024 and was acquired by Certum Group in 2025. The new business line uses a customized fee for service model that aligns pricing with the scope and value of each engagement, allowing firms to avoid the capital costs and staffing requirements of building these capabilities themselves. While the initial focus is on mass tort and single event, Certum plans to extend CLS capabilities to additional practice areas over time, further expanding the company’s comprehensive approach to funding, insurance, and operational support.

For more information, please contact:

David Diamond
Managing Director, Certum Group
ddiamond@certumgroup.com

Asim M. Badaruzzaman
CEO, Certum Legal Solutions
asim.badaruzzaman@certumlegalsolutions.com

About Certum Group

Certum Group provides customized solutions for companies facing the uncertainty of litigation. As a leader in litigation risk management, Certum offers litigation finance and insurance products to help companies and law firms better manage legal risk. Our team of former litigators, finance, and insurance professionals helps companies reduce the financial and operational uncertainty of litigation by transferring outcome risk. Learn more at www.certumgroup.com .

About Certum Legal Solutions

Certum Legal Solutions offers law firms and litigation funders complete operational support to efficiently manage their mass tort and single-event litigation dockets without building in-house infrastructure. Our comprehensive case management services span the litigation lifecycle from centralized intake and case qualification to settlement processing and funds distribution. Built and managed by experienced trial lawyers and innovators, CLS combines proprietary technology, standardized workflows, and expert legal operations teams to deliver predictable throughput and consistent quality across high-volume litigation dockets.

Certum’s Model Brief Opposing Discovery of Litigation Funding

Wed, 03 Dec 2025 20:10:41 GMT

Why We Created This Model Brief

To help lawyers and litigants push back with confidence, Certum has released a new Model Brief Opposing Discovery of Litigation Funding —a comprehensive, practitioner-oriented document designed to equip litigators with the strongest arguments, cases, and frameworks available.

This publication is now available for free download .

Privilege and work-product concerns
Chilling effects on access to justice
Attempts to shift focus away from the merits
Increased litigation costs and delays

Yet for many lawyers, responding to these requests requires reinventing the wheel.

Our model brief solves that problem. It provides a structured, persuasive, and research-backed response that can be adapted swiftly to any case.

What’s Inside

The Model Brief for Opposing Discovery of Litigation Funding includes:

✔ Comprehensive Statement of Law

A survey of federal and state authority rejecting routine discovery into funding, including recent district court decisions and emerging appellate guidance.

✔ Relevance and Proportionality Arguments

A robust explanation of why Rule 26 forbids this kind of discovery absent a case-specific showing of need.

✔ Work-Product and Attorney-Client Privilege Framework

Clear articulation of why funding documents, communications, and analyses fall squarely within protected categories.

✔ Policy and Judicial-Efficiency Arguments

A concise, compelling account of why courts overwhelmingly reject these requests as dilatory and contrary to the aims of the FRCP.

✔ Case Law Appendix

An appendix containing some of the leading cases denying discovery, along with a brief summary of the holding of each case.

Who Can Benefit From This Resource

This publication is designed for:

Litigators facing discovery battles over funding in commercial, class action, antitrust, IP, mass tort, and other complex matters
Law firms offering alternative-fee representations , whose strategic analyses must remain confidential
In-house counsel managing claims portfolios , seeking to preserve privilege across internal and external workstreams

This model brief is part of Certum’s growing library of resources—including Certum’s Guide to Litigation Finance —aimed at helping lawyers navigate the evolving landscape of litigation finance and litigation risk transfer.

Download the Brief

The Model Brief Opposing Discovery of Litigation Funding is available now.

To access your copy:

Bloomberg Law: Litigation Funding Protects IP ‘Davids’ from Predatory Goliaths

Thu, 06 Nov 2025 04:27:54 GMT

The recent legislative push—then retreat—to impose a tax on litigation funding returns didn’t change the law, but it clarified what’s at stake. It shined a spotlight on the solution that litigation funding provides for the legal industry and to intellectual property owners.

Litigation finance doesn’t present a taxation loophole to close. It’s a process that allows plaintiffs with strong claims—and limited resources—to make it to the courthouse steps.

In the IP world, where the costs of litigation can eclipse the means of most inventors, startups, and universities, non-recourse litigation funding often is the only way to level the playing field. The investment risks for funders are high; the returns shouldn’t be penalized.

The right policy response isn’t punitive taxation or blanket disclosure of sensitive funding terms, but acceptance of funding as a necessary tool and tailored transparency under the court’s supervision, so that financial disparity doesn’t become a tactical weapon.

The goal is simple: Keep the courthouse doors open while maintaining fairness and integrity in the adversarial system.

Litigation Finance’s Value

Litigation funding has been prominent in the patent space. All too often, individual inventors, startups, and universities lack the capital to enforce valid IP rights—leaving them vulnerable to infringement by larger tech companies and without funds to enforce their rights. There is no more classic David and Goliath story.

Intellectual property is inherently susceptible to misappropriation and infringement. Once there is infringement, a rightful owner is often in the worst financial position to pursue claims. Inventors spend years of time, money, and resources developing technology, and before they can capitalize on the value of the technology, it is stolen or infringed.

They may have valid and viable claims recognized under federal law, but they have no money to hire litigators or pay for the exorbitant costs associated with technical and damages experts.

The reality is that without funding as an available tool, enforcement of IP rights would be tilted even further in favor of infringing defendants. This violates common legal principles and disincentivizes innovation.

Three Possible Responses

The litigation finance industry already is advocating on many fronts to ensure access to capital for plaintiffs with strong legal claims. However, IP practitioners are in a unique position to help with this effort in at least three ways: Education, story-telling, and legislative reach-outs.

First, educating clients, colleagues, and the broader legal market about litigation finance—what it is and what it isn’t—is an important starting point to help decisionmakers realize the proper context in which to discuss potential regulation. Investment depends on the strengths of a case, and it doesn’t benefit a funder to back a frivolous suit. Continuing education is necessary to push back against the ill-conceived myths and depictions of legal funding.

Second, individual success stories of IP plaintiffs who have used litigation finance to pursue strong and meritorious claims against deep-pocketed defendants are a powerful tool in explaining to decisionmakers the importance of reasonable access to litigation funding. If an IP lawyer has a client who can tell such a story, the effect of sharing that experience is invaluable to both the legal industry and fellow IP owners.

Third, lawyers and law firms often have relationships with local lobbyists or legislators whose understanding of litigation financing’s benefits is imperative to regulating the industry appropriately. Make phone calls, talk with lawmakers, and share stories that show how important litigation finance can be to ensure access to justice.

Don’t assume others have this covered. The more contacts and discussions practitioners and their clients have with lawmakers, the better.

Responsible Regulation

Litigation finance isn’t a practice to be feared; it’s a modern tool that strengthens our justice system. It allows plaintiffs—particularly IP plaintiffs who most frequently face well-funded defendants—to have their claims vetted by an additional set of professionals, heard on the merits, and supported by sufficient resources.

It also incentivizes meritorious cases, filters out weak ones, and supports the enforcement of important legal rights. It helps ensure that justice is determined by the strength of a case, not the size of a party’s bank account.

The true danger lies not in litigation finance itself, but in misguided efforts to regulate it out of existence. The result would be less enforcement of valid rights and a legal system even more skewed in favor of those with the deepest pockets.

The answer to concerns isn’t to tax or expose funding out of existence; it is to focus on the purpose—to pair access to capital with strong and viable legal claims. That’s what belongs in a fair and unbiased justice system.

A system that allows widespread infringement without accountability undermines the very purpose of intellectual property law—innovation. That innovation ultimately benefits the Davids and Goliaths alike.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Molly Pease is the managing director and chief compliance officer of Curiam Capital LLC, a private investment firm that focuses on legal finance.

Kirstine Rogers is a legal director at Certum Group, a litigation risk firm that focuses on funding, claim monetization, and contingent risk insurance.

Both serve on the steering committee of WOLF—Women of Litigation Finance.

October 23, 2025

W. Tyler Perry

AI Meets the Courtroom, with Richik Sarkar

Wed, 29 Oct 2025 18:09:47 GMT

In this episode of Alternative Litigation Strategies, attorney Richik Sarkar joins host Kevin Skrzysowski to explore the evolving landscape of commercial litigation.

They discuss the rise of defense-side class actions, the impact of AI on legal strategy, and how modern litigators can stay ahead of regulatory and technological change.

W. Tyler Perry

October 23, 2025

Litigation Finance Isn’t a Hidden Tax. It’s a Market Correction.

Thu, 23 Oct 2025 18:31:06 GMT

It feels like every couple of weeks an article appears lamenting the rise of litigation finance as the death of capitalism and the birth of something monstrous. The most recent chorus began over the summer when the CEO of Chubb called litigation finance “ a hidden tax on society ” in the editorial pages of the Wall Street Journal. A month later, the CEO of The Hartford grieved on an investor call that litigation finance has “turned our judicial system into a gambling system.” And just last month, the American Property Casualty Insurance Association ’s Senior Vice President of Federal Government Relations exclaimed: “Too many baseless claims, filed by lawyers motivated by profit are clogging our legal system with unnecessary lawsuits, increasing costs and delaying swift resolution of genuine legal claims.”

As someone who has been a big firm defense lawyer, a small firm plaintiff lawyer, and now a litigation funder, I can confidently say that these arguments fundamentally misunderstand litigation finance and its incentives, while simultaneously conflating the interests of large repeat defendants with those of society writ large.

A market correction, not a market distortion.

Litigation funding corrects a market failure that has long skewed access to justice in favor of those with the deepest pockets. Complex litigation can cost millions to pursue, meaning that all but the richest corporations and individuals are effectively priced out of the market for justice. The classic fact pattern is this: a plaintiff has strong claims with clear legal merit, but they just don’t have the financial resources to protect their rights and defend their interests, while the defendant can spend money until the plaintiff runs out or cries uncle. Litigation finance solves that problem by channeling private capital toward meritorious cases that otherwise could not be brought or litigated to resolution. Far from distorting the system, litigation funding introduces efficiency and accountability where a profound imbalance in favor of entrenched corporate interests has reigned for decades.

Critics who compare litigation finance to gambling conveniently elide its structural incentives and similarities to other commonly accepted practices. As an initial matter, we don’t call venture capital or private equity firms gamblers; to the contrary, society generally recognizes that their business is a profoundly difficult profession that requires intellectual rigor, discipline, and discerning judgment. Litigation funders are no different. They only get paid if their cases succeed and, as a result, they are risk underwriters who invest only after extensive due diligence, legal analysis, and damages modeling. By way of limited personal example, my firm funds less than 5% of the litigations that request funding. That is generally par for the course across the industry.

A Check on Corporate Risk-Shifting.

It should not be surprising that many of the most vociferous critics of litigation finance are the beneficiaries of the current system’s imbalance—i.e., large, well-capitalized repeat defendants. These organizations generally thrive on controlling legal exposure and minimizing payouts—even when claims are clearly meritorious. Litigation finance disrupts that dynamic by giving claimants the financial endurance to see a legitimate case through trial or to a fair settlement.

Accordingly, when Chubb’s CEO calls litigation finance a “hidden tax,” what he really means is that the cost of risk is finally being priced correctly as judgments more closely approximate the harm done. That is not a tax on society; it is the market doing exactly what it should—allocating costs to those responsible for creating them.

Moreover, litigation finance creates incentives for better corporate governance and compliance. When companies know that strong claims will not quietly disappear for purely economic reasons, they have a stronger incentive to adhere to laws, contracts, and ethical standards. That deterrent effect benefits society as a whole, not just plaintiffs and their backers.

Aligning incentives to enhance justice.

Another common critique is that litigation finance “monetizes” justice, turning the courtroom into a marketplace or, as The Hartford’s CEO called it, “a gambling system.” But this framing misses the forest for the trees. Justice has always been a capital-intensive effort. The question is not whether money influences litigation, but whether that influence is merit-based and available to both sides.

Funders’ incentives are fully aligned with those of plaintiffs and their lawyers: they all succeed only if the claim succeeds. This alignment weeds out weak claims and enforces strategic discipline, while also ensuring that only cases with real merit receive backing. Funders, like all good investors, are highly rational and have no interest in clogging the courts with meritless claims; to the contrary, they are interested in winning, which means funding only strong, legally sound claims. If anything, the availability of third-party capital makes the justice system more meritocratic by allowing the strength of a case, not the size of a parties’ wallet, to determine its outcome.

W. Tyler Perry

At bottom, litigation finance is not a parasite on capitalism; it is a product of it. It uses capital markets to promote accountability, deterrence, and the rule of law—the very foundations of a functioning economy. Viewed through this lens, the discomfort it provokes among entrenched interests is not a bug, but a feature that reveals the pain points in a significant market correction. Put simply, litigation finance is not a “hidden tax” on society, but rather a long-overdue dividend for the little guy.

October 23, 2025

ILFA Letter to Federal Rules Committee Highlights Benefits of Funding

Tue, 07 Oct 2025 16:46:00 GMT

The International Legal Finance Association (ILFA) submitted a letter last week to the Judicial Conference of the United States, highlighting the benefits of third-party litigation funding, and arguing that mandatory disclosure rules would have a disproportionately negative impact on small businesses and vulnerable Americans.

Drawing on arguments made by Certum’s William Marra in a forthcoming Southern California Law Review article , ILFA explained that the practice of third parties funding the fees and costs of litigation is a well-established and indeed celebrated aspect of our legal system. Examples of third-party funding include contingency fees, bank loans, equity investments in companies, impact litigation, and liability insurance.

The ILFA letter notes that efforts to regulate “TPLF” are in fact aimed at only a narrow slice of third-party funding—specifically, non-recourse commercial funding provided in exchange for a share of monetary recovery. As the letter explains:

That narrow targeting is not explained by any principled distinction. Instead, it is designed to create a system that burdens small businesses and individual claimants—those least able to access traditional capital markets to finance legal claims—while leaving untouched the financing practices of wealthy companies and institutional actors that have far greater resources and strategic influence over litigation.

Put simply, the proposals before the Committee would impose disclosure rules not on all forms of litigation finance, but on the one form most likely to level the playing field for less well-resourced litigants. That asymmetry reveals the true dynamic at work: selective regulation risks suppressing the only type of finance that empowers smaller parties, while exempting the far more entrenched forms of third-party influence that pervade American litigation.

The letter was submitted in advance of the Civil Rules Committee meeting scheduled for Friday, October 24, 2025, in Washington, D.C. The Committee will consider whether to impose a mandatory disclosure rule on third-party litigation funders. In October 2024, the Committee formed a subcommittee to study whether disclosure of funding is warranted.

The full text of ILFA’s letter is available here .

The post ILFA Letter to Federal Rules Committee Highlights Benefits of Funding appeared first on Certum Group .

Certum Group Adds Veteran IP Strategist Christopher Seidl as Director

Mon, 15 Sep 2025 13:20:00 GMT

September 15, 2025

Certum Group, the only company that provides both litigation finance and litigation insurance solutions, is pleased to announce that Christopher Seidl has joined the company as a Director and leader of Certum’s IP finance strategies. Mr. Seidl will oversee all facets of Certum’s intellectual property business, including IP litigation funding, acquisitions, and licensing opportunities.

Mr. Seidl is one of the most experienced IP litigation funders in the country. He previously served as a Managing Director at Fortress Investment Group,where he focused on IP finance and was responsible for originating, structuring and underwriting patent investment opportunities with law firms and patent holders.

Before moving into the finance arena, Mr. Seidl spent more than two decades at Robins Kaplan LLP, one of the country’s elite litigation firms. There he represented both plaintiffs and defendants in high-stakes IP and commercial disputes, trying multiple cases to verdict—including a landmark patent victory ultimately affirmed by the U.S. Supreme Court. He also represented litigation funders as outside counsel, in diligence and litigation matters.

“I’m excited to join the talented and professional team at Certum,” said Seidl. “This is a great opportunity and I’m going to put all of my experience over the years into helping Certum’s clients achieve their litigation and business goals through our creative financing solutions.”

“With nearly 25 years of experience in high-stakes IP litigation, funding, and monetization, Chris brings the perfect blend of legal expertise and financial acumen to Certum’s growing platform,” said Joel Fineberg, Certum’s founder and managing director. “Chris’s talent and track record of innovation in the field will help drive Certum forward as we continue to expand our capabilities and deliver world-class solutions for clients. We are thrilled to welcome him to our leadership team.”

Mr. Seidl’s courtroom success and client-centered approach earned him national accolades, including recognition by the National Law Journal as an “Intellectual Property Trailblazer,” and a selection as a “BTI Client Service All Star.”

He has also been recognized globally for his patent monetization work, repeatedly being named to the IAM Patent 1000 (2014-2021), the IAM Strategy 300: The World’s Leading IP Strategists (2022-2026) and listed as an IAM Strategy Global Leader for his role in shaping the future of IP finance.

About Certum Group

Certum Group provides bespoke solutions for companies facing the uncertainty of litigation. It is the leader in providing comprehensive alternative litigation strategies, including finance, insurance, and legal advisory services. Certum’s sophisticated team combines deep expertise from former AmLaw 100 litigators, plaintiffs’ attorneys, judicial law clerks, investment bankers, and insurance executives to deliver unmatched litigation risk assessment capabilities. Certum Group helps companies and their counsel remove the financial and operational volatility arising out of litigation by transferring the outcome risk. Learn more at www.certumgroup.com .

The post Certum Group Adds Veteran IP Strategist Christopher Seidl as Director appeared first on Certum Group .

Demystifying MDLs with Alex Parkinson of Kellogg Hansen

Wed, 16 Jul 2025 16:09:00 GMT

In the 34th episode of Alternative Litigation Strategies, Kevin Skrzysowski speaks with Alex Parkinson , a partner at Kellogg Hansen and the author of Practising Law Institute ‘s (PLI) newest treatise on multidistrict litigation. Alex dives into how MDLs have shaped federal litigation, what inspired him to compile a comprehensive review of JPML decisions, and how attorneys can proactively prepare for complex, high-stakes cases.

Whether you’re a seasoned litigator or just starting to navigate MDLs, this episode offers actionable insights and a behind-the-scenes look at one of the most important areas in procedural law.

Alex A. Parkinson’s PLI Treatise on Multidistrict Litigation

This transcript has been lightly edited for grammar and clarity.

Host: Kevin Skrzysowski

Guest: Alex A. Parkinson, Partner at Kellogg Hansen and Author of Practising Law Institute’s (PLI) Comprehensive Treatise on Multidistrict Litigation

Kevin Skrzysowski:
Welcome to the latest episode of Certum Group’s podcast Alternative Litigation Strategies , where I interview esteemed members of the bar on the latest litigation trends and strategies. I’m your host, Kevin Skrzysowski, a director at the litigation consulting firm Certum Group, which provides a suite of litigation finance and insurance solutions to help companies and their counsel mitigate, cap, and transfer outcome risk.

Today, I’m very pleased to be joined by Alex Parkinson, a partner at the litigation boutique Kellogg Hansen, located in Washington, D.C. Alex is also the author of PLI’s most recent comprehensive treatise on multidistrict litigation and the judicial panel that oversees them, which is the topic of our conversation today. Alex, welcome to the program.

Alex Parkinson:
Thank you for having me, Kevin. I appreciate it.

Kevin:
Certainly. I’d like to start by diving right in. How did you become involved in the area of multidistrict litigation, and how has the field evolved since you started?

Alex:
Great question, and again, thank you for having me. This goes back to when I was in law school, probably a rising 2L. I was at a lunch talk and overheard a practicing attorney say, in reference to a high-profile data breach, maybe Equifax, that there would be a lot of litigation and that the courts would probably “park it in an MDL.” That language stuck with me.

I started reading about MDLs. They’re fascinating and everywhere. They dictate a lot of the federal civil docket, but there isn’t much written about them procedurally, nor are they usually taught in law school. That started my interest.

Then I began practicing at a firm like Kellogg Hansen, which regularly handles cases that are either part of MDLs or affected by them. We represent both plaintiffs and defendants, so MDLs became a recurring part of my practice.

In terms of how the field is evolving, MDLs evolve with society. They reflect the world around us. If there’s a major event, like a plane crash, a data breach, a mass torts issue, or an antitrust dispute. It’s likely you’ll see it processed through the MDL framework. They follow the trends of our time.

Kevin:
You raise great points. MDLs are certainly dominating the federal docket. I work on class action risk products, and a huge portion of those are MDLs. Like you said, it’s not something most people learn in law school.

So what inspired you to write this treatise now?

Alex:
It really stemmed from wanting to read more about the topic. When I got to Kellogg Hansen and started working on MDLs, I wanted to go deep. I read David Herr’s Multidistrict Litigation Manual , which is excellent, but beyond that, there wasn’t much out there.

After reading everything available, I still had questions, and I couldn’t find recent or comprehensive answers in the market. That’s what drove me to start this project.

Kevin:
Interesting. Your firm handles high-stakes litigation across sectors. How did that shape the book?

Alex:
It helped a lot. Because we litigate on both sides, plaintiff and defense. We see MDLs from all angles. That balanced experience informed how I approached the treatise. Our firm philosophy is that working both sides sharpens your overall strategy. That definitely applied to this writing project.

Kevin:
Same here. At Certum, we work on both sides, and it really informs strategy. So, as you researched and wrote this book, what surprised you the most?

Alex:
Two things: First, that so little has been written about MDLs given how influential they are. They shape the lives of consumers across the country and drive so much of the federal docket.

Second, I realized this is a manageable area of law. If I tried to write a comprehensive treatise on antitrust or patent law, I’d be overwhelmed. But with MDLs, I found it was actually possible to read every decision issued by the Judicial Panel on Multidistrict Litigation (JPML) since its inception in the 1960s. That became my baseline.

Kevin:
Did you include those cases in the book?

Alex:
Yes. There are two appendices. One catalogs every JPML decision since 1968 by subject matter: antitrust, patent, labor, etc., and by whether centralization was granted or denied. The second appendix sorts MDL cases by the factors the JPML used to select the transferee district. The goal was to be truly comprehensive.

Kevin:
So anyone reading this has a complete bird’s eye view of MDL law?

Alex:
Exactly. If you’re facing a potential MDL – say from a data breach – you can go to the appendix, find all relevant precedent, and strategize accordingly. Whether you’re trying to create or resist centralization, the book gives you the history and outcomes to build your case.

Kevin:
Who is this book for, corporate counsel, law firm lawyers, policymakers, judges?

Alex:
It’s geared toward practicing attorneys, both in-house and outside counsel. Future editions might touch on reform or policy ideas, but this edition is meant to be a practical resource.

Kevin:
Fair enough. What’s your main advice for lawyers working in this space?

Alex:
Get familiar with MDLs before you’re facing one. Once there’s a motion to centralize before the JPML, things move fast. Ideally, you’d consult this book early, when there’s only one or two suits filed, and you sense more may follow. That’s the time to plan.

Kevin:
What are the key takeaways for less experienced vs. more seasoned attorneys?

Alex:
For less experienced attorneys: this book is a great way to learn MDL procedure, which is distinct from substantive law. For more experienced attorneys: there’s no universal playbook for MDLs. This resource gives you the tools to shape a strategy tailored to your client’s goals, whether you’re for or against centralization.

Kevin:
You mentioned future editions might explore public policy. What kind of impact do you hope this edition has?

Alex:
My goals are modest. If practitioners cite this work in briefing before the JPML, I’ll consider that a win. It would mean they’re using the content, and that it’s helpful.

Kevin:
Let’s talk about PLI. How did that partnership begin, and what was it like?

Alex:
I clerked for Judge Sack on the Second Circuit, who authored the leading treatise on defamation, published by PLI. He connected me with them, and that led to the partnership. Working with PLI has been fantastic. They were patient, helpful, and generous throughout. My editor, Jacob Metric, was a great collaborator.

Kevin:
How long did it take to complete?

Alex:
Several years. I worked on it in pockets of time – early mornings, late nights, weekends. I treated it like a hobby. I even have a photo of me holding my then three-month-old son while writing. He’s six now, so that gives you an idea.

Kevin:
Did writing it change how you think about the law?

Alex:
It gave me a greater appreciation for the problem-solving built into our system. MDLs were created to manage mass litigation more efficiently, and judges have done remarkable work making that process fair and effective.

Kevin:
What advice would you give to someone considering writing a treatise with PLI?

Alex:
Do it. Even if you’re starting from scratch, it’s a rewarding experience. Just know it’s a time commitment. Talk to your firm. My firm was supportive. Kellogg Hansen has a long history of scholarship, and I had mentors who encouraged me to go for it. But yes, there were vacations where I stayed inside writing while the rest of the family went to the beach.

Kevin:
Thanks, Alex. This has been a terrific conversation. If listeners want to reach you, what’s the best way?

Alex:
My email is on our firm’s website, www.kellogghansen.com . You can reach me at aparkinson@kellogghansen.com.

Kevin:
And for listeners, the treatise is available at www.pli.edu/mdl . This episode will also be available at www.certumgroup.com , as well as on Apple, Spotify, and Stitcher.

Thanks again for listening. Until next time!

The post Demystifying MDLs with Alex Parkinson of Kellogg Hansen appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Chambers Ranks Certum and Will Marra as Leading Litigation Funders

Wed, 09 Jul 2025 19:11:00 GMT

Chambers & Partners, a leading independent legal research company, has recognized Certum Group and William Marra as leaders in the U.S. litigation finance industry.

Certum Group was one of only U.S. funders ranked as leaders in the intellectual property litigation funding category. Chambers reported comments from reviewers who stated that “Certum is extremely business savvy. It has experts in litigation risk that are very commercial in their approach. They approach transactions holistically.”

Another reviewed praised: “Certum has a sharp team. They are quick studies and have the ability to adapt and make quick decisions.” A third reviewer emphasized that Certum and its team have “ fantastic substantive litigation skills in addition to funding acumen.”

William Marra, a director at Certum Group, also received individual recognition from Chambers. One reviewer stated that Will “is absolutely amazing. He understands how to get a deal done for all stakeholders involved,” while another reviewed praised Will as “incredible. He is extremely bright, really hard-working and has attention to detail.”

Other reviewers commented that Will “is an excellent, responsive and easy to work with person,” “is very smart and experienced in the industry,” and “is a joy to interact with and very genial. He works hard to meet client demands and he is straightforward.”

Click here to see the complete rankings .

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Don’t Weaponize the Tax Code Against Litigation Finance

Tue, 01 Jul 2025 19:05:00 GMT

Litigation finance is a powerful tool for companies that have strong claims but cannot afford to hire first-class counsel to pursue those claims. Unfortunately, a proposed Congressional bill would have imposed an onerous tax regime upon litigation finance companies, significantly diminishing claimholders’ ability to pursue strong legal claims.

Certum Director William Marra wrote an opinion piece in the Washington Times explaining why the bill would diminish access to justice and hurt small, medium, and even large businesses too.

The full opinion article is available here.

The post Don’t Weaponize the Tax Code Against Litigation Finance appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

AI, IP, and the Future of Litigation Funding

Thu, 22 May 2025 13:56:00 GMT

AI, IP, and the Future of Litigation Funding. I had an insightful conversation with my latest guest and colleague, Bryce Barcelo, Director of IP Strategy at Certum Group and a professor of patent litigation at the University of Houston Law Center. In this episode, we dive into how AI is (and isn’t) being used in legal practice, the growing legal challenges around data and copyright, the explosion of IP litigation funding, and what leadership changes at the USPTO could mean for patent holders.

This transcript has been lightly edited for grammar and clarity.

Kevin Skrzysowski:

Welcome to the 33rd episode of Certum Group’s podcast, Alternative Litigation Strategies. I’m your host, Kevin Skrzysowski, a director here at Certum Group, where we provide the nation’s largest platform of litigation risk management solutions. I’m very pleased to be joined today by a colleague of mine for the first time in three years, Bryce Barcelo. Bryce is the Director of IP Strategy at Certum Group, where he leads our IP licensing, funding, insurance litigation, and acquisition strategies. He’s also a professor of patent litigation at the Houston Law Center, so he’s a great person to speak with about today’s topics, which include artificial intelligence and intellectual property. About two sessions ago, I had a guest on to talk about AI’s impact on law practice and workplace efficiency. Today, I want to expand on that and ask you, Bryce, what role do you see AI playing in patent litigation, and are there any tools out there you think will really move the market?

Bryce Barcelo:

Yeah, sure thing. AI is a buzzword that has a lot of different meanings right now. When people hear “AI,” they often imagine a system that can take over your job. We’re nowhere near that. In fact, I don’t think we’ll get there anytime soon. That said, there are aspects of AI I’ve already started incorporating into my workflow. I’ve talked with others who are doing the same—or who’ve tried things that didn’t work. The key is to be critical of the tools you’re using. It doesn’t help to jump into ChatGPT and expect it to do your whole job. I was on a plane recently next to a surgeon who was copying and pasting surgical plans into ChatGPT, and I just thought, “I really hope he’s reading those before following the advice.” For legal professionals, one tool I’ve used is Westlaw’s CoCounsel and research assistant AI. It’s essentially a smarter search engine, which is what most AI amounts to right now. Think of it like a Google upgrade – a more contextual, legally-fluent search tool that helps you find deeper, faster insights.

Kevin Skrzysowski:

Is it like Google on steroids? I heard someone say if you’re still using Google and not ChatGPT, you’re basically an idiot. Do you think that’s true?

Bryce Barcelo:

Not at all. That’s a hot take, but it misses the point. ChatGPT and most generative AIs aren’t always up-to-date. Google is. For breaking news or recent legal decisions, Google still wins. AI tools are helpful for diving deep into subjects that are already well-documented, but for emerging issues, you’ll still want traditional search tools. Some platforms like Perplexity are starting to bridge that gap by pulling in live sources, but we’re not there yet for all use cases. Search isn’t dead – AI just gives you another lens when you’re trying to think critically or generate ideas.

Kevin Skrzysowski:

That makes sense. What about the legal implications of AI development, especially with copyright? I know the New York Times recently filed against OpenAI, and that case survived a motion to dismiss. What’s your take on the legality of AI’s data ingestion?

Bryce Barcelo:

Great question, and one I’ve spent time thinking about. I try to ask: what if a human was doing what AI does? If a person read thousands of books and then created a website that answered questions based on that knowledge – without directly quoting – most courts would be fine with that. But AI doesn’t operate like a human. It vacuums up data, including tons of copyrighted material, without the same discretion. We’ve seen this with leaks tied to Meta and OpenAI. The data isn’t always freely available or ethically sourced. Yet to train these models effectively, companies need massive datasets. That creates tension between innovation and copyright protection. If a person did this with 1,000 books, it’d be one thing. But when an AI model does it at scale, often without compensation to creators, we’re in murky territory. That’s a big problem for IP law.

Kevin Skrzysowski:

Exactly. The same conclusion we reached in a previous episode. It augments human work, but doesn’t replace the human brain. Especially in law, with ethical responsibilities and malpractice risk, a human must review anything AI produces.

Bryce Barcelo:

Exactly. Just look at that case involving Mike Lindell’s lawyers. They used AI to help draft a legal brief, and the court found over 30 fabricated citations. There were fake cases – just made up. Judges are cracking down, and rightfully so. You can’t rely on AI alone, especially when the stakes are high. There need to be consequences for that kind of misuse.

Kevin Skrzysowski:

Absolutely. Let’s pivot to something you’ve been spearheading here: IP funding. You’ve led our IP practice for over a year. What are you seeing in the funding space? What’s trending, and what’s working?

Bryce Barcelo:

IP funding is absolutely booming. A recent report confirmed that there’s strong momentum and seemingly no ceiling yet. The volume of opportunities is growing, but so are the challenges. You need a strong case on the merits – something that a lot of patent owners underestimate. Patent litigation is complex and costly. I’m seeing more people enter the space who haven’t really assessed the strength of their claims at the level these cases require. That said, IP funding is crucial for giving inventors and companies their day in court. We’re enabling access to justice, but we also have to make sure we’re not steering people toward litigation when it’s not a viable option. It’s a balancing act, but an exciting time for innovation.

Kevin Skrzysowski:

Before joining Certum, you were a litigator at one of the top boutique firms, often defending smaller businesses against corporate giants. You recently spoke to Bloomberg Law about John Squire’s nomination as USPTO Director. Given his background in funding, how do you think his leadership will impact the industry?

Bryce Barcelo:

It’s a positive development. For the first time, we have someone coming into that role who understands litigation funding. He knows this isn’t a shadowy or dangerous industry – it’s about giving legitimate patent holders a chance to enforce their rights. Acting Director Kathi Vidal had already pushed the PTO toward supporting patent owners more strongly, and I think Squire will continue that trend. With his litigation funding experience, he understands the burden and cost of enforcement. That kind of perspective will be a game-changer for leveling the playing field. Too often, inventors get pushed out by companies that infringe with impunity. Squire can help shift the balance back toward fairness.

Kevin Skrzysowski:

We’ve seen that with our clients too. Many are brilliant engineers or solo inventors, and their ideas are being taken by larger players. It’s rewarding to help them stand their ground and protect what they’ve built.

Bryce Barcelo:

Absolutely.

Kevin Skrzysowski:

Before we wrap, I want to ask you a final question I often pose to my guests. As a law professor, what advice would you give to undergraduates or law students who are considering a legal career, especially in IP?

Bryce Barcelo:

It’s a very relevant question. I actually have a niece going through this right now. She just finished undergrad and is applying to law school. My first advice is: don’t assume you know what being a lawyer means. It’s not just what you see on TV. Law is broad, and each practice area is different. Students need to educate themselves, especially on the financial investment. Law school is expensive, and competition is fierce. Talk to practicing lawyers. Learn what their day-to-day is like. That’s important before even taking the LSAT. For law students who already made the leap – my advice is to stay flexible. You may start law school thinking you’ll do one thing, and end up somewhere totally different. I was an aerospace engineer before law school, and I thought I’d go into patent prosecution. I took all the right classes, interned at prosecution firms, and genuinely liked it. But a chance encounter led me into litigation, and I stayed for 10 years. You never know what will spark your passion. Stay curious. Get to know your professors. Use them as resources. I tell my students: the relationship doesn’t end with the class. Email me. Connect on LinkedIn. Keep asking questions as your career unfolds.

Kevin Skrzysowski:

That’s one of the most thoughtful answers I’ve received. I really appreciate you sharing your story. On a related note, my last guest, Will Marra at Penn Law, had this great idea to have top-performing students from his litigation funding class join the podcast. I’d love to do the same with your students. Maybe host a roundtable?

Bryce Barcelo:

That’s a great idea. I’d love that. It would be excellent exposure for them. I’ve given out firm swag as class rewards in the past, but this would be next level.

Kevin Skrzysowski:

Let’s do it. It would make for an engaging and timely conversation. Finally, before we close out—how can listeners reach you if they want to continue the discussion?

Bryce Barcelo:

The best way is email: bbarcelo@certumgroup.com. I’m an inbox zero person, so I will see it. For urgent matters, I can also be reached by phone at 713-398-4159.

Kevin Skrzysowski:

Thanks again, Bryce. It’s been a pleasure having you on the program. For anyone looking to connect with me, I’m at kevins@certumgroup.com or 216-570-9370. You can listen to this and all of our episodes on Apple, Spotify, Stitcher, and your favorite platforms. Until next time – thanks for tuning in.

Bryce Barcelo:

Thanks again, Kevin.

The post AI, IP, and the Future of Litigation Funding appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

International Legal Finance Association Adds Certum to Mark 30 Member Companies

Wed, 14 May 2025 22:43:00 GMT

The International Legal Finance Association (ILFA), the only global association of commercial legal finance companies, announced that has added its 30th member company to the association – Certum Group.

Certum Group specializes in comprehensive alternative litigation strategies, such as litigation buyout insurance, judgment preservation insurance, litigation funding, class action settlement insurance, adverse judgment insurance, and claim monetization. The Texas-based Certum Group team includes litigation and insurance professionals along with risk mitigation specialists.

“We are delighted to join ILFA and help it engage with policymakers interested in litigation finance,” said William Marra, a Director at Certum Group who leads the company’s litigation finance efforts. “Funding helps people and companies with strong legal claims get better access to the courts. We are excited to work with IFLA and ensure policymakers continue to encourage rather than restrict companies’ access to commercial legal finance.”

“We’re delighted that Certum is joining ILFA’s growing membership”, said Rupert Cunningham, ILFA’s Global Director of Growth and Membership Engagement. “Certum already provides a lot of thought leadership on litigation funding and other matters, and they will make a great addition to ILFA’s work to support the sector in the US and globally.”

About the International Legal Finance Association
The International Legal Finance Association (ILFA) represents the global commercial legal finance community, and its mission is to engage, educate and influence legislative, regulatory and judicial landscapes as the voice of the commercial legal finance industry. It is the only global association of commercial legal finance companies and is an independent, non-profit trade association promoting the highest standards of operation and service for the commercial legal finance sector. ILFA has local chapter representation around the world.

The post International Legal Finance Association Adds Certum to Mark 30 Member Companies appeared first on Certum Group .

Settlement Counsel: A Unique and Powerful Asset to Control Litigation Risk

Tue, 22 Apr 2025 19:31:00 GMT

Settlement Counsel: A Unique and Powerful Asset to Control Litigation Risk. It was a great pleasure to speak with my latest guest, Mike Connery, a Partner in the Philadelphia office of the law firm Maron Marvel and leader of the firm’s Settlement Counsel Practice Group. Mike is a trailblazer in redesigning the litigation risk landscape for clients by providing this innovative and transformative service. Don’t miss this episode!

This transcript has been lightly edited for grammar and clarity.

Kevin Skrzysowski:

Welcome to the 32nd episode of Certum Group’s podcast, Alternative Litigation Strategies where I interview esteemed members of the bar on the latest litigation trends and settlement strategies. I’m your host Kevin Skrzysowki, a director here at Certum Group, where we provide a suite of litigation risk transfer solutions to help companies mitigate, cap, and transfer outcome risk in commercial litigation. Today, I’m excited to be joined by Mike Connery, a partner in the Philadelphia office of the law firm Maron Marvel and leader of the firm’s settlement council practice group. Mike is a trailblazer at redesigning the litigation and risk landscape for clients by providing a unique and powerful asset in controlling and ending risk. Mike, it’s a great pleasure to have you on the program today.

Mike Connery:

Thank you, Kevin.

Kevin Skrzysowski:

Perhaps it would be best if we started by having you give us an explanation of what is settlement counsel and what gave you the idea to develop the settlement counsel practice group?

Mike Connery:

I would begin by saying I started on the defense side as an attorney in a mid-sized to large national firm, and all I did was litigation and trial work from the defense side and I also always had a good level of work that I did with regard to insurance coverage and the various issues of coverage, whether it’s reading the policy and reserving rights and litigating, whether it was with the direct plaintiffs or with other carriers or what have you. In about the sixth year, seventh year of my practice, I began to work as a national counsel and I’ve worked as a national counsel for a manufacturer, for a pharmaceutical company and for an insurer, and that would be managing litigation around the country, managing law firms, constructing the company story and the company defense and the trial. I also ran litigation at my firm as chair for a while. In everything, the case would generally end up in a settlement discussion, whether it was an individual case, whether it was a national council case, whether it was insurance coverage, I was always immersed in settlement.

So part of the idea was I had lived, and many people have done this, you spend two or three years running around the country developing experts, developing motion practice, managing other lawyers, interacting with the judges and courts, and you end up at the end generally talking about settlement and settling. So those three years didn’t really build into a jury trial. So I started to think about it as, well, I want to do settlement. I went to a client one day and I said, “I don’t really want to go to court for you. I don’t want to try your cases. Let me just have a problem that you have, something that’s troubling you, that’s troubling the general, counsel that’s troubling the CFO that is litigation, and let me see if I can make it go away.”

Kevin Skrzysowski:

Very interesting. So it sounds like given your history and experience, you have a great perspective from many sides of the litigation equation. Explain exactly when you’re working as settlement counsel, how do you get all of the different sides to play nice in the sandbox together from the plaintiff side, the defense side, the corporate side, and then the insurance side? How do you bring everybody together and explain that what you’re offering is an efficient and cost-effective resolution?

Mike Connery:

That’s the exact question the client asked when I proposed this to them, and it took me about two years of having casual conversation with that client and then one day I got a phone call from the client. He said, “I want to take you up on this.” And that was a case where the client was having a great deal of trouble. It was a very large case. Their defense firm had projected a few years of litigation, substantial fees. The client had run numbers, had run liability. They knew what they would most likely eventually pay down the road if they settled, and I was able to help them settle it in 60 days and we settled below any of their estimates, far below their estimates.

What I did from that, and I had done this in prior cases, is I think the first and the most important thing is to be introduced into the equation as somebody who is not engaged in the actual litigation. When the client reaches out, for example, to a plaintiff counsel and they’re doing this usually through the defense attorney saying, “The client has brought Mike in and he would like to have the opportunity to speak with you.” And 90% of the time plaintiff lawyers say, “Okay.” They’re curious or sometimes they know because I’ve worked with them before and to me the first and most important thing is that initial contact and creating a space, if you will, or creating an environment or building a structure, whatever the metaphor is, where the plaintiff lawyer knows that I’m not sending them interrogatories, I am not planning a motion to disqualify an expert. I am simply there to talk and to see if they’re interested in resolving. I think tone is important. I think being present with them is important.

Almost every contact I have with a plaintiff lawyer begins with lunch or a meeting in their office or sometimes a dinner and we talk about the case. They know that I have the protections of law and procedure and that it’s a safe conversation. Sometimes they say, “I don’t know you, can you give me some referrals?” And I’ll say, “Well, you can go talk to other plaintiff lawyers. I’ve resolved things with them. It’s confidential so they can’t really share what it was, but feel free to talk with them.” And sometimes that happens and they’ll come back to me and they’ll say, “I spoke with so-and-so, I want to talk to you.” Part of it is just establishing this level of communication and frankly Kevin, in my view, it just doesn’t exist. In the first or second month of the case, sometimes prior to file, I’m having these conversations.

Kevin Skrzysowski:

At the very beginning.

Mike Connery:

It works the best early, but I’ve come in in the middle of litigation, I’ve come in at trial, I’ve come in on appeal, I’ve come in at any stage and I try to create this level of dialogue with the plaintiff lawyer. When I was doing defense work and when I was trying cases, it’s a level of communication I never had. And as the defense lawyer, I’m charged with telling my client, the corporation or the insurance company or both what I think is going to happen, and yet I’m really not able to have communication with the plaintiff. That first meeting or those first few interactions also yield an enormous of data and communication. Sometimes a plaintiff lawyer will say, “Hey, here’s my expert report. I want you to see it. I want you to give this to the client.” That might’ve taken a year and a half worth of litigation.

Frequently a plaintiff lawyer will say, “I want to continue this process, let’s do it and let’s slow down or let’s stop the litigation while we’re doing this.” But I’d let them direct the communication. I think another thing that’s important is I don’t fight with them. I have zealous advocacy. I am representing the client, I am there for the client, but I don’t have to pound on the table. I don’t have to threaten them with taking out an expert or a witness or what I’m going to do on cross-examination. I don’t have to do any of that, so that’s how I establish it and then go from there.

Kevin Skrzysowski:

I think that’s a great methodology and it’s a very innovative and out of the box approach to consider all available off-ramps from the onset of the litigation. It’s similar to what we practice and preach over here at Certum Group that all of the parties and their counsels should consider either funding or insurance to mitigate cap and transfer that outcome risk from the very beginning so that businesses can potentially exit litigation for a known fixed cost and as early as possible, which completely placates the in-house council department and the business units that they report up to. I want to clarify something with you though.

Mike Connery:

Can I go back to what you just said? What you’re doing is you’re focusing on resolution.

Kevin Skrzysowski:

That’s correct.

Mike Connery:

And traditional litigation is, it’s not efficient. If you talk to any general counsel or any head of litigation or any person in an insurance capacity, whether it’s direct, primary, excess, reinsurance, whatever, the big part of what they do is defense spend. The big part of what they do is a transaction cost. So what this goes at, what you go at and what I go at is you see the opportunity to eliminate and lower the transaction cost. The cases I’ve had, and I’ve had over probably over 100 now in the past 15 years, and these are large cases, but this savings is 30 to 50%. I have enough data, I can’t share it because it’s all confidential data, but it’s generally 30 to 50% shift to the better for the client.

Kevin Skrzysowski:

That’s ironic because we have done a survey of some of the cases where we’ve found insurance or funded arrangements, and our statistics show that working with us earlier in the litigation usually saved the client about 50% of the cost of extending the litigation. In fact, I had a head of litigation for one major consumer brands company say, “We can litigate for two to three years and I may win on summary judgment, but if I went on summary judgment three years after filing, I really didn’t win. I still lost in terms of the amount of money that I paid.”

Mike Connery:

For your listeners, we should also probably admit we’ve never had this conversation, so I don’t know the statistic you just said, but it’s inevitable if you can get this going. Plaintiff councils will always be looking for a good resolution for their clients and for themselves. The longer it goes, the harder it gets, the more embedded they become, and if they have funding and things like that, it gets to be very difficult.

Kevin Skrzysowski:

I just want to clarify something about the role of settlement counsel before I ask you about the benefits of potential bifurcation. So are you basically taking over the negotiation and the settlement efforts or are you coaching the lawyers on how to do so? And if it’s the former, what’s the difference between what you do and going to a mediator?

Mike Connery:

I do whatever the client wants and many of the clients I work with I’ve had for years, so we have a really good synchronization. We know what we’re doing. The usual approach is I am speaking with the plaintiff counsel. Sometimes there’s three or four or five plaintiff firms. They might be multiple plaintiff cases, they could be all over the country. It might be very complex, but I’m speaking with the plaintiffs, whoever the lead people are, but I am not doing anything without the client every step of the way, every level of communication. And sometimes the client, the inside claims person or sometimes the inside insurance person may go with me. It just depends on the case. It’s rarely done with the defense counsel because the defense counsel has a job, their job is to zealously advocate and so forth. It’s not to say defense lawyers don’t do a great job, don’t know how to negotiate, but it’s a much, much different style and I think the approach that this model has is very effective.

When it comes to mediation, I’m not a mediator. I’m not a neutral, and that’s another thing I make very clear with the plaintiff counsel, but in a good tone and respectfully. “I’m not here to mediate. I am here to help my client and if helping my client is also an option that’s good for you and your client, plaintiff council, great. If it’s not, that’s okay. The litigation is going to go forward. I’m not going to be involved in it and go for it.” Another aspect, I don’t get into it much with the plaintiff councils, although it comes up sort of sometimes, about three or four years into doing this, one other change occurred and that was I can’t do this as a billable hour, so I do it as a contingency and that is the way I do it in the overwhelming majority of the cases.

I think that that aligns with the client and it also frees me up. I don’t have associates to keep busy. I don’t have paralegals to keep busy. I don’t have court dates to go to. I am just focused on working with the client for that case. It works very, well because it delivers very solid value and it still reduces the transaction costs substantially.

Kevin Skrzysowski:

At first blush, it may appear that the difference between what you do and a mediator does is slightly nuanced, but it’s actually vastly different when you’re able drive into your methodologies. Now, I would imagine also leveraging you as settlement counsel also would give the litigators time to actually focus on preparing their case and not conveying the case weaknesses and potentially preparing it for trial down the road so they can continue their zealous advocacy and they’re almost, not walled off, but it’s bifurcated between their zealous advocacy and reasonable consideration for settlement.

Mike Connery:

I’ve worked with some of the best defense lawyers in the country, the best jury trial defense lawyers, and for the most part, people will share with me that they like this. Some firms, some defense firms will be a little concerned, because it may make the case go away or they may feel it’s possibly going to interrupt some of the strategy, but I work very closely with them in terms of making sure the lines of communication are there. Frequently, they’ll be on a Zoom call when we’re looking and talking about a case and with the client. In a number of cases, I’ll end up in a mediation. Usually it’s when I come in late and I’ll work with the defense counsel, I’ll work with the client, I’ll work with anyone who’s at the mediation and mediators get it. They like it.

Kevin Skrzysowski:

Interesting.

Mike Connery:

It definitely throws a mediator a different curve because they’re not used to that. They’re used to pulling people aside, going into the corridor and working with the excess carrier or working with the client or doing what they do, because their job’s to get to a resolution. I respect mediators, I know a number of them. I work with them. I encourage them to do what I do and it’s hard for them, because their model is just close the cases, keep people relatively confident and comfortable with the results, and that way you keep mediating, you keep getting other cases. Not to say they go out and simply market. They market because of their quality, but it is vastly different.

Kevin Skrzysowski:

Yeah, yeah. And I want to drill down into that a little bit more and discuss resolution, resolution of conflicts and how to actually build out a program like this. But first I want to ask you a question that I’m normally asked at the beginning of the matter. People normally come to us as an outside consultant and ask about how work product is protected and how the attorney-client privilege is protected and we think of ourselves as experts in litigation consulting. So we say the expert privilege applies and a lot of it is documented in our non-disclosure agreements and our consultant agreements, but I would imagine this question comes up for you all the time, how do you structure the relationship with the client in terms of protecting the attorney-client privilege?

Mike Connery:

I have a retainer that sets that out in detail and it’s protected by rules and procedure, and I am reporting to the client. At first when I started doing this, that was my major concern, how does this fit? Because there’s no such thing really. It’s never been challenged and I believe firmly that it is quite protected. I’ve never had a plaintiff lawyer think it’s not or say it’s not. And I’ve had some cases where federal judges, I don’t think I’ve had a state judge, but I’ve had federal judges who were sort of involved and I was involved and somehow, some way we ended up talking with each other

And they have said to me, I’ve had two federal judges say to me, “Can I order this in cases? Can I order settlement counsel in cases?” And I said, “Well, that’s up to you, but I think it’s better if it’s a decision by a client.” And it works from the plaintiff’s side too, and it works for corporations when they have insurance recovery and so on. It works in any situation. I’ve had cases that are injuries and multiple tort cases and multiple jurisdictions and trademarks and class actions. It fits just about anything. I haven’t seen anything where it doesn’t fit.

Kevin Skrzysowski:

Okay. I was going to ask you about the nature of suit. What type of cases do you handle or is it easier to answer what type of cases don’t you handle or have any work done?

Mike Connery:

I had not covered patent, and then I’ve had that, but for a while I had not seen that happen. But again, it’s a reasonable discussion that leads to a resolution, so that applies to any dispute and it applies at any time. So it pretty much covers, it also covers governmental investigation.

Kevin Skrzysowski:

Really?

Mike Connery:

I’ve had cases where I’ve worked with federal and state where they were doing some sort of a regulatory matter, and again it was, “Hey, can we talk? Can we talk in a protected fashion and so on?” And for the most part, they very much invite that rather than fighting.

Kevin Skrzysowski:

I had no idea it was applicable to regulatory issues as well. I didn’t think about that.

Mike Connery:

Neither did I until…

Kevin Skrzysowski:

Yeah, okay. So I know you’ve been very successful at developing the national settlement council practice at your firm. Do you think other law firms or all law firms should have a settlement council practice? And if so, how would they resolve the age-old question of resolving the conflict early in the case versus the traditional billable hour?

Mike Connery:

Very good question. I think that it is one of the biggest opportunities that exists in litigation. Internally at a corporation, and I’ve had these conversations and I’ll present internally at a corporation to claims and to senior leadership, you can create a small settlement team that employs these principles. At a carrier, you could do the same. Now most corporations and those carriers, the people who are in-house will say, “Well, that’s what I do.” And they do, they negotiate for a living, but this would be something that is just intensively focused on resolution, not on managing the case. That’s one thing.

The other thing, which I think is dramatic, and I hope it changes things. I have a client right now who’s sending out an RFP for settlement counsel and they’re going to send it to their panel and they’re going to request that their panel counsel respond with people who they believe are appropriate for this work, who will work on a contingency base and they will not work where their firm is doing the defense. So if you have council A who is defending and council B is a settlement council, they will be from separate firms.

Kevin Skrzysowski:

Different firms, okay.

Mike Connery:

The settlement council will work on a contingency with the internal claims folks at the corporation or the carrier, and their sole mission is to see if they can resolve the case. I don’t know if firms, I’m very curious to see what their responses will be because the billable hour is hard to get around, but I think it’s an enormous opportunity.

Kevin Skrzysowski:

But couldn’t there be, and we do some of these as well where we do what’s called a litigation buyout and the company has some known threat and repenting litigation and they obtain a LBO policy to ring-fence and expunge the exposure. We usually will continue to work with defense counsel, but we now own the litigation, or I should say the third-party carrier does. So we own decision-making authority and the way we resolve that and it benefits all parties is by giving defense counsel a success fee for an earlier and more efficient resolution. That they’ll participate and have an increased fee award or bonus structure for getting the good quicker. I think that could be, like an AFA type success fee model could also be very attractive for defense counsel to get them on board with working with settlement council. Would you agree with that?

Mike Connery:

Yeah, I think success fees play a big role. I think your ideas, that sort of are quite creative. And again, we haven’t had this discussion, so I’m just responding to what you’re saying, they’re very creative. I think anything that incentivizes a resolution is a good idea because when you look at it in the terms of an insurer, it’s about loss ratio and anything that improves that loss ratio is a good idea. And this does. This, going back to that 30 to 50%, that’s a massive shift if it’s employed internally with a settlement team and externally with a settlement team.

Kevin Skrzysowski:

So basically what you have said is that it could benefit the market as a whole, if firms had settlement practices, if defense firms leveraged them, and if corporates and carriers also had groups that were solely dedicated towards settlement and looking at resolution from all three, four sides.

Mike Connery:

Yes. And I think the key is the external counsel who can come in and meet with that plaintiff or meet with that group of plaintiffs, create a space, nobody’s hollering. The earlier the better. The results are considerable.

Kevin Skrzysowski:

And I think you’ve shared a lot of really valuable insights regarding this practice area, this tool, this solution that is settlement council. But just one last question for you, and I think you’ve already kind of answered this, but just to perhaps summarize as a closing statement, it sounds like what you’re really doing as settlement council is looking at the litigation from a transactional perspective and upending it. If you had to summarize the benefits of looking at the transaction through this lens, what would it be?

Mike Connery:

I agree with you. It’s looking at the litigation the way people tend to look at it at the last hour and you’re moving that 11th hour up to the first hour and you’re seeing the results by having that dialogue. It works. And I think that the people who are the most surprised are the plaintiff lawyers.

Kevin Skrzysowski:

Yeah.

Mike Connery:

And they like it, because they get a great result for their client, they get a good result for their firm, for their practice, and the risk goes away.

Kevin Skrzysowski:

And it shakes up the age old system of one party comes in very high, one party comes in very low, and you spend years chipping away to get to the middle, which is where you’re going to end up anyway. We work with clients all the time where we get involved and we could have a resolution and they pass on one of our solutions only to hear from them a year or two later, and now the price of poker is higher and they spent more money and they’re in the same position.

Mike Connery:

At first meeting, Kevin, with the plaintiff counsel and the building of that relationship also is an information exchange, and that tends to take the air out of the, I have to be very, very high and I have to be very, very low, because I don’t really know where the other side is. When the other side starts to get a feel for where they are, it enables a negotiation where you can identify the range and you can identify that range so much quicker than that last minute. There isn’t a defense lawyer in the world who hasn’t walked into a mediation and there isn’t a mediator in the world who hasn’t walked in and said, “Okay, well, where are you?” And the answer is, “Well, we don’t really know. The other side’s just crazy.” Well, this eliminates the crazy thing and it gets you to talking. The cases I’d had closed 90% of the time.

Kevin Skrzysowski:

Wow, that’s an amazing-

Mike Connery:

And I don’t drive them to settlement. I just leave it, go and I’m there and I’m there to talk and I’m there to listen and I’m there to communicate. And 90% of the time we figure it out. And some of these cases are not about the money, they’re about the terms. And that’s the other thing, this dialogue opens up a great discussion on the real terms and the problems sometimes that the plaintiff lawyer’s having or that the corporation has and needs and those terms are the things that freeze cases. So this helps that process as well.

Kevin Skrzysowski:

We have sort of similar practices in that we’re working with clients for an efficient, cost-effective resolutions, and I approach clients and repeat clients frequently with cases that I see where I think one of our solutions may be applicable, but many times a client just comes back to me and says, “Kevin, this one is not going to settle for whatever reason.” Perhaps it’s for PR or brand image. “We are never going to settle this case and we are going to litigate to the end of the earth.” Do you hear similar responses sometimes when you’re reaching out to clients?

Mike Connery:

Certainly. And in some instances, a company has to try a case. In some instances, they have to get into the courtroom, they have to be in front of the jury, they need to have the best possible defense counsel. This is not a suggestion that this applies to absolutely every case. It applies to, in my experience, about 90% of the cases I’ve worked on, they can resolve, but there are certain circumstances where you have to take a stand or it’s such that the other side has no interest whatsoever in talking. That can happen.

Kevin Skrzysowski:

I fully agree. Yeah, it’s not a solution that’s applicable 100% of the time and for various reasons. And it makes sense. And when I hear that from a client, I don’t push back. I take that as face value. I think that’s all the time we have for today. I really want to thank you for being on alternative litigation strategies and spending your time with me today and sharing your valuable insights and experience in this innovative practice that you’ve created. Thank you.

Mike Connery:

Thank you, Kevin. I appreciate what you’re doing.

Kevin Skrzysowski:

I appreciate that, Mike. And if anybody would like to get a hold of Mike, you can simply Google Mike Connery at Maron Marvel and you’ll find his contact information. If you want to get a hold of me, you can look me up, Kevin at Certum Group. I’m also on LinkedIn. You can just Google Alternative Litigation Strategies and see all this podcast and all the remaining podcasts as well. As usual, I’d like to take the audience for listening. Again, the podcast will be on LinkedIn. It will be on Apple, Spotify, Stitcher, or really anywhere where you listen to your favorite podcasts. It’ll also be on our website, certumgroup.com. And if you also want to read about the litigation risk transfer solutions we offer in terms of funding and insurance, all that information is there as well. Thank you once again to Mike Connery from Maron Marvel, and thank you again for listening.

The post Settlement Counsel: A Unique and Powerful Asset to Control Litigation Risk appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Patrick Dempsey Joins Certum Group as Director of Commercial Litigation Strategy

Mon, 24 Mar 2025 15:13:00 GMT

March 24, 2025, New York, NY – Certum Group, the first and only company in America providing both litigation finance and insurance solutions for companies facing the uncertainty of litigation, has added Patrick Dempsey as Director of Commercial Litigation Strategy. Mr. Dempsey will oversee all facets of Certum’s commercial litigation business, including originating, structuring, and monitoring single-case financing products and portfolio solutions for law firms, corporates, and other litigants. Mr. Dempsey will also help build out Certum’s consulting services for companies that are looking to invest in or value legal assets but may not have the requisite underwriting expertise.

A veteran of the legal finance industry, Mr. Dempsey joins Certum from Burford Capital, where he served as a director responsible for originating new investments with law firms and corporates alike. Prior to Burford, Mr. Dempsey served as the Chief Investment Officer of Therium Capital Management’s U.S. operations. In private practice, Mr. Dempsey was a litigator at Hogan Lovells and Proskauer, where he regularly took cases through to trial and arbitral hearings across a broad number of industries.

“We are thrilled to have Patrick join our team,” said Joel Fineberg, Certum’s founder and managing director. “His extensive experience across multiple industries and complex commercial areas, along with his ability to build strong relationships with counterparties, will be a very valuable asset as we continue to innovate in the ever-evolving world of litigation funding.”

“I am excited to join the fantastic team at Certum,” said Mr. Dempsey. “I believe the opportunity is substantial. With its full suite of funding solutions and insurance products, Certum is extremely well-positioned for this next phase of growth within the industry. I’m looking forward to helping more clients figure out how Certum can help them achieve their litigation and business goals.”

Certum Group created the first and only litigation risk transfer platform that combines insurance, premium finance, and litigation funding to provide tailored solutions for companies, litigants, and law firms. Founded more than 10 years ago, the team is comprised of former litigators, judicial clerks, actuaries, and financial professionals who design risk transfer and funding solutions to meet legal, business, and financial objectives.

Mr. Dempsey earned his J.D. from Tulane University Law School and his B.S. from the University of New Orleans.

About Certum Group

Certum Group provides bespoke solutions for companies facing the uncertainty of litigation. We are the leader in providing comprehensive alternative litigation strategies, including class action settlement insurance, litigation buyout insurance, judgment preservation insurance, adverse judgment insurance, contingency fee insurance, capital protection insurance, litigation funding, and claim monetization. Our team of experienced former litigators, insurance professionals, and risk mitigation specialists helps companies remove the financial and operational volatility arising out of litigation by transferring the outcome risk. Learn more at www.certumgroup.com.

The post Patrick Dempsey Joins Certum Group as Director of Commercial Litigation Strategy appeared first on Certum Group .

Artificial Intelligence, Law, and Society

Thu, 13 Mar 2025 16:03:00 GMT

In this episode of the Alternative Litigation Strategies podcast, host Kevin Skrzysowski interviews Brian Beckcom , an AI expert, trial lawyer, and computer scientist, about the impact of artificial intelligence on the legal profession and beyond. Brian, who leads VB Attorneys and has earned hundreds of millions of dollars for his clients, shares his insights on AI’s evolution from the early 1990s to today. He explains how modern AI, particularly self-learning neural networks, differ fundamentally from earlier technology. Kevin and Brian also discuss current practical applications of AI on the practice of law, including discovery requests, depositions, and brief writing, emphasizing that while AI can process vast amounts of information quickly, human judgment remains crucial in interpreting and applying that information. This episode also covers concerns about AI’s potential to create misinformation and the challenges of regulating this rapidly evolving technology.

This transcript has been lightly edited for grammar and clarity.

Kevin Skrzysowki:

Welcome to the latest episode of the Alternative Litigation Strategies Podcast where I interview esteemed members of the bar on some of the most cutting edge issues affecting the practice of law and the legal marketplace. I’m your host, Kevin Skrzysowki, a director with the litigation consulting firm, Certum Group where we work with companies and their counsel to mitigate [inaudible 00:00:34] and transfer outcome risk and a wide array of litigation through our suite of litigation funding and insurance products.

And today I am pleased to be joined by someone who is perhaps one of our most dynamic guests with a diverse background, and we’re going to discuss what I think is an issue that is top of mind with every lawyer these days, and that is artificial intelligence. I am pleased to welcome Brian Beckcom, who not only is an extremely accomplished trial lawyer, he’s also a computer scientist and a student of philosophy. Good afternoon, Brian, and welcome to the program.

Brian Beckcom:

Great to be here, Kevin. I’m really looking forward to the show. Thanks for having me on.

Kevin Skrzysowki:

Absolutely. Brian, you have a very interesting and diverse background. Not only are you an incredibly accomplished trial lawyer leading your firm, VB Attorneys and your personal injury and maritime practice where you have earned hundreds of millions of dollars for your clients, including representing the sailors of the Mercer Alabama, a court case that was made very famous by the Hollywood movie Captain Phillips, which starred Tom Hanks.

You also authored multiple books and you host the podcast Lesson in Leaders where you feature military leaders, sports stars, New York Times bestselling authors, scientists and more. Have I missed anything? Is there anything else that you do that the audience should be aware of?

Brian Beckcom:

I’m a dad to three kids, I’m a husband of 25 years, and I’m a purple belt in Brazilian jujitsu, those are the big ones you missed.

Kevin Skrzysowki:

I’m a parent of two kids. I don’t know if I would put the difficulty level in that above even a purple belt and Brazilian jujitsu, but they’re both pretty challenging task to accomplish. So you have an interesting background where you’ve been just a great trial lawyer, you’re a continual student of computer science and philosophy. I think your diverse background really lends itself to comment on this. We call it a burgeoning world of artificial intelligence. But I mean, I know you’ve been pro-technology for a number of years and you have a certain philosophy about where we’re going. What are your general views on artificial intelligence?

Brian Beckcom:

Yeah, so artificial intelligence is a very big category that covers a lot of different things. So for example, when I was studying computer science at Texas A&M in the early 1990s, I took an artificial intelligence class in the early 1990s. The comparison between what we knew then and how we did things back then and what we know now is not even in the same universe. In fact, I was watching a really good YouTube video last night about artificial intelligence, and one of the points that it made was the original artificial intelligence researchers tried to essentially use long chains of reasoning to create artificial intelligence. That was one way to do it. The other way to do it is through neural networks. Neural networks are basic. The basic idea is that you have nodes or locations in the experts where the more positive signals you get in a particular node, the more likely that is to be answered. So it is kind of a self-learning artificial intelligence as opposed to a human being trying to predict ahead of time what the artificial intelligence is going to learn.

And the reason that’s so important, Kevin, the second one, the self-learning piece of it is with self-learning artificial intelligence, it can learn exponentially faster. And so the more it learns, the better it gets, the better it gets, the more it learns. Those are complementary things and it doesn’t require human intervention in order to do that. I’ll give you a really strange example of this, okay? So let’s talk about large language models. That is a subset, that’s a subset of artificial intelligence. Large language models are basically databases, programming languages that predict what the next token word, a piece of a word, a sentence will be.

They recently were training a large language model to see if the large language model would act independently of the researchers. And the really curious thing about it was is the large language model at the very beginning tried to trick the researchers into believing it didn’t know as much as it did so it could get more data, and the researchers have no idea. They didn’t tell it to do that. That wasn’t part of the program. That was self-learned, so to speak. To me, the really interesting thing or one of the most fascinating things to me about artificial intelligence is it puts front and center the most important and the most unanswered question in science right now, and maybe in human history, which is what is consciousness? What does it mean to be conscious, and what’s the purpose of general consciousness? Artificial intelligence puts that question front and center.

There are people right now that will say large language models have some consciousness. There are other people that will say no, it’s just bits and a screen, and if we define consciousness as having an internal subjective experience, we don’t think artificial intelligence has that. Of course, the question is how do you know that? That’s one of the super-duper tricky questions about consciousness and intelligence is because consciousness by definition is a subjective experience, it’s hard to know if another agent is having a subjective experience.

So for example, the only thing I can be really sure of right now is that I’m having a conscious experience, but I don’t know what your experience is right now. I mean, for all I know, you could be a robot on the other side of the screen, right? I have no proof of your consciousness. So the interesting thing about these artificial intelligence is they’re, I don’t want to say smart enough, they’re at the point now where they can fool human beings, and some people mistake that for consciousness and some people say, “No, that’s just a good computer program.” So I think especially in any field where the job is to manipulate information and data, artificial intelligence is going to have a huge, huge impact in the next five, 10 years.

Kevin Skrzysowki:

That’s a bit scary too, because what you’re saying is it’s not machine learning, and the fact that this program tried to trick the humans into believing that it knew less than it actually did in order to consume more data and become smarter, it’s a little weird, right?

Brian Beckcom:

Yeah.

Kevin Skrzysowki:

[inaudible 00:07:35] machine really have a mind of its own. There was a, I think it was a test by German scientists many years ago, and it was something about if you get to the point where you’re interfacing with somebody on the other end, and you can’t tell if what is on the other end is actually human versus machine. I think you maybe mentioned that in one of your podcasts in the past.

Brian Beckcom:

Yeah, so you’re talking about maybe one of the most famous tests in computer science, the Turing Test. Alan Turing was a British mathematician during World War II. As an aside, he was also gay. And the British government after the war prosecuted him for being gay. There’s a great movie. I forget the name of it, I think it’s called Enigma or something like that. But in any event, Alan Turing some people would say invented one of the first computers. There’s other people that would say that computers, at least the concept of a computer was long before that. But Alan Turing actually built a machine that decoded the Nazi Enigma Code, a computer that did that.

And he proved a bunch of really important things in math and computer science. One of his tests that he developed was called the Turing Test. And the Turing Test basically says if there’s, say you and I are having a conversation, but I can’t see who you are on the other side of the screen. In other words, I don’t know if you’re human or a robot, and I start interacting with you and whatever’s on the other side starts interacting with me, and I can’t tell the difference whether it’s human or not, then that passes the Turing test. And for all practical purposes, it’s intelligent. It’s a little more complicated than that on the mathematical level, but that’s the basic, layperson’s definition of the Turing Test. I would argue at least for kind of the general Turing Test, we passed that long ago. We’re already at that point with a lot of these large language models.

One of the interesting things to me, Kevin, is I can tell when I read something most of the time, whether it was written by an artificial intelligence. How? Because there’s always a little bit, there’s either a word that’s off or a little bit out of place or a little strange. What’s going to happen to the young kids that don’t have the long history of reading normal human writing like you and I do? Are they going to have the same instincts for these computer generated scripts that we do or they just not going to know the difference? And I’m a little bit concerned that the younger generation, because they’re not going to have the experience of reading only human generated content, they’re going to have the experience of reading only computer driven content that they’re not going to know the difference because they just don’t have any baseline by which to judge it, if that makes any sense.

Kevin Skrzysowki:

I think you’re absolutely right. And I mean, that’s what kind of worries me about the future of AI. And I want to ask you, what worries you the most about this? And you’ve alluded to it right there. Could it be, as you were saying, the dumbing down of society because you put a query into ChatGPT, and I feel like sometimes the result that comes back to your point has some intelligence but doesn’t have the emotional intelligence to do the right word selection. And you can tell if you’ve used it quite a bit, it was almost computer generated.

So I mean, are you concerned about the dumbing down of society? What just about machine addiction? I mean, I can’t get my teenagers to stop looking at their phone now. I mean, what’s going to happen? Or what about misinformation, disinformation? We just went through a political cycle and everything’s misinformation, disinformation. What do you see are some of the big concerns when what if a news source or a certain country spits out a million fake stories in two seconds? What do you think of the impacts it could have? But I think before that, I want to ask you to maybe also give an overview of do you think AI in general is going to be more favorable, or the dangers will make it less favorable going forward?

Brian Beckcom:

I’m an optimist when it comes to technology in general, so I’ve always been optimistic about how technology will help us while recognizing the downsides. I’ll give you a couple amazing examples how AI has helped me, so I’ve started retaking some calculus and computer programming courses just because I feel like I want to understand them on a deeper level than maybe I did 20 years ago. And so now when I’m taking a calculus class, I literally have my computer screen set up. I’m taking a class on the one side and on the right next to it is my AI app. And if I get to something that I don’t understand, I can ask it to explain it to me in a way that I actually understand it. And so if I were back in school today, I could learn so much faster, it would knock your socks off.

It’s the same thing with medical diagnosis. AI’s are already better at reading MRIs than radiologists are by far. They’re going to get better at differential diagnosis and things like that very quickly too. Why? Because the human brain is limited in the amount of information it can take in. To use the example you just used, which I think is a good one, what if a country were to generate a million pieces of disinformation in two seconds and blast it all over the place? That’s not going to be super effective because human beings can’t process that much information.

The trickier thing is when you get, so what you’re trying to do with disinformation or with any kind of information is you’re trying to take concepts and you’re trying to place it in people’s brains. So on this podcast, I have some ideas about AI, and I’d like to put those in your mind. If I were to write in an AI put down every single thing I’ve ever said or known about AI and showed it to you, it would take days for you to read that, process it, and digest it because the input, there’s a bandwidth problem.

It’s the same thing with doctors. Doctors go to medical school, they learn all of this medicine, they learn all these different diagnoses and diseases, but there’s a limit to how much they can keep in their conscious mind. So their reference is not nearly as big as a medical AI would have. Medical AI is going to have every single piece of medical knowledge, not just that you’ve studied, but that every medical student in history has studied. And it’s going to be able to access that, but it’s not going to be able to dump that on a normal human brain in the way a computer would because a human’s not going to be able to comprehend it, if that makes sense, so-

Kevin Skrzysowki:

You can only digest what you can digest.

Brian Beckcom:

… and this relates to the way we’ve been using AI in the law. So I can generate hundreds and hundreds of discovery requests in minutes now. I can summarize hundreds and hundreds of pages of discovery responses in minutes now, but if my team gives me 50 different summaries from 50 different cases, it’s not like I can read all that any faster than I used to be able to. The speed at which I can read that remains the same.

So people that use AI now, it’s going to be the same type of people, and they’re going to have the same type of advantages as people that use computers early. There’s a skill to using Ais. There’s a way of prompting. Everybody has heard about the prompts and prompt engineering and stuff. When you understand on a fundamental level how these LLM works, you understand why those prompts are so important because what you’re basically doing is you’re writing little computer programs in English for the LLM to execute.

I was thinking about this last night. I was preparing a letter to the governor of Texas, very important letter about some very important legal issues going on in the state. And I said, “I want you to write this letter, and I want you to make it very, very persuasive.” And it spit out this letter and I read it and I said, “God, this sounds nothing like me. This is not my voice at all. This is not what I wanted this to sound like.” And so I literally sat there and rewrote almost entirely by myself, and I was thinking, “Why did the LLM not produce a product that sounded like me that I liked?” And it’s because I have a certain intention in my mind of what I want the document to achieve and what I want it to look like, but I can’t really express that intention. I can’t get every single thing in my brain onto the computer screen. So the AIs have to guess at what you want a little bit.

And that gap right there, I think is a profound, profound gap. We have to understand that the AI is guessing what you want, is predicting what you want. It doesn’t actually know what you want. Whereas with you and me, we might be sitting there at a bar drinking a beer, and I’ll look at you and I’ll notice your beer is almost empty. And I’ll think to myself, “Kevin didn’t say this, but he probably needs another beer.” “Hey, you want another beer?” And AI is not going to be able to predict your intentions quite as easily. Now, maybe at some point it can, but an AI can’t read your mind. In some ways humans have the ability to read each other’s minds through physical cues, emotional cues, intonation cues, and the way your voice works, context cues, historical cues.

There’s a lot of soft, and this has always been that we used to have this thing in computer science called fuzzy logic.

Kevin Skrzysowki:

Sure.

Brian Beckcom:

So you’ve heard of fuzzy logic. So logic is like if A, then B, if B, than C. It’s real, real strict mathematical logic. We were trying back in the ’90s to develop something called fuzzy logic that would deal with situations that were not quite so cut and dry, and that really hasn’t worked. Fuzzy logic really hasn’t worked. So we’ve gone to these, like I was talking about, these neural networks, but the point of it is humans interact every single day with nonverbal cues and nonwritten cues. There are all sorts of cues that we trigger off of. And so far, at least computers haven’t been able to do that. Although I will say now we’re getting to the point where we’re able to generate videos and images that are almost so realistic that they can give off some of those emotional cues, right? Like the way your eyes move, the way your mouth moves, when you smile.

If I smile like my eyes wide open, that’s super weird, right? Because when you smile for real, your eyes actually get smaller and computers have started to figure that out. They’ve started to be able to mimic the way your face moves, the way your eyes squint, the way your mouth moves, things like that. And those are all equally important communication devices that humans use that computers have not gotten to yet. Maybe they will get to that point, but they’re not there yet.

Kevin Skrzysowki:

We’ve tested quite a few proprietary AI programs on the market in addition to just some of the popular ones like ChatGPT. We have an internal IP director who wrote his own program designed for our business, and we’ve tested them out. And there are some that they claim will actually learn in your voice over time or in the voice of the company and the business that you do, and they will become smarter as you go. So to your point, eventually it takes your intention and the emotional cues and what you want to convey on the piece of paper, and it’s supposed to learn around that.

We’ve test driven some. We haven’t really invested in any because we feel like nothing really does capture the human intention better than the human. And so we could at least just use a ChatGPT as a start, and then we’ll keep testing them as they go. But I mean, there’s a ton of these proprietary programs on the market.

Let’s focus a little bit on the practice of law. I mean, how are you using AI in your practice? Are you using a ChatGPT? Have you built your own program? Have you invested in proprietary programs? You had mentioned discovery. What have you explored and what are you using them for?

Brian Beckcom:

Yeah, so I’ve used most of the major LLMs that are out, Claude, ChatGPT, Perplexity, Google Notebook, Gemini. I’m kind of using all of them right now, and I’m using them on the pro mode because I want to kind of test the strengths and weaknesses of the different AIs. Well, I’ll tell you that in terms of just normal day-to-day stuff, when we want to generate discovery questions, so most of your listeners will know when you’re in a trial, you can ask written questions and the other side has to answer them. And we used to write up all those questions ourselves. Now, the AI can generate 90% of that in about five minutes, and now we have to have a human look over them and make sure they’re appropriate, make sure that there’s not a hallucination in there or something like that. But that is all of a sudden, super-duper quick.

When I take a deposition by Zoom now, when I’m done, I have the transcript already ready, and there’s an executive summary that the AI’s written including any follow-ups or tasks that I might want to pay attention to. That is a huge, huge time saver. I use AIs to write briefs. So for example, a couple of months ago, what I’ve lately started to do with my legal briefs is I like to have a little quote at the top that kind of encapsulates the idea behind my brief. So I had this brief where somebody had gotten hurt and the other side hadn’t investigated, and I was trying to say the fact that they didn’t investigate was tantamount to getting rid of evidence. I said, “Hey, I need five quotes that encapsulate this idea from literature,” and it spit out five amazing quotes. And I ended up pulling a Salman Rushdie quote as my pullout quote. So it’s great for generating ideas.

I’ve also taken some of the biggest verdicts in the United States over the last 10, 15 years. I’ve found the opening statements and the closing statements given by the plaintiff’s lawyers. I’ve run those through AI. I’ve had them analyze it. I’ve had them compare it. Again, I actually have an AI now that I’ve trained on an opening statement template for me that can now generate for me an opening statement in one minute. Now I got to go in there and play around with it.

Here’s another way I’m using AI. I write a monthly newsletter. I’ve written that for about 10 years. I took every, single article that I wrote, put it into a PDF, loaded it into ChatGPT. I said, “I want you to read every single one of these articles. This is the way I write. This is what I’m doing this for, and I want you to write an article for January through December of 2025 for me, and I want you to do it in the same style, in the same tone that I wrote 10 years of these things.” And it kicked out 12 amazingly good newsletter articles. I have to change them just a little bit, but those are the kind of things that I’m using AI for.

The other thing that I’ve noticed is I don’t use Google really anymore at all. Search engines, as we’ve understood them historically, are dead. Every single time I want to search for something now I just pull up my ChatGPT app. “Hey, how do you make a great old fashioned?” Last night I was like, “Hey, what’s a good recipe for garlic bread? Hey, here’s a picture. Can you tell me what this watch is? Will you do a summary of the Texas public information?” I’m not going to Google anymore. Google’s is now using its own AI in some of the search results, but I think ChatGPT and Perplexity are frankly better, at least the way the information is presented.

So my entire practice is immersed in AI right now, but again, the thing is, I can send 300 discovery requests and get 300 discovery answers back, and I can summarize it with an AI, but somebody, some human brain still has to read and process that data and then decide what to do with it. And again, it’s not the output. The output is essentially unlimited. It’s the input, and you asked earlier what I think a really important skill going forward is. I think one of the most important skills people can develop going forward, old people, young people, everybody in between is being able to tell the signal from the noise because just like our food supply, we don’t have a problem with scarcity in our food supply anymore. We have a problem with too much food. That’s why everybody’s so fat, right?

It’s the same thing with information. We don’t have a problem with scarcity. We have too much information. And the idea, just like the food, the trick is to pick out what’s good for you and what’s garbage. It’s the same, exact concept with information, being able to figure out what to pay attention to, what’s important and what’s garbage, which 99% of stuff out there is garbage. That’s the skill. And what are you really doing there fundamentally? The most important decision everybody makes, you, me, everybody makes on a daily basis is what am I going to pay attention to, right?

You could take your attention, which is your most valuable resource, and pay attention to 10,000 things. Right now you could be looking at your text messages, you could be looking at me, you could be looking at other things. We get off the phone. You can go to Instagram, you can play some video game, or you can do some work and deciding what you’re going to focus your attention on, especially nowadays when we’ve got literally everything is constantly vying for our attention.

So again, the uses of AI in the legal field are incredible. I mean, imagine if you’re a young lawyer right now and you can have an AI write an opening statement based on something that Johnny Cochran and all the other great lawyers did. I mean, now all of a sudden you’re kind of on equal playing field a little bit, at least in terms of the words you can generate, right? I mean, you still got to present that, which is a different skill, but you’re 90% of the way there when you have the words on paper and you can read. So it’s also a leveler. It kind of levels the playing field for everybody quite a bit.

Kevin Skrzysowki:

Yeah, especially I think if you’re a younger lawyer or you work for a small firm, I mean, you basically have unlimited resources at your fingertips. But something you said it takes a younger lawyer, puts them on an equal playing field. So there’s been articles written, a lot of conversation about AI. Will AI actually replace lawyers? Will it replace lawyers or will it replace commoditized work? Will it replace some practice areas? Will it replace some legal staff, or will it augment and enhance the human side of things, the critical thinking, the tasks that require complex reasoning?

What are your thoughts on how it will impact the size of the pool of talent in the legal marketplace?

Brian Beckcom:

That’s a great question, and I guess my answer is it depends. It depends on which direction we go with AI, whether AI becomes deeply embedded in the law, which I think it will or whether it doesn’t. If it becomes deeply embedded in the law, then the only thing I can predict for sure is that the legal profession won’t look like it does now. I don’t know if there’ll be more lawyers or less lawyers. I don’t know if there’ll be more older lawyers, more bigger firms, more smaller firms. I just know it’s going to look radically different.

I mean, you probably are old enough to, I’m old enough to remember where I would wake up in the morning, get in a little box, i.e. my car. I would drive down a highway in traffic. I would get in a building, go up to the 50th floor to sit in another box for eight hours and stare at another box on my desk, and then I would repeat the process in reverse and go home. There used to be mail rooms and there used to be copy centers. You know what I mean? All this stuff.

It used to be a joke when I used to work at a firm called Fulbright & Jaworski when I first started out. We had hundreds of lawyers, but the only guys that were any good at basketball were me and the guys in the mail room. And so I would just go down, and we would get all the guys in the mail room and just dominate the lawyer intramural leagues. And now I wonder where all the mail room guys are.

Kevin Skrzysowki:

Oh, right.

Brian Beckcom:

It’s just not nearly as necessary. I was talking to a big corporate lawyer a couple days ago. He said, “Oh, yeah, we’re expanding the space on our floor for our accounting department.” And I said, “Let me ask you a question. Why do you have any space for your accounting department? Why don’t your bean counters just sit at home and tap away on their computers and then give you that stuff? That seems like a waste of money.” And he goes, “You know what? That’s a great question. My firm is great at making money or making revenue, but not so good at actually making a profit.”

And so a lot of these business models and ways of doing things that we’ve always done, and we’re still doing it that way, and they’re people that just aren’t ever going to change. They’re just not. Why did you go back two days after quarantine and didn’t get everybody back in the office when everybody was 10 times more productive and 20 times more happy? That’s the way we’ve always done it, right? That’s the way we’ve always done it.

Kevin Skrzysowki:

Well, it’s hard to get lawyers to change their ways. It’s probably one of the more lockstep, stubborn professions out there. But we did see a big change after COVID with working from home, and now I guess some firms requiring people to go back a few days a week. But one of the things I think, tell me if you agree with this, is that the reason AI will never fully replace lawyers is from the client perspective and courtroom advocacy. You’re never going to have a robot go to court and deliver an argument to a judge and a jury, because to your point, you have to know the law and know the facts. And there was a lot of physical interaction with intonation and the sound of your voice and everything and diction and everything else.

But also, I don’t think clients are ever really going to want to give up a one-on-one interaction with an attorney, and they’re going to always want to see the attorney in person. And there’s a human client relationship there. So-

Brian Beckcom:

I read something not too long ago that you know what the number one profession they said would be insulated from the effects of AI, at least in the near future? Nursing, which makes total sense when you think about it. The whole point of a really good nurse is this human emotional connection to the patient to make them feel-

Kevin Skrzysowki:

The bedside manner.

Brian Beckcom:

… beds-

Kevin Skrzysowki:

[inaudible 00:31:17].

Brian Beckcom:

… the bedside manner.

Kevin Skrzysowki:

Yeah.

Brian Beckcom:

And lawyers, one of the geniuses of our trial system or our litigation system is you put a human being on that witness stand and that human being gives testimony. And then I get to test it with cross-examination. And sometimes you could read the transcript of a cross-examination and say, “Well, I don’t get it.” But when I asked that one question to that witness and he looked over to his lawyer and then he looked over at the judge and then he got a little sweaty-

Kevin Skrzysowki:

And they’re answer, you got them. That’s a different-

Brian Beckcom:

That’s a tell.

Kevin Skrzysowki:

… totally different dynamic. Yeah.

Brian Beckcom:

Right. And make no mistake about it, we will get to the point where you can put an image of a human on a screen, on a witness stand, and they can do all those things that are human-like, but without an actual human being sitting there with 12 human beings sitting right across looking at them, it’s just not the same. And we all know there’s a difference between a witness saying, “I didn’t run that red light,” and the witness saying, “I didn’t run that red light.” That has different meanings to people, the same exact words said with a different intonation.

But again, there’s a lot of things that we have thought are, oh, these are uniquely human characteristics like the ability to create a painting is a unique. No, it’s not. AIs are creating paintings right now that are just as good as anything that humans are creating. The ability to tell a joke, tell a joke. I asked ChatGPT, I said, “Write this brief in the way Seinfeld would write it,” and I mean, it was hilarious. So there are some things that I think are uniquely human, but not many. There’s not many.

Kevin Skrzysowki:

Yeah, it is unique. One of my colleagues was using a program, I think it was just a Google program, and it was composing an interview where you could pose a question like you’re asking two different sports reporters and news commentators about it. And it was a male and female, and it produced a 20-minute interview going back and forth, and the inflection and the tone of voice, if you played it, it goes back to that theory from Germany from many years ago, you almost couldn’t tell that it was artificially AI that generated it. It almost really sounded, I mean, the tone of voice, everything. It was pretty wild. [inaudible 00:34:02]-

Brian Beckcom:

[inaudible 00:34:02] Google Notebook. You’re talking about Google Notebook, and I’ve done that. So everybody that’s listening to this should try this out. So take some sort of document about some topic, put it into Google Notebook and ask it to generate a 10-minute podcast, and then listen to that podcast. I did that a couple of months ago. I sent this podcast to a bunch of friends, and they were like, “That’s an amazing podcast. I can’t believe they’re talking about that.” Nobody knew the damn difference.

Yeah, that’s the reason I did it. I wanted to see if anybody could tell and nobody could. I mean, it is really, really good. And you’re right, the way Google’s programmed this, they have a female voice and a male voice and a female, “Well, Todd, what do you think about this?” I mean-

Kevin Skrzysowki:

The pauses and-

Brian Beckcom:

And to the pauses, everything.

Kevin Skrzysowki:

Everything.

Brian Beckcom:

Yeah, it’s really, really, really good. But again, I want to remind you, Kevin, and also your listeners, the problem is not creating this kind of content. We have the ability to create unlimited content. Now the problem is getting people to pay attention to it, number one, and then digesting all of it. So I think that’s the real skill that we need to focus on.

Kevin Skrzysowki:

What about regulating it so we get the good? We get the ability to practice law more efficiently and handle discovery and spend more time doing human lawyerly critical thinking. What about the benefits of diagnosis in the medical profession, assisting somebody with advancing their education or helping them almost as if a self-tutor instead of misinformation, disinformation, creating fake citations and briefs, plagiarizing your term paper? I mean, should it be regulated so that we get the positive from AI and not the negative? And how would you start? How would you regulate that?

Brian Beckcom:

Philosophically, I do not believe that regulation in general is perfect, and that’s because I think it’s impossible to predict the future basically. What regulations do is they try to predict what will happen in the future, and they try to account for that. And I don’t think that’s possible. And not only that, from a practical matter, our regulators i.e. our politicians move so slowly, and that process is so slow that by the time that they’ve come up with a law, the technology has already changed. Microsoft is a great example. Microsoft had a monopoly on the Windows operating system, and everybody knew it. And Bill Gates and that team made up these nonsense excuses about innovation, innovation, innovation. They literally stole the concept of the desktop from IBM. They didn’t innovate that. They basically just ripped it off. But the point is everybody knew they had a monopoly.

They got sued by the federal government. They got convicted of having a monopoly. Part of them got broken up, but by that time, you got Google, Apple’s made a rebound. I mean, by the time that this trial was over with, everything had already passed them by. So the problem with regulating anything in AI in particular is AI moves so fast and regulation moves so slow, number one. And number two, it’s really, really hard to predict and anticipate where we have potential dangers with AI.

So for example, let’s say Russia’s building AI that’ll control a team of 50 drones, and they’re autonomous drones. In other words, there’s no human telling them what to do. You give them a mission and then they just go figure out how to do it. And we say, “Well, that’s dangerous. There should be a human component to that.” Well, how are we going to stop them from doing that? I mean, we’re not, is the answer to that question. Same with China, same with these other countries. They’re going to do what they want to do. And so as much as I would like to have some safeguards, Neil deGrasse Tyson, he has a funny answer to this. Well, what happens if an AI gets out of control? He says, “I’ll just unplug it.”

That’s a pretty simplistic view. But yeah, the point-

Kevin Skrzysowki:

Yeah.

Brian Beckcom:

Yeah. Yeah, it’s true. But the problem is that what if the AI is insinuated itself into other systems that you don’t know about and it’s kind of already escaped wherever it’s contained?

Kevin Skrzysowki:

You control it.

Brian Beckcom:

Yeah. So I just don’t know how, given the practical problems and the slowness with which we regulate things plus the prediction problem, I just don’t know how you do it in practice. And so to me, what does that mean? Well, to me, what that means is it’s more of an evolutionary thing where you just kind of let things develop and the better things, the stronger, not better things, but the things that adapt better to the environment continue. And the things that don’t, don’t.

I don’t really know any other answer to that question. What you’re also going to have, if you believe what we’re talking about now, you’re to have AIs fight another AI. So you’re to have AIs that are going to be like you’re have the American military AI saying, “I’m way smarter.”

Kevin Skrzysowki:

Than the other guy.

Brian Beckcom:

“I know more than this other guy. I’m going to try to trick him,” or, “I’m going to try to unplug him,” or, “I’m going to try to plant a little bug in the system.” I mean, so you’re going to have AI warfare and us humans are going to be sitting there driving down the road not knowing World War III is happening already, but it’s happening on computer screens.

Kevin Skrzysowki:

That’s a great thought. It’s a little bit scary, but no, that’s very insightful. So this such an interesting conversation, Brian. I think we could probably keep going on all day, but any just final comments on where you think this could be going?

Brian Beckcom:

The only thing I’ll say is that I don’t try to predict the future anymore. I can’t guess what the future is going to look like, but I’m excited about it. I mean, people are like, “No, AI is going to displace a lot of jobs.” Well, quite frankly, there’s a lot of jobs that suck and do we want to make people work in jobs that aren’t fulfilling to them? If somebody’s working at a job that they don’t like, they don’t have very much time to spend with their family or pursue other things, I mean, is that good or is that bad?

I would argue that some of these jobs need to be automated. It’ll be better for humans, and are we going to have to find other things for people to do? Of course we are. But I mean that’s been true since human history. We invented the car. I mean, everybody’s like, What are all the buggy whip makers going to do? What are all the chariot makers going to do?” Oh, we got guns now. Well, now swords aren’t going to [inaudible 00:41:05].

Kevin Skrzysowki:

Right.

Brian Beckcom:

Yeah. So what? So-

Kevin Skrzysowki:

It creates new jobs.

Brian Beckcom:

… I’m an optimist about the future. I actually believe the same thing that physicist Davis Deutsch has written, that there will always be problems and problems will always be solved. And that second part of it, I think, is the really important.

Kevin Skrzysowki:

I think that’s a great quote, and that’s a great way to end the program. Thanks again for joining, Brian. I really appreciate it.

Brian Beckcom:

Thank you, Kevin. Enjoyed it.

Kevin Skrzysowki:

We’ll be very, very well received by the audience.

Brian Beckcom:

Appreciate it.

Kevin Skrzysowki:

I have [inaudible 00:41:38], and people might want to discuss this a little bit more, especially with a lot of the programs you’re currently using and how you’re leveraging them in your practice. If people who are listening to this program would like to get a hold of you, what’s a good way to reach you? Your email, direct dial, LinkedIn handle?

Brian Beckcom:

I spend a lot of time on Instagram, Brian Beckcom lawyer. My website is VB Attorneys, V as in Victor, B as in Brian, VB, attorneys.com. All I’m on all the social media. Can also find my podcast at brianbeckcom.org.

Kevin Skrzysowki:

That’s terrific. Thanks again. And as always, I want thank the audience for listening. If you’d like to listen to other episodes, all the Alternative Litigation Strategies Podcast, you can go to our website at certumgroup.com. I’m also on Apple, Spotify, Stitcher, and 10 other of the most popular podcasts outlets. If you want to get a hold of me personally, my email is kevins@certumgroup.com. Brian, thank you one more time.

Brian Beckcom:

Thank you, Kevin.

Kevin Skrzysowki:

The audience, and until next time.

The post Artificial Intelligence, Law, and Society appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Bryce Barcelo Examines the Patent & Trademark Office’s New Director

Tue, 11 Mar 2025 19:38:00 GMT

As litigation funding becomes more commonplace and continues to grow by leaps and bounds, it is important that litigation funders possess a reasoned voice. Certum Group Director of Intellectual Property Bryce Barcelo was recently interviewed in a Bloomberg Law article discussing the recent nomination of John A. Squires to lead the US Patent and Trademark Office.

“This is somebody who has the real opportunity to bring IP litigation funding to the forefront and out of the darkness a little bit and highlight that this can be a good thing,” Barcelo told Bloomberg Law in response to questions about how Mr. Squires can put his personal seal on his PTO tenure.

While big tech lobbies for restrictions on litigation funders and funding, Barcelo—and Certum Group—believe that litigation funding levels the playing field, allowing for small operating companies and solo inventors to enforce their duly-granted rights and hold so-called “efficient infringers” responsible for their infringing acts.

The full article is available at this link .

The post Bryce Barcelo Examines the Patent & Trademark Office’s New Director appeared first on Certum Group .

“Show Me the Money” – Diverse Teams are a Revenue Driver and Not Just the Right Thing to Do

Fri, 07 Mar 2025 19:54:00 GMT

Certum’s Legal Director, Kirstine Rogers, co-authored an article with Molly Pease of Curiam Capital, an important article for the Legal Funding Journal to recognize International Women’s Day.

—

As our country continues to debate the pros and cons of diversity, equity, and inclusion programs in the government and private sectors, the litigation finance industry would be well served by remembering that diverse teams make companies better. Indeed, several studies have explored the link between diversity initiatives and increased profitability in organizations and found that a more diverse workforce can positively impact business performance, innovation, and profitability.

There are many reasons for this. First, representation matters. Whether it is getting a phone call for a potential new investment opportunity from a female general counsel who wants to see diversity in the team she might be working with or being able to hire top talent who want to work with a diverse team, better opportunities present themselves to litigation finance market participants when those firms present a diverse and capable team. Second, a diverse team allows for more diverse networking opportunities, which encourages investment opportunities from a wide variety of sources. And finally, and potentially most importantly, diversity of backgrounds, skills, and expertise allows for a risk assessment in underwriting investment opportunities that is less likely to miss potential risks or pitfalls that a more narrow-minded team might not see. Better underwriting decisions result in better investments, which results in more revenue for the company.

Diversity need not be a mandate for it to be an intentional and profitable choice.

“If you build it, they will come.”

Does your company reflect the world of your counterparty or their counsel?

Research has shown that consumers are more likely to buy from or engage with businesses that appear to understand their specific needs, often through shared demographic traits like race, gender, or age. Businesses that reflect their target consumers’ characteristics and values are more likely to foster trust and client loyalty. The same is true in commercial transactions with counterparties and their counsel. In entering into a funding agreement, you are forming a potentially long-term partnership. Communication and trust are essential to the success of that relationship. You only maximize the likelihood of that success with the diversity of the decision makers on your team.

Companies with inclusive environments are also more likely to attract top talent and retain employees. Why wouldn’t a firm cast the widest net possible?

“Nobody puts baby in a corner.”

Having a diverse workforce also increases opportunities for connection and visibility in the market. It provides a vehicle for commonality – a shared experience, history, or perspective. This is because similar backgrounds make it easier to communicate, share common goals, and find mutual interests, which in turn can lead to individual career opportunities and company-wide growth.

Diversity-based industry groups like the Women of Litigation Finance (WOLF) facilitate interaction between market peers, provide leadership and speaking opportunities, and lead to collaboration between companies seeking to work together. Bar associations also frequently have smaller diversity-based committees that provide a smaller community from which to network and form connections. Bigger fish. Smaller pond. Stronger bond. And these genuine connections formed on shared experiences can lead to exponential networking growth. A familiar face at one industry event only leads to more familiar faces at the next one.

This is true for thought leadership too. If every member of a panel of speakers looks the same and does not reflect the different faces in the audience, there are people in that audience your panel is not reaching. If every article is written from the same perspective, there are readers who are not listening.

“You’re gonna need a bigger boat.”

At its core, the litigation finance industry assesses risk. The better a firm can do that – whether it is a funder, a broker, or an insurer – the more profitable it will be. Risk assessment involves seeing things that others might miss and making sure no stone gets left unturned.

There are many components of a due diligence risk assessment, including reviewing the strength of the legal merits of the claims, assessing the credibility and testifying potential of key witnesses, and predicting what arguments or defenses will be presented by opposing counsel. A diligence team with diverse backgrounds, experiences, and perspectives will be better at identifying risks and assessing the value of potential claims. For example, a funder will often speak extensively with key witnesses to assess how they would present testimony at trial and whether a jury would find that testimony credible and persuasive. If a trial team were conducting a mock jury to test these points, it would assemble a diverse panel of men and women from different ages and backgrounds to get various views on the testimony. Similarly, a funder trying to make its own internal assessment will be better served by a diverse team with a variety of perspectives. If everyone in the room has the same basic background, characteristics, and experiences, they are likely to see things similarly and thus miss key factors that could be important in determining the impact of the testimony. And this is only one aspect of a risk assessment. Each step of the diligence and risk assessment process would benefit from analysis by a diverse team. The biggest concern in the litigation finance industry is that a funder, broker, or insurer misses a significant risk in their assessment of a legal asset and finds themselves funding an investment that has a low chance of success in hindsight. A diverse team will protect against this outcome and therefore drive revenue for industry participants.

“You talkin’ to me?”

At the end of the day, the value of meaningfully implemented diversity initiatives is clear. Having the benefit of differing experiences and perspectives makes companies better. And, as to litigation finance in particular, diversity without question strengthens the return on investments.

But just having a diverse workforce does not necessarily result in a better company or improved profitability. The company needs to foster an inclusive environment where diverse perspectives are valued and integrated into decision-making processes and where those selected as thought leaders demonstrate how diversity is implemented, prioritized, and integrated into company culture.

In honor of International Women’s Day, make this a call to action – what can you do at your company to ensure you have the broadest perspectives represented? Ask yourself, does the panel you are sponsoring completely reflect your target client base? Does your leadership team include those with different perspectives? Does your company provide women with networking and mentoring opportunities?

After all, diversity presents an opportunity for someone at your company to collaborate with other market participants to write an article just like this.

The post “Show Me the Money” – Diverse Teams are a Revenue Driver and Not Just the Right Thing to Do appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Too Big a Slice? What’s Next for Attorneys’ Fees in Claims-Made Settlements?

Thu, 06 Mar 2025 17:42:00 GMT

The Ninth Circuit’s recent decision in In re: California Pizza Kitchen Data Breach Litigation sheds new light on the viability of a claims-made settlement in that Circuit. While the 2-1 decision affirmed the lower court’s decision that the class action settlement was fair, reasonable, and adequate, the court took issue with the attorneys’ fee award and remanded for additional scrutiny and likely “downward adjustment.” Below is a brief overview of the case and its key takeaways.

The case stemmed from a 2021 data breach in which over 100,000 CPK employees’ personal information was compromised. One group of plaintiffs quickly negotiated a claims-made settlement with CPK, which would provide valid claimants with: up to $1,000 for ordinary expenses; up to $5,000 for identity theft losses; 24 months’ worth of credit monitoring services; and $100 (as part of the $1,000) in statutory damages for California residents. The settlement was uncapped, meaning there was no overall limit as to how much CPK ultimately would have to pay. Finally, CPK promised not to object to class counsel’s fee award so long as it did not exceed $800k.

Counsel for another set of plaintiffs objected to the settlement as collusive and to the attorneys’ fees requested as excessive, arguing they could “negotiate a better settlement for the class.”

The Central District of California overruled the objection and approved the settlement, even though only 1.8% of the class filed a claim. And despite expressing “tremendous concern” over the scope of attorneys’ fees, in a “sparse written order,” the district court awarded the full $800k in attorneys’ fees and costs. The other set of plaintiffs timely appealed.

The Ninth Circuit quickly homed in on a critical risk in any class action settlement: that “class counsel may collude with the defendants, tacitly reducing the overall settlement in return for a higher attorneys’ fee.” Under In re Bluetooth Headset Prods. Liab. Litig. , the court identified three “subtle signs” of collusion:

Counsel receiving a disproportionate distribution of the settlement;

The parties negotiating a “clear sailing arrangement” under which the defendant agrees not to object to an agreed-upon attorneys’ fee; and

A “reverter” clause that returns unawarded fees to the defendant rather than the class.

If these three indicia are present, then a settlement “must withstand an even higher level of scrutiny….”

Here, the Ninth Circuit found that all three indicia were present. Nevertheless, the court held that their existence does not render a settlement “per se collusive,” noting that it was satisfied that the district court “fulfilled its heightened obligation to ferret out any evidence of collusion or other conflicts of interest.”

As for whether the settlement satisfied Rule 23’s requirement that it must be fair, reasonable, and adequate, the court found that it did, in part because there was adequate compensation to the class and real risk and uncertainty of prolonged litigation. In closing, the court underscored that lower courts “do not have a duty to maximize settlement value for class members.” Rather, a court’s task is “much more modest,” namely, “ensuring that the class settlement is fair, reasonable, and adequate.”

Because the settlement was not conditioned on the approval of an attorneys’ fee request, the court was able to vacate the fee award without undoing the settlement approval. So, it did.

The court explained that under both the “lodestar” and “percentage-of-recovery” methods, the $800k in fees did not pass muster, and the district court’s barebones approval explanation was ultimately its death knell. Specifically, the court pointed out that the district court had both questioned the $687k lodestar and “appeared disinclined” to approve fees of more than 25% of the recovery. Yet, at the end of the day, the district court did just that, “even though the attorneys’ fees constitute around 45% of the settlement value to the class.” Because the trial court failed to provide an adequate explanation for the fees, the Ninth Circuit reversed and remanded, with strict instructions for the district court to scrutinize the reasonableness of plaintiffs’ lodestar, with the expectation that the results “will likely favor downward adjustment.”

First , the Ninth Circuit reiterated that it has “never held that claims-made settlements are per se inadequate under Rule 23(e).” So claims-made settlements remain a viable option in the Ninth Circuit.

Second , clear-sailing provisions, in which the defendant agrees not to object to an application for attorneys’ fees up to a certain amount, remain disfavored and should be avoided.

Third , to avoid heightened Bluetooth scrutiny in claims-made settlements, parties should consider building into the settlement that any reduction in attorneys’ fees should inure to the benefit of the class through a pro rata adjustment of the benefit.

Fourth , while competing sets of plaintiffs’ counsel can often complicate settlement and yield accusations of “reverse auctions,” the Ninth Circuit is once again on record that courts do “not have a duty to maximize settlement value for class members.”

The Ninth Circuit’s decision strikes a balanced approach that preserves claims-made settlements as a viable option while ensuring appropriate scrutiny. By following the court’s guidance—particularly by avoiding clear-sailing provisions and structuring settlements so fee reductions benefit the class—litigants can create claims-made settlements that provide meaningful benefits to participating class members while offering defendants the certainty of resolving claims.

***

Certum Group, the industry leader in structuring class action settlements, can help defendants in class action litigation evaluate the litigation options and design an optimal settlement structure that is backed by full risk transfer to an insurer. Certum Group offers two insurance solutions for defendants in class action litigation.

Class Action Settlement Insurance (CASI) provides companies with the certainty they need to get back to business. It is the only product on the market that allows companies to mitigate, cap and transfer the financial risk of settlement in existing class action litigation. Designed by Certum Group in response to businesses’ need for financial certainty in class action lawsuits and resulting settlements, CASI eliminates the unintended consequences of settlement and helps businesses exit litigation for a known, fixed cost.

Litigation Buyout (LBO) Insurance provides companies with the ability to successfully ring-fence litigation exposure and transfer the full financial risk of class action, antitrust, and non-class litigation. With LBO Insurance, the insurance carrier takes on the financial risks and liabilities for businesses – at any time before settlement and for a known, fixed cost. In the context of an M&A transaction or financing, LBO Insurance negates the requirement for the use of escrows or indemnities, providing certainty and finality to both parties to the transaction.

Contact us today to learn more about our creative insurance solutions to resolve existing or ring-fence threatened or existing litigation for a known, fixed cost.

The post Too Big a Slice? What’s Next for Attorneys’ Fees in Claims-Made Settlements? appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

“All Things Litigation” Podcast: Kirstine Rogers on the interplay of litigation funding and insurance

Tue, 18 Feb 2025 14:30:00 GMT

As both the litigation funding and litigation insurance industries grow, Certum Group Legal Director Kirstine Rogers recently appeared on Ted Farrell’s All Things Litigation Finance Podcast.

Rogers talked about the diligence process that funders undertake before investing in a case. At first, litigation funding “sounded a little too good to be true,” Rogers said. “Now that I’m on the other side of it, I see how much work and effort is put into ensuring that those cases are as good as everyone says they are.”

She also discussed how funders’ expertise in navigating high-level strategic decisions can add value to both litigants and counsel. “We have to function like the best of the contingent fee lawyers, and the best of the defense lawyers” when evaluating and monitoring cases, she said.

Rogers also talked about Certum’s role as the sole U.S. provider of both litigation finance and litigation insurance solutions. “We have an insurance arm and a funding arm … We like to think ourselves as a risk-transfer platform, so there really is a third bucket of risk that we’re interested in, that may look like some combination of funding and insurance.”

The podcast is available here .

The post “All Things Litigation” Podcast: Kirstine Rogers on the interplay of litigation funding and insurance appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Will Marra Discusses the Future of Litigation Finance

Tue, 28 Jan 2025 18:04:00 GMT

The litigation funding landscape has transformed dramatically over the past decade, becoming an integral part of the modern legal industry. Certum Group Director William Marra was recently interviewed in a CDR article discussing the current and future state of the litigation funding market.

“Ten years ago, and maybe even five years ago, a lot of lawyers had maybe heard of litigation funding, but they didn’t necessarily know what it was,” Marra told CDR. “Today litigation funding is integral to the business models of many and maybe even most law firms.”

Marra also weighed in on the regulatory landscape and recent efforts to require disclosure of litigation funding. “Judges have actually been addressing that question for many years,” Marra said, “and a very strong trend among the decisions is that these materials should not be disclosed to the defendant, either because the material is not relevant to the case, or it’s a protected work product or attorney-client privilege material.”

The full article is available here .

The post Will Marra Discusses the Future of Litigation Finance appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Webinar: Litigation Funding 201 – Wlliam Marra and Kevin Skrzysowski at PLI

Tue, 21 Jan 2025 14:09:00 GMT

On January 21, 2025, Certum Group’s William Marra and Kevin Skrzysowski held a panel in conjunction with Practising Law Institute (PLI), tackling litigation finance from A-Z. The panel highlights the latest issues facing the industry, best practices for terms and pricing, and what the future holds in this industry. Other key topics covered include:

how lawyers can use funding for business development
the three stages of the litigation funding process
best practices for getting your case funded
special considerations when it comes to funding an IP matter
the key components to include in a litigation funding memo
…and much more!

Click here to watch the full program. https://hubs.ly/Q032gMgt0

The post Webinar: Litigation Funding 201 – Wlliam Marra and Kevin Skrzysowski at PLI appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Rapunzel: A Litigation Finance Story

Wed, 18 Dec 2024 17:09:00 GMT

This holiday season, Certum Group made another children’s book… about litigation finance.

Rapunzel: A Litigation Finance Story

When Rapunzel was locked in a tower, her only move was to build a silken ladder to climb out.

That didn’t work out so well.

Ever found yourself wishing she had litigation funding to sue the witch for her release?

Wish no more! Check out our children’s book.

Come for the heartwarming tale of access of justice. Stay for the plot twist about the witch’s rueful efforts to get discovery into Rapunzel’s litigation funding.

The post Rapunzel: A Litigation Finance Story appeared first on Certum Group .

Schwartz and the Retroactivity of BIPA

Mon, 16 Dec 2024 20:05:00 GMT

In August 2024, the Illinois legislature, with much fanfare , amended the Illinois Biometric Information Privacy Act (“BIPA”) to limit how much a plaintiff could recover each time its biometric information was inappropriately captured by a defendant. The amendment explained that when an entity subject to BIPA “in more than one instance, collects, captures, purchases, receives through trade, or otherwise obtains the same biometric identifier or biometric information from the same person using the same method of collection” in violation of BIPA, the entity “has committed a single violation … for which [it] is entitled to, at most, one recovery.” This amendment ensured that BIPA, which previously allowed for damages of either $1,000 or $5,000 per scan, would be less lucrative going forward. Following the amendment, one question remained: should it apply retroactively?

Change vs. Clarification

In Schwartz v. Supply Network, Inc. d/b/a Viking SupplyNe t¹, which was filed pre-amendment in 2023, Judge Alexakis of the Northern District of Illinois answered this question. According to the defendant, Viking SupplyNet (“Viking”), the amendment merely clarified that “BIPA does not— and never did —allow for an award of statutory damages on a ‘per-scan’ basis.”² Conversely, the plaintiff, Jeffrey Schwartz, argued that Illinois law presumes that amendments are intended to change, not clarify, “the law as it previously existed,” and while that presumption “may be overcome” if the legislature declares it was clarifying a prior enactment, such a declaration must be about more than the public statements of a handful of lawmakers.³ The Northern District of Illinois sided with Schwartz.

Judge Alexakis discussed the 2023 Illinois Supreme Court decision, Cothron v. White Castle Sys., Inc. , which called on the Illinois legislature to review “policy concerns” regarding potentially excessive damages and “make clear its intent regarding the assessment of damages under the Act.”⁴ According to Judge Alexakis, Cothron was not discussing an ambiguity in the text; indeed, Cothron “found the statutory language here clear.”⁵ Absent an ambiguity, Judge Alexakis found that the amendment was a change , and thus, the only question is whether it should be applied retroactively.

Retroactive Application

Under Illinois law, the first question for retroactivity is “whether the legislature has clearly indicated the temporal reach of an amended statute.”⁶ Because the Illinois legislature did not, Juge Alexakis went on to the decisive issue: “whether the amendment is substantive or procedural.”⁷ In finding the amendment substantive, Judge Alexakis explained: “the basic question of whether Schwartz has been injured just once or injured more than a thousand times strikes the Court as a matter of substance, not of procedure.”⁸ Accordingly, the Northern District of Illinois held that “Illinois law compels that the amendment be applied prospectively, not retroactively.”⁹

Ramifications

For Schwartz, the ramifications are easy: he can proceed with his litigation against Viking and seek redress for the more than 1,000 times his biometric information was allegedly collected, seeking at least $1,000,000 in penalties. More globally, however, it means that any and all plaintiffs who filed BIPA cases prior to the August 2024 amendment are not limited by the amendment. That is, unless the Illinois legislature wants to revisit this once again. Only time will tell.

1 No. 23-cv-14319 (N.D. Ill.) (“ Schwartz ”).
2 Schwartz at 3.
3 Id. at 3-4.
4 Id. at 5.
5 Id. at 6.
6 Caveney v. Bower , 207 Ill. 2d 82, 91 (2003).
7 Schwartz at 9.
8 Id. at 11.
9 Id. at 12.

The post Schwartz and the Retroactivity of BIPA appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Data Insights – Best Practices For Working With Your eDiscovery Partner

Wed, 11 Dec 2024 15:45:00 GMT

On Episode #30 of the Alternative Litigation Strategies podcast, host Kevin Skrzysowski sits down with author and technology evangelist W. Curtis Preston to discuss the latest eDiscovery challenges, strategies, and best practices for law firms and in-house legal departments. Kevin and Curtis discuss what surprises lawyers the most about eDiscovery, the challenges of extracting backup information, the increasing complexity of dealing with mobile devices, and best practices for selecting and working with your eDiscovery provider.

This transcript has been lightly edited for grammar and clarity.

Kevin Skrzysowki:

Welcome to the 30th episode of Certum Group’s podcast, Alternative Litigation Strategies, where I interview industry leaders in the legal marketplace from the top companies, firms, and academic institutions across the country. On this program, we discuss the latest trial strategies and trends impacting the litigation industry. I’m your host, Kevin Skrzysowski, a Director with the litigation consulting firm, Certum Group, where we specialize in working with businesses and their outside counsel to mitigate cap and transfer litigation outcome risk through our suite of finance and insurance solutions.

Today we have a very interesting program because we’re going to dive into a topic we’ve never covered on this program before, and that is the latest e-discovery challenges, strategies, pitfalls, and best practices that law firms should be aware of today. And to discuss this topic, I am pleased to be joined by W. Curtis Preston, AKA, Mr. Backup, a technology evangelist with S2DATA, an author of four books on modern data production, and the host of the podcast, The Backup Wrap-up. Curtis, thank you for joining the program today.

W. Curtis Preston:

Anytime, glad to be here.

Kevin Skrzysowki:

Curtis, maybe it would be a good idea if we started just by you telling us about the current business you’re involved in, S2DATA, and the range of services that you provide.

W. Curtis Preston:

So we like to talk about turning difficult things into opportunity. We tackle a lot of the really difficult technical problems that are behind a lot of different things. One part of the company specializes in the legal side of things, which is what we’re going to be talking about today, electronic discovery. On that side, we also do forensic services, imaging, every kind of computing type device, which is a giant tent that includes everything from a cell phone to a dash cam, right?

And then on the other side, we also work with IT departments that are managing their legacy data. So in our world, what that means is just as companies move forward in technology, they often buy new things, right? They buy new services, they move from this backup software to that backup software, and that leaves behind other sort of orphaned technology, which we call legacy technology. And then we help them manage the part of their company that perhaps a significant part of their IT department doesn’t know how to manage. So, we help with that as well.

Kevin Skrzysowki:

So really a full service, service 360 degree, e-discovery and computer technology services that you provide. Now, since we’re going to focus really on the legal industry today, can you tell us a little bit about what percentage of your client base are law firms and/or in-house counsel, and what are some of the particular services that you offer to them?

W. Curtis Preston:

Yeah, so I’m going to say it’s probably 60/40. That is a very unscientific number based on the fact that I don’t run the books. So based on what I see in the meetings, right? We spend a lot of time in our meetings talking about the various e-discovery services that we’re providing, and we spend a lot of time talking to lawyers, either in-house counsel, or third-party counsel to help people with those types of things.

And when we look at those, I’d say the biggest service that we’re providing is this, a client has been presented with an e-discovery request, and they either don’t have the resources to do it, or they are presented with a significant, and then we’ll talk about this, I’m sure, significant technical challenge in satisfying that request. Right? So we’ll step in and basically get all of the data that they need to get. We do that in such a way that we have a very documented and proven methodology, and we can then provide the data and we can provide an affidavit as to how that data was procured. And even depending on the client, even testifying on the stand if that’s necessary.

And then also very closely related to that but on the back end, very different, is this idea of forensic discovery. So if there’s a lawsuit or a potential lawsuit, then what we’re able to do is take, as I was saying before, phones, laptops, dash cams, security systems, any sort of thing that’s recording data and then storing it electronically. We can image that. One of the biggest things, I think there is text messages. So there are a lot of lawsuits that come down to who said what to when, and text messages are the modern equivalent to email. Email, of course, would be the biggest thing that we’re pulling out of a typical e-discovery request, but text messages you can retrieve directly from a cell phone.

And then we also have, as part of that service, one of the challenges is that when the text messages come out, they’re kind of ugly. They’re often in a spreadsheet, which is the way most people do it, but we’ve figured out a way to present them back to the client and therefore be able to present in court to look like the way they would have looked on the cell phone with… You’re familiar with the green on the left and the blue on the right, all that stuff?

Kevin Skrzysowki:

Sure.

W. Curtis Preston:

Preserving the order of the conversation and who said what and when and how, and we’re able to do that as well.

Kevin Skrzysowki:

Very interesting. I want to dive into some of the technical challenges that firms face and I want to talk a little bit more about specific challenges around text messages. But before we get there, can you just perhaps give us in just layman’s terms, an overview of what the e-discovery process really looks like?

W. Curtis Preston:

Yeah, so on your side, it’s pretty straightforward. We need all of the emails that Curtis wrote in the last five years that contain these three words, right? Or we just need all of the emails, we’re not sure what to look for but we need all of the emails written from Curtis to Steve. The requests can be all sorts of different filters. Before any discovery request comes in, a company is on a very regular basis, just any company or governmental organization, or a non-profit, they are most likely any reasonable company is backing up their data.

Kevin Skrzysowki:

Backing up the data, right.

W. Curtis Preston:

Yeah, on a regular basis they’re doing it, and they’re typically doing it actually every day, right? So you’ll do a full backup, which would back up everything. You do that every so often, and then every day you’re doing what we would call an incremental backup, backing up the data that’s changed. And you’ve been doing that and you hold onto that data for, in my opinion, far longer than you should, unless you have some sort of regulatory reason to hold onto it. But people will hold onto that data for five years, seven years, whatever, maybe even 10 years. And then you get this discovery question that says, we’ll pull out all the emails from Curtis to Steve.

The problem is that, two things, one is, again, speaking specifically in the US, right? The FRCP guidelines say that if you’ve got the data, you have to surrender it, right? It doesn’t say, well, if you’ve got the data but it’s in an inconvenient format, you don’t have to surrender it, right? But the problem is that the data is stored in backup format, which was never intended to be used as a source for e-discovery. It’s meant to be used as a way to bring back your server to the way it looked yesterday, or bring back your laptop because you dropped it and it shattered into a million pieces. That’s the purpose of backup.

And so when an e-discovery request comes in, the process of pulling the data out of these, just to speak specifically of email, pulling email out of the backup is an incredibly huge, very painful process that can take many, many months using many, many people. And also, a significant amount of resources from a technical perspective, meaning the hardware, the computers, and the storage and the tapes and the disks, all of that. It requires a significant amount of resource, much more than they would typically do in a typical week.

Kevin Skrzysowki:

And what I think I’m hearing from you is that there’s tapes and there’s disks, there may be cloud storage. So I know having worked for many legal information technology companies for last 20, 25 years, they invest or reinvest in different enterprise software and computer systems. I would imagine that these systems have changed over time and now you have to go back and try to extract that data from many different formats, from many different systems, through many different filters. Is that one of the main challenges?

W. Curtis Preston:

I’d say, yes, that is definitely one of the challenges-

Kevin Skrzysowki:

Sure.

W. Curtis Preston:

… in that, the more often you’ve switched up your backup technology, the more often you’ve changed it up. You talked about changing the backup software, you talk about moving to one of the big tape drives that we use, it’s called LTO. That’s easily the predominant tape technology for the last 10, 15 years. But there’s LTO-1, 2, 3, 4, all the way up to LTO-9, and you move forward in these tape drives in order to keep up with the latest technology. And you cannot read, for example, an LTO-1 tape and even an LTO-4 drive. There is a certain amount that you can do, but the more tapes you have and the more often you’ve changed it over the years, the more complicated the process becomes.

But the real challenge is not so much the hardware, it’s actually the software. Again, going back to what I was saying earlier, that the problem is that the format that it’s put onto tape or onto disk or in the cloud, the format was never written or stored in a way to allow you to retrieve it the way a lawyer is looking for. You go to pick your favorite backup software product with I’d say one exception, I can think of one backup product, if you purchase their extra feature that they have. Most backup products, if you go to it, there is no interface to go to say, give me all of the emails from Curtis to Steve for the last three years. It just doesn’t exist.

So what you end up having to do is, let’s say you’ve got a request for three years worth of emails. You go to three years ago and you restore your entire email system to the way it looked three years ago, and obviously you’re not doing this to your production system, you’re doing this to some alternate system. So of course this means more resources. You’re restoring it to that system and then you’ll extract from that system, you just start up this email server and you run a search against the email server for what it is that you’re looking for, and you create, a common format would be a PST file, in Exchange. So you create this Exchange file that contains the emails that you were looking for from three years ago, and this is going to take you many, many hours, maybe days, depending on your level of competence and resources you have available to you. And then you do three years minus a week ago, and you do the whole process again, and then you do three years minus two weeks ago, and you do the whole process again.

And so you’re doing, if you’ve got a weekly full backup of Exchange, which Exchange is a very common email backup system, if you’ve got a weekly full backup of Exchange, you’re looking at 52 times three, all restores of your system, followed by an extraction each time. It is an incredible process that needs a significant amount of hardware, a significant amount of time and expertise, because this is a very complicated process that you need to be able to defend in court. And so it’s just, the problem is really that you’re using a tool that was never designed to do what you need it to do in order to do what you need to do.

Kevin Skrzysowki:

It sounds like almost every matter almost takes a Herculean effort to compile all this so that it’s in a usable and digestible format and can be shared in discovery.

W. Curtis Preston:

I may sound like Henny Penny here, but it’s a significant effort. It’s so easy for a lawyer to say, “Hey, here’s the e-discovery request. Hey IT guys, go figure that out.”

The other part of this that, yes, just number one, it is a really difficult, technologically challenging problem because the product that you’re using to do it was never designed to do what you want it to do. But number two, you also typically have in today’s environment, IT departments with zero resources because they’re already stretched thin, and so they barely have the resources to accomplish what it is that they’re supposed to be doing. And then on top of that, you give them this Herculean effort.

So it’s a real challenge, and either one of two things happens. Either basically the IT department gets the significant impact to them and they’re able to do it in a, what a judge considers to be an acceptable amount of time, or they could actually take too long or make mistakes. So that would be the worst, is make mistakes along the way, and your risk is you get an adverse inference instruction from the judge that basically is the death knell of a lawsuit, right? Say, look, nobody could be this bad at reading their tapes, just assume that they’re trying to hide something, right? And there’s a famous case or infamous case with Morgan Stanley versus Coleman Holdings back in 2005 where that exactly happened and they lost a $2 billion lawsuit as a result. So, that’s sort of the problem.

Kevin Skrzysowki:

Now, and e-discovery has been around for a number of years, but I would imagine when you’re working directly with attorneys and you’re trying to explain how labor-intensive this is, how many resources it requires, how many different iterations of hardware and software you need to perform this function, they must be quite surprised at the length of time, especially when you’re dealing with lawyers, especially partners who are used to giving an assignment to an associate and say, “Draft this brief, or give me a reply and I need it by the morning.” Right?

W. Curtis Preston:

Yeah, here, go figure it out. Yeah.

Kevin Skrzysowki:

Do you find that this is incredibly surprising to lawyers and it’s challenging for them to digest?

W. Curtis Preston:

It is, it’s challenging for a couple of reasons. One, it requires understanding some rather technical nuances, right? And also, IT people, I mean, I love them, they’re my people, okay? I’ve been in IT for over 30 years. We kind of have a history of going, oh, that’s really hard. I don’t want to do it. Right? And so that doesn’t help. And so what they hear when an IT person is trying to say, “Look, what you’re asking me to do is actually really, really difficult.” I think the very natural response is to not believe it or to think that they’re exaggerating it.

And I guess what I’m trying to do, and by the way, I’ve always had this. I’ve worked for S2 now for about nine months, and it’s not like I’m just now singing this tune. I’ve been talking about this for years, that backup was never intended to do e-discovery. And what I’ve historically been pushing people to do is if they’ve got a reason to keep data for many, many years. To not use the backup system, to use a different kind of system, which is called an email archive system, but nobody’s been listening to me. So the vast majority of the IT departments, they don’t have the time or the budget to create an entirely separate system just in the, I don’t know what the… Hopes is the wrong word, in the thought that they might someday get an e-discovery request, right? They’ll just say, “Look, we’ll just do backup.” And then they also get surprised when they find out just how difficult it is. So yeah, IT departments are surprised. So the lawyers, if they’ve never interacted directly with their IT department with an e-discovery requests, I do think lawyers are quite surprised.

Kevin Skrzysowki:

And then how do you get the information so that it’s actually in a usable, shareable format in discovery? I mean, when lawyers are doing discovery, they do a request for production of documents, requests for emission interrogatories, and it’s simple like English prose, it’s just English language written down on a page and they can read the answers to it. When they’re doing an e-discovery and they’re trying to extract emails from many years ago that might be on a tape, what does the information look like when it comes out and how do you get it so that it just looks like written English language and can be shared during the discovery process?

W. Curtis Preston:

Yeah, so you need some type of format of a file that we can all agree on. Usually, 90% of the time we’re talking about Exchange, which is, it’s either Exchange or it’s Exchange replacement, which is Microsoft 365, which is their cloud version of that. But all of these can be exported into a format, a common format would be a PST. That is a format of a file that could be fed into a review platform that then allows them to sort and play with it and search against it easily. It is English. You can open up, you can take Outlook, which is a piece of software to read email, and you can open a PST file and you can look at it and it all looks normal and you see emails and you can search against it. But what most people are going to do is they’re going to take that and import that into a review platform. And there are several of those out there. But the hard part is getting it out of the very proprietary backup format and into that exportable format.

Kevin Skrzysowki:

Understood, okay. Now we’re talking about emails that are exchanged, or maybe there’s some other types of communication systems within the enterprise of the law firm or the corporate legal department. You had mentioned cell phones earlier, that’s a whole nother animal. I mean, those are not connected, hardwired to the communications infrastructure necessarily in a firm, right? These are going through another proprietary network of cell towers. How do you deal with that problem? And then, what about the issue where people might be using their personal phones for business use, and how does that fall under the guise of e-discovery, and what unique challenges does that present?

W. Curtis Preston:

Yeah, that’s a great question and there’s no easy answer, right? And I don’t think I have a good answer there, in terms of the personal cell phone. I will say that even if you’re using a personal cell phone for company work, the data that’s on that phone is still company property and I would think, this is more a legal question than a technical question, and that is that you could certainly attempt as opposing counsel, you could say, “I want everything that every time this guy was texting this guy, I want all those, even if it’s on personal cell phones.” And I would think that you would probably be able to demand that discovery.

Where I really come in is assuming that has happened, whether it’s a personal cell phone or a company’s cell phone, how do you get those messages? There’s two ways. One is, you can actually subpoena the communications company and potentially get the data that way. But another and probably more common way, and this is where we get involved, is you just get that phone. Right?

Kevin Skrzysowki:

You physically get the phone.

W. Curtis Preston:

You physically take that phone for a period of time and you extract directly from that phone. Again, this is highly specialized, requires very expensive software to extract that data off that phone. And then you have, you talk about human readable, it’s human readable, but it’s not very pretty. Think of a spreadsheet, which is what typically does, but we’ve figured out a way to present that in a much more human readable format, where it’s literally just an image that you can see who behind and what the conversation was.

Kevin Skrzysowki:

Almost like screenshots, yeah, like a rolling screenshot and reverse chronological.

W. Curtis Preston:

Right.

Kevin Skrzysowki:

Okay. So you’ve raised a lot of the unique challenges that law firms and in-house departments are facing today, and a lot of the pitfalls to try to avoid. If you were to sum up, just what do you think is the biggest challenge that is facing law firms today when it comes to e-discovery? And how does S2DATA solve it? What would that be?

W. Curtis Preston:

Yeah, so I’m going to say that it’s the format, the backup format that most of the data that you’re trying to extract is sitting in, right? It’s sitting in this very proprietary format on a tape drive or a disk or a cloud, and it’s in this weird format that most people are not going to be able to read. And then if you’re using the backup software to try to do it, the backup software was never designed to do it, so it doesn’t know what to do. And so like I said earlier, you’re presented with a Herculean task, I love your term there. Presented with a Herculean task of just doing it over and over and over again and extracting the data. It is a huge task to do.

The way we’ve figured out to do is we have figured out how to go directly at the data, basically just ignoring the backup software that wrote the data in the first place. We’ve written proprietary software that knows how to directly read the backup disk or tape where that data happens to reside, and we’re able to directly extract. You can tell us, “We’re looking for PDFs with this name, we’re looking for emails from Curtis,” and we can directly extract that and do this like as a… Before, remember how I said you have to do this full restore and then individual extractions? We’re able to do that as a single pass and do it much literally like an order of magnitude quicker for two reasons.

One is we have this proprietary software that’s written specifically for e-discovery. And two, that we have specialists that this is all they do. And three, we have a ton of hardware, whereas the typical IT department, they have just enough servers and tape drives and storage arrays, whatever it is that they’re using to get the backup done. They have just enough hardware to get the job, their normal everyday job done. We have an entire bank of tape drives that are just in robots and all that kind of stuff that are just sitting there waiting to do e-discovery requests. Right? So we can be doing simultaneous e-discovery requests for multiple clients, and we can automate it in such a way that it can run 24 hours a day. So it’s a purpose built system with a lot of extra hardware and people with expertise, is how we’re solving this problem.

And so, what the customer can do is they can literally say, “We have this e-discovery request. It looks like this. These are the things that we’re supposed to find. Here’s all our tapes, here’s all our disks, whatever it is, and just handle that for us.” And we actually have… Different clients, we work with different ways. Some are, they don’t want their data to leave their building, but some are fine with sending us their backups. We purchased a former bank, so we actually have a vault, an actual vault that we’re storing tapes in. So we take the tapes in, we can do it as a full service where you just send us your backups, we do with them what you want.

We also put all of the data, once we’ve scanned all of the tapes, we extract the metadata. There’s another technical term, so the metadata is all of the information about the emails, right? So the backups, when they were done, who they were from, all of that sort of stuff. We put that data, file names, all of that sort of stuff. We put that up into an online portal that can be searched against for further requests, or we can do this on premises for a customer that doesn’t want send their data out. But basically, you just outsource the entire operation.

Kevin Skrzysowki:

Understood. I mean, it sounds like with the proprietary software that you’ve developed, and I’m sure there’s a proprietary algorithm, my words embedded in there, so that you can complete the discovery request. The massive amount of infrastructure that you’ve built and the security that you have in your vault, you’ve really created a best-in-class e-discovery service for law firms and in-house counsel.

W. Curtis Preston:

Yeah, absolutely. And by the way, we even handle encrypted tapes. So for those that don’t know, when you write a backup tape, you can actually encrypt the backups as you’re writing it to tape, and actually the tape drive does that. There’s an encryption key that’s stored somewhere. You give us that key, and we can actually decrypt the tapes, again, without the backup software, which is very nice.

Kevin Skrzysowki:

And now that’s-

W. Curtis Preston:

So-

Kevin Skrzysowki:

… the forensics portion of your business?

W. Curtis Preston:

No, it’s just part of the backup. It’s just part of interfacing with a backup system. A normal backup software product, anytime it wants to interact with encrypted tapes, it has to pass the key to the tape drive and says, “Hey, I need to read this tape. Here’s the key,” and then the tape drive would decrypt it. We just do the same thing. Our proprietary piece of software, which is called TRCS, by the way, T-R-C-S, and it just basically pretends to be the backup software and says, “Hey, we need to read this tape drive. Here’s the key.” Right?

Kevin Skrzysowki:

Well, it sounds like you’ve created some very efficient solutions for very common problems that are plaguing the litigation marketplace. This has been a very interesting conversation, a lot of this I really was unaware of. As we’ve discussed, many lawyers are aware of the complexities of fulfilling and satisfying an e-discovery request. So, if you had maybe one piece of overarching guidance you could give to a firm or in-house counsel to help or to produce a best practices in e-discovery, what would it be?

W. Curtis Preston:

It’ll sound self-serving but it’s still my best advice, and that is, don’t do it yourself. It’s far more complex than you think it is. It’s far more expensive than you think it is to do it yourself. You think you’re saving yourself money by doing it yourself, but it will extend the time out significantly to the point that depending on how things go, you could end up looking like you’re trying to hide something to a judge. And that is, as I mentioned earlier, it’s a disaster. Right?

Kevin Skrzysowki:

That is not good.

W. Curtis Preston:

So if you’ve got a company like S2DATA that can do it for you, it will save you money in the long run and potentially actually help win the case. Now, here’s a perfect thing. Everybody thinks they’re innocent, right? Everybody thinks either they didn’t do it. There’s a million innocent people in prison, right? No company wants to think that they’re the ones that did the thing. They want to thank that the smoking gun email is not there. If that’s truly the case, having a third party go and search all of your backups thoroughly with a proven methodology documented, that you then have either an affidavit or someone testifying on your behalf to say, “Look, this is what we do for a living. We have searched all of the backups. The smoking gun email isn’t there.” That, there’s nothing more powerful than that from a defense standpoint.

Kevin Skrzysowki:

What you’re providing to that business, you’re proving it and you’re giving them the certainty that backs up their belief that they truly are innocent or not liable or right. Right?

W. Curtis Preston:

Absolutely.

Kevin Skrzysowki:

I think that’s an excellent point to finish up on. Well, Curtis, this has been a really interesting conversation. I want to thank you for joining the program today. I appreciate all of the really interesting and valuable insights you provided into the world and the technical challenges of e-discovery. Thanks for being on.

W. Curtis Preston:

Anytime.

Kevin Skrzysowki:

Now, if any members of the audience or any firms or in-house counsel who are listening to this podcast would like to get a hold of you, what would be the best way to reach you?

W. Curtis Preston:

So I’m CPreston@S2data.com. That’s S2, the number two, data.com. We actually have an offer on, so if you go to S2data.com/podcastoffer, I created a, basically, if you’ve got… So many people have a drawer of tapes, a pile of tapes, and they don’t know what’s on them. And you’re like, can these people really just scan my tapes and figure them out? And the answer is, yes. So we have an offer if you go to that, basically, we’ll scan one of those for you for free to show you what we can do and show you how easily we can solve that problem for you.

Kevin Skrzysowki:

I think that’s a great offer. Thanks again for being on, and of course, as always, I want to thank the audience for listening. If you’d like to hear more, please be sure to follow us on Apple, Spotify, Stitcher, or anywhere you listen to your favorite podcasts. And if you’d like to learn more about the litigation, insurance, and funding solutions that Certum Group provides, please visit our website at www.certumgroup.com. That’s C-E-R-T-U-M Group, or you can always reach out to me at KevinS@certumgroup.com. And until next time.

The post Data Insights – Best Practices For Working With Your eDiscovery Partner appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Contingent Risk Insurance Conference

Mon, 18 Nov 2024 14:46:00 GMT

On November 14th and 15th in Washington D.C., Ross Weiner and Will Marra were on different panels discussing the current state and future of litigation funding and insurance. Here are some key takeaways:

The litigation insurance industry has been hamstrung by a series of well-publicized losses (or cases that are likely to lead to losses) while not benefitting from the myriad cases on which insurers have succeeded. The industry needs to do more to publicize the victories to offset the sting of some of the defeats.
For cases in which litigants are looking for insurance ( e.g. , judgment preservation insurance or adverse judgment insurance), a paramount concern to insurers should be the litigant’s motivation for seeking the insurance. If the story is not compelling, there is a higher likelihood that adverse selection is at play.
According to Paul Clement, there is no question that bigger judgments get more scrutiny on appeal, but as a society, that is a proposition we should welcome.
In any litigation insurance deal, it is critical to align incentives. If a bound insurance policy completely disincentivizes settlement, you are likely looking at a misalignment of interest. This can be addressed through higher retentions and judgment preservation insurance for some—but not all—of a judgment.

To learn more about the Contingent Risk Insurance Conference, click here.

The post Contingent Risk Insurance Conference appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

The Benefits of Leveraging Trial Psychology with Drs. Jaine and Bo Fraser of the Trial Psychology Institute

Mon, 04 Nov 2024 14:45:00 GMT

In the latest episode of Certum Group’s podcast, Alternative Litigation Strategies, host Kevin Skrzysowski had the pleasure of speaking with Drs. Jaine and Bo Fraser of the Trial Psychology Institute. You don’t to miss this episode to learn about the benefits of leveraging trial psychologists, when you should engage with them, the critical importance of the research process, voir dire and opening statement phases, and how to turn your case into a winning story.

This transcript has been lightly edited for grammar and clarity.

Kevin Skrzysowski:

Welcome to the 29th episode of Certum Group’s podcast, Alternative Litigation Strategies where I interview industry leaders in the legal marketplace from the top companies, law firms and academic institutions across the country. On this program, we discuss the latest trial strategies and trends impacting the litigation industry. I’m your host, Kevin Skrzysowski, a director with the litigation consulting firm, Certum Group, where we specialize in working with businesses and their outside council to mitigate cap and transfer litigation outcome risk through our suite of litigation finance and insurance solutions. Today we have a very interesting program because we’re going to dive into a topic we never covered before and that is trial psychology and I’m pleased to be joined by Doctors Jaine and Bo Fraser, founders of the Trial Psychology Institute, where they have helped many of the country’s best litigators win their most challenging cases. Jaine and Bo, welcome to the program.

Dr. Bo Fraser:

Thanks Kevin for having us.

Kevin Skrzysowski:

Now, Jaine, you founded the Trial Psychology Institute about 25 years ago. How prevalent was the use of trial psychology at that time and what were some of your motivations for founding the institute?

Dr. Jaine Fraser:

It was really in its fledgling stage. Almost no one was looking at their trial from the perspective of what jurors would be thinking, and jurors are the decision makers. They’re the ones that decide if you win or lose. When I started doing this, it was very rare that there would be a trial consultant on the other side because it was some new. My motivation, I really was not motivated to get into it. It was a wonderful coincident accident. I was a treating psychologist in private practice. One of my patients sued her employer and the lawyer who was representing her came to see me and had me testify as a treating psychologist. Then started calling me, asking me questions about various cases as did her friends, and the rest was history.

Kevin Skrzysowski:

It’s a very interesting story. So I’m assuming that the science itself then has evolved in those fledgling stages. What are some of the biggest evolutions in the science that you’ve seen over the past 25 years?

Dr. Jaine Fraser:

I would say that the fact that there is any science at all, is this one of the things that evolved. Most of the research that has been done has been on criminal cases, the value of eyewitness testimony, are there false confessions, those kinds of things. But there’s been very little still in civil litigation. That’s where social psychology comes in. Social psychologists are the experts on how people form opinions, how they change opinions, how they are persuaded.

Kevin Skrzysowski:

Very interesting. Now as the complexity of litigation has evolved, I assume that the breadth of your offering has evolved as well, and looking at your website, trialshrink.com, which is I think a great name by the way, I see that you offer a very wide breadth of services, really a full 360 degree solution for litigators. Can you take us through the breadth of services that you offer?

Dr. Bo Fraser:

Sure. Most of what we do take place before trial, although we’re often engaged during and after trial for various things as well. What people come to us most for is voir dire or voir dire, depending where you’re from, you’ll have to bear with me for saying voir dire. We obviously attend a trial to help with jury selection and pick your jury, but a lot of the training with voir dire happens with the attorney, especially people who are new to working with us. We’ll work with them on understanding our method, crafting an outline that’s custom tailored to their case and everything else that goes along with voir dire preparation. We also do pre-trial research, focus groups, mock trials, whether it’s in a small rural town or a big city that requires a different format. That’s another thing. We custom tailor to the needs of each client.

We do a lot of witness preparation. That’s something people are not always aware that we do until we start working with them and then we say, “Hey, this guy needs some work,” and so they’ll engage us to help, whether it’s a lay witness or an expert witness. Opening statement construction is another offering that we have and we use a visual storytelling method. A lot of times attorneys will build their presentations based on what they feel is important to the case, getting all their facts and their loads of text and data and charts and evidence. And more often than not that not only puts people to sleep, but it’s so much information that jurors just throw in the towel and they give up on trying to understand. So this is something where psychological principles really come into play, not only in terms of organizing information to a digestible way, but a persuasive way.

And I’m fortunate to have worked in some other industries during college and grad school where I got to be pretty savvy with PowerPoint. So I kind of cut out the technological middleman and I take over the reins myself. I played the role of the consultant and the PowerPoint creator and do it all myself. I like to be in control of all that stuff because less gets lost in translation. During trial and post trial that sometimes Jaine or I will sit in on trial as an observer who is not an attorney. That’s one of our biggest strengths, is just simply not having the perspective of an attorney. So we’ll sit and observe trial and offer feedback, but the power of that process is amplified by using what’s called a shadow jury, which is when group of people, ideally six or so, maybe sometimes four people sit and observe the entire trial.

And the goal is to have that shadow jury mirror the actual seated jury as closely as possible. So the logistics of getting that done are interesting and challenging, but we’ve never had a shadow jury return a verdict that is different than the verdict of the actual jury in terms of whether it was a defense or a plaintiff verdict. And so that offers attorneys a glimpse into the minds of their jurors at every stage of trial, getting feedback at every break at the end of each day. So that is very valuable offering. And then after trial we do post trial juror interviews. As you might expect, this is more popular when you lose than when you win. People aren’t wondering, why did I win? They like to think they know why they won, but fortunately rare case where a client does not come out on the winning side, we’ll call jurors and ask them what their thoughts were. And so those are post trial juror interviews.

Dr. Jaine Fraser:

Couple of things to what Bo said, if I may. One is that you were talking about witness preparation, Bo. We prepare witnesses for their deposition and then we will prepare them for their trial testimony. That’s very different. We will also give lawyers questions to ask the other side when they are deposing witnesses from the other side. So those questions can be shown to the jurors later. They’re kind of complicated. They’re very simply asked questions, but they are designed just for the juror appeal. So I’m just going to make something up. Working for the plaintiff. Let’s say that you would say, did you make sure that these random drug tests were actually being given every month? Well, blah, blah, blah. Looking back now, do you wish that that’s something that you would’ve done? Do you think that was fair to injured plaintiff for you not to have followed through that? Do you think that having something in your procedure manual and not following through with it means that you are actively doing what you’re supposed to do? Those were some bad examples.

The other thing I wanted to say is that we’ll have people call us and say, “Our client did a terrible job in their deposition. Can you come get them ready for trial?” And in some ways, that’s like taking a dead dog to the vet. What are we supposed to do with that? You want to start in the process earlier rather than later, whether with your pretrial research, with your framing of the case, with your deposition preparation, all of these things are better done sooner than later.

Kevin Skrzysowski:

I think that’s very interesting. And I was going to ask you if during witness prep you ever engaged with a potential witness who didn’t perform well and it drove the decision not to put them on the stand or it actually drove the trial strategy not to go forward in that direction. I also find it just fascinating how the shadow juries have always correctly predicted the outcomes of the cases. I would find that alone to be absolutely invaluable from a litigator’s point of view. Very interesting. Now, you had mentioned finding out early in the case and Bo, you had mentioned why the research component and voir dire and opening statement phases are the most critical phases, and that’s when people come to you. I’m a former litigator, I know why that is, but not everybody may. Can you talk a little bit about why those stages are so critical? And let me piggyback that with another question I was going to ask, which was at what point in the trial process do people usually engage with you and is that different than when they should engage with you?

Dr. Bo Fraser:

The clients who worked with us the longest, they know to call us early. The moment they take a case, they line up, they get us booked for their jury selection day, they tell us we need to have a pre-meeting. There’s not even a name or purpose for the meeting necessarily. It’s just let’s talk to Jaine or Bo, get their thoughts and see what we need to do. So I mean we go in with a blank slate with the clients who work with us the most frequently. That being said, there’s that extreme and then there’s the, “Hey, I’m picking a jury on Tuesday. Can one of you all be there?” We get that too. And some of those people are our best clients. It’ll be a case they didn’t expect to go. They expected it to get pushed or settled, and we’re there for that too.

But we are able to do the most damage with the former, with the client who says, “Jaine and Bo, we need you here from day one.” Sometimes our input will be welcomed and needed where they didn’t expect it to be. So it’s just a trial companion as opposed to pigeonholing us to one specific task, is when we feel we are able to have the most positive impact on a case.

Kevin Skrzysowski:

Yeah. So getting in the earlier, the better, especially you ca probably identify some red flags in the case, which can help the lawyers drive the trial strategy.

Dr. Bo Fraser:

Yeah, I mean I think a lot of, sort of an unwritten offering that we provide is in those really early stage meetings we’ll come in and say, “Hang on, hang on. I hear you telling me this is your story. This is what you think your pattern of evidence is telling you. But this is what I’m hearing from an outsider’s perspective, from someone who is not as invested in the case and familiar with it as you are, here’s your real story, here is your human nature relatable story, good guy, bad guy. Also, the timing of when to introduce different elements of that story to maximize the impact.” That’s the perspective that we bring to the table that is sort of not something you can give a label to like those earlier offerings that I was talking about earlier. That’s sort of an in between the lines added value that we provide and we’re able to do that only when we’re brought in super early before that story has evolved to the point where you can’t change it as much.

Kevin Skrzysowski:

Because that’s what you’re looking for almost from client intake, is how would I eventually present this to a jury and what is the story as to the strengths of my client’s case or the strengths of my client’s defense as well? I believe it’s like the tagline on your website says, which I believe probably represents your overall philosophy, but lawyers know law, we know people. We think like lawyers all the time as well. So let me ask you, in terms of coming in early, has anybody ever come to you and consulted with you to help them decide whether or not to even onboard a client?

Dr. Jaine Fraser:

That has happened. I love doing that. It’s one of my very favorite thing. I have an out-of-town firm flies in once a year and says, “We’re considering these three cases or we’re consider”, or they’ll bring three that they want our input on. And often ends up being that the case that they thought was their best case, our opinion may be that’s really your worst case. That’s going to be a hard one to win. I remember on one they thought it was a throwaway, they were even going to take that client and it turned out to be a very profitable case for them.

Kevin Skrzysowski:

Well, we say that in our business, in the litigation funding and insurance business as well. We may review many cases before deciding to take one. And what we’ve realized over the years is that deciding what not to take is more important than deciding what to take.

Dr. Jaine Fraser:

Really good.

Kevin Skrzysowski:

Yeah. Because if you bring on a bad case and you have a problem child client, it can cause big problems and it can suck a lot of time across your entire organization. So that’s very critical.

Dr. Bo Fraser:

Along those lines, one thing that we bring to the table is that we see such a high volume of cases because an attorney might, three or five cases for a given attorney would be a huge year. We’re working on 30 cases a year across different industries because we’re brought in for game day. We don’t have to work, invest as much time as an attorney does in the case obviously. So that gives us the benefit of having exposure to such a wide variety and volume of cases, which gives us the perspective that Jaine was sort of alluding to. Given your exposure to all these different types of cases, what’s my case worth? We sort of are pretty good litmus test of that sort of thing.

Kevin Skrzysowski:

Okay. So at any given point in time, how many cases would be on your docket?

Dr. Bo Fraser:

Oh, man.

Dr. Jaine Fraser:

I mean, we’re doing something different almost every day. Last week we were running a focus group in Delaware for a copyright case and today I’m doing voir dire prep for a catastrophic injury.

Dr. Bo Fraser:

Got a jury next week for a auto case. I mean, it’s just all over the place all the time. It’s really hard to say, countless. I mean, the cases that we have, especially if you broaden the horizon to people who reached out to us for stuff six months or a year from now, there’s got to be 20 things we could potentially be working on, 20 different cases at any given time.

Kevin Skrzysowski:

Okay.

Dr. Jaine Fraser:

Before we get too far away from it, I cannot overemphasize the importance of doing pre-trial research. Isn’t what you think is important, and it really to a certain extent, it’s what Bo and I think it’s important because we see more of that, but what’s really matters is what the jury thinks is important. If I were a lawyer, I would no more take a case to trial that had a number of zeros behind it and potential value without doing at least one pre-trial research.

Kevin Skrzysowski:

And then in terms of, just so the audience understands, when you say pre-trial research, what are the components of that? What goes into that?

Dr. Jaine Fraser:

It is custom-made. We do this for whatever the firm is we’re working for and it can be as small as just getting a little bit of feedback from a group of unbiased people to a two-day mock trial. Bo, why don’t you?

Dr. Bo Fraser:

Sure. So I think, to answer your question, it always involves getting feedback from a group of unbiased people who are representative of your community. If you’re on a shoestring budget, get six people around a coffee table and have a neutral moderator read both sides and just get them talking about your case. If your budget’s a little more forgiving, then a focus group with two groups of 12, that’s one of our bread and butter offerings, is we’ll have a morning group and an afternoon group. The attorneys will present two times, one in the morning, one in the evening, and you’ll get feedback from 24 people all in one day. People know that getting feedback from these unbiased people about your case has tremendous value. That’s why people run focus groups. A sort of lesser-known ancillary benefit is that the attorneys themselves have a dress rehearsal, and it’s not that they’re unfamiliar with presenting, that’s not what I mean.

It’s they get to practice their story, they get to see what sticks, and then if they do this early enough, this guides their discovery. This guides their depositions. They know what they need to get into their story because they’ve already run a focus group and they know which elements were most important to the jury and that guides everything they do. The attorneys often walk away saying, “I’m so glad I did this now even though it was a pain and even though I had to put this stinking PowerPoint together for this little focus group,” they’re so glad they did it and that feeling is amplified the further in advance they do it.

Kevin Skrzysowski:

A couple of follow-up questions to that. So I work mostly with AM Law 100 attorneys and sometimes depending upon what firm you’re at, like that person thinks they’re the smartest person in the room. And now you could be this high-powered attorney, whether you’re on the defense side or the plaintiff’s side and you’re speaking with just members of the community. Are there things or what are the top three things that lawyers do that turn off jurors or just turn off the common person who was seated in a jury? Does sometimes ego play or the expensive suit, I mean, does that get in the way? Does that make a difference?

Dr. Jaine Fraser:

It depends on whose doing it. I mean, there are some people that absolutely can rock that, they can do it, get away with it and it become part of the whole production. I had one lawyer say to me, I want them to know I’ve been here before and I won and he had on his gold cuff links. But then there are others who we want them there in or in sport coat with patches on their sleeve. It depends on the person, it depends,-

Kevin Skrzysowski:

The jurisdiction.

Dr. Bo Fraser:

I can think of two, I’m trying to think of three. It’s true to Jaine’s point. Some people can get away with something and other people can try the same tactic and not pull it off because it’s just not their style. So I think jurors are really good about sniffing out phoniness. Vice President Harris supposedly put on a Southern accent and people jumped on her about it. That sort… You can’t try to be someone you’re not and jurors will sniff that out right away. Another thing that is a big tick off for jurors is going really hard after a witness when you haven’t earned the right to, when you have earned the right to be mean to them or go for the jugular and go for the kill. You think you’re getting this big moment because you got them to admit something, but if you don’t finesse it right, you just look like a big jerk who’s beating up on someone who doesn’t deserve it. Those are common pitfalls I would say, is trying to be someone you’re not.

Dr. Jaine Fraser:

Yeah, and one other thing we say lawyers go to law school and get a lawbotomy and they forget how to speak English. I mean, jurors are your decision makers and regardless of how educated they are, they tend to be pretty smart people and they’re looking for who’s right, who’s wrong, who are the good guys, who are the bad guys, who are the truth tellers. You need to simplify your information enough so that they can, without any kind of technical jargon, really understand at the highest level, that top 10% level the story that you’re trying to get across. They are unlikely to work and this is a change I’ve seen over 25 years. To go back to your first question, people do not like to think slow. They do not like to think deeply. We’re very used to having our information given to us very quickly and in small bits. If a lawyer is expecting their jury to go to a deep level and really understand the little ABCs and tiny Roman numeral one, two, threes, you’re going to lose them.

Kevin Skrzysowski:

Well, to your point earlier, I think you had referenced that one of your goals is to tell a human story and a winning story that’s relatable. Just so the audience knows, you had mentioned all these different types of matters that you work on. What are the types of cases that you do handle or is it easier to say, are there any types of cases that you don’t handle?

Dr. Jaine Fraser:

We don’t do very much criminal work.

Kevin Skrzysowski:

Okay.

Dr. Jaine Fraser:

There are certain kinds of criminal cases that I choose not to work on, but with civil cases, I mean I really can’t think of,-

Kevin Skrzysowski:

All across the gamut. Personal injury,-

Kevin Skrzysowski:

B2B, individual,-

Dr. Bo Fraser:

Contracts, IP, employment, malpractice, legal malpractice.

Kevin Skrzysowski:

The full civil spectrum, really.

Dr. Bo Fraser:

Truly.

Kevin Skrzysowski:

Okay. All right. Now, what are some of the questions or concerns that people may have when they come to you for the first time?

Dr. Bo Fraser:

I’ve got one, and it’s a little in the weeds, but it’s so common. I can almost guarantee any new client we work with is going to ask this question. I bet Jaine could fill in the blank based on this buildup, but it’s when we’re giving our voir dire, voir dire outline one of our primary goals is to generate conversation among jurors and from the get-go prevent jurors from even implicitly thinking that this voir dire process is where the lawyers talk and I listen. We want the exact opposite to be implied, that this is a time where it’s at the very least a dialogue and if anything, the jury panel does more talking than I, the lawyer.

Here’s the biggest concern when we introduce that method, the attorney always says, “Well, what if people don’t answer? What if I get crickets?” That they’re always terrified of silence and being left hanging, so to speak. So that is a common concern when they hear about sort of the foundation and our approach when it comes to voir dire, and first of all, that rarely happens in a room of whether it’s 30 or 200 jurors. Someone nice out will have some sympathy for this poor juror who’s not getting any responses and they’ll speak up. But it’s just funny that that’s a huge concern and it’s so ubiquitous among attorneys. They’re afraid of not getting responded to, and I’m not exactly sure why that’s so common.

Kevin Skrzysowski:

The fear of silence. We’re about out of the time, so let me just ask one final question. Anything you have to say about your overarching business philosophy or your approach, or what would you say about someone who’s thinking about leveraging a trial psychologist, but they’re just maybe on the fence?

Dr. Jaine Fraser:

Sometimes it’s difficult if you haven’t used a consultant before to see what the value is. Once you have used a good consultant, it becomes very clear, and we’ve had many attorneys tell us they would never go to trial without us again.

Kevin Skrzysowski:

I think that’s well said, and I think that makes sense and it draws parallels to our industry as well. We’ve worked out some cases with some folks and they said, “I don’t know why anybody would never not consider an insurance option to cap downside risk.” It provides certainty, just like one of the overarching goals of your institute, is to provide people with certainty as well, and I think that’s very interesting. Jaine and Bo, thank you very much for joining the program today. I really do appreciate all of the valuable insights into the world of trial psychology that you shared with us today. Now, if any members of the audience would like to contact you to discuss the services that you offer, what would be the best way to reach you?

Dr. Bo Fraser:

Visit our website, trialshrink.com. There’s a contact form there or you’re welcome to email info@trialshrink.com.

Kevin Skrzysowski:

Excellent. Thank you again for being on the program.

Dr. Bo Fraser:

Thank you, Kevin.

Kevin Skrzysowski:

\And of course, as always, I’d like to thank the audience for listening. If you’d like to hear more programs like this, please be sure to follow us on Apple, Spotify, Stitcher or anywhere you’ll listen to your favorite podcasts. And if you’d like to learn more about the litigation, insurance and funding solutions that Certum Group provides, please visit our website at www.certumgroup.com or you can always reach me directly at kevins@certumgroup.com. Thank you.

The post The Benefits of Leveraging Trial Psychology with Drs. Jaine and Bo Fraser of the Trial Psychology Institute appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Judge Bibas’ Recent Opinion in Design With Friends v. Target Continues the Trend of Courts Limiting Discovery into Funding Arrangements

Thu, 10 Oct 2024 17:03:00 GMT

One of the biggest open questions in litigation finance is the degree to which funding documents and related communications are discoverable in funded litigation. As of last week, the industry had received helpful guidance from trial courts, from legislatures, and from bar associations. Now, following Judge Bibas’ September 27, 2024 opinion in Design With Friends Inc. v. Target , we have authority from a federal court of appeals judge, albeit one sitting in a trial court by designation in the District of Delaware. That authority continues to underscore three key points: (1) pre-suit diligence into a claim is protected by the work-product doctrine; (2) even if it were not protected, such documents are not relevant to the facts and circumstances of the funded litigation itself; and (3) any contrary position would significantly impede the policy underlying the work-product doctrine, which aims to create open and collaborative discussion amongst legal professionals in pursuing or defending claims.

The Lawsuit

In 2021, Design with Friends sued Target in the District of Delaware, accusing the retailor of infringing its copyright and breaching a contract. The plaintiffs sought financial backing for the lawsuit from Validity Finance, which conducted due diligence before agreeing to fund the case. This process included signing nondisclosure agreements and reviewing sensitive documents provided by Design with Friends’ legal counsel. These documents contained detailed legal analyses, strategic plans, and damage assessments, all of which were crucial to Validity’s decision to fund the litigation. Target sought these documents in discovery and Validity moved to quash.

The Court’s Ruling on Work Product

The court began its analysis by noting that the work-product doctrine has a three-part definition: (1) documents and tangible or intangible things (2) prepared in anticipation of litigation (3) by or for a party or its representatives, including lawyers, consultants, and agents. The first prong was uncontested, and the court’s analysis of the remainder strongly suggests a desire to keep funding documents protected.

For example, in addressing the “prepared in anticipation of litigation” prong, the court explained:

whatever work product’s precise scope, it includes these documents. They are confidential documents created by lawyers to evaluate the strengths, weaknesses, and strategy of an impending lawsuit. While those documents informed an investment decision, they did so by evaluating whether a lawsuit had merit and what damages it might recover. That is legal analysis done for a legal purpose .

See Design with Friends, Inc, et al., v. Target Corp. , No. 1:21-CV-01376-SB, 2024 WL 4333114, at *2 (D. Del. Sept. 27, 2024) (emphasis added).

And it was equally unequivocal in its finding relating to the final element, finding that Validity was clearly Design’s “representative” for purposes of work-product protection:

The final question is whether Validity created these documents as Design’s representative. … A “representative” includes a “consultant … or agent.” So, the work-product doctrine protects the work of the caravan of consultants, accountants, and experts who follow modern litigants to trial. That includes Validity: it not only funded Design’s lawsuit but also consulted on the suit’s strategy and progress . ¹

The Court’s Ruling on Relevance

One of the more telling passages in the opinion is the following, in which Judge Bibas acknowledges that a litigation funder’s analysis is “hardly relevant” to the underlying dispute:

When it comes to details about Validity, any negligible value is outweighed by the burden on a nonparty. Target already knows that Validity is funding the suit and that it does not need to approve a settlement. Further minutiae about Validity are hardly relevant to whether Target infringed a copyright or breached a contract years before Validity entered the picture .

The Court’s Interpretation of Policy

Importantly, the court specifically noted that a contrary ruling allowing for burdensome discovery would discourage open and honest discussion among clients, their lawyers, and third-party consultants:

Work-product doctrine is “intensely practical …, grounded in the realities of litigation in our adversary system.” In litigation finance, one of those realities is that financiers need to evaluate the strength of a case before agreeing to fund it. These internal discussions leave a revealing trail of mental impressions, legal theories, and strategic notes—all created as confidential internal documents or sent under nondisclosure agreements, and so written with vulnerable candor. If the work-product doctrine did not protect these records, then plaintiffs who got litigation finance would need to expose these confidential attorney impressions to their opponents. That would chill lawyers from discussing a pending case frankly . The work-product doctrine was created to prevent that result . ²

In other words, denying the motion to quash would directly and forcefully contradict the very purpose of the work-product doctrine and lay the groundwork for future systemic issues.

* * *

At Certum, we read this opinion as further underscoring the intuitive notion that the facts and circumstances of a dispute are what is relevant in discovery—not the legal opinion and valuations of lawyers who are retained, often years after the disputed conduct, to underwrite a litigation for purposes of possible investment.

¹ Id. at *3 (emphasis).

² Id. (emphasis).

The post Judge Bibas’ Recent Opinion in Design With Friends v. Target Continues the Trend of Courts Limiting Discovery into Funding Arrangements appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Litigation Finance – An Academic Perspective from Penn Carey Law School

Thu, 03 Oct 2024 17:02:00 GMT

In the latest episode of the Alternative Litigation Strategy Podcast, I had a fascinating discussion with Professor Tom Baker and Lecturer in Law, Will Marra, about their litigation finance course at the Penn Carey Law School. We explored the history, economics, business practice, law, and social implications of this burgeoning field. We discussed this new asset-class of investor backed litigation finance offered on a non-recourse basis which is transforming law firm behavior and client relationships. Tom and Will stressed the importance of how the course weaves in lessons and experiences of the financial pressures of practicing law and how lawyers must work to not only meet the legal objectives of their clients, but their business and financial objectives as well. Lastly, we discussed the importance of considering liability, damages and collectability when taking on a case and the critical importance of merging ones understanding of the business of law with the practice of law.

This transcript has been lightly edited for grammar and clarity.

Kevin Skrzysowki:

Welcome to the 28th episode of Certum Group’s podcast, Alternative Litigation Strategies, where I interview esteemed members of the bar from the top law firms, companies and academic institutions across the country. On this program, we discuss the latest litigation trends, strategies, technological and academic developments across the litigation marketplace. I’m your host, Kevin Skrzysowki, a Director with the litigation consulting firm, Certum Group, where we specialize in working with businesses and their outside counsel to mitigate cap and transfer litigation outcome risk through our suite of litigation finance and insurance solutions.

I would like to note that just last week, social media aggregator and ranking organization Feed Spot, named this program one of the top 10 must follow litigation podcasts of 2024, and that’s because we cover exciting topics with super smart guests, and that trend is certainly going to continue here today. Today we have a very interesting program because we’re going to discuss litigation finance from an academic perspective, specifically a course on litigation finance that is taught at the University of Pennsylvania Carey Law School, by my two guests.

Today I am honored to be joined by Tom Baker. Tom is the William Maul Measey Professor of Law and Health Sciences at the University of Pennsylvania, where he is on the faculty of both the Carey Law School and the Wharton School. Tom is a highly regarded insurance expert, a leading scholar of insurance law and policy, and a devoted law teacher. And for only the second time in 28 episodes, I’m joined by one of my trusted and devout colleagues, Will Marra. Will is a director at Certum Group, where he leads our litigation finance vertical and our overall litigation finance strategy. He is also a lecturer of law at the University of Pennsylvania Carey Law School, where he co-teaches the courts on litigation finance with Tom. Good morning, Tom and Will, and thank you for joining the program this morning.

Tom Baker:

Good Morning.

William Marra:

Good morning. Thanks for having us.

Kevin Skrzysowki:

Absolutely. So perhaps the best place to start this conversation, Tom, would be to have you tell us a little bit about your background. What interests you in the field and what led you to develop a law school course on litigation finance?

Tom Baker:

So I mean, I am an insurance expert and I found my way to litigation finance really, through two paths. One is, I built this database of insurance claims and I was contacted by a bunch of litigation funders asking me to help them figure out which of these claims were better and which ones were not as good, and that was super interesting to me.

And then I started reading in the field, came across Will Mara’s excellent Vanderbilt Law Review article, and realized that as a expert in the 150-year-old first third party litigation finance industry, known as liability insurance, I might have something to bring to the table. And the tried and true way that I extend my knowledge is by teaching a seminar about something and taking the students on a kind of guided tour through the unknown. And that’s how I met Will and that’s how I started teaching the seminar.

Kevin Skrzysowki:

I think that is very interesting, especially the repository of quantitative analytics that you compile because data drives decision making. And one of the reasons I believe that our underwriting team at Certum is first in class is because of the data that we have compiled on different types of settlement strategies and commercial litigation strategies over the past 10 years. So it’s very interesting.

You had mentioned that you came across Will’s Vanderbilt article, I’m assuming that’s why you married up, and now Will, everybody knows you’re the darling of the litigation funding marketplace for all of the incredible work that you’ve done over the past couple of years. But how exactly did you become involved with the course and work with Tom to structure the content of the course?

William Marra:

Yeah, I object to your description, but otherwise appreciate the question. It’s been great, yeah, so-

Kevin Skrzysowki:

That was actually said, spoken, I never told you the story, by a litigation broker, a funding broker that we work with who will remain nameless prior to you joining Certum Group over a year ago.

William Marra:

And so Tom had invited me to speak, I think the first year that he did the course about the article that I wrote. And then afterwards said maybe offhand that I should co-teach it with him next year, and I took him seriously on that and we’ve been doing it for two years now and it’s been a blast. And I think there’s been a lot of things that I’ve appreciated about it and maybe three very quick ones.

The first is Tom is such a great educator and such a creative thinker and comes at it from a very interesting and unique perspective. It shouldn’t be a different perspective, but this insurance perspective, and you touched on that a little bit, about how insurance really is a third part of this, really is a form of litigation funding in many ways. So that’s one thing that I’ve appreciated about it. The second is the students are phenomenal. And having not yet practiced law, they’re able to come at the questions and the topics that we address from a very unique value-add standpoint.

And third is, what I really appreciate about the course is that it covers not simply legal doctrine but also legal practice. And I think if I look back in my own law school career, I learned a lot about the doctrine of law, not as much about the practice of law, and we try to weave in different lessons and experiences about what it’s like to actually go out there and practice law. What are some of the financial pressures that you and your clients will face? And I think it’s very rewarding to engage with the students at that level as well.

Kevin Skrzysowki:

That’s interesting, how you discussed the doctrine, but also the practical aspects as well. So, let’s discuss some of the specific structure around the course and the topics that you cover, but also from a practical perspective.

We meet with law firms and companies every day. I think in 2024 we’ve probably had 500 meetings so far. And one thing we’re always asked is, give me an example of how this would work. And they always like to throw out hypotheticals. And one thing that’s normally interesting when working with lawyers is that sometimes they have a myopic view of an individual matter and they’re normally approaching things from the legal perspective and how meritorious their arguments are. And you have to sort of do this diametrical shift of thinking so that they’re not only thinking about legal ramifications, but they’re thinking about the financial, the business, and the legal objectives of their client and how leveraging these solutions can help them obtain those objectives. And I think that’s really the important part. So again, tell us about the course, the structure, and how you marry doctrine with practical thought.

Tom Baker:

So let me just jump in because that, what you said, Kevin, reminded me of my very first encounter with the business side of law was when I was a young law professor and I decided I wanted to do a research project where I would be interviewing lawyers to understand how insurance affected their cases.

And so I spent a lot of time and talked to, I was in South Florida at the time teaching at the University of Miami and there’s really great plaintiffs bar down there. And so I interviewed some of the greats in the bar, and they all had this sort of mantra that like, “Hey, there’s three things that I think about when I’m deciding whether to take a case. Liability, damages, collectability.” And one of the guys said to me, “Liability, I’m a good lawyer. I’m going to prove liability damages. Okay, I can make them more or less depending on, but I’m kind of working with the situation but I have some control. Whereas collectability, I have no control.” And that just lit off, I don’t know, lights, action in my head because no one had ever said anything like that to me.

And then when I started meeting the litigation finance people, it’s the same thing. Right? And they also… and I worked, listen, it was a great law firm coming to the Burling, we were suing insurance companies and insurance companies are pretty collectible. So, but I’d never heard that way of thinking about it and I’ve tried to bring that into teaching generally. And I would say that with this class and really especially with Will’s help, it’s sort of like my peak experience of merging business and practice as a law teacher.

Kevin Skrzysowki:

So when you’re going through case studies in the course, I mean, take us through the elements of the case study and the degree to which the students grasp the concepts, because sometimes when we are working with veteran attorneys for 20 years experience, we give them the top-down explanation of how it works. And I have had experienced rain-making litigators at Am Law 50 shop say, “Okay, let’s rewind and talk to me like I’m in kindergarten and let’s go through it again.”

Tom Baker:

Well, so you should, Will should talk about this because he prepared us an amazing case exercise that teaches the students what the levers are. And maybe what you should be doing against having them do the exercise.

William Marra:

Yeah, so I’m a big believer in learning by doing. And so what we did is we have the, I would say there, Tom, let me know if you think about it differently, but I would say there’s kind of three components to the course.

The first is the readings and class discussions, which is engaging with what has been written about the space so that the students can learn about the doctrines and engage with them intellectually. The second is, we have a group of speakers who come into the course who give their own experiences in the industry, but then also typically talk about their careers as well.

And then the third piece is we have this case study that we kind of layer in over the course of the semester. We assign the students roles as either lawyers seeking funding or funders evaluating a funding request. And so half of them put together in groups a litigation funding request memo, so they’re lawyers seeking funding. Then the other half of the class they receive the memo, review it, and write a memo as litigation funders to their investment committee, recommending whether they should or should not fund the case. Then they negotiate a term sheet as the third module, which is really great because most lawyers out there have never seen a litigation finance term sheet. And so these students will graduate having not only seen one but actually negotiated through one.

And then the fourth, maybe the most fun piece is a difficult moment negotiation, where the damages model’s cut down and the law firm has busted the budget, and they have to figure out a way to make it work. And so it’s a little bit of a negotiation class in there as well, which is what much of the business of law is too. And so I’ve found that I’ve learned a lot from the students as they’ve gone through that project, and I think that they’ve benefited a lot from it as well.

Kevin Skrzysowki:

That is a terrific exercise. So basically, instead of doing a mock trial, you take your students and you put them in the different chairs around the mock deal table and have them complete a transaction.

Tom Baker:

And I think the most significant part of it, I agree with Will on this, is really the difficult moments negotiation, because let’s be real, in life stuff happens. And people, you’re going to have to confront that reality, that you’re predicting what’s going to happen and of course something, maybe you’re great at predicting and everything goes smoothly, but lots of times stuff doesn’t. And the students’ experience, what we’ll call kind of pot-committed nature of the funder, that… and, but also the situation of the law firm that is not, things haven’t gone as smoothly as they were supposed to. And so at that point that people realize that it’s really about kind of maximizing joint value in that difficult negotiation and hopefully that fact that they did something like that in law school means that when out there in life when something real happens like that, that the emotions are a bit contained.

Kevin Skrzysowki:

Well, it’s enlightening and it’s memorable because you actually went through the exercise. I mean, the things I remember most about school were competing in mock trial competition, because you actually, you’re exercising everything that you’ve learned. And guest lecturers who were actual practitioners who came in, especially at some of the night courses and they told you real stories about trials they did that day. That’s super valuable.

So, how do students, why do students take the course? I mean, like I had mentioned earlier, we speak with lawyers every day about litigation finance and litigation insurance, and we have statistics on how many actually have heard about these before and how many have leveraged them. And it’s something like half have never heard of it or they’ve heard about it but they don’t understand it. So, how does a student know about this? Why are they interested when pursuing a career as kind of an alternative to practicing? Who takes the course, or this, I’m assuming it’s two L’s, three L’s? Or are these also Wharton business students who are learning about the economics of this from business school and then they come over to the law school to enhance their learning? Talk to me a little bit about that.

Tom Baker:

So the students take it for a couple reasons. That’s every year, and then we do the first class, we go around the room and ask, “Why are you taking this class?” And it’s a minority, but it’s not nothing. They took my torts class, they thought it was fun, and so they figured it’s going to be like, hey, professor Baker, he’ll be good.

There’s always a couple JD MBA students, but what’s interesting, it’s not because they’ve learned about this at Wharton. It’s because they are primed to see this case, whatever, a portfolio, as an asset. And so they want an opportunity to think about it in a financial way. And what those students are amazed at finding out is how little kind of research there is about this. We had one student do a terrific short paper this year on comparing VC to litigation finance, and she came to us and is like, “Wow, there’s all this literature about venture capital. There’s almost nothing about…” I mean, Will’s article is one of, I don’t know if there’s 10, maybe? There’s certainly not 20 articles and not many of them from a kind of more economic or financing perspective.

And then the third category of students are just that they’re hungry to think about law firm as a business and then this is an opportunity for them to do that.

Kevin Skrzysowki:

Well, I think, I mean, this is a growing, I sometimes say burgeoning industry, and I know that’s a misnomer because as you discussed in your course, this concept has been in practice for over 150 years. It’s been leveraged by law firms on a regular basis for decades. But given the unfamiliarity with the concept by so many lawyers, I still say that it’s new and it’s grown. But that being said, I think the next generation of lawyers coming from school who already know this are the ones that are really going to push this and leverage these litigation exchange marketplaces going on into the future. Not just finance, but actually insurance, which takes me to my next question.

So I mean, Tom, you’re an expert in insurance and we’re seeing a massive convergence of litigation funding and litigation insurance in the marketplace right now. In fact, some people predict that in the next couple of years, litigation insurance might overtake litigation funding. And basically as we explain to lawyers, I mean, the reason is they can take advantage of traditional non-course litigation funding, but if they marry the two with litigation finance and they actually hit the insurance markets first, and they procure insurance to give them backend protection, and then they’re seeking litigation funding on the front end. They can then borrow at the most efficient costs of capital that are available in the marketplace because what was once non-recourse is now recourse because the insurance on the backend is now the collateral. So I’m very curious to hear your thoughts on the convergence of the litigation funding with the insurance world and where do you think it might be going?

Tom Baker:

Well, so here’s the thing. I mean, as Will knows, I mean, like I called it, right? I saw this and I said, “Wow, this is going to be like what happened in marine insurance.” Where the original marine insurance was a form of non-recourse loan essentially, and if you think about it, some of my legal friends hate when I use the term loan because they say, “It’s not a loan, [inaudible 00:19:12].” So, but forgive me, when I start talking about loan, I’m talking about borrowing. I’m not meaning in any kind of technical legal sense right here.

But what is a non-recourse loan? It’s actually a loan bundled with a little bit of insurance at the end. And what we discovered with shipping funding and insurance is that it’s more efficient to separate the two portions of that. Namely, some people will specialize in providing that if the bad thing happens, we’ll repay the loan part of the transaction, and other people specialize in the, hey, we’ll give you the money up front and charge you interest, kind of part of the transaction, which seems to be the direction that the litigation funding market is, or a direction it’s heading. And I mean, I don’t know the future, but, and personally I see Will Marra’s move to Certum as evidence of that.

William Marra:

And sometimes I feel like we almost need to update the name of the course. Right? I mean, it’s litigation finance, and we do cover insurance pretty significantly. And a lot of what Tom talks about, in terms of this convergence and frankly similarity, I think also bears not only on the practice, but on a lot of the policy debates around litigation finance too. Because it really points to the fact that the practice of actual or prospective litigants bearing litigation risk with third parties is nothing new at all. It is centuries or maybe Tom, millennial, right? There is a new kind of it now, in a sense. In a sense it’s not particularly new, third party litigation funding. But I think it also bears on some of these policy debates where some folks are trying to regulate a very narrow slice of the litigation risk transfer market, knowing that things like liability insurance are a bedrock feature not only of our legal system, but frankly, of our economy writ large.

Kevin Skrzysowki:

So, how will the course evolve? So you’ve been teaching for three years. Okay, how is the course going to evolve over the next three years? How will the syllabus change? Are there any other schools offering courses like this and do you think they’re going to start?

Tom Baker:

So there’s actually, I mean, so Tony Sebok, Anthony Sebok who teaches at Cardozo, has actually now a casebook out. It’s probably a little more doctrinal than our focus, in part because that’s my… but so I think more places are going to start using it. Brian Fitzpatrick, I think, has taught a seminar on it. There’s a group of, I’m not going to mention names because I’ll leave someone out, but there’s a group of less than 10 people, but 10 people who are serious academic legal scholars who’ve written about it, who certainly could teach a class in it.

And my sense is that more and more of them will, in part because no one’s going to have to start from scratch now. And frankly, when I put the syllabus together for the first time, I didn’t start from scratch either. I called Tony and said, “Hey, can I get your syllabus?” So the person who really started from scratch was Tony Sebok, who from certainly, I mean, I was saying I wasn’t going to name names, but he’s certainly a giant in the field and someone who knows the practical stuff as well as the ethics and other legal aspects of it.

William Marra:

I remember when I first started doing litigation funding over five years ago, we had contacted one of the largest bar associations in the country to do a CLE on litigation finance. And their response was, “We don’t talk about litigation finance. This isn’t something that we talk about.” And obviously that’s changed very significantly at the bar association level and at the law school level, we are starting to see them drop up. And I fully expect that that trend will continue to accelerate. And part of it is, I think the students are very interested in it. It has a flavor of being new and different, and it’s certainly very interesting and is multidisciplinary in a lot of ways, which I think appeals to a lot of students.

Tom Baker:

Yeah, one thing that we teach at Penn Carey Law School to the students is that you want to be constantly learning about things that other people don’t know about. And so the students who take Will’s and my class are going to go to their law firms. Most of our students at least start at law firms, and they’re going to know more about litigation finance and law as an asset class than most of the partners at the law firm. And that that’s something interesting to talk about in interviews, it’s something that shows to the partners you’re thinking about the business of law yourself. So I think the students see it as a career enhancing, even if as they come to realize that there’s not that many jobs in the field compared to big law or other, but. And I say the students, all of them say they emerge from the class with a better understanding of the business side of law, and they’re just very grateful for that. So, that feels good.

William Marra:

Yeah, the example I like to give there is, we were doing a transaction with an Am Law, a 200 firm, and the people in the room on the law firm side were the chair of the firm, one of the deputy chairs, and an associate who was super interested in this topic and she had learned a ton about it. And she had all of the face time with two of the top people at the firm, which I’m sure only apart from the transaction was going to be very good for her career.

Kevin Skrzysowki:

Yeah, I couldn’t agree with you more. I know that ever since the economic collapse of 2008 and the Great Recession, there has been definitely a new normal in the litigation industry, especially among the larger law firms and being able to, like I always say, if you work for an Am Law 100 or you work for a tall building law firm, everybody there is a good lawyer. But being able to practice law is just now as important as understanding the business of law. And if your students are equipped with understanding litigation finance and litigation insurance, that is a distinctive asset that they will have in their professional toolkit that will help them with the business of law aspect of being successful in a legal career.

So gentlemen, I can’t believe it. We’re up against 30 minutes already, which I try to limit the program to that timeframe to stay within the commuter window, since my marketing consultant tells me that most of my 2,000 listeners are probably commuters.

So Tom and Will, I just really want to thank you for your time today in appearing on the program. I think that all of your comments and our discussion and your insights were terrific, and I think they will definitely have great appeal, especially with the younger members of our listening audience. So, thank you.

Tom Baker:

Thank you. It’s my pleasure.

Kevin Skrzysowki:

And of course-

William Marra:

Thank you. Thanks, Kevin. Thanks, Tom.

Kevin Skrzysowki:

Yeah, and of course, I have to thank the audience for listening, and if you’d like to hear more, please be sure to follow us on Apple, Spotify, Stitcher or anywhere you listen to your favorite podcasts. And if you would like to learn about any of the litigation insurance or finance solutions that Certum Group provides, please visit our website at www.certumgroup.com. You can always reach out to me directly at KevinS@certumgroup.com, and if anybody would like to learn more about the University of Pennsylvania Law School or the Wharton School of Business, or any of their course offerings, you can always visit their website at u.penn.edu. Thank you all, and until next time.

The post Litigation Finance – An Academic Perspective from Penn Carey Law School appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

The Benefits of Leveraging Litigation Funding With Insurance

Fri, 06 Sep 2024 14:46:00 GMT

What is Litigation Funding?

Most litigation funders use a traditional funding model by providing non-recourse capital to a law firm or claimholder in exchange for a share of recovery.
The funder’s return is normally calculated by charging a specified interest rate, applying a multiple of invested capital, a percentage of the proceeds, or a combination of the three.
For case portfolios, especially diversified portfolios, litigation funding can be combined with insurance to even further reduce the financial burden of legal proceedings and litigation funding, which brings us to our next point.

What is Litigation Insurance?

Instead of going to the funding market first, companies or law firms can look to insurance to remove the outcome risk.
Just like with a litigation funder, the risk goes through an underwriting
process, but this time, by insurance underwriters who specialize in creating litigation insurance solutions for known, threatened, or pending litigation.
In exchange for a fixed premium, the company or law firm can obtain downside protection through insurance to prevent a total loss of expenses or attorney’s fees incurred in the prosecution of the litigation.

What are the Key Benefits of Leveraging Litigation Funding Coupled with Insurance ?

By leveraging litigation insurance in combination with funding law firms or claimholders can secure financing at the most-efficient cost of capital because the insurance turns the financial from non-recourse to recourse because the insurance is now the financing collateral, not the litigation.
By removing the risk of loss, the cost of litigation funding capital reflects the new paradigm and therefore becomes less expensive and more efficient, allowing law firms and plaintiffs to achieve better results than if they use litigation funding alone.
The bottom line is that when you combine litigation funding with insurance for case portfolios you can efficiently transfer litigation risk, at a much lower cost of capital, because you have downside risk protection, which increases upside potential.

What Sets Certum Group Apart From Other Litigation Funders and Insurers ?

At Certum Group, we created the largest litigation risk transfer platform on the market which is the first and only one that combines litigation funding, litigation insurance solutions on both sides of The V, along with monetization latent litigation assets and premium finance.
The solutions are available as stand-along products, or in combination with each other, such as litigation funding + insurance in order to meet the clients legal, business, and financial objectives.
Our overarching goal is to bring certainty to the uncertain world of litigation through our suite of litigation risk transfer solutions.

The post The Benefits of Leveraging Litigation Funding With Insurance appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Louisiana’s New Litigation Finance Disclosure Statute and the Institutional Preference for Plaintiff Firms Over Litigation Funders

Tue, 03 Sep 2024 17:58:00 GMT

Litigation funding has grown tremendously over the last 10 years and has naturally garnered significant interest from politicians and the public at large. As this awareness has increased, one of the more interesting consequent proposals has been the introduction of legislation requiring disclosure of litigation funding arrangements in court. While these statutes may help ease concerns about transparency in our judicial system, they also reflect a clear institutional preference for the plaintiff bar over third-party funders, which problematizes many of the core arguments against litigation funding as an abuse of the courts.

A statute sent to the Governor’s desk last month in Louisiana helps to clarify the contours of this reality. SB 355 generally requires disclosure of litigation funding by third-party litigation funders. In the statute, ‘third-party litigation funder’ is described consistent with a fairly uncontroversial definition of the practice:

“Third-party litigation funder” means any person or entity that provides funding intended to defray litigation expenses or the financial impact of a negative judgment related to a civil action and has the contractual right to receive or make any payment that is contingent on the outcome of an identified civil action by settlement, judgment, or otherwise ….₁

What is interesting, however, is that the statute then immediately explains that “[t]his term does not apply to: (a) The named parties, counsel of record , or law firm of record providing funding intended to defray litigation expenses related to the civil action.”₂ Similarly, it does not apply to “(c) Counsel of record, or law firm of record, or any referring counsel providing legal services on a contingency fee basis or to advance his or her client’s legal costs .”₃ In other words, the statute requires that litigation funders disclose their participation in a suit, except where that funding is provided by a plaintiff lawyer taking the case on contingency.

A basic example helps to concretize the issue. Imagine you are a small mom-and-pop business that has a fully executed, bulletproof contract to deliver 100 widgets for $100,000 each, representing a total contractual value of $10 million. After entering into the contract, but before performance begins, the counterparty breaches the agreement and enters into a similar contract with a cheaper supplier. The mom-and-pop business almost certainly does not have the money to pay a lawyer hundreds of dollars an hour to litigate the matter, let alone the rack rates of high-end trial lawyers who charge thousands of dollars an hour. But they do have a legal claim that is facially worth $10 million. And they can use that asset to seek justice.

One way to do that is to go to a commercial plaintiff lawyer and see if they will take the case on contingency, which is just another way of saying they will invest their money (via their unbilled time) in a matter. The lawyer will look at the file, do a basic high-level analysis, and ballpark the damages range that they think they can secure through litigation. If the mom-and-pop business and the lawyer are able to come to acceptable terms regarding the lawyer’s compensation for her investment in the case, they execute a retainer. This practice is widespread, uncontroversial, and makes a lot of sense as an efficient way to allow access to our court system. And it’s functionally the exact same thing as litigation finance.

Now, there is another way that the mom-and-pop business can accomplish their goal. They could go to a litigation funder, have the funder conduct the exact same analysis as the contingency fee plaintiff lawyer, and then enter an agreement that provides for funding in exchange for participation in the ultimate recovery. This process allows the plaintiff to retain the lawyer they want (and not just the lawyer willing to do the case on contingency.)

Tellingly, carve-outs favoring plaintiff lawyers are not unique to this statute or to Louisiana. For example, a 2024 litigation funding bill in Indiana explicitly stated that the term “Commercial litigation financing agreement”:

[d]oes not include a civil proceeding advance payment transaction, [or] an agreement between an attorney and a client for the attorney to provide legal services on a contingency fee basis or to advance the client’s legal costs….₄

Similarly, a new litigation finance bill in West Virginia states “litigation financing transaction”:

[d]oes not include: (i) Legal services provided on a contingency fee basis, or advanced legal costs, where such services or costs are provided to or on behalf of a consumer by an attorney representing the consumer in the dispute and in accordance with the West Virginia Rules of Professional Conduct.₅

As a practical matter, all of these laws place onerous requirements and restrictions on litigation funders—except when they are plaintiff lawyers.

Returning to where we began, opponents of litigation funding primarily argue that it leads to a proliferation of meritless litigation by entrepreneurial lawyers. It is incredibly difficult to square that contention with the consistent decision of state legislatures to repeatedly carve out plaintiff lawyers—the original funders in the market—from the recent wave of litigation funding legislation. And I have been unable to find a satisfactory explanation for this incongruity. To me, the preference for one group of funders over another suggests that, at least some , of the argument surrounding litigation funding is animated more by a desire to pick economic winners and losers than substantive policy concerns. In any event, anyone interested in litigation funding policy should continue to monitor the treatment of contingency fee plaintiff lawyers in this evolving statutory environment, as it will undoubtedly continue to shed light on the motivations of the stakeholders involved.

₁ https://legiscan.com/LA/text/SB355/2024

₂ https://legiscan.com/LA/text/SB355/2024

₃ https://legiscan.com/LA/text/SB355/2024

₄ https://iga.in.gov/pdf-documents/123/2024/house/bills/HB1160/HB1160.05.ENRS.pdf

₅ https://www.wvlegislature.gov/Bill_Text_HTML/2024_SESSIONS/RS/bills/sb850%20sub1%20enr.pdf

The post Louisiana’s New Litigation Finance Disclosure Statute and the Institutional Preference for Plaintiff Firms Over Litigation Funders appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Optimal Legal Audio (OLA) – an Artificial Intelligence Platform for Oral Arguments

Thu, 08 Aug 2024 14:57:00 GMT

You don’t want to miss the 27 ^th episode of the Alternative Litigation Strategies podcast where we discuss one of the most innovative and transformative legal technology platforms to hit the litigation marketplace in the last several years – Optimal Legal Audio (OLA). In this episode Certum Group Director, Kevin Skrzysowski , interviews Adam Feldman , a lawyer, political scientist, professor, Supreme Court scholar, and creator of the Empirical SCOTUS Blog, and Badri Narasimhan , an engineer, serial technology entrepreneur, and all-around analytics wizard. Adam and Badri discuss their latest invention – Optimal Legal Audio (OLA) – an artificial intelligent (AI) platform that performs audio and textual analysis of oral arguments to predict judicial decisions. OLA analyzes elements such as word choice, word volume, tonal analysis, and interactions with the bench, to successfully predict votes in State courts, single judge trial courts, the U.S. Supreme Court and more. OLA helps counsel by steering them in the right direction on specific interactions with judges or Justices allowing them to better inform their clients of potential case outcomes. OLA is truly a game changer in Appellate Law.

W. Tyler Perry

October 23, 2025

Litigation Finance and Your Career

Thu, 11 Jul 2024 13:03:00 GMT

On this 26 ^th episode of Alternative Litigation Strategies, Kevin speaks with one of Certum’s Legal Directors, W. Tyler Perry , about leveraging litigation to advance your career – Here’s a summary: back when law was a profession and not a business, landing a job at an established firm reasonably set you up for a long and fruitful career. Firms had institutional clients. Lateral moves among stable firms were rare. And partners cared about mentoring the next generation because the next generation would pay for their retirement. Those halcyon days are long gone. Today, even the most profitable and prestigious firms suffer defections as partners search for the highest guaranteed dollar. The corollary effects of this reality are legion, but one of the more interesting ones is that it has substantively increased the need for associates to take ownership of their careers at an increasingly early stage. In this changing ecosystem, if you want to succeed, you need to be an entrepreneur. And litigation finance can help.

This transcript has been lightly edited for grammar and clarity.

Kevin Skrzysowki:

Welcome to the 26th episode of Certum Group’s podcast, Alternative Litigation Strategies, where I interview with team members of the bar from top law firms, companies, and legal institutions across the country.

On this program, we discuss the latest legal trends and strategies across a wide spectrum of commercial litigation. I’m your host, Kevin Skrzysowki, a director with the litigation consulting firm Certum Group, where we specialize in working with businesses their outside counsel to mitigate cap and transfer litigation outcome risk.

Today is a first for the program because instead of interviewing someone from outside of the organization, I’ll be speaking with my colleague, Tyler Perry, who serves as one of our legal directors.

Hi, Tyler, and thank you so much for joining the program.

Tyler Perry:

Thanks so much for having me. Glad to be on the pod.

Kevin Skrzysowki:

Absolutely. By way of background for the audience, Tyler did his undergraduate studies at NYU, where he was president of his class. He then attended school, law school, at Northwestern’s Pritzker School of Law, where he was their law review notes editor.

Tyler went on to serve as a judicial clerk for the United States Court of Appeals for the Seventh Circuit. And then he worked as an attorney at Simpson Thacher & Bartlett and Reid Collins & Tsai, before joining Certum Group.

Tyler, as one of Certum Group’s legal directors, can you tell the audience what your job entails and what type of matters that you work on?

Tyler Perry:

Yeah, of course. So again, thank you for having me. I’m really glad to be here.

So as a legal director at Certum Group, I’m basically a part of the four person, or five person now, underwriting team. At 30,000 feet, that means I review cases to assess their merits and general value across all of our investment and insurance products. As a practical matter, that process looks like I read the briefs, I read the opinions, I review the law, and I analyze the facts.

For litigators, the best way to think of what I do is kind of like a clerkship. The key difference is instead of providing a recommendation to a judge, I provide a recommendation to our investment committee. If they like the risk, then we move forward with the term sheet and further diligence.

In areas that require kind of specialized knowledge like IP, I tend to work with outside counsel to assess the merits. But otherwise, I mostly shepherd cases through the underwriting process internally.

I also spend a little bit of time sourcing litigation within my network, but that’s a much smaller portion of my work.

About a year into the job, I can say it’s my favorite job I ever had because I get to spend all day thinking about the law without actually having to practice it.

Kevin Skrzysowki:

I think everybody here, the conventional wisdom would be that this is an outstanding alternative path for former litigators. I have to say, the underwriting team is a tremendous value to the infrastructure of the organization. I think our underwriting team is really second to none.

So you certainly have a very big job. But in addition to all of those responsibilities, you’re also a frequent author of blogs and articles for the organization. And today what I really wanted to focus on was your latest piece, which was Litigation Finance and Your Career. So what was it that prompted you to write this article?

Tyler Perry:

I’m at the stage of my career where everyone I know is either just about to make partner or has just made partner. And both groups of people are pretty focused on trying to build out a book of business and really justify their economic case to kind of rise up the ladder internally at their firms. I’m one of the few people from my graduating class who’s working in litigation finance, and as a result, people call me pretty frequently to spitball ideas.

And so the genesis of the article was really just a high-level summary of the conversations I’ve had with my friends about ways that litigation finance and insurance can help them in their careers.

Kevin Skrzysowki:

Yeah, I think that’s right. The same thing happens to me. I’ve had basically three different legal careers over the past 23 years, and I’m often sought out on LinkedIn and my old friends and friends of colleagues about how do you make the jump? What is the next great thing that somebody could do for an alternative legal career? So I can completely understand.

Now, you open your article by writing then that, “Back when the law was a profession and not a business, landing a job in an established law firm sets you up for a very long and fruitful career. But those halcyon days are long gone.”

Just curious what exactly you mean by that. And what have you observed as the practice of law, or more importantly perhaps I should say, the business of the practice of law has changed over the years?

Tyler Perry:

I appreciate you flagging that particular opening sentence. I was pretty proud of it. It’s basically a reference to a pre-2008 world of high-end litigation services that was honestly before my time, but still kind of exists in the general memory of the industry as a whole.

In practical terms, it refers to a period of time when you could really just focus on being a hardworking and competent lawyer, and reasonably expect that you would progress through the ranks of your firm from associate to junior partner to senior partner without really having to kind of take the reins and really guide your own career yourself. You could reasonably expect that eventually one of the senior partners would retire and you would step up and assume their book of business, and things would kind of move along that path in the way it had for generations.

At least in litigation, those days are pretty much gone. Today we see lawyers command 20 plus million a year. And they have a real clear financial incentive to chase the highest guaranteed dollar by changing firms whenever the opportunity arises.

So has naturally increased the number of lateral moves. The increase in lateral moves has caused massive changes in law firm culture, as the top firms move from general lockstep firms to more eat-what-you-kill models. And the deep and long-term mentoring relationships that used to last generations are increasingly replaced by more transactional relationships.

At the same time, there have been shifts on the clients are becoming increasingly sensitive to costs, and are willing to farm out work to a wider array of firms, particularly for less sensitive work like third-party subpoenas and things of that nature.

The effect of this is really fascinating and the effects are really numerous. But the long and the short of it is that today you can’t just be a good, hardworking lawyer and expect to succeed. You need an edge. And having clients and a consistent revenue stream is really the best edge you can have.

Kevin Skrzysowki:

I think you make a lot of really valid points, and I think that 2008 was exactly the year where we saw a diametrical shift in the practice of law, especially in big law. I think the Great Recession caused a new normal, a tightening of the belt from in-house counsel on the buy side, and a much more competitive cutthroat environment on the sell side, especially among the large Am Law 200 firms.

And so I think that is a lot of the impetus for folks trying to pursue alternative litigation careers, like you and I or our colleagues have, in litigation insurance and litigation funding.

Now, in your article you went on to state that, you mentioned that the ever-changing ecosystem requires young lawyers to be entrepreneurs. And litigation finance can help in three specific ways that you identified, and I’d like to go through them.

You start by saying that, “It can help assist early stage companies in pursuing meritorious litigation they cannot independently afford.” I mean, how litigation finance can help these companies seems very obvious to somebody who practices in this area, if you will, every day. But for the audience who is unfamiliar or for the younger audience or perhaps some of our listeners who are still at law school and are thinking about practice of law or an alternative to the practice of law, can you explain what you mean by that, and maybe take us through perhaps a brief overview of litigation finance 101?

Tyler Perry:

Yeah, happy to. So at its core, litigation finance is predicated on the idea that litigation is an asset and it has a predictable value. While that might sound like a bit of an odd concept to lawyers who are used to billing by the hour, it’s pretty well accepted in the plaintiff space, which is where I was first exposed to it.

And as you mentioned in the introduction, I started my career in private practice as a defense lawyer at Simpson Thacher, but I quickly moved to the plaintiff space, initially at Pierce Bainbridge, and then later at Reed Collins. At both firms, I saw how senior lawyers decided whether or not to take a case out of contingency. I saw what worked. And more importantly and somewhat more dramatically, I saw what did not work.

And basically through that process, I learned what to look for in deciding whether a particular case has value. And those things really boil down to three things. One, our damage is high. Two, is liability strong? And three, can we collect on any judgment?

So kind of taking a step back and turning to your initial question, the short answer is that I can look at a lawyer’s book of cases, particularly on the plaintiff’s side, and determine its expected value, and then loan money against that expected value. In terms of kind of a practical understanding, it’s no different than a commercial bank making a loan to a small business based on future receivables. We’re just dealing with a more specialized and niche product.

Kevin Skrzysowki:

And then how specifically, what are the opportunities exactly when you’re working with startup companies? Explain some of the challenges they face where they might have affirmative claims against other businesses, but they’re in their infancy stages or in their capital raising stages. And how does litigation finance help them, could you give us an example, help them to pursue that? What would an example of a model look like?

Tyler Perry:

Yeah, sure. So one of the more interesting models that we see with a certain degree of regularity is in the IP space with early stage venture companies. So basically we see companies that come along that own a very valuable piece of IP, but they haven’t created an operating business yet that generates money on a regular basis that could be used to pay for lawyers.

So what we tend to see is that those companies have their patents violated by a lot of the big players. And the big players basically just make economic… or they conduct an economic analysis and determine that they’re not going to pay for any of the licensing that they would otherwise pay for because they can reasonably assume that the people who own the patents aren’t going to come after them.

Litigation finance kind of can level that playing field. We can assess the value of a patent, come up with an understanding of what the licensing might look like and what damages might look like if we pursue the case to trial. So that kind of an asset is the kind of thing that can drive litigation, particularly for early-stage venture-backed companies.

Kevin Skrzysowki:

So in essence, basically we’re financing the litigation, helping them monetize their affirmative litigation asset, in exchange for a payout on the backend that would come back to the litigation firm.

Tyler Perry:

That’s exactly right. And that can really be anything from a breach of contract claim to an eminent domain claim to IP. It really runs the gamut. But we tend to see it primarily in the IP space, although we are hopeful that we’ll see more in kind of a more broad array of places.

Kevin Skrzysowki:

And of course, to the overarching thesis of the article, that really assists with younger lawyers. Because the older lawyers have the established books of business, they have their institutional clients. So really what you’re saying is, you’re imploring the younger generation, “Look for the smaller businesses. Look for the startups that don’t have established institutional counsel.” And you can also recommend litigation funding as a river in your litigation toolkit to help to bring in business and to help the client.

Tyler Perry:

That’s exactly right. You’re much more likely to know the founder of a small business than you are to know someone who can pay $1,500 an hour for you in terms of your [inaudible 00:11:01].

Kevin Skrzysowki:

Yeah. Excellent point. Second point you make is to work to, “Assist your clients to identify and pursue meritorious claims.” I find this interesting because mostly if you’re working at a large law firm, you’re only doing defense-side work. So explain how practice has evolved at defense firms to possibly develop these contingent fee firms, and how you can look to identify and pursue meritorious claims when you’re working with very established clients.

Tyler Perry:

Yeah. So your question kind of touches on a really interesting change that’s happened in the industry over the last 20, but really in the last 10 years where it’s really, really taken off. So in short, the firms that used to look down on plaintiff work now recognize that contingency practices can be set up in a way that provides relatively predictable returns with huge potential upside. Quinn, Susman, and Boies Schiller were early adopters in the space, but increasingly we’re seeing blue chip Wall Street firms getting into this space as well.

But getting back to your initial question, assuming your firm has embraced contingent fee litigation, you have a unique opportunity to kind of utilize firm researchers to be an entrepreneur. As I mentioned in the article, the best way to do this is to think like a plaintiff lawyer. In their best form, plaintiff lawyers are people who seek to remedy clear and concrete legal harms in their communities through the courts. But they do it through a pretty routinized, straightforward process that can be recreated by most lawyers.

So first, they start by being a concerted active citizen. They basically read the news, they follow the developments of the law, and they look for emergent issues in our society. Second, once they found a concrete harm, they analyze whether that harm is compensable, whether those damages justify pursuing the case, and whether the defendant can pay. And finally and most importantly, they determine whether a judge or jury is likely to find that liability attaches to the defendant in the case.

But regardless of the actual process, good plaintiff lawyers are basically focusing on doing good while doing well. And if you try to live by that motto, you can find cases. And I think one of the cases that my old firm Collins brought kind of lays this out in a really helpful way. So the case I’m thinking about is in re Renren, which was in the commercial division of the New York Supreme Court, and basically it was resolved a couple of years ago.

But at a high level, the genesis of the case was pretty simple. The firm noticed that a Facebook clone called Renren had gone public in the United States. Following its IPO, its operating business dried up. But it successfully shifted into being, in essence, a venture capital firm. As part of that transition, it developed a significant position in a loan refinancing business called SoFi.

Over time, that stake became incredibly valuable. And Renren’s management decided they wanted to capture that value without adequately compensating the average investor in Renren by spinning off the business at a fraction of its actual value. Long story short, that litigation led to a $300 million direct pay settlement.

But the key thing to note is that the genesis of the litigation was simple. The firm and its partners saw a concrete risk in which retail investors were damages. Were damaged, rather. And they sought to rectify that harm. There was obviously legal risk throughout the process and some really tricky legal issues, particularly relating to jurisdiction. But the firm had a strong legal and factual basis to pursue the claim. They saw harm, and they thought of a way to redress it.

That’s really how I would think about this. I would look for concrete societal harms, and then kind of work backwards from there. And that’s how plaintiff lawyers think, and that’s how people who are at defense firms who want to do contingency fee work should think as well.

Kevin Skrzysowki:

I think that is really great and insightful guidance and advice really to just be alert, be aware, stay informed, be vigilant.

Tyler Perry:

Yeah. That’s exactly right. And don’t underestimate the value of the news. There is tons and tons of investigative journalism out there that leads to new cases all the time, and it’s really great when someone else does the work for you.

Kevin Skrzysowki:

Yeah. Then there certainly is no shortage of a 24-hour news cycle days. So there’s plenty of valuable golden nuggets and information that lawyers could latch onto to be entrepreneurial to try to execute a plaintiff’s or a contingent fee strategy.

Now, the last point that you make in your article, and I think this is really the ultimate entrepreneurial endeavor for a young person to possibly consider, would be starting your own law firm.

What trends are we seeing in terms of senior associates, and not equity partners, leaving their law firms? And also just what are you seeing in terms of younger lawyers forming their own firms very early in their careers?

Tyler Perry:

So this question really gets back to some of the big structural changes that we talked about at the beginning of our conversation. Lots of firms are extending the runway to equity partner by huge periods of time. 10 years is not uncommon. 15 years is something that I’ve heard with a disturbing level of frequency.

Kevin Skrzysowki:

I mean, we never used to have that. I mean, normally it was if you don’t make partner in five to seven years, it’s time to move on.

Tyler Perry:

Yeah. It was eight years. And the eight years was like, if you made it, you made it, and if you didn’t, well, too bad, you’ve got to go someplace else. Now people just stick around for very long periods of time being led along, promised partnership, but it doesn’t really materialize with the level of frequency that is promised.

And so what this does is essentially creates an artificial ceiling on the career of young lawyers, and it really frustrates the next generation of litigators. And so what we’ve seen is that ambitious and smart lawyers have decided to take the ultimate risk and hang up their own shinball.

And the logic behind the decision is extremely simple. Big law is no longer a guarantee of stability, and there is huge upside, both personally and professionally if executed successfully. You can make really good money and be your own boss, which at least to me is significantly more appealing than billing anonymously by the hour.

Kevin Skrzysowki:

Very risky, but it could be the ultimate risk-reward opportunity that a young lawyer does actually embrace.

So let me ask you, we’ve been talking about litigation funding and how to embrace litigation funding to go to a practice. And normally around case centric matters. How can litigation funding be leveraged to help a young lawyer build out a new law firm?

Tyler Perry:

So this gets back to my earlier point about litigation being an asset against which loans can be made. If a lawyer has a book of business, whether in the form of hourly clients, contingent cases, or a mix of the two, we can basically predict those cash flows and lend money accordingly.

As a practical matter, I think the most desirable model is something like 70% billable and 30% contingent, which is what some of the really successful firms like Quinn Emanuel have generally tried to do over time. But I’ve seen extremely successful firms that are a hundred percent contingent. So the ultimate mix of business is not particularly determinative of the ability to loan.

One of the more interesting types ventures that I’ve seen recently is the idea of a thesis driven plaintiff shop. The basic deal structure is pretty simple. Certum comes in as a venture funder, providing seed capital in exchange a share of future returns. In terms of specifics, we’ve seen situations in which a single high-value litigation has served as collateral for a new law firm, but that’s increasingly disfavored.

What we’re generally seeing now is basically a situation in which a lawyer has a thesis that that has been tested by basically surviving a motion to dismiss, and then can be recreated against additional defendants over a number of cases and jurisdictions. And that’s a really interesting kind of fascinating new immersion thing that we’re seeing.

But at the end of the day, these campaigns can be individual suits, class actions, or MDLs. They really run the gamut. The key thing is that we need to see of a meritorious case with large damages.

Kevin Skrzysowki:

So for new law firms out there or people thinking of leaving their firm to start a new law firm and they’re bringing a book of business with them, if you have a solid thesis that has been successful, or if you have a diversified non-correlated book of business, by all means reach out to Certum Group. We’re interested in having a conversation with you about providing that seed capital to grow that firm.

This has all been really great, Tyler. Before we wrap up, just generally speaking, any guidance or advice you would give to a young lawyer these days or a student in law school looking to pursue a career in law?

Tyler Perry:

Yeah, there are a couple of things that my judge told me when I was clerking that have kind of really stuck with me.

First, be a generalist and learn as much as you can as quickly as you can. Don’t be afraid to take on assignments that are outside of your comfort zone because it’s those assignments that are really going to teach you the most, and where you’re going to grow and become the best lawyer you possibly can be.

And second and kind of more importantly, don’t forget that law is fundamentally a people business. After your third or fourth year, your network is how you’re going to get work. So go to reunions, meet former colleagues for coffee and stay in touch. You really have no idea who’s going to send you work down the road.

Kevin Skrzysowki:

Your network is where you’re going to get work. I love that. I haven’t heard that one before.

Well, Tyler, thank you so much for being on the program. I think you provided some really great guidance and advice that should be of great interest to all of our younger listeners and all of our listeners who are still in law school. And I just really want to thank you for being on the program.

Tyler Perry:

Well, thank you for making the time. Really love to talk to you.

Kevin Skrzysowki:

Yeah. Absolutely.

And of course, as always, I want to thank the audience for listening. If you’d like to hear more, please be sure to follow us on Apple, Spotify, Stitcher, or anywhere you listen to your favorite podcast. And if you would like to learn more about any of the litigation insurance and funding solutions that Certum Group provides, please visit our website at www.certumgroup.com , and you can always reach me at kevins@certumgroup.com.

Thanks again, and until next time.

The post Litigation Finance and Your Career appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Certum Podcast Ranks in FeedSpot Top 10 Litigation Podcasts

Tue, 09 Jul 2024 19:14:00 GMT

July 9, 2024 – Certum is proud to announce its podcast, Alternative Litigation Strategies , was ranked in the Top 10 of Feedspot Litigation podcasts . Feedspot ranks thousands of podcasts across the web and ranks them by relevancy, authority, social media followers and more.

Hosted by Certum Attorney and Director of Business Development, Kevin Skrzysowski , the podcast features interviews with key market leaders in commercial litigation and discusses and explores alternative strategies to complex litigation.

“This ranking means so much,” said Mr. Skrzysowski. “The podcast has been a true labor of love over the last two years and it’s an honor to earn this recognition. We have enjoyed hearing from so many valuable guests across the entire arena. If our listeners can better understand the alternative litigation space through our podcast, then we’ve done our job.”

Past guests include litigation partners from Alston & Bird, Carlton Fields, Davis, Wright & Tremaine, Dinsmore & Shohl, Dorsey & Whitney, Duane Morris, Faegre Drinker, Foley & Lardner, Greenberg Traurig, Katten Muchin, Locke Lord, Manatt, Phelps & Phillips, Sheppard Mullin, Ulmer & Berne, Venable, and others.

About Certum Group

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October 23, 2025

W. Tyler Perry

Certum Group Adds Bryce Barcelo as Director of Intellectual Property Strategy

Tue, 09 Jul 2024 15:42:00 GMT

July 9, 2024 – Certum Group, which provides bespoke solutions for companies facing the uncertainty of litigation, has announced that Bryce Barcelo will join as the director of Intellectual Property Strategy. In this role, he will lead Certum’s IP licensing, funding, insurance, litigation and acquisition strategies.

“We are thrilled to have Bryce join us,” said Joel Fineberg, Certum’s founder and managing director. “He has unique experience as a former engineer and IP attorney and will seamlessly apply that knowledge to help us continue to expand and innovate in new markets.”

Prior to joining Certum Group, Mr. Barcelo spent more than a decade at one of the country’s premiere litigation boutiques where he litigated cutting-edge intellectual property cases. Often representing “mom and pop” plaintiffs versus tech-sector goliaths and other Fortune 100 companies, Mr. Barcelo steered these complex, bet-the-company style suits to resounding success on behalf of his clients, securing several landmark victories.

“I am excited to join the team at Certum,” said Mr. Barcelo. “I believe in Certum’s mission of helping parties and their counsel secure the financing they need to meet the mounting costs of litigation. I look forward to working with our clients and finding new and creative ways to solve their litigation financing concerns.”

Prior to his legal career, Mr. Barcelo was a rocket engineer who oversaw the development and implementation of critical lift-off instrumentation for the Delta IV Heavy expendable heavy-lift launch vehicle for the NROL-49 mission at Vandenberg Space Force Base in Santa Barbara County, California.

Mr. Barcelo graduated with a B.S. from Worcester Polytechnic Institute, cum laude, and a J.D. from The University of Houston Law Center. He is also a professor at The University of Houston Law Center where he teaches second- and third-year law students and LLM students.

About Certum Group

The post Certum Group Adds Bryce Barcelo as Director of Intellectual Property Strategy appeared first on Certum Group .

The Comprehensive Guide to Litigation Finance

Thu, 20 Jun 2024 16:12:00 GMT

Here at Certum, we believe two things about litigation funding are true.

First, litigation finance can help litigants and law firms better achieve their legal and business goals by shifting the risk and expense of affirmative litigation.

Second, the funding process is too often too opaque, too long, and too complex.

In response to this challenge, we developed our Guide to Litigation Finance. This comprehensive resource is designed to bring clarity and simplicity to the litigation funding process, empowering litigants and law firms to navigate it with confidence.

The Guide provides a detailed walkthrough of the funding process, offering tips on how to secure funding for your case. It explains the various components of a term sheet, defines key terms, and provides insights specific to patent cases, ensuring that you are well-equipped to engage with potential funders effectively.

Our Guide also covers foundational concepts and definitions of litigation finance, giving you a solid understanding of its principles. It offers an overview of the funding process, outlining the key steps involved from application to disbursement.

For those seeking funding, the Guide offers a sample outline for a memo to litigation funders, guiding you on how to effectively present your case for funding consideration. Additionally, it provides a review of the key terms typically found in a litigation finance term sheet, helping you understand and negotiate the terms of your funding agreement.

Whether you are a law firm, in-house counsel, or an individual litigant, this guide is an essential resource that provides you with the information needed to make informed decisions about litigation finance.

Litigation funding has emerged as a powerful tool for leveling the legal playing field, particularly for smaller litigants or those with limited financial resources. By providing access to capital, litigation finance enables litigants to pursue their claims vigorously without the fear of being outspent by better-funded opponents. This not only enhances access to justice but also promotes fairness in the legal system.

Litigation finance also has significant strategic benefits for law firms. By offloading the financial risk of litigation to a third-party funder, law firms can take on cases that they might otherwise have to turn down due to financial constraints. This allows them to expand their practice areas, take on more complex cases, and ultimately grow their business. Offering alternative fee arrangements with funding also helps law firms better compete for clients.

For businesses, litigation finance can be a valuable tool for managing legal costs and risks. By funding litigation through a third-party funder, businesses can avoid tying up their own capital in lengthy legal proceedings. This can be especially beneficial for companies facing financial challenges or looking to preserve cash for other strategic initiatives.

Litigation finance has the potential to transform the legal landscape by providing litigants and law firms with the financial resources they need to pursue meritorious claims. However, to fully realize its benefits, it is essential that the funding process is transparent, efficient, and accessible to all. Certum’s Guide to Litigation Finance is a step towards achieving this goal.

The post The Comprehensive Guide to Litigation Finance appeared first on Certum Group .

Understanding Your Options: Awareness of Litigation Risk Transfer Tools Among In-House Professionals

Wed, 05 Jun 2024 14:24:00 GMT

Memorial Day has come and gone, and June is now upon us, unofficially marking the start of summer. As many of us gear up to tackle our long-neglected yards in preparation for the hot weather ahead, we’re not just grabbing the lawnmower and garden hose. We’re also reaching for the power trimmer, the grill cleaner, and the potting soil. To do the job right, we need the full toolkit.

Similarly, in-house legal professionals increasingly require access to the full suite of litigation risk transfer solutions to effectively manage their responsibilities. Certum recently conducted a survey among in-house legal professionals, and the results shed light on a notable trend: while awareness of litigation finance is high among these professionals, understanding and awareness of litigation insurance remain low.

This gap presents significant opportunities for in-house professionals to enhance their risk management strategies by embracing the complete range of available litigation risk transfer tools. And this presents a chance for outside counsel to play a pivotal role in educating their clients about the diverse range of solutions available in the market today.

If you want to learn more, you can download a copy of our survey results here .

High Awareness and Utilization of Litigation Finance

Litigation finance, the practice of third-party funding for litigation in exchange for a portion of the recovery, has gained substantial traction over the past decade. Our survey indicated that a significant majority of in-house legal professionals are not only aware of litigation finance but are also increasingly comfortable leveraging it to manage litigation expenses and risks.

The benefits of litigation finance are clear: it allows companies to pursue meritorious claims without bearing the upfront costs, aligns the interests of the funder and the client, and can transform legal claims into valuable assets. This financial tool is particularly valuable for companies facing large, complex, and potentially protracted litigation, where the costs could otherwise strain resources.

Low Awareness of Litigation Insurance, High Demand

In stark contrast, our survey revealed that awareness of litigation insurance is markedly low. Litigation insurance, which encompasses a range of products designed to mitigate the financial risks associated with litigation, remains underutilized and often misunderstood. Products such as Adverse Judgment Insurance (AJI) and Judgment Preservation Insurance (JPI) can provide a financial safety net, ensuring that companies are protected against unfavorable outcomes and can secure the benefits of favorable judgments.

Here are the survey results, which show at least one in three in-house professionals have never even heard of the major insurance tools:

How Litigation Insurance Can Meet Key Goals

Our survey also highlighted three primary goals that in-house legal professionals aim to achieve by using litigation risk transfer solutions:

Cost Certainty and Transferring Outcome Risk . Nearly half (49%) of respondents indicated that their primary goal with litigation risk transfer solutions is to achieve cost certainty and transfer the outcome risk of litigation. Litigation insurance products can help: they can lock in potential costs and protect against the financial uncertainty of adverse judgments.
Cost Savings : 42% of respondents cited cost savings as a key goal. Litigation insurance can help legal departments save money in many ways, including by locking in and monetizing gains from affirmative litigation, and by hedging against the risk of loss and transferring defense cost risk through defense-side insurance.
Avoiding P&L and Balance Sheet Impairment : 40% of respondents are concerned with avoiding profit and loss (P&L) and/or balance sheet impairment. Litigation insurance can protect the company’s financial statements from significant impacts due to unexpected litigation outcomes, thereby maintaining financial stability and investor confidence.

Bridging the Awareness Gap

The disparity in awareness between litigation finance and litigation insurance presents an opportunity for in-house lawyers and outside counsel. In-house lawyers can give their company a competitive edge by staying abreast of the latest litigation risk transfer solutions. Outside counsel have a unique opportunity to add value to their clients by socializing them to these risk transfer tools – something most counsel aren’t doing right now.

Three tips:

First, litigation risk management strategies should be understood as business risk management strategies. Companies spend enormous amounts of time and energy managing risk to their core business – and litigation risk can threaten that core the same way broader micro- and macro-economic trends can do so.

Second, in-house and outside counsel should launch educational initiatives – think workshops and seminars – to educate lawyers about the different types of litigation insurance products available, their benefits, and how they can be strategically used.

Third, if your company isn’t aware of these litigation risk transfer tools, become an internal champion for them. Companies need individuals who understand and advocate for the use of litigation risk transfer within the legal department, fostering a culture that values comprehensive risk management. This can provide a particularly compelling opportunity for more junior lawyers looking for a “step up” opportunity in their career.

The post Understanding Your Options: Awareness of Litigation Risk Transfer Tools Among In-House Professionals appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Certum Group’s 2023 Litigation Risk Survey Results

Tue, 04 Jun 2024 17:28:00 GMT

What is the survey about?

Certum Group, which provides bespoke risk transfer solutions for companies facing the uncertainty of litigation, has released the results from its second annual survey to understand how companies and in-house departments assess and manage litigation risk.

Who participated in the survey?

Almost 100 respondents hailed from corporate legal department across 23 states and 35 different industry sectors.
Moreover, we had a great mix of lawyers that came from small, midsized, and large companies so we were able to elicit a diverse range of viewpoints and provide a benchmark for how in-house counsel are assessing and managing litigation risk in the current market.
Specifically, 27 % were from public companies, 58 % from private for profit companies and the rest from non profits.

What did the survey tell us about legal department staffing?

In terms of resources – in house departments – even at larger companies are operating with small staffs and tight budgets. General counsel and their staffs are being stretched thin by increasing workloads.

Almost 75 % said their legal departments had fewer than 10 employees. That may be adequate for the smallest companies, however, 40 % of our respondents work for companies with over 1,000 employees.

If staffing pressures are up are budget pressures at least down?

Unfortunately, the answer is NO. In house department are currently facing both staffing and budget pressures.

Almost 50% of respondents said their budgets are less than $1MM and only 10% said they more than $20MM.

Moreover, over 40% reported budget cuts over the past year which came at the same time having increased workloads.

Can we expect to find form survey results in future video blogs?

Yes, please look for more video blogs where we discuss other findings from the survey. Future episodes will cover topics such as: selecting outside counsel, the use of AFAs, leveraging litigation risk transfer products such as litigation insurance and funding, and pursuing affirmative litigation in order to turn in house departments from cost to profit center.

Download your free copy of the report today!

The post Certum Group’s 2023 Litigation Risk Survey Results appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Litigation Finance and Your Career

Tue, 21 May 2024 15:32:00 GMT

Back when law was a profession and not a business, landing a job at an established firm reasonably set you up for a long and fruitful career. Firms had institutional clients. Lateral moves among stable firms were rare. And partners cared about mentoring the next generation because the next generation would pay for their retirement. Those halcyon days are long gone. Today, even the most profitable and prestigious firms suffer defections as partners search for the highest guaranteed dollar. The corollary effects of this reality are legion, but one of the more interesting ones is that it has substantively increased the need for associates to take ownership of their careers at an increasingly early stage. In this changing ecosystem, if you want to succeed, you need to be an entrepreneur. And litigation finance can help.

One of the key methods successful lawyers use to build a book of business is assisting their friends and members of their broader professional network who might need legal services. For more senior partners, this usually means staying in touch with friends, classmates, and former colleagues who have management positions at large banks or corporations and hoping that they will refer work. Unfortunately, the people most in need of those connections ( i.e ., associates and junior partners) generally do not have such well-placed contacts. One of the key exceptions to this general rule, however, is early-stage startups and small businesses. Even in your twenties and early thirties, there is a good chance that you know someone who has started a business. Those companies have litigation; indeed, they often have high-value litigation that they fail to pursue based on the fact that they do not have sufficient funds and the consequent assumption that they are without recourse. Be the conduit that rights their wrongs by using litigation finance to pursue such matters. Your ability to do so proactively will show value to both the firm and your client. And will help differentiate you from your colleagues.

I started my career at a big law firm in New York. As a general rule, they are great places to learn by working with accomplished lawyers on headline-grabbing matters. But even in big law, equity partners in litigation spend significant amounts of time worrying about their next big matter, particularly as rates have risen through the roof. Searching for a solution, an increasing number of firms have taken the tack of developing contingency fee practices. If you are fortunate enough to work at such a firm, give thought to developing your own litigation thesis and pursuing that worthy claim.

A big part of this process is getting over the fear that you cannot identify meritorious cases. Do not worry. Hard work, drive, and an entrepreneurial spirit can get you far. And, to the degree that you worry about experience, involve your more senior colleagues in the process. They like initiative and are usually willing to help, particularly where it could increase the firm’s revenue. The best way to do this is to think like a plaintiff lawyer. Read the news. Talk to members of the community. Think about how your area of experience can uniquely position you to bring cases. In their best form, plaintiff lawyers seek to redress concrete societal harms through the courts. Be that active citizen.

Another option for the ambitious senior associate or non-equity partner seeking to make a name for themselves is to build your own practice. Historically, very few people left big law to start their own firms; indeed, doing so was often a mark that you simply “couldn’t cut it” in the big leagues. Not so anymore. Today, we increasingly see strong lawyers launch their own practices at an earlier stage of their careers as a means of sidestepping the political and economic considerations that can artificially stifle careers at established law firms. Like venture capital firms, litigation funders can provide seed capital for law firms that have a clear business plan and book of meritorious cases.

***

The bench of litigation finance firms is wide, and it can be difficult to differentiate among organizations in the space. At its core, what makes Certum Group different is our unique ability to help you be the entrepreneur you need to be in order to make a place for yourself in the increasingly competitive world of high-end litigation. Our team of lawyers has worked at some of the top firms in the country and is well placed to help you bring meritorious litigation or launch your own firm. Call us. We can help.

The post Litigation Finance and Your Career appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

8th Annual Class Action Money & Ethics Conference

Mon, 06 May 2024 20:12:00 GMT

On May 6, 2024, Legal Director Ross Weiner attended the 8 ^th Annual Class Action Money & Ethics Conference at the Harmonie Club in New York City. Ross moderated a lively panel on fraud in class actions that featured Rebecca Gilliland (Beasley Allen), Kyle Mason (EisnerAmper), Franco Corrado (Morgan Lewis), Jeff Wilkerson (Winston & Strawn), and Etia Rottman Frand (Darrow). The panel discussed many hot-button topics including:

How best to draft class action settlement documents to combat fraud;
Which types of settlement notice yield the highest levels of fraud;
The promise and pitfalls of digital payments; and
How technology can be utilized to mitigate fraud.

The rest of the conference featured engaging conversation on an array of topics related to class actions. Of particular interest were the following observations:

While wiretapping class actions possess an interesting legal theory, the dearth of case law and abundance of private settlements have made it hard to predict how these cases will perform in the long run should they go to trial and beyond.
The presence and threat of mass arbitrations are impacting how companies settle their class actions, with more importance given to certain “blow” provisions and termination rights.
There is serious concern about how much verification goes into plaintiff’s counsel’s claims re the number of “clients” it represents in a mass arbitration. But the more defendants that settle these cases early, the less incentive plaintiff’s counsel has to spend time, money, and effort on vetting.

The post 8th Annual Class Action Money & Ethics Conference appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

A New York City Ethics Committee Embraces Litigation Funding

Mon, 22 Apr 2024 16:50:00 GMT

The City Bar’s recommendation is significant because it represents yet another high-profile body rejecting the U.S Chamber of Commerce’s arguments regarding litigation funding, a guest columnist writes for the Law Journal.

A key New York City Bar Association ethics committee’s proposal that New York amend its legal ethics rules to explicitly permit litigation finance agreements between lawyers and funders could be a watershed moment for the litigation finance industry.

If the proposal is accepted, New York would become the latest—and the largest—jurisdiction to join a growing chorus of states that are amending their ethics rules to clarify that litigation funding is a permissible and welcome feature of our legal system. And if New York, the country’s largest legal market, were to lead on this issue, other jurisdictions would likely soon follow, creating a positive cascade effect for litigation funding and access-to-justice initiatives.

At issue is Rule 5.4 of the New York Rules of Professional Conduct, which says lawyers may not “share legal fees” with nonlawyers. The New York City Bar Association’s Professional Responsibility Committee recommended this month that New York amend Rule 5.4 to explicitly clarify that lawyers may assign their interest in fees to a nonlawyer, so long as the lawyer gives the client notice and opportunity to inquire prior to any such assignment.

The recommendation follows a growing trend across the nation. In 2020, Arizona’s Supreme Court abolished the state’s version of Rule 5.4 entirely for the stated purpose of “promot[ing] business innovation in providing legal services at affordable prices.” Around the same time, Utah’s Supreme Court created a “ regulatory sandbox ” that allows licensed lawyers to experiment with nonlawyer ownership. And Washington D.C.’s Rule 5.4(b) has long allowed certain forms of non-lawyer ownership of law firms.

In one sense, the City Bar committee’s recommendation is unremarkable. As I have recently explained , New York courts have repeatedly reaffirmed the legality, propriety, and benefits of litigation funding. Two separate state court judges have written opinions stating that third-party funding allows “lawsuits to be decided on their merits, and not based on which party has deeper pockets or stronger appetite for protracted litigation.” The City Bar committee likewise emphasized that “there is now a long history of court decisions enforcing” lawyer-funder agreements.

Yet in other ways, the committee’s recommendation could be a crucial domino.This is because some critics of litigation funding still invoke Rule 5.4 to charge that funders create conflicts of interest and meddle with attorney-client independence. Most notably, the U.S. Chamber of Commerce’s Institute for Legal Reform recently released a report claiming that efforts to pare back Rule 5.4 would “significantly decrease the quality of legal representation” including by “creating inevitable conflicts of interest among lawyers [and] clients” and by “making the settlement of lawsuits more difficult, inefficient, and expensive.”

The chamber has the explicit goal of curtailing litigation finance, a tool that helps cash-poor litigants pay their lawyers and win their cases.

The City Bar’s recommendation is significant because it represents yet another high-profile body rejecting the chamber’s arguments. Indeed, the committee dismissed as ill-conceived “paternalism” the suggestion that “one type of financing has the power to corrupt a lawyer’s professional ethics more than any other financial arrangement with a nonlawyer.”

The history here is especially remarkable, for in July 2018, the City Bar’s professional ethics committee issued a controversial opinion suggesting that litigation funding agreements between funders and law firms might violate Rule 5.4. That opinion caused a stir, leading the association to convene a working group that effectively repudiated the 2018 ethics opinion and called for amendments to Rule 5.4. And now, a separate committee of the City Bar has itself proposed amendments, which will be sent to the New York State Bar Association, and ultimately New York’s appellate courts, for approval.

Of course, even without widespread amendments of Rule 5.4, the litigation funding industry is fast becoming a mainstay of our civil justice system. A recent survey by Westfleet Advisors, a litigation finance consultancy, found that $2.7 billion was committed to new deals last year, with two-thirds of funding agreements occurring between funders and law firms. (Rule 5.4’s ambit is limited to agreements between funders and law firms ; no one argues that agreements between funders and claimholders implicate Rule 5.4.)

Nevertheless, more explicit approval would further dispel any doubts about the propriety of litigation funding. This would invite more law firms to accept third-party capital that can help the firms innovate and offer better, more affordable legal services to their clients, bringing the transformative power of the capital markets to one of its last redoubts in America, the legal industry.

This should in turn increase access to the courts and make our legal system more rather than less efficient, as both New York City’s professional responsibility committee and the Arizona Supreme Court have recognized.

Indeed, it is no coincidence that litigation funding is going mainstream, and efforts to modify and repeal Rule 5.4 are gaining steam, as a growing body of scholarship is concluding (contrary to the Chamber’s assertions) that litigation funding expedites case resolution, reduces litigation spend, and lowers the cost of legal services.

Consider, for example, the claim that litigation funding promotes frivolous litigation. Funders typically invest in 5% or less of the opportunities—only the strongest claims—because funders that back weak cases will soon go out of business. Indeed, there is a growing recognition that funding more likely deters weak cases, because funders effectively screen meritless cases from ever getting filed in the first place. After all, if two or three litigation funders refuse to fund your case, will you want to invest your own resources into the matter? Probably not.

The City Bar committee’s recommendation is a welcome and potentially watershed step towards increasing acceptance of litigation funding – which should in turn increase meritorious litigants’ access to the courts.

***

William Marra is a director at Certum Group, where he leads the litigation finance strategy, and a lecturer at the University of Pennsylvania Carey School of Law, where he co-teaches a course on litigation finance.

***

Reprinted with permission from the April 17, 2024 edition of the New York Law Journal © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com .

The post A New York City Ethics Committee Embraces Litigation Funding appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Key Insights from Duane Morris’ Annual Class Action Review

Wed, 17 Apr 2024 16:35:00 GMT

In the latest episode of Certum Group’s podcast, Alternative Litigation Strategies, Kevin sits down with Jennifer Riley , a Partner and Vice Chair of Duane Morris’ Class Action Group and General Editor of their annual Class Action Review. The Duane Morris Review is a one-of-a-kind 650 page comprehensive analysis of class action litigation trends and significant rulings and settlements from 2023 designed to help corporate counsel and business leaders make informed decisions when facing complex litigation risks in the coming year. Kevin and Jennifer discuss several of the overarching trends in class action litigation from last year, including: the continuing increase in number of case filings, record setting settlement amounts, the surge in data breach and privacy matters, and how generative AI will transform class action litigation. You don’t want to miss this episode!

The post Key Insights from Duane Morris’ Annual Class Action Review appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Navigating the Growing World of Litigation Funding and Contingent Risk Insurance

Tue, 16 Apr 2024 14:41:00 GMT

As 2024 is well underway and we enter the second quarter, the U.S. economic outlook remains mixed, with the economy showing signs of resilience and growth but also facing inflationary pressures, supply chain disruptions and geopolitical uncertainty.

Within this context, the U.S. legal market has fared relatively well, with rates increasing on average 6 percent in 2023 and demand strong in litigation, antitrust, M&A and restructuring. But declining realizations and productivity threaten law firm profitability. And clients, facing an uncertain economy, are putting pressure on firms to keep their budgets and legal costs in check. Indeed, the recent Thomson Reuters “Report on the State of the U.S. Legal Market” reports that clients are increasingly moving work to lower cost law firms or demanding capped or alternative fees from outside counsel.

As firms seek to enhance profitability while clients struggle to control legal costs, litigation finance can serve as a tool to offload legal spend, mitigate risk and increase revenues for both stakeholders. Indeed, as reported in the 2023 “Westfleet Insider 2023 Report on Litigation Finance,” more and more firms in the AmLaw 200 are seeing these benefits and utilizing funding, accounting for 35 percent of new deals in 2023.

Another tool that has emerged in recent years is contingent risk insurance. Over the past few years, contingent risk insurance has risen in prominence in the litigation finance world as an alternative or companion to traditional litigation finance.

This article provides a summary of the ways that clients and their counsel can use these tools to enhance revenue growth while controlling costs and mitigating the risks inherent in litigation.

About Litigation Finance

Litigation finance has become a permanent feature in the U.S. and Texas legal landscape. At its core, litigation finance is any transaction in which a litigation claim secures financing. Funds are provided on a non-recourse basis and the funder’s return depends on the outcome of the litigation. It comes in numerous forms and at any stage of litigation, from pre-filing to post judgment. The most common uses of funding are single-case funding, portfolio funding and claim monetization.

Single Case Funding

Funders often provide single case funding to clients for the fees and expenses associated with pursuing a litigation claim. For a high-stakes commercial claim, this can mean millions in legal fees and costs, including the costs of expert witnesses. Clients often either don’t have the capital to pay a full litigation budget or just as often, they have the capital but need to preserve it to reinvest in their business rather than in yearslong litigation.

Typically, single case funding involves a funder paying the full (or nearly full) amount of the cost budget and a substantial portion of the fee budget with the law firm taking the remaining portion “on risk” or on a partial contingency basis. Or sometimes law firms may elect to take a case on a contingency basis, but their clients seek funding for case expenses. The funder pays the fees and costs as they are incurred (often enhancing realizations for the firm) and receives a return out of the case proceeds upon resolution, but only if the case resolves successfully. If the case is unsuccessful, the funder does not recoup its principal or any return. Meanwhile, the law firm typically receives a portion of the upside or case proceeds from a successful outcome as well, but it will have received part of its hourly fee along the way regardless of case outcome. Most importantly, the client will have received the benefit of a full contingency arrangement with its preferred trial counsel, with little or no out of pocket spend. This structure helps the client reduce risk and litigation costs while pursuing a meritorious claim and helps the law firm represent its good client, mitigate risk and still share in the upside of a successful outcome, enhancing profitability.

Portfolio Funding

Portfolio funding involves financing multiple litigation or arbitration matters in a single transaction. The funding amount is typically still tied to the case budgets, like single-case funding. However, in portfolio funding, funders will invest in a group of cases at once, with any one of combination of those cases serving as collateral for the return. Just as with single-case funding, the investment is nonrecourse and the funded party — either a client or law firm — is not obligated to pay a funder’s return unless the portfolio yields positive case outcomes. Moreover, the law firm handling the cases recoups a portion of its fees as they are billed during the pendency of the lawsuits.

Funders invest in client-side or law firm-side portfolio transactions. For corporate clients, the underlying cases are typically a series of plaintiff-side affirmative claims that the company wishes to pursue, although the portfolio can include defense-side cases as well. For law firms, the portfolio will include cases that the firm is handling on a contingency bases for one or several different clients, with its anticipated fees from the cases serving as collateral for the investment. Such an arrangement allows the firm to offer its clients a full contingency arrangement, while mitigating that risk through a portfolio in which it recovers a portion of its hourly fees as they are incurred. As reported in the “Westfleet Insider,” portfolio transactions accounted for 66 percent of new commitments in 2023.

Claim Monetization

Clients and law firms increasingly are seeking to monetize both pending claims and post-trial judgments and awards. Claim monetization refers to an investor providing capital to a plaintiff in advance of the resolution of its claims — in essence turning a legal claim into a financial asset. Claim monetization accounted for 21 percent of capital commitments in 2023, up from 14 percent in 2022.

Insurance and its Interplay with Litigation Finance

Like litigation finance before it, contingent risk insurance has become a prominent feature in the litigation landscape. But, despite an offering of various insurance products, most practitioners know little about what it is or how it can be leveraged.

Litigators are familiar with general liability insurance policies. Contingent risk insurance policies are something very different. They are bespoke, case-specific policies, tailored to the specific legal issues and facts of specific cases, lawyers, parties and risks involved. They are available to plaintiffs, defendants, their counsel and, as discussed further below, even their funders. These policies not only can provide an efficient mechanism to remove risk but increasingly have become a way to make capital more accessible to litigants and their counsel.

Types of Contingent Risk Insurance

Although each insurance policy is tailored to the risk at hand, there are some basic policy structures that serve as building blocks to more complex policies. These are useful in understanding how contingent risk insurance policies can be structured. They include:

Judgment Preservation Insurance (JPI) allows a plaintiff or counter-plaintiff to insure all or part of a damage award while an appeal is pending or, depending on the strength of the case, before judgment is even entered. This can be utilized in litigation and arbitration.
Adverse Judgment Insurance (AJI) is a form of insurance that guarantees a certain amount of coverage to a defendant in the event of a final, adverse judgment against it. A type of this policy is often used to facilitate the completion of M&A transactions when there is pending litigation against the seller and the buyer does not want to assume the risk of an adverse judgment. This type of policy basically ring-fences a certain legal exposure.
Contingent Fee Insurance provides a company or law firm with downside protection to prevent a total loss of expenses or work in progress incurred in the prosecution of litigation by insuring some portion of the attorneys’ time and case costs.
Capital Protection Insurance can be used to protect the investment capital used to fund a case or group of cases against an adverse ruling in the litigation.

Generally, there can be no loss under these policies unless and until the judgment or award is final or a case is fully resolved and there is no longer any chance of further appeal. If the insured party (or party aligned with the insured) does not prevail at the end of the day, then the policy covers the loss. As with funding, insurance policies can be written for a single case or a portfolio of cases. The premium charged for the policy is a percentage of the overall coverage and is dependent on the contours of the specific risk. There is no standard market rate.

How to Know When to Seek Out Funding or Insurance

Armed with the knowledge that both funding and insurance exist, what determines whether one (or both) are appropriate for a particular case or portfolio of cases? Although both funding and insurance seek to shift some of the risks inherent in litigation, they involve different considerations for both the funder and the funded and the insurer and the insured.

In turn, some cases may be more appropriate for funding than insurance or vice versa. And some cases may be appropriate for a combination of funding wrapped with insurance. Having a sense of the differences will help determine which path to pursue.

For the client and counsel, the most prominent consideration is whether capital is needed immediately or whether they merely seek to lock-in the value of a case or the fees associated with it. If it is the former, funding may be more suitable; if it’s the latter, insurance may be worth considering. At the most basic level, funding is money-in, while insurance is money-out. The trade-off depends on which door one chooses.

While traditional litigation funding is generally made on a nonrecourse basis, at no upfront cost to the client, insurance policies require that some, if not all, of a policy’s premium be paid to the insurer before coverage is bound. Without money in hand to pay the insurance premium, insurance may not be a viable consideration (unless, as discussed below, the client is able to obtain premium finance which allows the client to obtain a policy at little to no out-of-pocket expense).

In this regard, another key consideration is the overall cost of the capital. When a case receives funding, the trade-off for the immediate access to funds on a nonrecourse basis is having to share a non-insignificant portion of case proceeds with the funder if the case is successful. This can be up to two to three times the amount of the funding given. Insurance coverage, on the other hand, usually does not involve any sharing of proceeds, or, if it does, the percentage of recovery shared is far less and only occurs in the event the litigation is successful. Instead, for a premium amounting to only a portion of the recovery, insurance preserves the status quo and gives the insured some certainty as to the economic impact of the litigation.

Another consideration in choosing between funding and insurance is the role the funder or insurer may play in the overall litigation. Generally, litigation funders have no control over how the cases in which they invest are litigated. This is a key characteristic of the funding relationship. The funds are deployed on a nonrecourse basis. Even if the funder disagrees with a case strategy or settlement decision, the funds have been deployed for full use by the client and counsel and the funder has no say. Insurance policies, however, may contain exclusions for coverage such that certain strategic decisions may not be covered. In other words, while insurers also generally have no control over the litigation, certain strategic decisions by the client or counsel may result in there not being coverage in the event of a loss, but that is ultimately the insured’s choice and is determined by the express terms and exclusions of the policy.

It is also important to note that not all cases or risks are appropriate for contingent risk insurance. First, cases that involve treble or punitive damages may be more attractive to a funder than an insurer. While a funder would share in the upside of such large damages, an insurer likely doesn’t want to share in the downside. Second, while a relatively new case that is in the prefiling or pretrial stage may make for a worthy investment for a funder due to the outsized potential reward, the legal and factual issues may not be sufficiently developed in order for an insurer to guarantee a particular result at the end of the case. Third, while collectability is generally inherent in the risk assumed by funders, insurers are generally not comfortable with collection risks and may exclude the collectability of a judgment from a policy’s terms. Finally, while case duration may be material to a funder’s investment decision since it affects overall returns, it may be likely less significant to an insurer and any durational risks can be built into a policy’s terms. These are just some of the many factors that funders, insurers, clients, lawyers and brokers may take into consideration in deciding how to proceed.

Emerging Issues: Blended Funding Families

One other alternative to consider is combining the funding and insurance. This emerging solution is being seen more and more in the market and may increasingly become the norm.

A capital protection insurance policy, for example, can be used as collateral with a third-party lender to create a more efficient cost of capital to the company or law firm utilizing the funding. A funder can obtain a judgment preservation policy seeking to insure recovery in a case or portfolio of cases. A litigant can obtain premium financing whereby the funder provides the capital to pay for the policy premiums and is repaid either through case proceeds or policy proceeds if there is a loss. There is great flexibility and creativity in this market, and it is only growing.

At the end of the day, both funding and insurance are tools available to clients, law firms and funders to solve for the economic realities in the market. While there are many different considerations involved in deciding whether certain risks are more suitable for insurance or funding, the traits they share are the most critical to watch for. To be insured or funded, cases must be strong on the law and the facts; they must involve strong counsel in a solid jurisdiction; and the interests of all involved (client, counsel, and funder or insurer) must be aligned such that everyone is motivated and invested in a positive outcome for all.

***

This article was originally published by The Texas Lawbook .

The post Navigating the Growing World of Litigation Funding and Contingent Risk Insurance appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

International Legal Finance Association (ILFA) Conference

Mon, 15 Apr 2024 20:28:00 GMT

On April 15, 2024, Legal Director Ross Weiner attended the annual International Legal Finance Association (ILFA) conference at the historic Morgan Library in New York City. The conference was replete with interesting panels, great conversation, and a chance to talk litigation finance in an idyllic setting. Below are three insights gleaned:

One of the biggest shifts in the litigation funding space is pairing certain types of funding with insurance. This has dramatically changed the funding underwrite, which requires less of a focus on the underlying action and more of an underwrite of the insurer and whether it will pay if the case results in a loss.
Don’t be penny wise and pound foolish. When it comes to retaining law firms using an AFA (alternative fee arrangement), you need to ensure the arrangement is win-win and avoid a scenario where your case becomes a drag on the law firm. You want everyone rowing together.
With respect to patent licensing campaigns, duration is always longer than you think, and the more fragmented the market, the more risk associated with the campaign.

The post International Legal Finance Association (ILFA) Conference appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Looking for Lit Funding? Here’s the Model Funding Memo

Tue, 09 Apr 2024 16:06:00 GMT

We’re often asked two questions: “What’s the best way to get my case funded?” and “What do you need to evaluate my case?” The answer to both questions is the same: present your opportunity in a succinct, cogent memo that reviews the key factors litigation funders consider when deciding whether to back a case.

Your memo can advocate for your case, but it shouldn’t overlook key challenges (every case has them). Here’s how you can structure your memo to create a compelling funding package. Below we include a full checklist for your use.

You should include an executive summary that serves as a gateway to your funding package, offering a concise overview of the case and your funding request. A well-crafted executive summary grabs the attention of potential funders, providing them with a compelling rationale for further consideration of the funding request.

The Facts

A detailed review of the facts underlying the dispute is indispensable in any funding package. This section should provide a clear and objective account of the events leading to the litigation, including relevant contracts, transactions, and communications. By presenting a thorough and dispassionate understanding of the factual context, you’ll enhance the credibility of your funding proposal.

To expedite the funder’s review process and show you have your house in order, you should also attach the most relevant primary documents as exhibits. If it’s a breach of contract case, include the contract. If the parties exchanged correspondence about the dispute, share that too.

And don’t forget to tell us the basics about the parties: who are the plaintiffs and the defendants, how did they meet, where are they incorporated, and so on.

Jurisdiction and Procedure

Navigating the procedural intricacies of the legal system is essential for successful litigation. In this section, litigators should outline key procedural aspects of the case, including jurisdictional considerations, venue selection, and likely time to resolution. (LexMachina is an excellent source for information on duration. To learn more about how to use data as part of your litigation strategy, check out these two blog posts from guest contributor Adam Feldman.)

Address any potential procedural challenges or complexities, to show you’ve thought through these issues. For example, if you file in your proposed venue, will the defendant attempt to transfer the case or advance a forum non conveniens motion?

If your case is already on file, tell us about the procedural posture. Who is the judge? What’s happened in the case so far? Include all the relevant history, even the parts less favorable to you. Your case survived a motion to dismiss but lost a motion for preliminary injunction? Don’t tell us only about the motion to dismiss. We’re going to find out eventually about the PI motion, and omitting it could undermine your credibility.

Finally, if your case is on file, you should attach as exhibits or upload to a data room the principal pleadings in the case, including the operative complaint, key motion briefing, and any dispositive or especially important rulings from the judge.

Legal Analysis

Here is the heart of your funding memo: a comprehensive legal analysis that scrutinizes the merits of the case. Litigators should delve into relevant legal principles, precedents, and statutes, assessing the strengths and weaknesses of each legal claim asserted. Articulating a cogent legal strategy and addressing potential counterarguments can bolster the persuasiveness of the funding request, showcasing your expertise and strategic ability.

As part of your legal analysis, present not only your affirmative case but also anticipated defenses. How do you expect the defendant to respond to your arguments? Will there be any counterclaims? Are there statute of limitations or laches issues that the defendant may raise?

Finally, if you’re bringing a patent case, be sure to review some of the considerations specific to patent matters, which we discuss elsewhere in this blog post .

Damages and Collectability

This section may reside deep in your memo, but it’s often the first section a funder reads. The strongest legal case in the world won’t make a case fundable if there are no damages or the defendant isn’t collectable.

First, with respect to damages: An assessment of potential damages is pivotal in evaluating the financial viability of the litigation. This section should quantify the economic harm suffered by the plaintiff, taking into account factors such as lost profits, diminished business value, or any other relevant quantum of damages. Be sure to include legal analysis of why your proposed bases for damages may be awarded. If there is a contractual limitation on liability, discuss how that might limit damages. Ideally, your memo will include a third-party damages analysis as an exhibit, showing that your damages model has been validated by a third party.

Second, with respect to collectability: This is perhaps the single item most often overlooked by litigants and lawyers seeking funding. Particularly if the defendant is a small company or an individual, funders need an assessment of whether the defendant has assets that can be collected. Funders generally shy away from funding cases that will need intensive asset enforcement efforts after the conclusion of the primary litigation.

The Funding Request

Finally, your funding package should have a clear and consistent statement of the financial support you seek from litigation funders. The funding request should independently identify the amount of funding sought for legal fees, case expenses, and working capital (if any). Ideally, the funding request is accompanied by a detailed budget, setting out the anticipated use of funds by stage of the case.

The funding request should also identify how much risk sharing the lawyer and litigant will provide. Most importantly, litigation funders customarily prefer for law firms to discount their fees by about 50% in exchange for a contingent upside in the case. The lawyers’ willingness to put their fees at risk provides an important signal to funders and their investors that the lawyers – who are closest to the case – believe in the case’s merits.

You should also include a copy of all other relevant financial documents for the case, such as any existing attorney retainer agreement or prior funding agreements.

* * * * *

Comprehensively set out the basis for your claim; clearly explain the damages, collectability, and funding request; and maintain clarity and objectivity throughout your memo. By creating a well-crafted funding package, lawyers and their clients can maximize the likelihood that they will secure funding, which should in turn increase the probability that they will win their case.

* * * * *

A checklist on what to include in your litigation funding memo:

Executive Summary
Facts
- Name and description of the parties
- Name and description of counsel
- Recitation of the principal facts of the dispute
- Exhibits containing the principal pieces of evidence (e.g., contracts)
Jurisdiction and Procedure
- Jurisdiction and venue analysis, including estimated time to resolution
- If case is on file, highlight the principal developments to date
- Exhibits containing any significant pleadings, briefing, and decisions
- Analysis of actual or anticipated jurisdictional or venue objections
Legal Analysis
- Analysis of the legal issues relevant to the case
- Analysis of potential defenses
- Analysis of potential counterclaims
- Discussion of any statute of limitations or laches issues
Damages and Collectability
- Damages estimate and model
- Legal analysis of bases for damages
- Collectability analysis
The Funding Request
- Total funding request, including fees, costs, and working capital
- Risk sharing to be provided by the law firm and client
- Copy of relevant financial documents, e.g., retainer agreement and any prior funding agreements

The post Looking for Lit Funding? Here’s the Model Funding Memo appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Certum Group’s 2023 Litigation Risk Survey: Results and Analyses

Tue, 02 Apr 2024 19:06:00 GMT

Commissioned by Certum Group, a provider of bespoke solutions for companies facing the uncertainty of litigation, the 2023 Litigation Risk Survey offers valuable insight into a broad array of risk-related issues facing in-house legal departments at companies throughout the United States and around the globe.

General counsel and other in-house leaders were asked about their department’s litigation activities and legal spend, their tolerance for litigation risk, and their knowledge of the potential solutions available to help transfer the outcome risk of litigation. Respondents hailed from a wide array of companies and industry sectors and were distributed among in-house departments large, midsized and small.

By drawing on this diverse range of viewpoints, the 2023 survey presents a unique portrait of the prevailing thoughts of in-house department leaders and should serve as a valuable benchmarking resource for legal departments, law firms, and the companies that serve them.

Download your free copy of the report today!

The post Certum Group’s 2023 Litigation Risk Survey: Results and Analyses appeared first on Certum Group .

LitFinCon 2024

Tue, 19 Mar 2024 15:38:00 GMT

Certum was thrilled to serve as a platinum sponsor for the 2024 LITFINCON in Houston. We had an impressive turnout from leaders like Kirstine Rogers, Dean Gresham, Ross Weiner, Jonathan Erwin and Tim Carney.

Kirstine Rogers participated in a panel discussing the overlap of insurance and litigation. The discussion surrounded issues like how insurance has affected the litigation funding market, how the structures of deals have changed and what the underwriting process for a portfolio insurance deal typically looks like.

Ross Weiner also delivered a keynote and presented Certum’s suite of offerings.

We always learn so much from this conference and its attendees. We’re already looking forward to next year’s event.

The post LitFinCon 2024 appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Litigation Funding Is an Asset – Not an “Albatross” – to New York’s Civil Justice System

Wed, 13 Mar 2024 16:38:00 GMT

If men were angels, government would not be necessary – and nor would litigation finance. But we are not angels, litigation is often an effective tool to ensure compliance with the law, and litigation is extraordinarily expensive .

New York is the financial capital of the world, so it’s no surprise that its courts have embraced litigation funding. When third parties provide capital to litigants or law firms in connection with legal claims, they help cash-poor litigants access the courts, and they allow large companies to pursue meritorious litigation and deploy limited cash into their core business.

Criticism nevertheless persists, exemplified by a recent front-page article in this newspaper profiling a law firm report that called funding an “albatross” on New York’s civil justice system that subjects our courts to “parasitism” and “fraud.”

The view that litigation funding is an “albatross” does not appear to be shared by New York’s judges, who have long recognized the significant benefits of litigation funding. As two separate Manhattan Supreme Court justices have written, third-party funding allows “lawsuits to be decided on their merits, and not based on which party has deeper pockets or stronger appetite for protracted litigation.”

The law firm report profiled by the New York Law Journal suggested that litigation finance might violate usury laws. But several New York courts, including the Appellate Division, First Department, have already rejected this argument, recognizing that non-recourse funding does not implicate usury laws. That decision is consistent with virtually every other court in the nation to consider the issue.

Meanwhile, the New York Court of Appeals made clear in its 2016 decision in Justinian Capital SPC v. WestLB AG that litigation funding transactions do not violate the state’s champerty laws either, at least when they involve at least $500,000 of funding or do not involve the purchase or assignment of claims. The court implicitly dispatched critics’ claim that funders spur frivolous litigation, emphasizing instead the New York legislature’s assessment that funders will not invest $500,000 or more in a case “unless the buyers believed in the value of their investments.” Here too New York law is consistent with the country’s other major commercial centers, which likewise reject the argument that litigation funding violates champerty laws.

New York’s courts , including the First Department , even repeatedly reject efforts to seek disclosure of litigation funding, recognizing that communications with funders are neither material nor necessary to the case. These judicial decisions do not amount to “ obstructionism ,” in the words of the anti-funding report featured by the Law Journal. They are, instead, consistent with the overwhelming trend of caselaw across the country.

The anti-funding report also echoed the criticism that litigation funding makes it harder and more expensive to settle cases, resulting in protracted and more expensive litigation.

Assume for a moment that litigation funding does result in higher settlement amounts. We have a Goldilocks’ dilemma: that settlement amounts increase with funding tells us nothing about whether settlement amounts were too low or just right to begin with. If impecunious litigants were previously forced to settle for less than the value of their claims simply because they could not afford excellent litigation counsel, then an increase in settlement amounts should increase welfare.

In any event, an emerging body of scholarship recognizes what those two Manhattan Supreme Court justices foresaw several years ago: litigation funding improves rather than undermines our litigation system, and likely results in less rather than more litigation.

One recent paper by Harvard and Stanford business professors published in the prominent Journal of Financial Economics presented a game theoretic model that found litigation finance will likely deter defense spending and expedite (rather than protract) litigation, as defendants are more likely to settle strong claims if they know they cannot grind down adversaries in litigation tactics.

Elsewhere, a co-author and I have demonstrated that litigation funders screen out (rather than promote) frivolous cases from our judicial system, and that the presence of litigation funding may result in fewer legal disputes because funding promotes compliance with the law. Another paper I co-authored explains that the hybrid fee arrangements that funders typically require—compensating lawyers with a portion of their hourly rates and a modest contingent fee upon success— better aligns the interests of lawyer and client as compared to the pure hourly or contingent fee models.

All of these arguments are especially true of the commercial (as opposed to consumer) litigation finance industry, where sophisticated parties contract with litigation funders to pursue business-critical and highly meritorious affirmative claims. Commercial funders typically back less than 5% of opportunities they see. These cases—by proxy, the top 5% strongest cases filed in court each year—are precisely the types of cases our legal system should hear.

If men were angels, government would not be necessary—and nor would litigation finance. But we are not angels, litigation is often an effective tool to ensure compliance with the law, and litigation is extraordinarily expensive. Litigation finance helps people with meritorious claims access the courts and vindicate their rights. New York’s judges and lawmakers have not impaired funding to date and hopefully will not do so in the future.

Reprinted with permission from the March 8, 2024 edition of the “PUBLICATION] © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com .”

The post Litigation Funding Is an Asset – Not an “Albatross” – to New York’s Civil Justice System appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

What is Adverse Judgment Insurance?

Fri, 23 Feb 2024 21:38:00 GMT

Adverse Judgment Insurance (AJI) is a type of policy that guarantees a certain amount of coverage in the event of a final, adverse judgment against a defendant.

AJI is typically purchased by companies that are defending complex lawsuits where the potential damages are substantial and above the company’s existing insurance limits or risk tolerance.

Think of it as a catastrophic commercial umbrella policy that is triggered after a final, non-appealable judgment.

Adverse Judgment Insurance can be purchased at any stage of litigation prior to a settlement being reached between the parties.

Generally, AJI does not provide coverage for settlement or defense costs. However, it can provide leverage during settlement negotiations because knowing that it’s in place reduces the pressure from unreasonable plaintiffs or their attorneys, who have an unrealistic expectation of the case’s value.

To start the insurer will conduct an underwrite of the risk which usually requires substantial diligence. This diligence includes looking for strong factual and legal issues, and also looking at the judge, the jurisdiction, the parties’ counsel as well as the appellate panel and the skill and experience of appellate counsel.
Once the insurer has completed the due diligence, it will usually engage in a Q&A with the insured for any items that might need clarification.

If the risk is insurable, the insurer will propose policy terms and pricing.

Then the insured pays a one-time premium transfers up to 100% of the aggregate liability to the carrier.

First of all, it mitigates the risk of a catastrophic adverse judgment by ensuring that there is sufficient insurance coverage in place to pay all of the ultimate damages awarded against the company.

Facilitates M&A and financing transactions that are jeopardize by pending litigation by ring-fencing the liability for a known, fixed cost.
As mentioned earlier it also provides an advantage in settlement negotiations by removing some of the undue pressures that may cause a defendant to settle on less than favorable terms.

And lastly, it provides certainty to help with budgets, forecasts, and expenditures so that companies can get back to business.

The post What is Adverse Judgment Insurance? appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Key Considerations in Patent Funding and Insurance

Mon, 19 Feb 2024 21:54:00 GMT

The most consistently satisfied lawyers I know, whether at a firm or in house, are patent lawyers. In Big Law, their world seems to involve a constant stream of high-impact litigations and transactions between corporate titans. On the boutique side, they pursue significant, often sprawling campaigns on contingency. In house, they get to do both, liaising with senior management, while directing the efforts of outside counsel. In other words, regardless of where they sit within the legal ecosystem, patent lawyers work at the unique intersection of law and commerce—where they help companies change corporate legal departments from cost to profit centers.

As I have moved from private practice to litigation finance, it has become increasingly clear that this service—helping companies make money from (rather than spend money on) legal risk—is exactly what litigation funders and insurers do. This article provides a high-level overview of the key considerations that we have learned to look for in deciding whether to fund or insure IP deals.

When dealing with intellectual property litigation, which requires specialized knowledge that most lawyers do not have, quality counsel is critical. To significantly increase your chances of securing funding or insurance, hire a strong team of proven IP counsel with substantive prior experience actually diligencing and litigating similar IP disputes. We regularly work with topflight IP counsel and are always happy to provide a recommendation.

Whether a funder or insurer wants to get involved with a patent portfolio or litigation often turns on questions relating to the history of the invention and its inventor(s). Accordingly, we generally look for operating companies with strong businesses that have innovated in areas of significant import to our economy. The inventor’s continuing presence in the business is usually a significant plus, particularly given the importance of telling a persuasive and compelling story to the trier of fact. Ideally, we also like to see successful licensing efforts in the past, which provides additional indicia of the patents’ strength.

To prevail in a patent case, you need to establish both validity and infringement. For validity, there are a number of indicia that we look to when assessing strength. They include, among others, the prosecution history and key pieces of prior art, the objections (if any) from the examiner, and how prosecution counsel overcame those objections. Remember, it is important to be upfront about any 101/ Alice concerns, and you will need to be able to explain why the invention was novel, non-obvious, and not anticipated by the prior art. Showing up to a funding discussion with a prior art search is always helpful. Other issues we look for and we will need your help understanding are whether there are questions of indirect or induced infringement, and whether the defendant might raise defenses like the on-sale bar (which prevents patenting of products that have been sold for over a year prior to the application) or inequitable conduct (which asks whether the patent was fraudulently obtained).

Once you have established that you have a protected patent interest, the question invariably becomes whether that valid patent interest has been infringed, thereby entitling you to a recovery. Generally, that question requires an infringement analysis that outlines the specific ways that specific patents are being or have been infringed. To show this, you need to present litigation-ready claim charts that demonstrate infringement. If infringement needs to be shown through a tear-down analysis, you should try to do that tear-down, unless it is prohibitively expensive.

One of the unique aspects of the patent space is the possibility of inter partes review (“IPR”), which boils down to a challenge to the patentability of a patent in front of the United States Patent and Trademark Office (“USPTO”). Interestingly, IPR proceedings can and do occur in parallel with federal litigation, creating issues relating to whether and when to stay the litigation in favor of the IPR process. Moreover, the simple existence and use of the IPR process naturally has a number of collateral effects, most notably relating to cost (because you need more and different lawyers litigating in multiple fora) and duration (because you potentially have two related proceedings).

At the end of the day, many funding and insurance decisions come down to the ultimate strength of the collateral— i.e ., how much do we reasonably expect to collect from the licensing or litigating of the patent or portfolio. The patent space is unique in that the value of any given portfolio is a function not only of the damages that you can secure in court, but also of the revenue you can secure in licensing. The cumulative effect of multiple revenue streams on the value of a portfolio can be quite large. An oft-overlooked part of this process is determining whether there are any potential counterclaims that could decrease the value of any recovery.

All told, the patent space is a unique and dynamic environment that implicates analyses and governmental processes not seen in most commercial litigation. Should you find yourself in need of patent funding or insurance to protect an IP judgment or counsel’s WIP for patent litigation, the best thing you can do is find an experienced team that knows what they are doing in this complicated—but fascinating—space. And we are always happy to help.

The post Key Considerations in Patent Funding and Insurance appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Data on Patent Law: Sources and Uses Explained

Thu, 01 Feb 2024 21:50:00 GMT

Sometimes the most useful litigation tools are ones you assemble on your own – that way you can tailor them to your needs, and occasionally they are even free. Here is an example of resources for the federal circuit, PTAB, and other trial level patent litigation. These resources can give you a sense of judicial behavior which can help generate expectations for case outcomes and timelines. The three resources that I will quickly run through in this post are the the Compendium of Federal Circuit Decisions compiled by the University of Iowa Law School (what I will call the “Iowa Database”), the USPTO’s datasets and case resources , and CourtListener’s RECAP Archive . Each of these resources is free, and each can significantly assist you in developing a patent rights strategy.

Federal Circuit Database

This Iowa Database is comprehensive of Federal Circuit decisions since 2004 and has multiple pieces of information for each case. The Database contains 19,761 cases and is consistently updated. The types of information that one can derive from this dataset are invaluable. Anything from the likelihood of a granted en-banc (136 granted and 13,237 denied for a rate of approximately 1%) to the number of appeals adjudicated from PTAB (1,777) is readily available.

Since the Iowa Database contains information on all decisions from the Federal Circuit, some sorting is required to isolate particular types of appeals like those relating to patents. If you have a software application that can easily create crosstabs like Tableau (my favorite) you can organize and synthesize the information to derive useful outputs. The 19,761 records, for instance, can be sorted by dispute type. Although many of the records records relate to orders that aren’t connected to several of the case outcome variables, among cases that are labeled by type, 3,270 deal with patent infringements, 1,059 deal with inter partes review, 517 deal with contract claims, etc.

The patent cases are coded for whether they relate to code sections 102 or 103 along with other issues like claim construction and definiteness. Once a specific area is nailed down, let’s say patent infringement, then more specific analyses can be performed. If we isolate the cases from 2015 forward for example, we can see which judges have been the most frequent majority authors (Stoll with 99, then Prost with 93, and Lourie with 87). We can also look to see who authored dissents most frequently (Newman with 31 and Reyna with12). Or perhaps we want to know about the most frequent lower courts (District Court for the District of Delaware with 246, District Court for the Eastern District of Texas with 163, and the District Court for the Northern District of California with 158). Maybe we even want to know who is or was most likely to dissent from an opinion authored by Judge Stoll. In such instances, Judges Dyk, Hughes, Lurie, and Newman each dissented twice.

USPTO Website

The USPTO also has a treasure trove of free resources for the legal data enthusiast. Some of the information is quite helpful for legal practitioners moving forward while other data are mostly historic. Even the backwards looking data though can aid with current decisions to the extent that they are based on litigation before active judges.

The historic element is quite fascinating. While unfortunately only updated through 2016, the Patent Litigation Docket Reports have case level information from 81,350 district court cases filed between 1963 and 2016. A few nice feature of the Docket Reports is that they track litigation timing and this can be parsed by on other variables like the judge or court of interest. There are also multiple datasets that correlate to one another so you can look at observations based on the attorneys on the cases, patents, case names, or documents.

We might, for instance, be interested in the magistrate judges who these cases were referred to in order to gauge how long proceedings end up taking in their courts. Here is an output of magistrate judges with over 200 proceedings in this dataset.

Judge Roy S. Payne for the Eastern District of Texas has the lion’s share of these cases with all other judges only deciding a fraction of Judge Payne’s count. Let’s say we are interested in the time it takes these judges to move from an opened to a closed case, we can use the time parameters in the dataset to run this calculation for each individual case, and then generate averages by judge. Here are what the averages look like for these judges.

Judge Payne cleared his cases the quickest of the group at just under 250 days while, at the other end of the spectrum, Judge Trumbull of the District Court for the Northern District of California averaged over 535 days per case.

There are also other datasets available on the USPTO site as well including the Patent Examination Research Dataset (PatEx) which covers “13 million publicly-viewable provisional and non-provisional patent applications to the USPTO and over 1 million Patent Cooperation Treaty (PCT) applications.”

CourtListener’s RECAP Archive

The RECAP Archive is a freely accessible tool that compiles PACER records. It is an extremely useful resource and was used to derive some of the datapoints for the USPTO measures.

RECAP is generally more of a qualitative data source that can be used to put together quantitative statistics. One of the nice parts of RECAP though is that you can dive into case dockets and in some instances you can view documents filed in cases.

One of the nice features of the RECAP archive is that you can filter by PACER codes, so, if for instance you were interested in patent cases, you could plug in nature of suit code 830 and find that since the beginning of 2015 there are 28,257 cases that fit under this code and 1,867,132 docket entries. If you were interested in the cases referred to Judge Roy S. Payne in the Eastern District of Texas you could refine your search by judge and find there are 2,611 relevant cases since the beginning of 2015.

A nice feature of RECAP that was presumably used in the creation of the USPTO dataset is the RECAP metadata that correlates with the variables in the USPTO site. These variables include the judge assigned to and referred to the case, the citation, date filed and terminated, date of last known filing, cause of action and nature of suit, jury demand, and jurisdiction type. There are also data on the parties and attorneys where available through PACER.

The upside to these data is that they allow for updating beyond the numbers currently available from the USPTO dataset which only run through 2016 and provide additional information not provided in the dataset. The downside though is that it takes either scraping and parsing skills to put it into a useable format or taking the time to input the data manually. If you have specific information you are trying to assemble rather than raw general data though, this is a good place to begin.

Concluding Thoughts

Legal data help with generating predictions, following trends, and understanding changes in the legal landscape. The data described in this article are all readily available and relatively easy to use and navigate. These are great starting points for research and comparisons and provide context to those interested in specific cases. Another big upside is that these resources are free.

While the resources I described generally relate to patent law, this is just an example of the legal data that are freely available on the web. There are many other resources for other areas. If you already understand the value of data, then the raw data available to put together novel datasets abound. Furthermore, there are experts in legal data analysis that can help you develop the skills to make use of these resources and to ascertain answers and solutions to complex legal questions that are not answerable through doctrine alone. For claimholders, litigators, litigation funders, and insurers, such data provide the additional benefit of oftentimes lending themselves to probabilistic determinations that can help individuals forecast potential outcomes and generate likelihood intervals that relate to the probability that certain outcomes will come to fruition.

Adam Feldman is the editor of Empirical SCOTUS , a blog that conducts data analysis of the United States Supreme Court, and the Principal of Optimized Legal, a legal data/statistical consultancy. He is also an adjunct professor of political science and public law at California State University, Northridge. You can reach Adam for specific data and analyses related to your own litigation questions in this and other areas.

The post Data on Patent Law: Sources and Uses Explained appeared first on Certum Group .

What’s Cooking In Food And Beverage Class Action Litigation in 2024

Wed, 31 Jan 2024 22:04:00 GMT

If you handle advertising litigation you don’t want to miss this episode of Alternative Litigation Strategies! In the latest show Kevin interviews litigation Partner, Tyler Young from Faegre Drinker. Tyler defends food, beverage, and consumer packaged goods companies in consumer fraud class actions and complex litigation across the country. Kevin and Tyler discuss some of the mostly hotly anticipated litigation in this arena for 2024, including; the new version of “all natural” lawsuits, heavy metal and PFAS cases, geographic origin claims, and recycling and recyclability litigation. It’s sure to be a busy year in food, beverage, and consumer packaged goods class action litigation!

The post What’s Cooking In Food And Beverage Class Action Litigation in 2024 appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Patent Litigation Funding and Insurance: What to Know and How to Succeed

Thu, 25 Jan 2024 21:39:00 GMT

When I was in law school, my business associations professor began the semester by telling the class that debt and equity are essentially the same thing.

In her view, both involve money going from one organization to another ( i.e ., the parties exchange “capital” or “debt”). And both are concerned with how the receiving organization will ultimately compensate its counterparty ( i.e ., do they get a fixed payment or a share of profits). From this perspective, debt and equity exist along the same continuum, with the primary difference lying in the allocation of risk between the parties through the distribution of control and economic rights.

Litigation finance and insurance are quickly approaching a similar moment of conceptual and practical unity in which the dividing line between the two products is blurring and they are increasingly used together. The purpose of this article is to explain the practical significance of this development while also providing some tips of the trade on how to navigate the process of securing funding or insurance.

Funding and Insurance are Tools for Capturing Value and Hedging Risk

Over the last 10 years, litigation funding has become a significant product within the litigation ecosystem. As a result, most lawyers know that litigation funding can be used to pursue a single case, a portfolio of cases, or even the creation of a new law firm (in certain jurisdictions and where there is a sufficiently strong underlying thesis).

Practitioners are also increasingly aware of the reality that litigation insurance is now rising in prominence, particularly in the form of judgment preservation insurance (a product, which, as its name suggests, insures a trial-level award on appeal).

The really interesting work, however, starts when you combine products, merging the features of finance and insurance. For example, imagine that your firm wishes to litigate three IP disputes on full contingency ( i.e. , no fees or expenses unless you settle or win). Pre-suit insurance for a portfolio like this will be difficult to secure, so if you need risk-sharing, you will likely start with litigation funding. While every transaction is bespoke, a traditional structure would be a funder providing capital to cover 50% of your fees and expenses (on a cross collateralized, non-recourse basis), while the other 50% of fees would be at risk. In exchange, the funder would be entitled to a portion of the eventual recovery (if any).

Assume that all three cases eventually defeat inter partes review (IPR) motions and survive Markman. At that juncture, you might consider buying a “work in progress” or “WIP” insurance policy for a portion of the firm’s 50% contingency fees at risk in the case, which allows the firm to guarantee that it will receive—at the very least—a contingent fee equal to the total number of hours ultimately billed. And if liquidity is an issue, you could even obtain litigation funding to pay for the insurance premium.

Similarly, we increasingly see funders and complex commercial litigation firms wrap their best cases or portfolios with insurance as a means of guaranteeing that they will see at least some of the value inherent in their docket. Not only does insurance create a floor for the plaintiff, it also makes it cheaper for the funder or firm to secure additional capital given that it now has a guaranteed cash influx on the horizon.

Marshal the Facts and the Law in an Easily Digestible, Honest Submission

Once you have decided that it makes sense for your firm or business to explore funding or insurance, the question inevitably becomes “what does the process look like” and “how do I make sure I get what I want for the best price?”

The answer is that it’s generally a four-part process:

The party seeking funding or insurance should prepare a detailed case submission, summarizing key facts, legal theories, potential damages, and collectability issues;
Sign an NDA with the funder or insurer;
Give the funder or insurer time to conduct an initial assessment ( g. , any issues with jurisdiction, collectability, etc.), which hopefully yields a term sheet to which the firm or business agrees;
Allow the funder or insurer time to put the case into underwriting to fully diligence the risk with the goal of ultimately binding an insurance policy or funding agreement.

The party seeking funding or insurance should be willing to address with full candor both the strengths and weaknesses of the case during the diligence process.

The key to success in this process is the creation of a detailed and honest submission. Across the market, litigation funders and insurers tend to be experienced and well-credentialed lawyers who spent years in the trenches litigating complex issues. They are, in short, people who have witnessed the ebbs and flows of litigation, including the big wins and “interesting” developments, and they want your submission to accurately account for litigation’s inherent risks. You put your best foot forward when you submit a memo that (1) clearly identifies the procedural posture of a case and its relevant facts, (2) outlines the applicable law and explains why liability will attach, (3) discusses your theory of damages and why your figures are justified, (4) addresses any concerns relating to collectability or judgment enforcement, and (5) honestly addresses and explains away any weaknesses with the case. Although they are considered summaries of the case, the submissions should be sufficiently detailed. On average, these documents tend to range from 10 to 20 double-spaced pages. And the best ones are essentially “bench memos” that a clerk would prepare for a judge or a “case assessment memo” that an associate would prepare during intake at a plaintiff boutique. They acknowledge the weaknesses in the case and show how they plan to resolve them.

After the insurer or funder has conducted its full diligence, and assuming they continue to like the risk, you begin negotiating a funding agreement or insurance policy. On the funding side, the key terms that require negotiation are often the waterfall, return-related questions, and the amount of money allocated to fees (money for lawyers) vs. costs (money for court reporters, etc.). On the insurance side, some of the key negotiating points tend to be the amount of the premium ( i.e ., the “rate-on-line”) and exclusions under the policy. Particularly in the funding space, the final negotiations are often facilitated by deal counsel for one or both sides.

All told, the crucial thing to remember is this: be honest, direct, and detailed, and you set yourself up for success in seeking the product(s) that fit your risk profile.

This article was first published by IPWatchdog.

The post Patent Litigation Funding and Insurance: What to Know and How to Succeed appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Cy Pres’ Delicate Dance

Wed, 17 Jan 2024 15:37:00 GMT

Cy Pres Overview

“Cy pres ” comes from the French expression cy pres comme possible, which means “as near as possible.”¹ In the class action world, cy pres distributions are relevant when the parties are unable to distribute some or all the settlement money to class members. Instead of returning the money to the defendant, parties have often invoked cy pres and directed funds to third-party organizations.

In recent years, however, this practice has come under fire. In 2013’s Marek v. Lane , Chief Justice Roberts authored a statement accompanying the Court’s decision to deny certiorari in a case that featured a class action settlement in which nearly all the monetary relief that didn’t go to the lawyers went to a cy pres recipient. Chief Justice Roberts warned that because cy pres remedies “are a growing feature of class action settlements,” in “a suitable case, this Court may need to clarify the limits on the use of such remedies.” ²

Six years later, it appeared that case had arrived. In Frank v. Gaos , the Supreme Court granted certiorari to hear a challenge to a cy pres class action settlement into which Google had entered, featuring a $5.3 million payment that went to (i) plaintiffs’ counsel; and (ii) six organizations associated with protecting privacy on the internet. But rather than deciding the case on the merits, the Supreme Court remanded on jurisdictional grounds. Justice Thomas, dissenting, wrote that a “ cy pres -only” settlement provided members of the class “no damages and no other form of meaningful relief,” which, in his view, “rendered the settlement unfair and unreasonable under [FRCP] 23(e)(2).”³

Since then, however, the Supreme Court has not meaningfully stepped into the void, leaving lower courts to wrestle with cy pres ’ thorny issues. Which leads us to the most recent entry in this field.

Hawes v. Macy

Hawes v. Macy’s Inc. ⁴ is a case about sheets; specifically, whether certain bed sheets sold by Macy’s featured the thread count listed on the packaging. As Judge Douglas Cole of the Southern District of Ohio cracked wisely, after five years of litigation, the parties sought a settlement “to put the matter to bed.” Get it?

The proposed nationwide class action settlement was run-of-the-mill. A $10.5 million common fund, with claimants entitled to receive $2.50 without proof of purchase, while those with proof of purchase entitled to receive $7.50 per set of sheets bought during the class period. For the latter category, the agreement provided for the possibility of a second distribution. If there were funds remaining after attorneys’ fees, class representative incentive awards, administrative expenses, and the initial round of class payments, then, if it was “economically feasible,”⁵ the with-proof claimants would receive a pro rata share of the remaining funds, but “in no event … will the second distribution amount cause any Settlement Class Member to receive more than 50% of the amount paid by that class member for [the sheets] for which they submitted an Eligible Claim.” ⁶ If such a second distribution was not economically feasible or if funds remained after it, then the remaining funds were slated to go, via cy pres , to the Public Interest Research Group (“PIRG”), a “nonprofit advocacy organization that the parties chose.”⁷

In deciding whether to grant final approval to the settlement, Judge Cole zeroed in on the cy pres award as a major problem. According to Judge Cole, the Eighth Circuit has two “helpful limiting principles” when it comes to cy pres . First, have class member claimants “been fully compensated” and “further distribution…is not feasible”?⁸ Second, is the cy pres recipient one that “relates directly to the injury alleged in [the] lawsuit and settled by the parties”? ⁹

The court found that while the first factor was satisfied, the second was “where the parties [went] astray.” Specifically, because PIRG “does no work addressing false or misleading labeling for bed sheets, textiles more generally, or even false advertising as a category,” and because PIRG “uses portions of its funds to donate to other organizations,” the court “can discern no way in which a potential multi-million dollar award to PIRG is the ‘next best use’ for a class fund created to settle consumer fraud claims stemming from inaccurate bed sheet thread counts.”¹⁰ In a pithy retort, Judge Cole wrote that “Article III courts resolve cases and controversies; they are not a legislature that appropriates funds in pursuit of the public good.”¹¹ Accordingly, the court rejected the settlement due to “this single issue.” ¹²

Lessons Learned

At the risk of overstating the significance of one district court case, there are some valuable practitioner insights available from Hawes .

First , given the uncertainty at play, cy pres awards should be avoided in class action settlements. In Hawes , this whole issue could have been sidestepped with an agreement to increase class members’ benefits pro rata so that there was no money left to be distributed. Introducing a cy pres benefit (and beneficiary) creates settlement approval problems and provides objectors with a target to shoot at.

Second , if you are going down the cy pres path, you must inform the class, through the relevant notice, of this possibility. Judge Cole was perplexed at the Hawes ’ parties’ failure to do this, as the notice therein failed to articulate even the possibility of a cy pres award, much less the third-party that would be receiving it.

Third , a cy pres recipient truly must be the “next best use” of the funds and not just a Larry David-like “pretty, pretty good” use of the funds. As cy pres continues to garner critical attention from the courts, assessments like the one in Hawes will likely become more common. So, pick wisely.

Fourth , practitioners should know that there is an alternative to a common fund with cy pres settlement. Indeed, claims-made settlements, through which a defendant is responsible for payment based only on the total number of claims filed by class members, obviate the need for a cy pres component. And dispelling an incorrect notion, federal courts routinely approve claims-made settlements.¹³

***

Class Action Settlement Insurance (CASI) provides companies with the certainty they need to get back to business. It is the only product on the market that allows companies to mitigate, cap, and transfer the financial risk of settlement in existing class action litigation. Designed by Certum Group in response to businesses’ need for financial certainty in class action lawsuits and resulting settlements, CASI eliminates the unintended consequences of settlement and helps businesses exit litigation for a known, fixed cost.

Contact us today to learn more about our creative insurance solutions to resolve existing or to ring-fence threatened or existing litigation for a known, fixed cost.

***

https://fedsoc.org/commentary/fedsoc-blog/cy-pres-is-it-legal-and-will-the-supreme-court-decide.
134 S. Ct. 8, 9 (2013).
139 S. Ct. 1041, 1047 (2019) (Thomas, J., dissenting).
1:17-cv-754 (S.D. Oh.) (Dkt. No. 169) (“Op.”).
The parties were obligated to “cooperate in good faith to determine whether it is economically feasible to make a second distribution.” Id. (Dkt. No. 143-2 at § 6.3.)
Id.
While Section 6.4 of the Settlement Agreement named PIRG as the intended cy pres recipient (an “organization which has as its purpose the advancement of consumer protections and rights”), the notice the class received “said nothing about the possibility of a cy pres award, did not disclose that any of the common fund could go to any third party, and did not name PIRG as the chosen recipient for such funds.”
Note, fully compensated “does not necessarily mean the class is afforded the entire relief sought in the complaint. Rather, the Court must make its own assessment of the damages that would be recoverable by class members.” Op. at 33.
Id. at 34.
Id. at 35-37.
Id. at 40.
Id. at 41.
See, e.g., Sharpe v. A&W Concentrate Co. , 1:19-cv-00768 (E.D.N.Y.) (final approval granted Nov. 15, 2023) ; In re Procter & Gamble Aerosol Prods. Marketing and Sales Practices Litig. , 2:22-md-03025 (S.D. Ohio) (final approval granted June 16, 2023) ; Honigman v. Kimberly-Clark , 2:15-cv-02910 (E.D.N.Y.) (final approval granted June 12, 2023); Browning v. Anheuser-Busch, LLC , 4:20-cv-00889 (W.D. Mo.) (final approval granted Dec. 19, 2022); Ramirez v. HB USA Holdings, Inc. , 20-cv-1016 (C.D. Cal.) (final approval granted July 20, 2022).

The post Cy Pres’ Delicate Dance appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Will Marra on Bloomberg Law Blog: Litigation, Professional Perspective- AI & the Future of Litigation Funding

Wed, 10 Jan 2024 16:53:00 GMT

Artificial intelligence (AI) has arrived at the US Supreme Court—kind of. Though the term “artificial intelligence” has not yet appeared in the U.S. Reports, Chief Justice John Roberts’ year-end report on the federal judiciary talks about how AI will impact the law.

Chief Justice Roberts writes that “[m]achines cannot fully replace key actors in court,” especially the role of judges. Trial judges must assess credibility and make fairness determinations; appellate judges may determine not only what existing law says today, but how it should “develop in new areas.” “[H]uman judges,” Chief Justice Roberts predicts, “will be around for a while.”

On the other hand, Chief Justice Roberts writes, “[p]roponents of AI tout its potential to increase access to justice, particularly for litigants with limited resources” and “those who cannot afford a lawyer.”

AI is not the only recent advancement that addresses the extraordinarily high cost of legal services. Our legal system is also being transformed by litigation funding and litigation insurance, which allow litigants to offset the mounting costs of litigation by sharing risk with third-party funders and insurers. Indeed, at least before AI burst onto the scene, litigation funding was called “likely the most important development in civil justice of our time.” Bloomberg Law recently listed litigation funding as one of the six most important legal issues to watch in the litigation space in 2024, alongside hot button issues like abortion and gender identity.

How, then, does the revolution of AI interact with the transformative impact of litigation funding? It’s too early to say for sure, but here are four suggestions as we head into 2024.

Better, Quicker Funding Decisions

The first impact of AI and funding is likely that the technology will dramatically increase the efficiency with which litigation funders operate.

One common criticism of litigation funding is that the diligence process is too slow. AI should accelerate funders’ time to decision, as they bring to bear machine-learning tools to more quickly analyze cases. Speeding up the diligence process will make the funding application process more efficient and client-friendly.

AI tools should also increase the accuracy with which funding determinations are made, as funders—and the lawyers submitting matters for funding—harness the power of AI to better predict dispute outcomes. This should in the long run decrease the cost of litigation funding, since machine learning input will decrease the risk that funders are taking.

Decreased Demand for Funding?

Litigation funding began as a response to an endemic problem: litigation is really, really expensive.

AI promises to alleviate that problem by reducing the cost of litigation—even if lawyers still need to cite check AI’s suggestions. In some instances, then, AI is likely to reduce or eliminate the need for litigation funding, particularly for those litigants who are liquidity-constrained and lack resources to fund today’s multi-million-dollar litigations.

The truly impecunious, or the increasing number of well-capitalized litigants who use funding for risk management, are still likely to use litigation funding. But the total amount they require for funding may decrease, as the cost of litigations goes down.

Overlooked Cases May Be Funded

On the other hand, AI may enable funders to finance matters that are currently overlooked by most litigation funders.

For example, many funders do not finance smaller cases that require only a few hundred thousand dollars to litigate. The cost of reviewing those matters is simply too high relative to the possible return. As the cost of studying matters decreases, however, funders may find these opportunities to be attractive.

Meanwhile, there is also a thin market for especially expensive cases, particularly high-risk and high-cost matters like sprawling antitrust disputes. As the cost of legal services declines, so too might the cost of litigating those cases. The strongest of these cases might get increased access to litigation funding.

AI may further assist litigation funders in better identifying claims that ought to be brought and can benefit from funding. This can include either the identification of filed cases that are good candidates for funding, or the identification through publicly available documents of latent claims that should be filed.

Beyond Plaintiff-Side Litigation

Tracking all this is yet a third revolution in the law: relaxed restrictions on law firm ownership by third parties. In 2020, Arizona eliminated state legal ethics Rule 5.4, the rule that bans non-lawyer ownership, in an effort to “promote business innovation in providing legal services at affordable prices.” Utah has a regulatory sandbox with relaxed restrictions, and other states may follow suit.

Litigation funding typically focuses on just that: litigation—and usually plaintiff-side litigation to boot. The elimination of bans on non-lawyer ownership of law firms will allow third-party capital and AI to help reduce the cost of legal services not only in litigation but also in other areas, including defense litigation, corporate work, trusts and estates, and so on. This will be a very good thing for people and companies who need greater access to those legal services.

This article was originally published by BloombergLaw.com

The post Will Marra on Bloomberg Law Blog: Litigation, Professional Perspective- AI & the Future of Litigation Funding appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Avoiding and Managing U.S. Litigation Risks

Mon, 08 Jan 2024 16:33:00 GMT

In this episode of Alternative Litigation Strategies, Certum Group’s Kevin Skrzysowski speaks with litigation partner, podcast host, and author, Kent Schmidt , about his recently released book, Avoiding and Managing U.S. Litigation Risks: A Comprehensive Guide for Business Owners and the Attorneys Who Advise Them . Kevin and Kent discuss his system, “The Five-C’s”, to help companies better understand the sources of commercial litigation, implement preventative measures to avoid it, and the most effective techniques for managing litigation when it strikes. These include: Corporate governance, Contract disputes, Customer Claims, Competitors, and Crewmembers. Get your copy from Globe Law and Business today!

The post Avoiding and Managing U.S. Litigation Risks appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Will Marra on Columbia Law School Blog: How Litigation Finance Strengthens the Attorney-Client Relationship

Wed, 03 Jan 2024 16:26:00 GMT

When Bloomberg Law recently previewed its top six litigation issues for 2024, five were probably familiar: abortion, administrative law, antitrust enforcement, transgender rights, and opioids.

But the sixth might have surprised you: litigation finance.

It’s a sign of how important third-party finance has become in an era when commercial cases can cost many millions of dollars and billing rates are expected to rise by 6 percent to 8 percent at major law firms in the coming year.

While many commentators support litigation funding, some oppose the practice of third parties providing capital to litigants or lawyers in exchange for a right to some proceeds from the litigation. One of the principal objections is that the introduction of a third-party funder might interfere with the attorney-client relationship. “Third party financing weakens the traditional attorney-client relationship,” the U.S. Chamber of Commerce Institute for Legal Reform claims, raising “serious questions concerning the funder’s place in that relationship.”

In a new article, however, we argue that critics have it backward: The hybrid fee arrangements that funders typically insist upon actually better align lawyer and client than the hourly or contingency fees that litigants typically pay their lawyers.

The hourly fee – where the lawyer is paid for the time she spends on the case, without regard to whether the case succeeds – renders the lawyer completely indifferent to the magnitude of the client’s recovery and adverse to the client on the speed with which that recovery comes. The longer it takes for the case to resolve, the more hours the lawyer bills, and the more she gets paid.

With the contingency fee, the lawyer is not indifferent to the size of recovery, as the lawyer’s compensation is based on a percentage of the case proceeds. The larger the damages, the greater the lawyer’s compensation. But the lawyer is still adverse to the client on speed, just in the opposite direction: the lawyer wants to settle too quickly because the lawyer must bear all the effort of going forward with the litigation while collecting only a fraction of the return on effort; this gives the lawyer an incentive to settle prematurely even if it means a smaller recovery.

When a case is financed by a third-party , the lawyer usually does not work on a pure hourly fee or contingency fee. Rather, the litigation funder typically requires a hybrid fee that contains features of both the hourly and contingency fees.

Funders typically pay only a portion of a lawyer’s hourly fees – say, 50 percent — and further provide the law firm with a moderate contingency fee in the case. That is, the lawyer is usually compensated in two different ways: partly on an hourly fee, where the firm receives only a percentage of its normal billable rate, and partly on a contingency fee, where the firm receives a portion of case proceeds if the case succeeds.

Why do litigation funders seek these hybrid fee arrangements?

Litigation funders invest in cases, but the legal ethics rules prohibit them from controlling those cases. Financiers are thus careful to structure everyone’s payouts to ensure that neither the lawyer nor the litigant can take advantage of the financier, by, for example, in the case of the litigant, accepting a settlement offer that would be unfavorable to the financier or refusing a settlement offer that would be favorable to the financier, or, in the case of the lawyer, by shirking or overbilling.

To prevent this, the financier attempts to align its interests with each of these other parties as closely as possible.

The hybrid formula is the product of this drive to align incentives in the absence of the ability to control the litigation. Financiers do not want to pay all a lawyer’s fees (even as capped by the anticipated budget) to ensure that the lawyer will have a strong incentive to efficiently litigate the case; the incentive to drag out litigation is a principal drawback of the hourly fee.

At the same time, financiers want lawyers to have skin in the game to ensure they have the incentive to maximize the case’s value and, in turn, in at least some of the examples, the financier’s return on investment. Thus, the financier insists the lawyer take a contingency percentage in the case as well.

Scholars have long recognized that the hourly and contingent fee models raise significant agency costs. And scholars have previously argued that there is a better way: a hybrid formula.

In an underappreciated article written 45 years ago, Kevin Clermont and John Currivan showed that a hybrid formula where the lawyer collects an hourly fee in addition to a contingent percentage almost always reduces agency costs compared with either hourly fees or contingent percentages alone. This formula pits the hourly fees and contingent percentages against one another to improve upon them both: The percentage component of the formula gives the lawyer an incentive to care about the magnitude and speed of the recovery while the hourly component mitigates the incentive to settle prematurely.

The hybrid formula Clermont and Currivan studied was different than the one used by third-party financiers: Their formula made even the hourly fees contingent on some recovery by the client. Subsequent scholars have shown that the hybrid formula with non-contingent hourly fees is even better than the one studied by Clermont and Currivan – indeed, if the hourly fees are paid by a third party and set correctly, it can actually perfectly align the lawyer’s incentives with the client’s interests.

In other words, hybrid fee formulas similar to those presented in litigation finance deals likely better align the incentives of the lawyer and client than does a pure hourly or contingent fee!

Conclusion

We think critics have gotten backwards the agency-cost story of third-party litigation finance. Rather than exacerbate agency costs by illegally meddling with the lawyer-client relationships, because it is so difficult to legally meddle in the litigation, financiers protect themselves instead by trying to align their interests with the lawyer and the litigant. The happy and predictable side effect of these efforts is that they end up better aligning the lawyer and litigant with each other, too.

Churchill said democracy is “the worst form of Government except for all those other forms that have been tried.” Litigation finance may not be perfect, but it is better than the hourly and contingency fee, at least when it comes to aligning the incentives of lawyer and client.

ENDNOTES

[1] Bloomberg Law 2024:Litigation, https://pro.bloomberglaw.com/bloomberg-law-2024/#litigation .

[2] Zack Needles, Big Law’s Approach to Billing Rate Hikes in 2024: The Morning Minute , Nov. 1, 2023, https://www.law.com/2023/11/01/big-laws-approach-to-billing-rate-hikes-in-2024-the-morning-minute/

[3] U.S. Chamber Institute for Legal Reform, Third Party Financing: Ethical & Legal Ramifications in Collective Actions at 3 (2009), https://instituteforlegalreform.com/wp-content/uploads/2020/10/Third_Party_Financing.pdf .

[4] Brian Fitzpatrick & William Marra, Agency Costs in Third-Party Litigation Finance Reconsidered , Vanderbilt Law Research Paper No. 23-45, https://ssrn.com/abstract=4649666 .

This post is based on the article, “Agency Costs in Third-Party Litigation Finance Reconsidered,” by Brian T. Fitzpatrick and William Marra, available here .

This article was first published on Columbia Law School’s Blog on Corporations and the Capital Markets

The post Will Marra on Columbia Law School Blog: How Litigation Finance Strengthens the Attorney-Client Relationship appeared first on Certum Group .

The Three Little Pigs: A Litigation Finance Story

Mon, 18 Dec 2023 20:24:00 GMT

This holiday season, Certum Group made a children’s book… about litigation finance.

The Three Little Pigs: A Litigation Finance Story

Ever seethed at the big bad wolf for blowing down those homes made of straw and stick?

Wished the pigs had non-recourse capital to sue the wolf and rebuild their homes?

Wish no more! Check out our children’s book.

We hope you enjoy reading to your little loved ones our heartwarming tale of justice and legal finance. Because even fairy tale characters deserve justice.

The post The Three Little Pigs: A Litigation Finance Story appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Dougan v. Centerplate: Dismissing a Federal Court Class Action in Favor of State Court

Mon, 18 Dec 2023 19:25:00 GMT

Dougan v. Centerplate, Inc., et al. , ¹ began as a wage-and-hour class action filed in state court. Defendants removed the case to the Southern District of California. Shortly thereafter, plaintiff filed a separate—but similar—action in state court pursuant to California’s Private Attorneys General Act. Defendants were unable to remove the second state court action to federal court.

Fast forward a year. Following mediation (but long before any class certification briefing had begun), the parties negotiated an agreement that called for the “global settlement approval process to proceed in [state court],” with the parties agreeing to dismiss the federal case once the state court matter was finally resolved. The Southern District of California asked the parties to address what level of scrutiny, if any, it should apply to such a pre-class certification dismissal stipulation. In response, the parties argued that pursuant to Fed. R. Civ. P. 23(e), dismissal should be automatic. To make a long matter short, the court agreed, concluding that “the 2003 amendment to Rule 23(e) was intended to take courts out of the business of reviewing pre-certification voluntary dismissals .” ²

A brief overview of the federal rules will help explain this.

FRCP 41(a)(1)(ii) permits a plaintiff to “dismiss an action without a court order by filing … a stipulation of dismissal signed by all parties who have appeared.” This, according to the Ninth Circuit, confers an “absolute right” to dismiss an action. ³ Indeed, such a stipulation of dismissal causes the district court in which the action is pending to lose jurisdiction over the case. ⁴ But Fed. R. Civ. P. 41 is not the end of the matter, as it is “subject to Rule[] 23(e).” ⁵

Before 2003, the Ninth Circuit interpreted then-Rule 23(e) to mandate court review of pre-certification voluntary dismissals in class actions. In Diaz v. Trust Territory of the Pacific Islands , ⁶ the Ninth Circuit found that a district court must hold a hearing and “inquire into the terms and circumstances of any dismissal or compromise to ensure that it is not collusive or prejudicial” before accepting the parties’ dismissal stipulation.

But the 2003 amendment to Fed. R. Civ. P. 23(e) changed this, as the Rule now reads: “[t]he claims, issues, or defenses of a certified class —or a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed, or compromised only with the court’s approval.” ⁷ Despite this unambiguous language, courts in the Ninth Circuit have split on whether to substantively review pre-certification dismissals. ⁸ In Centerplate , Judge Sammartino tries to slam the door on the notion that the district court has any role in assessing pre-certification voluntary dismissals, writing: “The legislative history of the 2003 amendment to Rule 23(e) is inconsistent with the approach ” taken by courts mandating a review. ⁹

And how does Judge Sammartino know this? Because the Rule’s drafters initially proposed for public comment a version of Rule 23(e) that would have required courts to “approve a voluntary dismissal, withdrawal, or settlement made before a determination whether to certify a class.” ¹⁰ In other words, a rule that would have followed Diaz . But after public comment, the drafters revised the proposed rule to “delete the requirement that the parties must win court approval for a precertification dismissal or settlement.” ¹¹ According to Judge Sammartino, the “Advisory Committee Report demonstrates that the Rules’ drafters made the express decision to reject the Diaz approach.” ¹² And lest there be any doubt, Judge Sammartino notes that the fact that the parties were looking to certify a class (for settlement purposes) in state court does not trigger any review obligations in the district court. ¹³

Accordingly, Judge Sammartino approved the stipulation and dismissed the case.

***

Dougan is a thoughtful and well-reasoned decision that should help litigants get comfortable with the prospect of dismissing a federal putative class action in favor of one pending in state court. Such a dismissal, so long as it is agreed to by all parties, should be automatic and need not trigger or require any substantive review by the court.

***

Class Action Settlement Insurance (CASI) provides companies with the certainty they need to get back to business. It is the only product on the market that allows companies to mitigate, cap, and transfer the financial risk of settlement in existing class action litigation. Designed by Certum Group in response to businesses’ need for financial certainty in class action lawsuits and resulting settlements, CASI eliminates the unintended consequences of settlement and helps businesses exit litigation for a known, fixed cost.

Contact us today to learn more about our creative insurance solutions to resolve existing or to ring-fence threatened or existing litigation for a known, fixed cost.

1. 22-cv-1496 (S.D. Cal.), Dkt. No. 15 (Order Dismissing Entire Action Without Prejudice Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii)) (the “Order”).

2. Id. at p.3.

3. Am. Soccer Co. v. Score First Enters. , 187 F.3d 1108, 1110 (9th Cir. 1999).

4. Black Rock City, LLC v. Pershing Cnty. Bd. Of Comm’rs , 637 F. App’x 488, 488 (9th Cir. 2016).

5. Fed. R. Civ. P. 41(a)(1)(A).

6. 876 F.2d 1401 (9th Cir. 1989).

7. Fed. R. Civ. P. 23(e) (emphasis added).

8. See Order at pp. 5-6 (listing cases).

9. Id. at p.6 (emphasis added).

10. Id.

11. Id. at p.7.

12. Id.

13. Id. at p.8.

The post Dougan v. Centerplate: Dismissing a Federal Court Class Action in Favor of State Court appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

How to Choose a Funder

Mon, 11 Dec 2023 14:39:00 GMT

One of my favorite concepts from the first year of law school is the idea that property is a “bundle of sticks”— i.e ., “a collection of individual rights which, in certain combinations, constitute property.” United States v. Craft , 535 U.S. 274, 278 (2002). A fun concept in the abstract, it is increasingly of real-world import. By way of limited example, when the notion of property as divisible rights and obligations is combined with the understanding that litigation is an asset with real value (and real risks), the power of the litigation finance and insurance revolution becomes clear: They are the tools through which a litigation’s value is extracted and exchanged, allowing you to customize your risk profile.

In its simplest terms, litigation finance allows you to right-size upside potential and litigation insurance allows for the efficient shedding of downside risk, without concern for the vagaries of a judge and jury. So, when I’m asked what is important in choosing a funder, my answer is simple: Choose the funder capable of providing the broadest possible array of products that most efficiently optimize the risk profile of your portfolio.

Litigation finance allows you to capture upside potential.

Litigation finance helps companies with great claims pay their lawyers and build their businesses while their litigation is pending. Funding works as the exchange of money today for a potential share of case proceeds tomorrow. That exchange can happen before a case is filed, it can happen after a motion to dismiss, or even on the eve of trial. Understanding this reality, the key differentiating factor between funders will generally be (1) the amount of money they are willing to put into a case ( i.e ., is there a minimum or a maximum investment figure), (2) the size of the operation (and the attendant bureaucratic headaches), and (3) the team’s specialization ( e.g ., IP, investment-treaty arbitration, etc.). Much like the legal services industry as a whole, the risk-transfer space has its white-shoe firms, high-end boutiques, and mid-market players.

Here are some additional criteria to consider when choosing a funder:

Capital. Always ask whether the funder has capital to fund your case or is working as a broker or advisor bringing your deals to other capital sources.
Mandate. Different funders focus on different types of cases ( e.g ., domestic commercial disputes, international arbitrations, personal injury cases, etc.). Ask whether the funder has experience funding cases like yours, and be specific about the subject matter. Just because a funder works in the commercial space does not necessarily mean, for example, that they fund patent matters.
Team. You will want to work with an experienced team that has funded cases in the past, that knows how to execute on deals, and that has been in the litigation trenches, so that they can add value as the case proceeds. Ask for references if necessary.
Financial Terms. While funders will not be able to provide specific terms until they study your case, it’s helpful to ask at the outset about the different kinds of returns the funder expects to receive, to ensure they match your expectations. Different funders have different “costs of capital,” and that can make a big difference in terms of the financial proposal they offer you.
“Fit.” If you enter into a funding deal, you are entering into a multi-year relationship with that counterparty. It is essential that you enjoy each other’s company, see the litigation in similar ways, and will be good commercial partners. You need to like your funder. And you should always endeavor to sit down in person with the funder before you enter into a transaction, and raise any challenging issues at the outset, so you can see how the funder navigates them.
Capabilities. Litigation funding is one important litigation risk-transfer tool, but it’s not the only one available today. Depending on the situation, litigation insurance may be a lower-cost way to shift some of the risk and expense associated with a litigation. You will be well-served by working with a litigation funder that also has in-house insurance capabilities, so they can explain the full breadth of product offerings available to you. Certum Group is currently the only provider offering both litigation funding and litigation insurance solutions.

Litigation insurance allows you to transfer and limit down-side risk.

Over the last ten years, litigation insurance has risen from an obscure boutique product to an increasingly important part of the litigation market. At its core, litigation insurance involves the exchange of money (a premium) for protection should a particular event occur (the policy). The amount of a particular premium is referred to as the “rate-on-line,” which is the ratio of the premium to the total payout expressed as a fraction.

As a practical matter, the insurance products themselves come in a wide variety, including:

Class Action Settlement Insurance , which is a product designed to bridge the gap between plaintiff and defendant in contentious claims-made-settlements by placing a ceiling on the aggregate claim value a company will be required to pay.
Adverse Judgment Insurance , where the insurance carrier takes on the financial risks and liabilities for businesses — at any time before settlement and for a known, fixed cost. We most commonly see this product in the context of an M&A transaction or financing, where AJI Insurance negates the requirement for the use of escrows or indemnities.
Judgement Preservation Insurance , which provides a backstop to any judgment you have received which may be subject to appeal, allowing an organization to lock in a particular judgment amount, regardless of what the court ultimately decides.

Certum Group is uniquely placed to serve your business’s risk-transfer needs.

Certum is the only company that offers both litigation finance and insurance. And Certum stands out as a boutique firm with an experienced team of former litigators who have the intellectual and in-house capital resources to appropriately handle litigation of any size across any subject matter. More importantly, however, we approach the world of litigation finance and insurance as part of the same risk-transfer ecosystem, in which both litigation funding and insurance can be utilized to protect upside value and decrease downside risk. When paired with our team’s broad legal experience at leading defense and plaintiff-side firms, clerkships at every level of the federal system, a dedicated capital pool, and long-standing industry experience, we are uniquely positioned to identify the best products for you, provide those products under a single roof, and do so with the care and attention you would expect from any lawyer in private practice.

The post How to Choose a Funder appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Show Me The Funding! (…And Monetization and Insurance) – How Legal Departments and Law Firms Can Leverage Litigation Risk Transfer Solutions to Increase Profitability.

Wed, 29 Nov 2023 20:44:00 GMT

Listen to the latest episode of Alternative Litigation Strategies for practical step by step guidance on how in-house legal departments and large law firms can increase profitability through litigation risk transfer solutions. Kevin and Vinny discuss how in-house legal departments can create and leverage litigation funding and claim monetization programs to transform their departments from cost centers to profit centers. They discuss how to build out these programs, identify potential claims, vet commercial concerns against economic gains, and build a coalition and culture of support among the C-suite and rest of the business. They also discuss how law firms can increase profitability by building affirmative claims programs and maximizing financial arrangement with clients by looking to the markets for capital to fund cases and third-party carriers for contingent litigation risk insurance and judgment preservation insurance.

The post Show Me The Funding! (…And Monetization and Insurance) – How Legal Departments and Law Firms Can Leverage Litigation Risk Transfer Solutions to Increase Profitability. appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Why Litigation Finance?

Fri, 17 Nov 2023 17:27:00 GMT

Pretty much every litigator I know wants, or wants to learn more about, litigation finance. Everyone has a general sense that it helps clients get better access to the courts. Junior partners want it to build a plaintiff-side docket. Senior partners want it to satisfy long-standing corporate clients who balk at increasingly high rack rates. And associates want it mostly because its new and exciting—and might give them an advantage in making their business case for partnership. But most people have no idea what specific products are available, how to choose a funder, what is required in the submission process, what issues are key during diligence, or what terms to expect in the term sheet. The purpose of this and subsequent blog posts is to provide a hornbook view of litigation finance, explaining how it can help your clients or business, and what you need in order to get your case funded. To that end, this post answers the question of why you should consider litigation finance through the prism of a few common use scenarios. Each illustrates the same fundamental point: Litigation can be a valuable asset.

Sometimes it feels like only three things in life are certain: death, taxes, and the mounting cost of civil litigation. Hiring top counsel to litigate a plaintiff-side civil litigation can easily cost $5 million or more (and sometimes much more ) over the life of the litigation. Very few companies have that kind of cash lying around. And the other side of the “v” knows this, often employing tactics that purposefully increase costs via, for example, discovery fights. While this creates tremendous financial pressure for even the most well capitalized of litigants, it is simply devastating for smaller companies who do not have the financial resources to hire and field quality litigation counsel—notwithstanding the merits of their claims or defenses. Litigation finance levels the playing field in such situations, removing the financial advantage held by well-capitalized litigants and making the unequivocal statement that you will not only litigate the case, but have the resources to do so vigorously.

Even when a company has the money to pay for quality counsel, there are times when doing so simply does not make financial sense. For example, imagine a situation where your business is sued. You have meritorious defenses and counterclaims. And you have the money to hire white-shoe representation. But you are hesitant to do so because paying that counsel will draw on funds better and more effectively used to grow your business. After all, standard business theory dictates that companies should invest their capital in their “core” business – which is usually building widgets, not financing lawsuits, no matter how meritorious those suits might be. In such situations, litigation finance is a strategic financial tool that can help companies manage legal costs, mitigate risk, and enhance shareholder value, allowing you to focus on your core business operations with confidence.

It is no secret that startups need money. It is also no secret that venture capital firms, while generous with growth capital, can be expensive money because VCs demand significant equity in exchange for their financing. For growth-stage companies with meritorious claims, monetizing legal claims through non-recourse capital can be the cheapest way to raise money to expand the business—all without diluting your equity stake.

Litigation finance can be provided directly to law firms. Entering into a portfolio funding arrangement brings many benefits to law firms. A portfolio arrangement helps make firms more competitive when seeking new work, because they can sign up clients on a full contingency basis, reducing their risk on the “back end” with a litigation funder. Additionally, by creating a diversified pool of assets, law firms can usually take advantage of better pricing than would obtain if the funder were only financing a single matter. Moreover, developing a close relationship with a funder can help the firm leverage the funder’s expertise to win clients and build a large book of business.

Litigation is, at its core, uncertain. Litigants often face the prospect of years’ worth of counsel fees, in addition to the distinct possibility of receiving nothing when the process is over. Moreover, companies often find themselves resorting to litigation after a competitor has breached a contract or misappropriated trade secrets, leaving the company’s business in shambles; indeed, the most valuable asset you may have could be the legal claim itself. Litigation funding allows you to leverage your claim to raise the capital you need to rebuild a distressed business. Claim monetization also allows you to achieve certainty by turning corporate claims into an immediate capital infusion that ensures you receive the compensation you deserve without the burden of prolonged and indeterminate litigation.

Litigation funding is, as you would expect, not free. But there are ways to substantially decrease its cost. For example, companies are increasingly seeking litigation finance and then wrapping that financing with insurance. When these two products are combined, they can significantly decrease the cost of capital, freeing up additional funds to run and expand your business. Certum is the only funder that offers both litigation finance and insurance solutions.

Litigation funders spend all day—every day—reviewing cases. We see patterns. We see what works. And we also see what does not work. Properly leveraged, the expertise of a litigation funder can help you navigate the legal landscape to enhance case strategies, optimize outcomes, and maximize your chances of success. Litigation funders can help you decide which cases to bring, which cases to shelve, how to budget cases, and how to efficiently litigate your cases to conclusion. We are like business consultants for law.

The post Why Litigation Finance? appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

2023 Eastern District of Texas Bench Bar Conference

Mon, 06 Nov 2023 21:36:00 GMT

Certum Group was pleased to sponsor the 2023 Eastern District of Texas Bench Bar in October 2023. In addition to panels of practitioners, Kathy Vidal of the USPTO, Former AG Eric Holder, and Kevin Costner, participants heard from more than 25 current and former district and circuit court judges from all over Texas, the Fifth and Federal Circuit, Texas and numerous other states. A few key takeaways from the conference were:

Credibility remains the primary focus of the court and juries in making decisions, and collegiality among counsel and parties is key to success in the Eastern District of Texas.
Generational differences are becoming increasingly significant in how law firms are run, cases are staffed, and information is presented to juries.
When dealing with foreign outside counsel, it is a good practice to account for translation needs and time differences and to be cognizant of the different confidentiality/privacy/discoverability rules in every jurisdiction.
Courts are mindful of the efficiencies that AI-based tools can create but caution counsel to avoid over-reliance on the technology at the risk of sacrificing accuracy or credibility with the court.
Juries seek streamlined presentations and are not compelled by technical experts who fail to present their analysis objectively and take note of experts who appear to be solely “hired guns”, so the selection and preparation of expert witnesses remain particularly critical in complex cases.
The USPTO is focusing significant resources on innovation and initiatives seeking to encourage growth and exploration.
There is a critical need for more judges, and the federal judicial system is overloaded. In addition to numerous vacancies, the number of courts and benches has not increased at the same rate as the nation’s population.

The post 2023 Eastern District of Texas Bench Bar Conference appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Litigation Finance DealMakers Conference

Mon, 06 Nov 2023 19:33:00 GMT

The market for secondary transactions in the litigation funding space continue to grow. For those looking to invest in that space, a few lessons are critical:

Buyers should ensure that the seller’s motivation for the deal and justification for the price are both compelling and convincing.
Buyers should understand the risks. For portfolio deals, has the portfolio been hitting guideposts over time? Are there looming collection risks? What other downside scenarios could impact performance over time? Due diligence is critical.

While litigation insurance continues to be an important part of many litigation funding transactions, a few observations are worth reporting:

Despite the importance of insurance, funders are not, generally, deciding to fund deals solely because there is insurance (and thus downside protection).
The current trend favors insuring portfolios of cases over single case risks.
There is curiosity as to how the market will react when, inevitably, one or two big insurance “towers” fall. Will this cause insurers to retreat? Will pricing go up? We should know more over the next 1-3 years.

For those looking for litigation insurance and/or funding, candor is the rule. Sophisticated parties do not want to hear a pitch given through rose-tinted glasses.

The post Litigation Finance DealMakers Conference appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Contigent Fee Insurance

Sun, 05 Nov 2023 18:12:00 GMT

In this video blog, Kevin Skrzysowski, Director at Certum Group, provides an overview of Contingent Fee Insurance .

Contingent fee insurance, commonly referred to as WIP Insurance which stands for “work in progress” provides a guarantee that a lawyer who is handling a matter on a contingent fee basis, or a company that has a contingent claim will receive all or part of the time and expenses they have invested in a case regardless of outcome.
In exchange for a fixed premium to a bespoke policy, the law firm or company holding a claim can receive downside protection preventing a total loss of time and materials incurred prosecuting the litigation.

The risk goes through an underwriting process by insurance underwriters who specialize in creating litigation insurance solutions for known, threatened, or pending litigation.
This underwriting process usually requires substantial diligence.
Once the insurer has completed the underwrite, it will usually engage in a Q&A with the law firm (for any items that might need clarification).
Determine what the firm or company’s legal, business, and financial objectives are.
If the risk is insurable, the insurer will propose policy terms and pricing.
A one-time premium to a bespoke policy which transfers up to 100% of the risk to the insurer.

Provides certainty: regardless of what happens in the case, the law firm will recover its WIP and expenses.
It also helps with litigation funding. Here’s how: often, law firms will seek funding of their fees and third-party expenses from financial institutions including litigation funders. Instead of going to the funding market first, companies or law firms can look to insurance to remove the outcome risk.
If the risk is secured then non-recourse funding becomes recourse funding because the insurance is now the collateral and the law firm can borrow at the most efficient cost of capital.
Leveraging the insurance also allows law firms to pursue claims they may otherwise turn down due to fear of not being able to collect sizable fees and expenses.
And lastly, it can facilitate settlement as Contingent Fee Insurance can provide the leverage needed to mitigate any notion that a cash-strapped plaintiff will settle on the cheap.

The post Contigent Fee Insurance appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Russian Bots and Organized Crime Found a New Source of Money: U.S. Class Action Settlements

Thu, 26 Oct 2023 13:19:00 GMT

Exploiting access to free money has now taken a dark turn costing companies millions of dollars in waste, fraud, and abuse. Current conventional wisdom among administrators is that they are concerned about organized crime and bad actors, filing tens or hundreds of thousands of fraudulent claims in a single case. Rampant fraud is coming from all corners, including bots from Asia and Eastern Europe, and criminal activity in the United States. The fraud has been so pervasive that some administrators have even contacted law enforcement as the level of sophistication and the money at issue has increased substantially.

While that is an easy question, the answer is not simple. Fraud is dynamic and insidious. Bad actors are always looking for vulnerabilities in the system and are constantly changing tactics to stay one step ahead of the antifraud measures. Drafting the settlement agreement containing ordinary and customary fraud prevention terms allows for investigation and audit. Additionally, hire an administrator which has established antifraud protocols in place to prevent and find patterns of widespread fraud. One telltale sign of fraud occurs when claims are coming in at a certain rate and all of the sudden, there is a massive, inexplicable tidal wave of claims for a period of time but then, just as fast as it starts, it’s gone. Flagging unusual activity is a critical component in fraud detection. There are dozens of different elements of a claim that can be analyzed several different ways to see if it has indicia of a bot claim including data being input, where traffic is coming from, timing of claims, and location of claims.

Some additional solutions which can help mitigate, but not remove, fraud:

Use unique class member identification numbers in all cases including publication-only settlements.
Have claimants register with both their email address and home address and then use OTP (one time passcode) to gain access to the claims site, which tracks IP addresses.
Audit claim filings against both the company records and substantially similar cases.
Allow the administrator to request additional information from claimants to validate submission.
Look at email addresses from non-commercial providers or IP addresses from foreign sources.
Investigate bulk emails from a single domain or those created just before or after the settlement website was launched.
Investigate auto-completed claimant information which is inconsistent with class member information or demographics.

The ubiquitous goal among administrators we work with is and always has been to pay legitimate claims and to make it as easy as possible for legitimate claimants to receive the relief that they are entitled to under the terms of the settlement agreement, while also identifying waste, fraud, and abuse to the best of their ability.

Over the past decade, promotion sites, offering free money to people, have sprung up. Some sites boost over one million subscribers who are updated on the latest class action settlements and given a hyperlink to the claims website. This facilitates an entirely different type of fraud as many of the subscribers did not purchase the goods or services from the defendant, but seize the opportunity to receive compensation due to an easy claims process and few restrictions to recovery. Additionally, we have seen organized fraud once the promotion sites start advertising settlements. When a feeder website promotes a settlement, we usually see an uptick in claims, and then after that we often see an uptick in bot activity. In our experience there is a clear correlation between a promoted settlement and bots filling out claim forms. As a result, administrators should watch promotion sites, track inbound claims from those sites and subsequent claims traffic.

The goal of eliminating fraud in class action settlements is both aspirational and unrealistic. The results can be unpredictable and devastating. For example, in a recent settlement over false advertising allegations, a food and beverage company received thousands of claims amounting to several million dollars which was unexpected and extremely costly. Some strategies to consider include:

In addition to legal counsel, work with a company which has the knowledge and expertise on settlement design, crafting documents which will obtain court approval, and have appropriate fraud prevention guardrails in place.
Hire an administrator which has tried and tested antifraud protocols in place to prevent, detect, and ferret out waste, fraud, and abuse.
Bring evidence of fraud to both law enforcement and the Court
Consider transferring the entire settlement risk by obtaining the nation’s only class action settlement insurance (CASI). By using CASI, companies remove the uncertainty and variability of claims rates and absorb 100% of the risk of financial loss arising out of fraud whether the claims are generated by promotion sites, bots, or organized crime.

The post Russian Bots and Organized Crime Found a New Source of Money: U.S. Class Action Settlements appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Sharkcast: New Trends in Managing Litigation Outcomes: Litigation Risk Transfer Arrangements

Wed, 25 Oct 2023 23:48:00 GMT

Effectively managing litigation risks entails understanding what litigation risk transfer vehicles are available to companies. The most apparent way to transfer risk is obtaining appropriately comprehensive liability insurance prior to a claim being filed. Today’s sophisticated legal market brings new ways to allow a company to hedge liability, limiting exposure in connection with even pending litigation.

In this episode, Dorsey Partner/Podcast Host Kent Schmidt , along with Kevin Skrzysowski and William Marra of Certum Group, explore how litigants can use these litigation risk transfer products when facing bet-the-company litigation claims, or for those on the plaintiff side, reduce the potential of losing out on a litigation investment.

Click here to listen to the episode.

The post Sharkcast: New Trends in Managing Litigation Outcomes: Litigation Risk Transfer Arrangements appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

How Data Can Drive Better Litigation Decisions: Where to File and What to Expect

Tue, 17 Oct 2023 19:05:00 GMT

Guest Post by Adam J. Feldman, editor of Empirical SCOTUS

Sometimes litigants do not have freedom on where to file cases. Venue is often dictated by where an action occurs leading to a complaint. In situations where litigants have some flexibility on where to file though, there is room for strategic litigation decisions. Even when they do not, statistics help them account for the possibility that their decisions will withstand an appeal. Below are statistics related to federal appeals court decisions on district court cases filed in the 12-month period ending June 30, 2023. ¹

One simple metric of interest, total appeals terminated, reflects the relative caseloads of the 12 geographic circuits along with the subject matter-specific Federal Circuit. ²

The number of cases by circuit roughly parallels the circuit size so that those circuits encompassing larger populations have relatively more cases filed than those circuits covering smaller territories. While the graph above gives a general sense of the landscape of federal appeals, a more helpful metric for litigation planning is how inundated judges in the circuits are by their caseloads. The next graph shows the count of terminated cases by active judges for the same period of time.

Here we see that even though the Ninth Circuit is the largest geographic circuit, it only has the fifth highest rate of terminated cases by a judge. The number of cases terminated by a judge in the Ninth Circuit is on average 253 fewer than those terminated by a judge in the Eighth Circuit.

Aside from the Federal Circuit which hears appeals by case type rather than by location of the appeal, the circuits primarily hear cases surrounding similar issues. It is therefore helpful to know the circuit’s breakdown by substantive case types focusing on the percentage of each case type within each circuit.

The Ninth and D.C. Circuits for instance heard the largest percentages of administrative appeals. Ninth Circuit administrative appeals typically relate to immigration cases while executive agency cases are primarily conducted within the D.C. Circuit. The First and Fifth Circuits heard the highest percentage of private civil cases, and the D.C. Circuit heard a much greater proportion of U.S. civil appeals than any of the other circuits.

Two other points that may be particularly helpful for litigants are reversal rates in the various circuits and more granular data focusing on particular issues. Although the U.S. Courts’ statistics do not break cases down by specific issue areas, we can remove cases from several of the case types including criminal, that do not involve civil litigants. Based on these two items, the next graph shows reversal rates for private civil cases (and patent or trademark decisions from the Federal Circuit) over the 12-month period ending June 30, 2023.

The circuits’ reversal rates at the top of the graph at around 15% are markedly different from those at the bottom of the graph which are around 10% and below.

Bankruptcy cases are substantively different from private civil cases, so it makes sense to look at these counts and reversal rates in isolation. Certain circuits did not review a statistically significant number of bankruptcy decisions so their reversal rates are not shown.

The Third and Eleventh Circuits reversal rates in bankruptcy cases far exceed those for the other circuits. Looking at these numbers as distinct from the private civil cases also prevents either type of decision from throwing off the reversal rates from the other type.

Statistical information like this can help paint a clearer picture of a litigation landscape. Litigants can use it to make strategic decisions to the extent that they have flexibility of where to file. These statistics also provide litigants with more clarity for their expectations of likelihood that a trial court decision will be overturned. This can also help companies with regular litigation before one of more judicial district(s) plan for whether or not to appeal and for what to expect from an appeal. With the right set of data and tools, one can further break these numbers down by specific judge, more particular issues, or within other dimensions.

¹ Data for analyses below was provided by Judicial Business Statistics from USCourts.gov. All data is for geographic circuit courts and does not include the Federal Circuit Court of Appeals. The data relate to judicial business conducted between the end of June 2022 and June 2023.

² DC refers to the D.C. Circuit Court of Appeals; FC refers to the Federal Circuit Court of Appeals.

The post How Data Can Drive Better Litigation Decisions: Where to File and What to Expect appeared first on Certum Group .

Texas’s new commercial courts: What litigators need to know

Mon, 09 Oct 2023 15:32:00 GMT

Texas is booming as people flock to the business-friendly state, looking for everything from quality of life to a more supportive business environment. Yet one of the strongest critiques from the Texas business community has remained: Slow dispute resolution for civil cases between sophisticated businesses. This persistent issue has many causes, but it can generally be traced to a congested court system in which overburdened judges are tasked with deciding complicated business disputes without the requisite specialization and resources.

This past summer, Texas elected to remedy the issue. Governor Abbot signed into law H.B. 19, which created a specialty trial court for business disputes (the “TBC”), effective September 1, 2023. The courts themselves will be up and running this time next year. As Texas litigators working in litigation finance and insurance, Certum Group anticipates that these courts will become a substantial part of the Texas legal and business ecosystem and is accordingly following these developments with great interest.

For the curious but uninitiated, here are some key facts and considerations regarding this new forum for dispute resolution in Texas.

Recognizing the complexity inherent in large commercial litigations and the attendant benefits of expertise, the TBC will have specialized jurisdiction over two primary types of cases: corporate governance disputes and commercial disputes.

Where the amount in controversy exceeds $5 million , the court will generally have jurisdiction over (i) derivative proceedings, (ii) actions regarding corporate governance, (iii) certain claims arising under state or federal securities and trade regulations, (iv) certain actions against the owner of an organization, (v) an action arising out of the Business Organizations Code, and (vi) suits alleging breach of corporate fiduciary obligations.

Where the amount in controversy exceeds $10 million , the court will have jurisdiction over actions in which (i) the parties specified TBC jurisdiction in the operative contract, (ii) violations of the Finance Code or Business and Commerce Code, or (iii) where the action arises out of a “qualified transaction”—which is generally defined as transactions involving loans, advances, or credit.

As a practical matter, by providing a centralized forum for the resolution of these common-yet-complex commercial and corporate governance cases, Texas hopes to both standardize and speed up the resolution of these important matters.

The judges on the TBC will consist of individuals with specialized knowledge and experience in litigating complex commercial and corporate governance disputes. And the judges will be appointed for two-year terms by the Governor with the “advice and consent” of the Texas Senate. Unlike most state court judges in Texas, judges on the TBC must be at least 35 years of age (rather than 25) and have at least 10 years of experience (rather than 4).

The legislature’s goal in requiring a more seasoned milieu of jurists is an increase in experience and (hopefully) pragmatism.

Simultaneous to enacting H.B. 19, the Texas legislature enacted S.B. 1045, which created the Fifteenth Court of Appeals. Seated in Austin, the court will have jurisdiction over appeals from the TBC and initially consist of a chief justice and two associate justices. In practice, this means that (at least for the first three years) all appeals will be heard by the same three-judge panel. The clear advantage of this new court is that it will ensure the existence of known and consistent case law at both the trial and appellate level. The Texas Supreme Court has jurisdiction over appeals from the Fifteenth Court of Appeals.

By requiring judges of the TBC to issue reasoned opinions, Texas hopes to create a predictable, stable, and fully articulated body of case law for Texas businesses. And, as of yet, there is every reason to think that it will succeed.

While the courts do not come online until next fall, litigators should start to prepare today. Here are a few practice tips:

When drafting contracts, consider whether your client should elect jurisdiction in the TBC once they are open.
When deciding whether to commence litigation over the next 12 months, consider whether to file now in the existing courts, or whether to wait until next September to file in the business courts.
Familiarize yourself with the rules and procedures of the TBC, so you are ready to take advantage of these potentially attractive new courts for your clients.

The post Texas’s new commercial courts: What litigators need to know appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Using Insurance to Change the Paradigm of Litigation Finance

Mon, 02 Oct 2023 14:31:00 GMT

Editor’s Note: The information contained in this article is for informational purposes only and should not be considered legal/financial advice.

Most litigation funders use the “traditional” funding model by providing non-recourse capital to a law firm or claimholder in exchange for a share of any recovery. The funder’s return, if any, is typically calculated by charging a specified interest rate, applying a multiple of invested capital, as a percentage of proceeds, or some combination of the three.

Due to the uncertainty inherent in litigation, non-recourse debt is priced based on the risk associated in the transaction. In many circumstances, using a combination of insurance and funding is a more efficient, flexible, and cost-effective solution.

Insurance can remove or mitigate outcome variability, thereby making the cost of funding less onerous. Additionally, companies and law firms are turning to insurance to protect work in progress and judgments which they may or may not seek to monetize.

In 2022, the majority of funding transactions looked the same as they did in 2010: single-case deals with pricing based on an interest rate, multiples of invested capital, or a percentage of the recovery. More total dollars go to law-firm portfolio deals, which offer better pricing because of cross-collateralization; however, those deals are just a scaled-up version of the base paradigm, not something wholly different.

In other words, the industry has grown, but what it is offering has not fundamentally evolved.

If companies and law firms want more efficient options, they should look toward insurance as a way to remove outcome risk, thereby making capital more accessible and efficient. This paradigm allows stakeholders to win more by risking less.

So, how does this alternative model work, and how does it compare to other funding methods? The best way to understand it is to see how different funding models—one with insurance, and one without insurance, i.e., a typical litigation funding approach—operate when applied to a common fact pattern and showing the expected costs and net proceeds under each scenario.

Law Firm represents a Plaintiff corporation in a commercial dispute. In order to prosecute the suit, Law Firm needs $5 million to cover legal fees and third-party expenses. Potential damages for the case are $40 million, likely to be recovered in five years.

Under traditional funding, and assuming a multiple of invested capital model, the law firm or company would incur funding costs—i.e., interest—of approximately $15 million during the pendency of the litigation, which is equal to approximately 3x the invested capital provided by a litigation funder ($5 million funding x 3 = $15 million). The implied interest rate on this arrangement is approximately 32%.

While this protects the law firm and company in the event of a total loss, the cost of capital is relatively expensive as the risk is uncertain and the debt is non-recourse.

Instead of going to the funding market first, companies or law firms can look to insurance to remove the outcome risk. Just like with a litigation funder, the risk goes through an underwriting process but this time, by insurance underwriters who specialize in creating litigation insurance solutions for known, threatened, or pending litigation.

In exchange for a fixed premium, the company or law firm can obtain downside protection to prevent a total loss of expenses or attorneys’ fees (WIP) incurred in the prosecution of litigation. By removing the risk of loss, the cost of litigation funding capital reflects the new paradigm. The risk for a funder has now been substantially mitigated as the insurance policy can be pledged to the funder thereby providing downside protection to the funder in the event the case is not successful.

By providing this downside protection, the risk is reduced and therefore, there is a corresponding reduction in the expense the funder will seek. Further, the number of funders willing to participate in the transaction expands as potential funders will look to the insurance policy for collateral rather than underwriting the underlying litigation, which many funders are not equipped to do, creating a more competitive process which further reduces costs.

So, the same $5 million in funding need would most likely now only cost a total of approximately $5.4 million—$882,000 for the insurance premium and approximately $4.5 million in interest costs—which represents a 64% savings in total costs or approximately $10 million. Using insurance also would increase the expected net proceeds by nearly 50%.

An added benefit is that the cost of insurance is financed as part of the overall insurance and funding package. This way, the stakeholders save significant costs without any additional out of pocket expense.

Click Here

By using insurance in combination with funding, the Law Firm and Plaintiff can achieve a better overall combination of risk-avoidance, cost-of-capital, and upside potential than they can by using the traditional litigation funding model.

So, when deciding how to finance plaintiff-side litigation, it is important to know that there are options. But those options do not all result in optimal results. One option in particular—combining insurance and funding—is often the far more efficient and superior option.

This article originally appeared on bloomberglaw.com in September 2023.

The post Using Insurance to Change the Paradigm of Litigation Finance appeared first on Certum Group .

Will Marra in The Hill: What if Litigation Funding Reduces Litigation?

Tue, 26 Sep 2023 22:41:00 GMT

Certum Director William Marra writes for The Hill about recent evidence that litigation funding can reduce litigation costs, help resolve cases more quickly, and deter the filing of frivolous lawsuits.

The piece, co-authored by Indiana University business professor Suneal Bedi , responds to some arguments made at a recent House oversight committee hearing on litigation funding. The article reviews a recent economics paper by Harvard and Stanford business professors studying the likely impact that litigation finance has on the cost and duration of litigation. The article also draws on arguments that Marra and Bedi made in their Vanderbilt Law Review article on the positive welfare effects of litigation funding.

Click here to view the full article.

The post Will Marra in The Hill: What if Litigation Funding Reduces Litigation? appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Claim Monetization

Fri, 15 Sep 2023 16:24:00 GMT

In this video blog, Kevin Skrzysowski , Director at Certum Group, provides an overview of Claim Monetization , answering the questions:

Claim monetization, sometimes referred to as Affirmative Asset Monetization, is a way to convert an illiquid asset into non-recourse capital.
It involves identifying and monetizing a latent litigation asset that one business has against another.
When a claim is monetized, a third-party funder such as Certum Group advances capital on a non-recourse basis to a company in exchange for a portion of the claims’ potential future recovery.
Claim monetization is basically providing a company with an immediate cash infusion that otherwise would be unavailable until the claim was successfully resolved.

Claims monetization is available for any type of litigation, but it’s usually best applied to commercial matters, contract matters, intellectual property disputes, and antitrust cases.
Some examples of monetization opportunities include: (1) contract litigation or another type of commercial litigation against a vendor, contractor, or competitor; (2) Patent or other IP litigation against a competitor; (3) participating in a consortium with other companies seeking redress from the same wrongdoer; or (3) “opting out” of pending class action litigation to pursue an individual direct claim, which we often see in antitrust cases.

First, a merits and damages assessment is done on a company’s current or future claim or portfolio of claims.
Then a customized monetization strategy is developed to meet the client’s legal, business, and financial objectives.
The third-party funder then provides a capital offer to participate in the claim’s potential future recovery
A legal agreement is executed, and funds are advanced to the company on a non-recourse basis.

By pulling forward potential recoveries, companies can obtain immediate revenue without the uncertainty of the actual outcome.
Cash resources that might have been used to cover legal costs can be redeployed into the company’s core operations.
While contingent legal assets generally have no ascribed value on a company’s balance sheet, upfront claim monetization can generate cash to help improve the company’s bottom line.
Simply put, non-recourse, claim monetization reduces the financial and outcome risk of pending or future litigation and provides upside opportunity to monetize litigation assets.

The post Claim Monetization appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Certum Group Adds Experienced Litigation Funder, Former U.S. Supreme Court Clerk William Marra as Director

Wed, 13 Sep 2023 19:17:00 GMT

New York, NY – Certum Group, which provides bespoke solutions for companies facing the uncertainty of litigation, has appointed William C. Marra as a director responsible for leading the company’s litigation finance strategy. Marra is a seasoned litigation funder and former U.S. Supreme Court clerk who will help Certum continue its mission of growing and redefining the litigation finance landscape.

“We are delighted to welcome aboard Will, who shares our mission-driven approach to helping clients mitigate legal risk and vindicate their rights,” said Joel Fineberg, Certum’s founder and managing director. “Will’s wide-ranging experience in both the legal and business worlds will be an asset as we continue to innovate in the fast-growing world of litigation funding.”

Certum Group created the first and only litigation risk transfer platform that combines insurance, premium finance, and litigation funding to provide tailored solutions for companies, litigants, and law firms. Founded 10 years ago, the team is comprised of former litigators, judicial clerks, actuaries, and financial professionals who design risk transfer and funding solutions to meet legal, business, and financial objectives.

“I am delighted to join the talented team at Certum,” said Marra, who grows Certum’s presence in the New York City area. “Funding gives litigants with meritorious claims better access to the courts, and I look forward to helping Certum’s clients get access to litigation funding, insurance, and other solutions that will help them achieve their legal and business goals.”

Marra’s unique blend of legal and financial expertise mirrors Certum’s distinctive approach to helping clients mitigate legal risk by offering the widest breadth of legal and financial products currently available in the market.

Marra graduated magna cum laude from Harvard University and Harvard Law School. He co-teaches a course on litigation finance at the University of Pennsylvania’s Carey Law School, and his law review article, The Shadows of Litigation Finance , was published by the Vanderbilt Law Review. Prior to joining Certum, Marra spent several years at another litigation funder, where he managed litigation investments from sourcing and diligence through funding and resolution.

Marra litigated commercial, constitutional, and appellate matters at Cooper & Kirk PLLC in Washington, D.C. He also clerked for both Justice Samuel A. Alito Jr. of the U.S. Supreme Court and Chief Judge William H. Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit.

The post Certum Group Adds Experienced Litigation Funder, Former U.S. Supreme Court Clerk William Marra as Director appeared first on Certum Group .

The New Fraud Phenomena in Class Action Settlement Administration

Tue, 22 Aug 2023 16:09:00 GMT

Class action claims administration is currently threatened by unprecedented fraud. Over the past year digital fraud from foreign agents, chat bots, GPT software, and other sources have wreaked havoc on settlement administration. Listen to episode 21 of the Alternative Litigation Strategies podcast where Kevin Skrzysowski interviews Jim Prutsman , a Senior Director at Kroll Settlement Administration , on ways to identify and combat these pervasive threats.

The post The New Fraud Phenomena in Class Action Settlement Administration appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

The Increasing Danger of Fraudulent Claims in Class Action Settlements

Mon, 14 Aug 2023 15:05:00 GMT

In 2019, my colleague, Kevin Skrzysowski, wrote on this site about the risks of a consumer product class action settlement going viral. At that time, he was describing how feeder websites, social media, and the internet were all contributing to increasing take rates.

Now, nearly four years later, there is a new insidious trend affecting consumer product class action settlements: fraudulent claims on a heretofore unseen level. Following are three recent class action settlements that were impacted by fraudulent claims and describe one third-party administrator’s prescription for remedying this risk.

In January 2019, plaintiff Steve Hesse sued Godiva Chocolatier over its line of products bearing “Belgium 1926” on the label. According to Hesse, that label was deceptive because Godiva Chocolates are not made in Belgium (the chocolate capital of the world); rather, they are made in Reading, Penn.

After years of litigating, the parties agreed on a $15 million claims-made settlement. Consumers who submitted a claim with proof of purchase were entitled to $1.25 per product, up to a maximum of $25. Those who submitted a claim without proof of purchase were entitled to $1.25 per product, up to a maximum of $15.

So far, a pretty unremarkable settlement. But then the claims started pouring in. In plaintiff’s motion for final approval of the settlement, the settlement administrator filed a declaration stating that while there had been 827,676 claims, an incredible 317,723 of them (38%) were “not valid.” This number was startling enough. But the story does not end there.

The administrator informed the court that, on its own volition, it “continued to review approved claims to ensure that they were valid.” It turns out: they weren’t. The administrator “discovered that a bot stemming from a foreign country had been used to manufacture fraudulent claims .” And it acknowledged discovering this defect “because this same type of fraud …had occurred in another settlement it was administering.”

After further review, the administrator determined that an additional 74,273 claims were invalid, meaning that at the end of the day, 47% of all filed claims were fraudulent.

Two individuals sued Celsius Holdings, Inc. in 2021, alleging that its Celsius Live Fit drinks were mislabeled as “No Preservatives” when, in actuality, they contained the preservative citric acid. In late 2022, the parties announced a $7.8 million non-reversionary settlement, through which those who submitted a claim with proof of purchase would be capped at $250, while those who submitted a claim without proof of purchase would be entitled to up to $1 for every can (so a 12 pack would be worth up to $12) and up to $5 for every 14-unit package of powdered drinks, capped at a maximum of $20. While the $250-with-proof benefit was higher than average for a consumer product settlement, the $20-without-proof benefit was in no way remarkable. But what happened next was.

After a 60-day-claims-period, there were 1,774,900 claims: a staggering figure. Yet, of those claims, 209,642 were duplicates, while 658,719 were invalid, which the settlement administrator defined as “multiple claims from a single internet protocol address,” “claims from known fraudulent email domains, claims that appear to be unrelated to each other with a request to be paid using the same digital payment account information, and claims with outlier product quantities that have deficient or suspect documentation.” This left only 906,539 valid claims, meaning a full 49% of submitted claims were fraudulent.

The third settlement to discuss involved the King of Beers, Anheuser-Busch (A-B). Except this lawsuit did not concern beer; rather, it was about A-B’s “Ritas” brand Margarita, Sprits, and Fizz products. According to the named plaintiff, these canned cocktails evoked drinks traditionally made with distilled spirits or wine, but allegedly, the Ritas brand of products contained neither.

In July 2022, the parties agreed to an uncapped settlement, through which those who submitted a claim with proof of purchase would receive a maximum of $21.25, while those who submitted a claim without proof of purchase would receive a refund of up to $9.75. Two days before the claim period ended, the settlement administrator reported having received 784,534 claim forms.

The settlement administrator, however, noted that it had detected “unusual claim filing activity,” which led it to conduct an “extensive investigation into the filing of potentially invalid [c]laims.” In the final report to the court before the settlement was approved, the settlement administrator noted that this extensive investigation had uncovered 33,771 invalid claims out of the 269,944 it had reviewed (12.5%).

One settlement administrator active in the consumer product class action space was willing to speak on background about what he’s seeing. Top of mind for him was the incredible influx of fraudulent claims and what a strain it puts on the settlement administration process. He noted that while individuals lying in claim forms to obtain “no proof” benefits have always been a problem, the newest iteration of fraud, including sophisticated bots, is much harder to fight. And he said that there is a lot of discussion among administrators about how best to combat this phenomenon. Because most administrators charge on a per filed claim basis, the more fraudulent claims there are, the more expensive administration becomes for the parties. Accordingly, it has become imperative to try to create claim filing processes that discourage the scammers and stop the fraudulent claims before they cross the transom.

But for those fraudulent claims that are submitted, all hope is not lost. According to the administrator, there are anti-fraud devices that help stem the damage. Any time you can require claimants to provide a physical address or email address, instead of just a mobile phone number, the better off you will be.

While the administrator conceded that he cannot stop third-party sites from publicizing settlements nor stop bad international actors from filing fraudulent claims, his shop is constantly working on technological advances to create firewalls to head them off. But he lamented that technology that works for a time, e.g., Captcha, eventually falls prey to even more sophisticated fraudsters.

Finally, according to the administrator, for litigants that need to collaborate on a settlement process, it is critical that both parties be on the same page about fighting fraud and empowering the case’s settlement administrator to do so. He said that if he was such a litigant, he would want to know what his options were to weed out fraud, what has been successful in other cases, and how much each option costs.

If litigants fail to take this threat seriously and simply hire the cheapest administrator with the least amount of fraud controls, the result will always be the same: more money spent on administration, while less money goes to the class, a result that nobody (except maybe the administrators!) should want.

While defendants will have to decide for themselves which option is best for their situation, the most important thing is that they are aware that many of the claims made on a settlement may be fraudulent and they have a plan in place to detect the issue.

The post The Increasing Danger of Fraudulent Claims in Class Action Settlements appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Judgment Preservation Insurance (JPI)

Fri, 28 Jul 2023 18:17:00 GMT

In this video, Kevin Skrzysowski , Director at Certum Group, takes a deep dive into the firm’s Judgment Preservation Insurance solution , how it works, along with some examples of how law firms and in-house legal departments can benefit.

The post Judgment Preservation Insurance (JPI) appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

What Funders and Lawyers Should Do (or Stop Doing!) to Be Better Dealmakers During Funding Discussions

Thu, 20 Jul 2023 16:02:00 GMT

Don’t miss Episode 20 of the Alternative Litigation Strategies podcast featuring Rebecca Berrebi , the Founder and CEO of the litigation finance consulting firm, Avenue 33 , and Kirstine Rogers and Kevin Skrzysowski from Certum Group. In this program, Rebecca shares keen insights on how all parties to a financing transaction can become better dealmakers. Listen now to learn about the importance of understanding what motivates all parties to a transaction and how you can actually achieve better deal economics by putting yourself in the shoes of the party on the other side of the table.

The post What Funders and Lawyers Should Do (or Stop Doing!) to Be Better Dealmakers During Funding Discussions appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

IMN Conference, June 7, 2023, NYC

Thu, 06 Jul 2023 18:43:00 GMT

The Information Management Network is the preeminent global educational conference organizer designed for experts in the structured finance, real estate, and investment management industries.

While single-case funding is still the norm, portfolio funding deals are becoming ever more popular in the space.

Duration risk has become one of the litigation funding market’s primary concerns. As a result, it has spawned innovative solutions, including timed wrappers and a burgeoning secondaries market.

The lit funding market is maturing. Whereas 4-6 years ago everyone was trying to get in, now there is concrete data on how parties have performed, which is further informing pricing to properly account for the risks involved.

The use of litigation insurance has been a game changer, with funding parties utilizing it to open up the investor base, protect principal, get leverage, and combat duration risk.

The post IMN Conference, June 7, 2023, NYC appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Class Action Money & Ethics Conference, May 8, 2023, NYC

Thu, 06 Jul 2023 18:36:00 GMT

The Class Action Money & Ethics Conference is a premier educational, business networking event for class action professionals. Top industry experts gather together to discuss the latest topics and trends in class action.

Esteemed members of the bar on both sides of the v. led informative sessions and panel discussions on the latest hot topics having the most impact on class action litigation.

Great overview of the state of the class action litigation industry, including: trends impacting corporate America, mass appeals, consumer fraud and data breach litigation, challenges to “green” claims, and “forever chemical” PFAS litigation.

Insightful mass tort and mass action sessions on cases to watch in 2023, including: Camp Lejeune, Talc, Roundup, Elmiron, Tylenol Autism, and survivors of sexual assault.

The post Class Action Money & Ethics Conference, May 8, 2023, NYC appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

How Do Companies and In-House Departments Assess Legal Risk?

Fri, 30 Jun 2023 15:19:00 GMT

Certum Group, which provides bespoke risk transfer solutions for companies facing the uncertainty of litigation, has launched its second annual Litigation Risk Survey to understand how companies and in-house departments assess litigation risk.

Last year, general counsel and other in-house leaders from across more than 50 different industries responded to questions related to their department’s litigation activities and legal spend, tolerance for litigation risk, and knowledge of the solutions available to help transfer risk and monetize claims, among other issues.

“The goal of this survey is to better understand the risk-related issues facing in-house departments,” said Kevin Skrzysowski , Director of Business Development and Marketing. “We want to learn what risk factors companies are facing so we can work with them to make sure they have the resources, knowledge, and tools to assess and mitigate litigation outcome risk.”

In-house legal departments have said they face growing litigation burdens with limited staffing and financial resources—and yet most have not taken advantage of tools like risk transfer products to help manage workloads and ease budget uncertainty.

We learned last year that the vast majority of in-house leaders—more than 80 percent—reported that their departments had 10 or fewer employees, and more than 70 percent said their legal budgets were less than $1 million. The survey results showed that the size of the company and the size of the legal department do not necessarily correlate and provided further evidence that in-house lawyers and law departments are stretched thin

Nearly 45 percent said they did not have enough resources to pursue litigation. Companies have insurance that covers litigation expenses, but very few of them are actually using their policies. Most say insurance is used less than 10 percent of the time in litigation.

We also discovered that most in-house departments carry a substantial litigation workload. 75 percent of respondents said they are currently defending active litigation, and 20 percent have 10 or more cases on the docket. Ten percent of respondents said they are fielding more than 50 active cases.

Perhaps unsurprisingly, given the tight budgets and small staffs, relatively few of the active cases are plaintiffs-side matters. Nearly half of respondents said they are not currently pursuing active affirmative litigation. And of the remaining respondents, the overwhelming majority are engaged in only a handful of plaintiffs-side matters.

Most companies shared they attempt to find affirmative claims themselves. Less than one-third receive help identifying claims from outside counsel and only a handful receive the assistance of a litigation funder. The data suggests that companies should rely more heavily upon outside help to bring affirmative claims to their attention. If given the chance, however, nearly half would pursue claims if they were made aware of them, and 54 percent said they would be interested in pursuing affirmative cases regardless of the claim amount.

Nearly 75 percent of respondents said they were at least somewhat familiar with litigation funding, but only five percent say they have used funding. Half of the respondents reached out to funders directly or via funding brokers. Many of the respondents said the cost of funding and/or the structure of funding were the most important factors when choosing among funders.

Assessing litigation risk remains a responsibility firmly in the hands of the general counsel, respondents said. Asked to rank the most important factors they use to assess risk in defense cases, in-house counsel said the “size of possible damages” and whether the matter is a “bet-the-company” case ranked first. The “likelihood of prevailing” in the case ranked second. When the company is considering bringing an action, however, the factors are reversed. By a wide margin, the likelihood of winning the case was the most important issue for in-house counsel when considering affirmative claims.

We’re curious what has changed in the last year, what other risk factors we’ll discover, and more insights that in-house counsel will share with us.

To respond to this year’s survey, click here .

This article originally appeared on lexology.co m

The post How Do Companies and In-House Departments Assess Legal Risk? appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Webinar: Litigation Funding and Legal Insurance

Thu, 29 Jun 2023 15:15:00 GMT

The Litigation Funding and Legal Insurance webinar is now available on-demand. In this Litigation Finance Journal webinar, Ross Weiner of Certum Group joined a panel of Legal Insurance experts to discuss how the litigation finance and legal insurance industries intersect, the benefits insurance products provide, and predictions for the future.

In this webinar, attendees will learn:

How the litigation finance and legal insurance industries intersect
The benefits that insurance products provide funders and law firms
What is on the horizon for the Legal Insurance industry
…And much more!

The post Webinar: Litigation Funding and Legal Insurance appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Webinar: Claims-Made Settlements Are More Common Than You Think

Thu, 29 Jun 2023 14:57:00 GMT

The Celesq webinar, Claims-Made Settlements Are More Common Than You Think , is now available on-demand. In this webinar, Kevin Skrzysowski and Ross Weiner of Certum Group take a deep dive into the risks and rewards of claims-made settlements and their increasing prevalence in consumer class actions. They break down some important settlement distinctions and share insurance solutions to help with litigation risk.

In this webinar, attendees will learn:

The differences between claims-made and common-fund settlements
The risks and rewards of claims-made settlements
The increasing prevalence of claims-made settlements in consumer class actions
Ways to generate revenue and identify potential litigation assets that can be monetized
Case highlights from novel settlements that courts have approved
…And much more!

The post Webinar: Claims-Made Settlements Are More Common Than You Think appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

BIPA Litigation Soars After Seminal IL Supreme Court Decisions

Tue, 20 Jun 2023 15:28:00 GMT

In Episode #19 of Alternative Litigation Strategies, Kevin Skrzysowski speaks with Ken Suh from Locke Lord on the surge in BIPA litigation since the Black Horse Carriers and White Castle IL Supreme Court decisions, potential ramifications given the statutory penalties, whether these penalties are mandatory or discretionary, the impact on future individual and class-wide settlements, and guidance to remain BIPA compliant and avoid potential litigation.

The post BIPA Litigation Soars After Seminal IL Supreme Court Decisions appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

First-of-Its-Kind Risk Assessment Litigation Survey Results Released

Thu, 25 May 2023 11:25:00 GMT

May 25, 2022

New York, NY – Risk Settlements, which provides bespoke solutions for companies facing the uncertainty of litigation, in partnership In The House, a think tank specializing in cutting-edge issues regarding in-house legal practices, announced the results of their co-branded white paper. The white paper breaks down the findings of a nearly 200-person survey on how companies and general counsel handle litigation risk.

General counsel and other in-house leaders across more than 50 different industries were asked to respond to almost 50 questions related to their department’s litigation activities and legal spend, their tolerance for litigation risk, and their knowledge of the solutions available to help transfer risk and monetize claims, among other issues.

More than 75 percent of companies surveyed said they were very or somewhat risk tolerant. But only a handful have used litigation products to manage their costs.

“The goal of this paper was to better understand the risk-related issues facing in-house departments,” said Kevin Skrzysowski , director of Business Development and Marketing. “We learned the size of the damages is the number one risk factor for defense-sided litigation, whereas the likelihood the claim will succeed is the most important factor for affirmative claims. By learning how these companies handle risk, we can work with them to make sure they have the resources, knowledge and tools to assess and mitigate litigation outcome risk.”

Nearly 45 percent said they did not have enough resources to pursue litigation. Companies have insurance that covers litigation expenses, but very few of them are actually using their policies. Most say use insurance is used less 10 percent of the time in litigation.

“In our survey we found that most in-house counsel have a significant litigation workload and all signs point to even greater workloads in the future,” said Chris Colvin , founder of In The House. “Given our findings, it is essential for in-house counsel to better understand what options they have to help alleviate both the increasing costs and the daunting logistics associated with a larger litigation docket.”

To read the white paper and learn more click here .

Risk Settlements provides bespoke solutions for companies facing the uncertainty of litigation. We are the leader in providing comprehensive alternative litigation strategies, including class action settlement insurance, litigation buyout insurance, judgment preservation Insurance, adverse judgment insurance, litigation funding and claim monetization. Our team of experienced former litigators, insurance professionals, and risk mitigation specialists helps companies remove the financial and operational volatility arising out of litigation by transferring the outcome risk. To find out more, please visit www.risksettlements.com .

In The House was founded in 2011 with the mission of helping legal departments establish best practices through research, surveys and benchmarking studies, as well as empowering individual in-house counsel to enjoy long-term career success through peer networking, education and thought leadership. Since our founding, In The House has grown our social media community to tens of thousands of in-house counsel and we have conducted numerous ground-breaking surveys and white papers on such important topics as the role of in-house lawyers in addressing cybersecurity issues, preventing and responding to allegations of executive misconduct in the wake of the #MeToo movement, the challenge of reducing spending on outside counsel, managing litigation risk and much more. To learn more, please visit www.inthehouse.org .

The post First-of-Its-Kind Risk Assessment Litigation Survey Results Released appeared first on Certum Group .

Litigation Buyout (LBO) Insurance

Mon, 08 May 2023 20:09:00 GMT

In this video, Kevin Skrzysowski , Director at Certum Group, takes a deep dive into the firm’s Litigation Buyout (LBO) Insurance solution , how it works, along with some examples of how law firms and in-house legal departments can benefit.

The post Litigation Buyout (LBO) Insurance appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Insights From the 12th Annual Carlton Fields Class Action Survey

Mon, 17 Apr 2023 16:49:00 GMT

Don’t miss Episode 18 of Certum Group’s podcast, Alternative Litigation Strategies, where Kevin Skrzysowski interviews Jack Clabby , a Shareholder at the law firm Carlton Fields , and Co-Director of the firm’s annual Class Action Survey, now in its 12th year of publication. Kevin and Jack review all of the valuable class action litigation and settlement trends and strategies from the past year, including:

aggregate spending on class litigation
growing and emerging practice areas
new case filing volume
individual vs. class-wide settlements
the proliferation of claims-made settlements
the decline in cy pres distributions
defense strategies
arbitration provisions
class action waivers

and much more…

The post Insights From the 12th Annual Carlton Fields Class Action Survey appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Certum Group’s Suite of Litigation Risk Transfer Solutions

Mon, 10 Apr 2023 14:30:00 GMT

In this video, Kevin Skrzysowski , Director at Risk Settlements, explains the firm’s recent name change and outlines our suite of litigation risk transfer solutions and what makes our platform so unique.

For more information, contact us today.

The post Certum Group’s Suite of Litigation Risk Transfer Solutions appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Claims-Made Settlements Are More Common Than You Think

Mon, 13 Mar 2023 18:56:00 GMT

Class action lawsuits are usually resolved with one of two settlement structures: common-fund settlements or claims-made settlements. A simple way to think about the difference between the two is that the former is for a fixed amount while the cost of the latter is variable.

In a common-fund settlement, the defendant agrees to the total cost of the settlement it will pay, i.e. , the “common fund,” the pool of money from which all settlement expenses are deducted. These expenses generally include valid claims, plaintiffs’ attorneys’ fees and expenses, class representative incentive awards and settlement administration costs. While the amount each claimant receives is based on how many claimants file valid claims, the overall amount paid by the defendant is set on day one.

In a claims-made settlement, however, the defendant’s total bill is based in part on how many claimants file a valid claim. This type of settlement is prevalent in situations where the defendant lacks data on how many members may be in the particular class ( e.g. , consumer product class actions). This allows for class members to be able to recover their fair share, even though the number of class members isn’t a known quantity when the parties are structuring their settlement. It also ensures that each claimant receives a benefit amount that all parties agree is fair and on which the court has signed off, whereas common fund settlements can sometimes result in claimants receiving a windfall (when only a small number of claimants submit valid claims).

A claims-made settlement’s variable structure presents both potential risks and rewards to a defendant. On the one hand, if the number of valid claims made is low, then a claims-made settlement can ultimately cost a defendant less than it would otherwise have paid. On the other hand, and perhaps more importantly, if a claims-made settlement goes viral, leading to a tsunami of claims, the defendant can end up paying an astronomical amount, especially if the settlement is uncapped.

Over the past two years, claims-made settlements have become increasingly more common, with parties implementing and courts approving novel structures. Following are three examples of uncapped, claims-made settlements that have recently garnered court approval.

In Cleveland v. Whirlpool Corp. , Elisabeth Cleveland sued Whirlpool Corporation for selling allegedly leaky dishwashers. In June 2022, the court granted final approval to an uncapped, claims-made settlement that created different award tiers based on the age of each claimant’s dishwasher: for each year after the unit’s manufacturing date, the award decreased slightly. For dishwashers one or two years after manufacture, plaintiffs were eligible to receive $225, the average cost of repair, while owners of dishwashers as old as seven years could receive $67.50. Cash rebates were offered for those who opted for new appliances instead. The settlement class consisted of approximately 6.7 million class members. Plaintiffs’ damages expert estimated that the value of the settlement would be between $15,705,328 and $21,327,800, depending on the claims rate (the ratio of how many people submit claims for payments/rebates divided by 6.7 million). In granting final approval, the court approved plaintiff’s counsel’s request for approximately $1.5 million in attorneys’ fees.

In Kaupelis v. Harbor Freight Tools USA, Inc. , purchasers of Harbor Freight Tools’ chainsaws sued over an allegedly defective power switch. There were approximately 800,000 class members nationwide. According to the court-approved, uncapped, claims-made settlement, class members who either still had their chainsaws or had proof of purchase were entitled to a $50 reward, while class members with no proof of purchase were entitled to $10 cash or a $25 Harbor Freight gift card. The parties estimated that the potential total value of the settlement would be between $8 million and $40 million, depending on how many class members filed claims. At the final approval hearing, the court approved the settlement and plaintiffs’ counsel’s request for approximately $650k in attorneys’ fees and expenses.

Finally, in Broomfield v. Craft Brew Alliance, Inc. , several beer drinkers sued the Craft Brew Alliance for misrepresenting that one of its beer brands, Kona, was brewed in Hawaii when, allegedly, it was brewed in the continental United States. The class consisted of approximately 7.8 million Kona beer purchasers. In the claims-made settlement resulting from the litigation, purchasers without proof of purchase were eligible for up to $10, while purchasers with proof were eligible for up to $20. The settlement amount was uncapped, but the settlement agreement provided that CBA had the unconditional right to terminate the Settlement Agreement if more than one million claims were filed, effectively giving CBA an optional $20 million damages cap. At the conclusion of the claims period, the class did not reach the one million claim threshold. After the final approval hearing, the court approved the settlement and awarded plaintiffs’ counsel approximately $2.26 million, slightly less than plaintiffs’ counsel’s request for $2.57 million.

What if there was a way to structure a claims-made settlement that allowed a defendant to avoid the top-end variability risk, especially in the instance of an uncapped, claims-made structure?

Class action settlement insurance (CASI) is a risk transfer solution that jettisons the uncertainty clouding the resolution of class actions, whether the cause(s) of action is fraud, mislabeling, products liability, statutory claims like the TCPA, FLSA, BIPA, or something else. A defending company can only exert so much influence over the outcome of litigation. Not knowing how the cards will fall can be crippling in and of itself.

CASI shifts the entirety of the risk from the defendant business to the insurer and provides settlement cost certainty. It also eliminates internal friction associated with pending class actions, like diversion from core business operations, financial planning dilemmas, and opportunity cost.

A defendant in the throes of class action litigation receives a confidential, no-obligation, tailor-made analysis concerning the financial risk arising from settlement. The analysis uses proprietary risk algorithms and the nation’s most robust class action litigation database to assess the settlement value against the actual cost of resolution.

In return for a fixed premium, a defendant with CASI receives indemnification of 100% of the payment risk to the class under the settlement terms.

Unknowns can mire companies facing class-action lawsuits, from cost uncertainty to possible violations of loan covenants and earnings hits. The ripple effects detract from business goals and can even derail M&A transactions and impact efforts to raise capital. A defendant with CASI sheds that uncertainty. With CASI, companies are empowered to mitigate, control, and shift the financial risk of settlement in class action litigation.

Class actions present a multitude of risks to corporate defendants, and important decisions such as settlement structures and applicable insurance products can greatly impact how well a company navigates these potentially dangerous waters. Understanding and exploring all the modern options, such as CASI, at a company’s disposal is essential for any sophisticated business.

Reprinted with permission from the February 28, 2023 issue of Law.com Daily Business Review . © ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

The post Claims-Made Settlements Are More Common Than You Think appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Adding Value as In-House Counsel – Four Principles to Follow

Wed, 08 Mar 2023 16:04:00 GMT

In Episode #17 of Certum Group’s podcast, Alternative Litigation Strategies, Kevin Skrzysowski interviews Jason Karp , a Partner with Outside GC LLC , a firm providing on-demand outside general counsel legal services. Kevin and Jason discuss the four main principles in-house attorneys should follow to add value to their organizations, including: know your client’s business, understand the real questions being asked, stop saying “no”, and take on more risk. Jason’s ideas flip the conventional wisdom that many of today’s in-house practitioners follow, and provide creative, outside-of-the-box solutions that make in-house departments more accretive to their companies.

The post Adding Value as In-House Counsel – Four Principles to Follow appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

The Murky Status of TCPA Standing in the 11th Circuit

Thu, 02 Feb 2023 16:43:00 GMT

Listen to Episode 16 of Certum Group’s (FKA Risk Settlements’) podcast, Alternative Litigation Strategies, to hear Aaron Weiss and Charles Throckmorton , Shareholders at Carlton Fields, take a deep dive into the status of Article III standing in TCPA cases in the 11 ^th Circuit. Aaron and Charles provide a masterclass in the nuances of the Florence , Salcedo , Cordoba, and Glasser decisions which address different subparts of the TCPA, their impact on cases filed under the FTSA, critical questions that were left unresolved by the Court, and predictions on the future of TCPA and FTSA filings in the 11 ^th Circuit.

The post The Murky Status of TCPA Standing in the 11th Circuit appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Risk Settlements Announces Name Change to Certum Group

Mon, 30 Jan 2023 18:07:00 GMT

January 30, 2023 – Risk Settlements, which provides bespoke solutions for companies facing the uncertainty of litigation, has changed its name to Certum Group. Latin for “certainty,” Certum represents the core benefit the company delivers to its clients across its entire suite of solutions.

“Our new name represents our mission of bringing certainty to the uncertain world of litigation through our proprietary risk transfer platform,” said Joel Fineberg, managing director. “By using risk transfer of known, threatened, or pending litigation or judgments, we help our clients win more by risking less.”

Certum Group has created the first and only litigation risk transfer platform that combines insurance, premium finance, and litigation funding to provide tailored solutions for companies, litigants, and law firms. Founded 10 years ago, the team is comprised of former litigators, judicial clerks, actuaries, and financial professionals who design risk transfer and funding solutions to meet legal, business, and financial objectives.

Certum Group’s suite of products includes litigation funding for companies and law firms, claim monetization for known or latent litigation assets, and judgment preservation insurance (JPI) to guarantee the recovery of large judgments being appealed. It also includes portfolio “wrappers” to ensure that an entire group of cases will prevail making monetization or funding possible, class action settlement insurance (CASI) which removes the uncertainty of claims-made settlements, and litigation buyout insurance (LBO) that shifts the outcome of contested litigation from the defendant to a large insurance carrier. Depending on the client’s goals, these solutions are offered stand-alone, or in combination with each other.

The post Risk Settlements Announces Name Change to Certum Group appeared first on Certum Group .

About That First Florida Telephone Solicitation Act Class Action Settlement…

Mon, 12 Dec 2022 15:21:00 GMT

Listen to Episode 15 of Risk Settlements’ podcast, Alternative Litigation Strategies, to hear Dan Blynn, a Partner at Venable LLP, take a deep dive into Alvarez v. Sunshine Life & Health Advisors , the first FTSA case to settle on a class-wide basis. Kevin and Dan examine the avalanche of litigation under the FTSA, trending decisions on dispositive motions in these cases, the many unique nuances of the Alvarez settlement, and predictions on future settlements under the FTSA and other states’ “mini-TCPA” cases.

The post About That First Florida Telephone Solicitation Act Class Action Settlement… appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

State Mini TCPA Laws – The New Frontier

Wed, 30 Nov 2022 15:18:00 GMT

Listen to Episode #14 of Risk Settlements’ podcast, Alternative Litigation Strategies, as Kevin Skrzysowski interviews Alex Krasovec , a Partner at Manatt, Phelps and Phillips on the proliferation of state “Mini-TCPA” laws around the country. Kevin and Alex discuss why states are now getting into the mix, which states have mini-TCPA laws on the books, how these laws differ from the federal statute, and what guidance and advice should be given to sales and marketing companies to remain compliant and avoid potential litigation.

The post State Mini TCPA Laws – The New Frontier appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Arbitration Clauses and Class Action Waivers – A Plaintiff’s Perspective

Tue, 15 Nov 2022 15:15:00 GMT

Listen now to take a deep dive into a discussion on arbitration clauses and class action waivers as Kevin interviews Sophia Gold of Kaliel Gold. Kevin and Sophia discuss threshold issues for arbitration, motions to compel and defenses against them, the impact of arbitration clauses on companies, consumers, and employees, the pros and cons of arbitration vs. litigation, recent court decisions, and newly promulgated statutes.

The post Arbitration Clauses and Class Action Waivers – A Plaintiff’s Perspective appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

How Risk Settlements Helps Companies Transfer Risk in Class Action Litigation.

Wed, 09 Nov 2022 18:33:00 GMT

In this video, Kevin answers the following questions:

1. How does Risk Settlements help companies transfer risk in class action litigation?

2. How do Risk Settlements design settlement structures for your clients?

3. How does CASI work?

4. Are there any other benefits for the company?

5. How long has Risk Settlements been helping companies transfer their litigation risk?

For more information, contact us today.

The post How Risk Settlements Helps Companies Transfer Risk in Class Action Litigation. appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

One Last Bite at the Apple: ViSalus and the $925 million TCPA judgment

Mon, 07 Nov 2022 15:10:00 GMT

Many ink barrels have been spilled on the risks posed by the Telephone Consumer Protection Act (“TCPA”). For those unaware, the TCPA protects individuals and businesses from those insidious and unwanted robocalls, texts, ringless voicemails, and even faxes (for those who still have a fax machine). As for phone calls, the statute makes it unlawful for any person to initiate a call using any “automatic telephone dialing system or an artificial or prerecorded voice” without the “prior express consent” of the recipient. The recipient of a TCPA-violating call can sue to recover for the greater of actual damages (generally $0) and $500. At the risk of a spoiler alert, litigants generally seek the $500 per call.

ViSalus is a multi-level marketing company that sells purported weight-loss products direct to consumers. Basically, ViSalus signed up customers (i.e., those who purchased the products) as well as promoters (i.e., those who tried to bring in new customers). As part of the application process, ViSalus asked individuals for their phone numbers, but, critically, did not ask customers for their consent to receive future automated or prerecorded calls.

Lori Wakefield enrolled as a ViSalus promoter in 2012. A few months later, Wakefield discontinued her relationship with ViSalus. Fast forward two years. As part of a new marketing campaign, ViSalus began reaching out to former promoters. In April 2015, Wakefield received five prerecorded audio messages from ViSalus on her home phone. So, Wakefield, having had enough, sued ViSalus.

The district court certified a class of all individuals in the U.S. who received a call from ViSalus, promoting ViSalus’s products or services, featuring an artificial or prerecorded advice, without first obtaining the individual’s express, written consent. In April 2019, the case went to trial, with Wakefield presenting her case in three days. ViSalus “declined to put on any evidence of its own, and instead argued in closing that Wakefield had not proven her case by a preponderance of the evidence.” The jury disagreed, finding ViSalus had placed 1,850,440 calls in violation of the TCPA. Accordingly, the court ordered ViSalus to pay approximately $925 million in damages.

On appeal, ViSalus argued, among other things, that the TCPA’s statutory penalty of $500 per violation, in the aggregate, is so “severe and oppressive” that it violates ViSalus’s due process rights. Without deciding the issue, the Ninth Circuit held that in “certain extreme circumstances,” it is possible for aggregated statutory damages to be subject to constitutional due process limitations. Indeed, the court noted that where “statutory damages no longer service purely compensatory or deterrence goals, consideration of an award’s reasonableness and proportionality to the violation and injury take[] on heightened constitutional importance.”

The Ninth Circuit concluded its decision by ordering the district court to “consider the magnitude of the aggregated award in relation to the statute’s goals of compensation, deterrence, and punishment to the proscribed conduct,” and, once and for all, determine whether the nearly billion-dollar penalty violated ViSalus’s due process rights and, if so, by how much.

By all accounts, this is ViSalus’s final bite at the apple. How the district court will rule remains to be seen.

At Risk Settlements, we are the leader in providing comprehensive, alternative litigation strategies, including class action settlement insurance (“CASI”), litigation buyout insurance, judgment preservation Insurance, adverse judgment insurance, litigation funding and claim monetization. Our team of experienced former litigators, insurance professionals, and risk mitigation specialists helps companies remove the financial and operational volatility arising out of litigation by transferring the outcome risk. If you have any questions about the ViSalus TCPA matter, or if you have a matter you would like our team to review, please contact us today.

The post One Last Bite at the Apple: ViSalus and the $925 million TCPA judgment appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Insights Into How Companies Manage Risk

Thu, 27 Oct 2022 17:40:00 GMT

In this video blog, Kevin Skrzysowski, Director at Risk Settlements, explains what Risk Settlements is and how the firm helps its clients, along with some insights into the firm:

What methodologies were employed for the 2022 In-House Litigation Risk Assessment survey?
What were some of the interesting findings of the 2022 In-House Litigation Risk Assessment survey?
What are the key criteria that drives companies to leverage litigation risk transfer products?

The post Insights Into How Companies Manage Risk appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

The Renewed Focus on Bank-Fee Class Action Litigation

Tue, 04 Oct 2022 17:22:00 GMT

Don’t miss the latest episode of Alternative Litigation Strategies as Kevin interviews Katten Class Action Partner, Stu Richter, on overdraft litigation and its impact on banks, credit unions, and other financial institutions. Kevin and Stu discuss filing trends, effective defenses, dispositive motion strategies, settlement and trial considerations, copycat lawsuits, class action settlement insurance, arbitration agreements, and best practices for businesses to avoid litigation.

Watch the full episode above, or stream from the podcast platform of your choice below.

The post The Renewed Focus on Bank-Fee Class Action Litigation appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

How to Win More by Risking Less

Tue, 27 Sep 2022 15:02:00 GMT

In-house counsel and law firms have an unprecedented opportunity to apply systematic innovation to the way they approach litigation. For a fixed premium cost, it is now possible to pursue risk transfer on threatened or active litigation, portfolio risk, or work-in-progress, and in the process open up value in the form of increased certainty, efficiency, funding, and cash. Additionally, companies can monetize untapped litigation assets, thereby generating immediate revenue while removing the outcome uncertainty.

Put another way: it is now possible to win more by risking less.

The key for both law firms and in-house counsel is to embrace an innovative mindset as they approach their portfolio of cases. Here are three strategies–three new ways of thinking–to help make that happen:

Litigation exposure can create a cash drain to cover litigation expenses, significant financial risk from known or pending litigation, and massive inefficiencies impacting a company’s P&L from settlement or judgment. Whether you are going to trial or you have already received an adverse judgment you plan to appeal, litigation requires time, money, and human capital. But what if you didn’t need to maintain reserves for your exposures? By transferring litigation risk, you eliminate the outcome risk, remove reserves, increase liquidity, and likely increase the company’s enterprise value all at the same time.

Here is a real-world example: We worked with a major, highly-leveraged manufacturer experiencing an exposure of $250 million. We assisted them in negotiating a $30 million settlement; but, reducing the top-line exposure was not its only obstacle. If the company signed the proposed settlement agreement, its auditors, applying well-recognized GAAP accounting principles, were requiring the company to post 100 percent of the liability on its P&L. This would have tripped its loan covenants, thereby accelerating all debt and forcing the company into bankruptcy. Using insurance, the company transferred the payout risk of the judgment to a carrier in exchange for a single premium at a fraction of the total judgment exposure. This creative risk transfer solution kept the company in compliance with its loan covenants, helped maintain shareholder value, and ultimately saved the company from bankruptcy or liquidation. It resolved legacy liability, recapitalized, and turned around the business. Risk transfer solved a substantial liability and saved that company.

This example underscores why our Class Action Settlement Insurance (CASI) and Litigation Buyout Insurance (LBO) can be uniquely advantageous for corporations and law firms. They create an asset that guarantees the payment of a liability. So, instead of tripping a loan covenant or having to account for a massive liability every quarter, it is possible to simply buy certainty with a one-time premium. You can offset even multimillion-dollar notional settlements or litigation from your balance sheet. Ultimately, the sooner businesses think of solutions like CASI or LBO in a litigation cycle, the greater their possible wins.

Funding opportunities have inundated the marketplace. Yet even as competition drives down prices, traditional litigation funding continues to be expensive for law firms and corporations. One reason is that most litigation funding is non-recourse debt based upon the outcome of uncertain litigation. Risk drives the cost.

Historically, companies seek litigation funding. Then, the litigation funders, in turn, look to the insurance markets to remove some or all the outcome risk. What if the process was reversed and the company or law firm obtained risk transfer of the outcome of the litigation first? Using risk transfer to guarantee the outcome of litigation, the cost of capital is lower, reflecting the outcome certainty and capital preservation provided by insurance. This approach is a win for companies and law firms seeking funding. Additionally, once the outcome risk is removed, the ability to obtain efficient, non-recourse funding is far more likely. At Risk Settlements, we can underwrite specific or portfolio litigation risk and then package insurance and funding to provide the optimal litigation finance structure.

Too often, companies don’t realize that they can leverage their litigation portfolio like any other company asset. For example, we provided immediate monetization of contingent antitrust cases which generated immediate revenue for companies and removed all outcome and timing risk. By electing certainty, these companies received immediate value from an untapped asset that might not have been unlocked for a long time, and potentially, at a lower value.

The risk outcome is always binary for companies – win or lose – and it’s their job to be right 100% of the time. Sophisticated litigation underwriters can look for untapped sources in the market and use risk transfer to help clients turn what they view as having little value into immediate value. Quite simply, with risk transfer, we give our clients a way out of the trap of binary outcomes by solving for risk in a revolutionary new way.

A decade ago, litigation funding was novel—now, it’s a given that the biggest law firms utilize big funders. Similarly, sophisticated funders are already using litigation insurance today. But many companies have yet to unlock all that litigation risk transfer solutions have to offer, whether it be newer companies looking for agile solutions that keep them on the cutting edge or established players looking to benefit from pure financial arbitrage. In either case, the future of litigation is securing winning results by reducing risk.

This article was originally published on lexology.com.

The post How to Win More by Risking Less appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Litigation Risk Survey Finds Large In-House Workloads, Tight Resources and Missed Opportunities to Transfer Risk

Mon, 26 Sep 2022 17:03:00 GMT

In-house legal departments say they are facing growing litigation burdens with limited staffing and financial resources—and yet most have not taken advantage of tools like risk transfer products to help manage workloads and ease budget uncertainty.

The 2022 Litigation Risk Survey, conducted by Risk Settlements in conjunction with In the House, asked general counsels and other in-house leaders around the globe about their litigation activities and legal spend, their tolerance for litigation risk, and their knowledge and use of the potential solutions available to help transfer the outcome risk of litigation.

The vast majority of in-house leaders—more than 80 percent—reported that their departments had 10 or fewer employees, and more than 70 percent said their legal budgets were less than $1 million. The results show that the size of the company and the size of the legal department do not necessarily correlate and provide further evidence that in-house lawyers and law departments are being stretched thin, particularly in the wake of the COVID-19 pandemic.

The survey also found that most in-house departments are bearing a substantial litigation workload. Three-quarters of respondents said they are currently defending active litigation, and 20 percent have 10 or more cases on the docket. Ten percent of respondents said they are fielding more than 50 active cases.

Perhaps unsurprisingly, given the tight budgets and small staffs, relatively few of the active cases are plaintiffs-side matters. Nearly half of respondents said they are currently pursuing no active affirmative litigation. And of the remaining respondents, the overwhelming majority are engaged in only a handful of plaintiffs-side matters.

In spite of their resource challenges, the majority of law departments have yet to take advantage of litigation risk transfer products. Most say, however, they are open to using them—particularly to gain greater budget certainty around costs. Two thirds of in-house counsel said they would consider using such products in their businesses in the future. This is especially true of products like litigation funding, adverse judgment insurance, and escrow release.

An effective claims monetization effort could assist GCs under pressure to transform their departments from cost centers into contributors to company profits. But less than a third of in-house leaders said their law departments are actively pursuing affirmative cases. If given the chance, however, nearly half—48 percent—would pursue claims if they were made aware of them, and 54 percent said they would be interested in pursuing affirmative cases regardless of the claim amount.

At present, most companies say they are attempting to locate affirmative claims themselves. Less than one-third are receiving help in identifying claims from outside counsel and only a handful are receiving the assistance of a litigation funder. The data suggests that companies should rely more heavily upon outside help to bring affirmative claims to their attention.

Nearly three-quarters of respondents said they were at least somewhat familiar with litigation funding. But only 5 percent say they have used funding themselves. In-house departments said they have identified funders primarily through referrals from business contacts. Half of the respondents reached out to funders directly or via funding brokers. Another third received referrals from outside counsel or were contacted by funders directly. An equal number of in- house counsel said the cost of funding and/or the structure of funding were the most important factors when choosing among funders.

Of the in-house counsel who have worked with a funder, the most common funding structure—used by 75 percent of respondents—was a contingency fee based upon the ultimate proceeds of a successful recovery. Hybrid structures, with claimants receiving funding via a combination of non-recourse loans and contingency fee arrangements, had also been used by two-thirds of respondents. Forty-four percent who have funded cases have arranged for a non-recourse loan, and 22 percent said they had used a recourse loan structure.

Legal Ops. Three-quarters of respondents said their companies did not yet have a legal operations team. And while much of the conversation in the legal industry has been about the role of legal ops in selecting outside counsel, respondents who have legal ops capabilities ranked outside counsel selection last among their key priorities. More important, they said, were finance, technology and strategic planning.
Litigation Risk. Fifty-four percent of respondents said they are “somewhat tolerant” of litigation risk. About a quarter of companies are “very tolerant” of risk. And a few—about 7 percent—say their companies are “extremely tolerant,” an answer that may suggest a few companies are leveraging affirmative litigation as a tool for revenue generation. Just over 16 percent—are “not tolerant at all” of litigation risk.
Outside Counsel. In-house lawyers surveyed said expertise in the litigation being defended is the most important factor in the hiring process for outside counsel. A prior relationship with the law firm (or their inclusion as panel counsel) ranks second, respondents said. While cost is a consideration, as is the law firm’s flexibility on fees, only 8 percent of in-house leaders said these issues were at the top of their list when making an outside counsel hiring decision.
Alternative Fee Arrangements. Alternative fee arrangements in litigation are occurring in about half (49 percent) of cases, the survey found. When they are used, AFAs are occurring more commonly in defense-side matters than in plaintiffs-side cases.
Liability Insurance. Companies commonly have commercial liability insurance, but it is rare for them to actually use it to cover litigation costs. By a wide margin, respondents said they relied upon insurance less than 10 percent of the time. Only one in four said they relied upon insurance policies to cover 50 percent or more of their litigation costs.
Assessing Risk. Assessing litigation risk remains a responsibility firmly in the hands of the general counsel, respondents said. Asked to rank the most important factors they use to assess risk in defense cases, in-house counsel said the “size of possible damages” and whether the matter is a “bet-the-company” case ranked first. The “likelihood of prevailing” in the case ranked second. When the company is considering bringing an action, however, the factors are reversed. By a wide margin, the likelihood of winning the case was the most important issue for in-house counsel when considering affirmative claims.

Responses to the 2022 Litigation Risk Survey came from in-house counsel in 20 countries, 37 U.S. states and the District of Columbia, and from more than 50 industry sectors.

The post Litigation Risk Survey Finds Large In-House Workloads, Tight Resources and Missed Opportunities to Transfer Risk appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Mamas, Don’t Let Your Babies Grow Up To Be Class Action Lawyers

Wed, 21 Sep 2022 14:50:00 GMT

Don’t miss the latest episode of the Alternative Litigation Strategies podcast as Kevin interviews Fred Burnside , a Partner with the law firm Davis, Wright and Tremaine. Kevin and Fred discuss the biggest changes and challenges to the practice of class action litigation over the last several years. The two discuss changes in fee structures, fix fees by phase, spending trends, increases in litigation volume, case strategy and bet the company litigation, best settlement practices including class action settlement insurance, and great advice for young litigators who are just starting out.

The post Mamas, Don’t Let Your Babies Grow Up To Be Class Action Lawyers appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Legal Wellness and Access to Justice with Your Lovable Lawyer – Danny Karon

Wed, 17 Aug 2022 14:54:00 GMT

In the latest episode of Risk Settlements’ podcast, Kevin interviews Danny Karon, a class action attorney, Chair of the ABA National Institute of Class Actions, professor, prolific author, and now the founder of the legal wellness movement and creator of the YouTube channel, Your Lovable Lawyer . Kevin and Danny discuss the societal bias to access to justice where people who need justice the most often get it the least, leading to his creation of Your Lovable Lawyer.

Through his website and YouTube channel, Danny encourages people to take control of their legal health through his clear, easy-to-understand informational videos about common, everyday legal problems that empower you to improve your legal wellness. Through his informational videos, Danny makes justice more accessible by providing legal information to people who don’t know, can’t find or can’t pay for lawyers.

The post Legal Wellness and Access to Justice with Your Lovable Lawyer – Danny Karon appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Five Mediation Mistakes That Create Obstacles to Settlement

Wed, 03 Aug 2022 16:22:00 GMT

In Episode 9 of the Alternative Litigation Strategies podcast, Kevin interviews Rachel Gupta, an independent mediator and arbitrator. Rachel is the Founder and Principal at Gupta Dispute Resolutions and a JAMS Diversity Fellow. Kevin and Rachel discuss the most critical behaviors parties to ADR should avoid in order to achieve a successful resolution and tackle additional issues such as: anchoring too high or too low, failing to adequately prepare (your clients) for the mediation, not accounting for compound risks, making premature ultimatums, and simply being overly litigious.

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October 23, 2025

W. Tyler Perry

A Class Action Was Filed, Now What? – A 10 Point Response Plan

Tue, 26 Jul 2022 18:35:00 GMT

In Episode #8 of the Alternative Litigation Strategies podcast, Kevin Skrzysowski interviews David Yeagley , a Partner and Trial Lawyer with the law firm Ulmer and Berne . Kevin and David discuss a comprehensive strategy for companies to follow after being served with a class action lawsuit. They dive into issues ranging from initial assessment, insurance and jurisdiction considerations, and defense strategy to discovery issues, expert witnesses, exit strategies, collateral risks and more.

The post A Class Action Was Filed, Now What? – A 10 Point Response Plan appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

The Recent Surge in Midwest Food Labeling Litigation

Wed, 20 Jul 2022 02:25:00 GMT

In Episode 7 of the Alternative Litigation Strategies podcast, Kevin interviews John Zabriskie, a Partner and Trial Lawyer with the law firm Foley & Lardner . Kevin and John discuss the proliferation of food mislabeling cases throughout the Midwest, the common causes of action, nuances among state laws of IL, CA and NY, the future of “flavoring” cases, and best practices for companies to follow to avoid advertising litigation going forward.

The post The Recent Surge in Midwest Food Labeling Litigation appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Judgment Preservation Insurance: Protecting Plaintiffs’ Awards

Wed, 29 Jun 2022 17:41:00 GMT

This article originally appeared in Bloomberg Law .

With any significant trial court judgment, there is always a risk that an appellate court will reverse (in whole or in part) or reduce a damages award. Judgment preservation insurance (JPI) allows plaintiffs who prevailed at the trial court to insure all or part of a damage award while an appeal is pending.

It is axiomatic that the wheels of justice move slowly. An appeal from a favorable legal judgment can take many years to resolve. Indeed, in some circumstances, the delay is the point. Transforming a legal skirmish into a war of attrition can cause a plaintiff to cry uncle, opting to settle the matter while leaving money on the table. But JPI can change that.

Put simply, JPI is a targeted way to ring-fence appellate risk while allowing companies with a favorable judgment to immediately leverage the financial benefits of the award. JPI can be used in the context of summary judgment awards, trial verdicts, and arbitration wins. With JPI, plaintiffs who prevail at the trial court level can obtain immediate protection of judgments that are threatened with reversal or reduction in damages on appeal. For corporate plaintiffs, JPI may provide additional final statement benefits.

JPI is a form of insurance that guarantees a prevailing plaintiff will receive all or part of the trial court’s judgment regardless of what happens to the judgment on appeal, or, in some cases, after a retrial. Generally, JPI is concerned only with final judgments. There can be no loss unless and until the judgment is final and there is no longer any chance of further appeal.

Essentially, JPI is appellate risk insurance—a certain way to “neutralize” the risks associated with appeal. JPI can be obtained by either a party to the litigation or a litigation funder looking to lock in a certain level of return. Depending on the amount of the policy, JPI indemnifies the policy holder for some or all of a judgment. Indeed, it may insure all of the judgment, or it may be targeted at a specific legal issue that is challenged on appeal, such as attorneys’ fees or statutory damages.

Click here to read the full article

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W. Tyler Perry

October 23, 2025

IMN Conference, June 7, 2022, NYC

Wed, 29 Jun 2022 16:43:00 GMT

The Information Management Network is the preeminent global educational conference organizer designed for experts in the structured finance, real estate, and investment management industries.

Over the past five years, litigation funding capital costs have decreased significantly due to new entrants in the litigation finance market.

While some perceive litigation insurance to compete with litigation funding, recently, the two are being used hand in hand to mitigate risk. Indeed, some funders are explicitly tying insurance to their funding proposition to help with the deal.

When it comes to litigation funding, speed is of the essence, and most often, the firm that is first to provide terms is the one that wins the deal.

For litigation insurance policies that remove all downside risk, a new trend is for the insurer to offer less upfront premium in exchange for a piece of the upside.

For the foreseeable future, the new mass tort target will be big tech.

The post IMN Conference, June 7, 2022, NYC appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Legal Leaders USA May 23-24, 2022, NYC

Wed, 29 Jun 2022 16:35:00 GMT

This conference featured over 40 speakers, including prominent CEOs, prestigious general counsel members, and chief legal officers, who addressed 200 fellow general counsel and senior legal officers.

The onslaught of litigation resulting from the pandemic necessitates modifying management practices. When many in-house teams are understaffed, It’s time to embrace development strategies designed to motivate, engage, and retain team members.

While the legal profession can be reluctant to adopt new technology, it doesn’t have to be daunting. The latest tech solutions can automate routine tasks, allowing legal professionals to focus on high-level responsibilities.

The correct management strategy and tools (including mentoring and learning opportunities) make creating a productive and efficient remote legal team a real possibility.

Ideally, an ESG philosophy speaks to a company’s core business principles, engages stakeholders, and utilizes existing internal networks.

The post Legal Leaders USA May 23-24, 2022, NYC appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

In House Warrior Podcast by LEVICK: What In House Counsel Are Thinking About Litigation Risk with Kevin Skrzysowski of Risk Settlements

Fri, 10 Jun 2022 17:39:00 GMT

Kevin Skrzysowski , the National Director of Business Development and Marketing at Risk Settlements, joins host Richard Levick of LEVICK to discuss their recently released survey, done in conjunction with In the House. Kevin provides a summary of the most fascinating findings from nearly 200 in house counsel, the dramatic growth of legal operations and an equally dramatic growth in litigation volume; the modest response to Alternative Fee Arrangements; the efficacy of insurance; litigation risk transfer products, including litigation finance and more

The post In House Warrior Podcast by LEVICK: What In House Counsel Are Thinking About Litigation Risk with Kevin Skrzysowski of Risk Settlements appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Webinar: Insights Into How Companies Manage Litigation Risk

Thu, 26 May 2022 17:47:00 GMT

Our webinar, Insights Into How Companies Manage Litigation Risk , is now available on-demand. In this presentation, we discuss the results of our 2022 Litigation Risk Survey. The survey polled in-house counsel across the country on their organization’s preparedness to manage their litigation and handle associated risks.

Join Chris Colvin of In The House and Kevin Skrzysowski for an exclusive, complimentary presentation to understand how we can help firms ensure they have enough resources to pursue litigation and learn about other funding or claim monetization options.

Click here to view the webinar on-demand.

In this webinar, attendees will learn:

How firms handle active or threatened litigation
Criteria for vetting outside counsel
What types of cases pose the biggest threats
How much insurance coverage is available in most cases
Funding trends, decision-making trees and fee arrangements
Litigation risk transfer solutions and other monetization products
…And much more!

You can also click here to download a free copy of our whitepaper detailing the results of our litigation risk study.

The post Webinar: Insights Into How Companies Manage Litigation Risk appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Legal Operations Must Embrace Innovation

Mon, 09 May 2022 15:41:00 GMT

Legal proceedings shut down with all other nonessential industries as a result of COVID-19-related closures. Now, the courts are akin to opened floodgates, resulting in a surge of litigation swamping companies around the globe. A June 2021 Reuters study found that the average backlog of court cases increased from 958 cases to 1,274 over 12 months from 2019 to 2020 and one-third of courts surveyed indicated that their case backlog increased more than 5%.

At Risk Settlements, we provide bespoke risk transfer solutions so companies can obtain certainty when faced with the uncertainty of litigation. So we were interested to understand how in-house legal operations teams are faring in this unprecedented moment.

In pursuit of answers, we partnered with a think tank, In the House, surveying general counsels and other in-house leadership of ~200 companies operating in over 50 industry sectors across 20 countries and 37 states. We asked them about their litigation activities, legal spend, risk appetite, and awareness of the solutions available to help transfer risk and monetize claims. Our findings indicated that in-house legal departments are struggling with understaffing and shoestring budgets like so many other sectors of the economy—leaving companies treading water, or worse, completely immersed in an onslaught of threatened, pending, or active litigation.

In the face of these challenges, Legal Operations teams must embrace new ideas and forms of innovation. Here’s what you should know based on our research:

Companies of all sizes are defending the largest volume of litigation they’ve ever seen. 65% of our Litigation Risk Survey respondents are currently defending active litigation, with 20% defending 10-50+ cases. Analysis of the survey’s respondent pool, composed of equal proportions of companies made up of 50, 500, 2,500, and 10,000 employees, revealed a profound lack of correlation between a company’s size and the size of its legal department: 80% of survey respondents have fewer than ten in-house lawyers. Keep in mind that 43 percent of the in-house department leaders who responded to our survey work for companies with more than 1,000 employees.

Overstretched legal departments are being squeezed by time and budget constraints, limiting the use of outside counsel for support: 52% of survey respondents said their legal department budgets (excluding staff salaries and benefits) were less than $1 million. Only 6% of companies have allotted an annual legal department budget of greater than $10 million, despite the fact that 20% of respondents are employed by an enterprise with more than 10,000 employees. Unsurprisingly, litigation budgets are similarly limited, with three-quarters of in-house counsel saying that outside counsel/litigation expenses made up less than half of their annual legal department budget.

In recent years, businesses of all shapes and sizes have created and grown a new function within their legal units: Legal Operations Teams. The role of a Legal Operations function is myriad, encompassing a variety of tasks required to achieve success, from hiring and career development to budget management and technological growth. From a business perspective, Legal Operations teams provide high-quality and efficient legal services and represent an area for significant innovation.

25% of survey respondents created a Legal Operations team that provides much-needed support to the
legal department: the 2,000 individuals anticipated to attend the flagship Corporate Legal Operations Consortium is just one indication that legal operations are much needed tactical and strategic resources companies are relying upon to manage risk, compliance, and litigation. Moreover, when budgets are tight and outside counsel fees are often the largest line item, control costs and spend on outside legal services is critical.

As the launchpad to increasing efficiencies and gaining financial benefits, Legal Operations departments have a prime opportunity. With the help of outside consultants, Legal Operations can assess risk and utilize solutions in new ways to create efficiency by transforming the outcome risk of litigation through novel insurance and funding solutions. While more than 50% of companies would like to pursue monetization of legal claims, regardless of the claim amount, 50% of companies do not pursue affirmative claims due to the lack of resources. Employment of outside legal services that utilize alternative risk transfer solutions is one way for Legal Operations departments to reduce spending while significantly improving overall efficiency and quality.

To quote a recent CLOC article: “Legal operations have always been about change. As a community, we embrace disruption and turn it into opportunity. We do not need to fear this moment. We need to embrace it, to realize its incredible potential for positive transformation.” While COVID cases are falling, the world has fundamentally changed: it’s time to innovate accordingly.

Litigation risk transfer solutions are the arrows in the Legal Operations officer’s quiver of innovation. Provide certainty and finality to unknown contingent litigation liabilities by leveraging one of the several novel, cost-effective solutions offered by Risk Settlements:

Class Action Settlement Insurance (CASI) transfers 100% of the claims risk up to the total amount of exposure under a class action claims made settlement.
Litigation Buyout Insurance (LBO) transfers the outcome risk and expenses of known, threatened, or pending litigation to an insurer, thereby offsetting the liability from the company’s balance sheet.
Judgment Preservation Insurance (JPI) guarantees that the prevailing party will recover the amount of the judgment regardless of what the appellate court rules.
Adverse Judgment Insurance (AJI) provides coverage in the event that the moving party loses and is taxed with the litigation costs under a “loser pays” rule or statute.
We provide Litigation Funding Wrapper which allows companies and law firms to seek insurance to guarantee the outcome of litigation to ensure that the lawyers’ (working on a contingent fee) WIP is paid and/or to make funding either possible or more cost effective.
We also provide Litigation Funding and Litigation Asset Monetization for corporate plaintiffs. In order to assist companies in tapping into latent litigation assets, our underwriting team can assist in identifying potential claims, performing merits and outcome analysis and designing risk transfer solutions to insure the outcome of the litigation, provide immediate monetization of the litigation, or both.

EY Law (a branch of Ernst & Young) recently noted that tightened budgets are particularly limiting t legal departments, which, as CEOs increase digitization efforts, are being burdened with greater responsibilities to advise and assess risk. Risk Settlements doesn’t see your risk as a burden but as an opportunity; and we can use our expertise to unlock it. If your organization is one of the many that’s strapped for time, personnel, and funds, it’s time to think outside of the box. We understand litigation risk and designs solutions.

If you want to learn more about our findings and innovative solutions, access our full white paper.

Contact:
Kevin Skrzysowski is an attorney and Director at Risk Settlements where he utilizes their proprietary
quantitative and qualitative processes and more than 20 years of legal and business expertise to help
companies and their outside counsel design optimal litigation risk transfer solutions to mitigate the
financial risk arising out of class actions and other types of commercial litigation. Kevin can be contacted
directly at: kevins@risksettlements.com or (216) 570-9370.

The post Legal Operations Must Embrace Innovation appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Litigation Finance Journal: An LFJ Conversation with Dean Gresham of Risk Settlements, April 22, 2022

Mon, 02 May 2022 16:19:00 GMT

How does the Risk Settlements platform work? What are the advantages for legal teams when using Risk Settlements?

Risk Settlements is not a traditional litigation funder. At its simplest, we provide risk transfer solutions for parties, as well as their funders, facing the uncertainty of litigation by transferring the outcome risk. We think of our company as providing certainty in the uncertain world of litigation.

In addition traditional litigation funding, we are a leader in providing comprehensive alternative litigation strategies, including monetization of commercial claims and judgments and insurance for litigation buyouts, judgment preservation, class action settlements, and adverse judgments.

Our risk transfer solutions include, among others:

Claim monetization – converts an illiquid litigation claim into non-recourse capital in exchange for a portion of the claim’s potential future recovery.
Judgment preservation insurance –regardless of what happens on appeal or in subsequent proceedings, ensures the plaintiff will recover an agreed-upon amount of the judgment or award it has obtained.
Contingent fee insurance – mitigates the financial risk that the law firm will not recover fees in a commercial case taken on a contingency.
Class action settlement insurance – the only post-litigation insurance product on the market that allows companies facing class action litigation to mitigate, cap, and transfer the financial risk of settlement in existing class litigation to an insurance company.
Litigation buyout insurance – allows companies to successfully ring-fence threat or existing litigation exposure and transfer the full financial risk. In the context of an M&A transaction or financing round, this solution negates the requirement for use of escrows or indemnities, providing certainty and finality to both parties to the transaction.
Attorney fee factoring.

Click here to read the full conversation.

This content was originally published on Litigation Finance Journal.

The post Litigation Finance Journal: An LFJ Conversation with Dean Gresham of Risk Settlements, April 22, 2022 appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Class Action Developments in the Circuit Courts

Thu, 14 Apr 2022 16:52:00 GMT

On January 7, 2022, we presented a one-hour PLI CLE titled Trends in Consumer Product Class Actions and Strategies for Settling Them . Following that presentation, we decided to flesh out three Circuit Court class action decisions that illustrate the challenges that come with both prosecuting and defending class actions. What follows is an overview of: (i) the Briseno case, which simply cannot get over the finish line; (ii) the Renfro case, which helps explain puffery through dog food; and (iii) the George case, in which Starbucks had to defend its “best” coffee against claims that some of its Manhattan stores inappropriately use a certain type of “No-Pest Strip” to combat pest infestations. The three cases offer an interesting contrast. In the first, the parties want to resolve it, but for more than ten years have been unable to obtain the court’s blessing. In the latter two, the plaintiffs could not survive the pleading stage. Ah, the joys of class action litigation!

While nowadays consumer product litigation is focused on claims involving vanilla (see here and here and here , among many others), whether a product is truly “non-toxic” (see here and here ), and what makes a product actually recyclable (see here ), in 2011, “natural” claims were all the rage. Included among those was a class action alleging that ConAgra’s product, Wesson Oil, was mislabeled as “100% natural” because it contained GMOs. Briseno v. ConAgra Foods, Inc. , 2:11-cv-05379 (C.D. Cal.). The case’s progress has been measured in years, not months. In 2015, class certification was granted, with the 9th Circuit affirming two years later. 674 F. App’x 654 (9th Cir. 2017). The Supreme Court denied ConAgra’s petition for writ of certiorari. 138 S. Ct. 313 (2017). As you probably suspect, the story does not end there.

In 2017, ConAgra agreed to sell Wesson Oil to the J.M Smucker Company. About two months later, ConAgra, on its own volition, removed the “100% natural” label and stopped marketing Wesson products as “natural.” ConAgra has argued that the litigation played no role in its decisions. Then, in early 2018, the J.M. Smucker transaction fell through, and ConAgra decided to commence settlement negotiations in the Briseno case.

Beginning in June 2018, the parties, with the help of Magistrate Judge Douglas McCormick, started discussing settlement in earnest. Over the following six months, Magistrate Judge McCormick spent approximately 100 hours helping the parties narrow the issues. His approach was sound. First “he helped the parties determine how much ConAgra would agree to pay as relief to the class members.” Dkt. No. 779 at 5. Second, he “helped the parties determine how much Plaintiffs’ attorneys would recover in fees.” Id . On the former, he helped the parties agree to a claims-made settlement that would pay class members $0.15/product for up to 30 units. While $0.15 might seem small, Magistrate Judge McCormick understood that it was “an amount considerably more than the price premium attributed to the ‘100% Natural’ label by Plaintiffs’ own expert.” Id. On the latter, even though plaintiffs’ counsels’ lodestar was more than $10 million, Magistrate Judge McCormick proposed—and the parties accepted—a fee request of $6.85 million, which ConAgra would not oppose (the “clear-sailing provision”). The parties agreed that if the court reduced the attorneys’ fee award, that money would revert to ConAgra (the “reverter clause”). Magistrate Judge McCormick also successfully proposed that the parties value the injunctive relief, i.e., the label change, at $27 million . This would soon get very weird, however, because in December 2018, ConAgra agreed to sell the Wesson Brand to Richardson International. Accordingly, even if ConAgra had wanted to bring back the 100% natural label, it wouldn’t be able to, given that the brand was now owned by another entity. Not to worry: “After the sale, the parties revised the terms of the settlement agreement to clarify that the negotiated injunctive relief would apply to ConAgra only if it reacquired the Wesson Brand .” Id. (emphasis added.).

On April 4, 2019, the district court preliminarily approved the settlement. Following the notice campaign, class members filed a total of 97,880 timely claims for approximately 2.8 million units worth a total maximum payout of $993,919. Six months later, the court granted final approval of the settlement, placing “great weight on the fact that the parties’ agreement had resulted from a court proposal from Magistrate Judge McCormick.” Id. Even though the sought-after attorneys’ fees were roughly seven times the amount the class received, the court approved them, noting that they constituted only half of counsels’ lodestar and reflected the “impressive result achieved given the weakness of Plaintiffs’ case.” In so doing, the court overruled an objector, class member Todd Henderson, who argued that the settlement—with the disproportionate amount of attorneys’ fees, clear-sailing provision, and reverter clause—was unfair and failed to satisfy F.R.C.P. 23(e).

In June 2021, the Ninth Circuit reversed the District Court’s approval order. It held that, even for post-class certification settlements (as this was), F.R.C.P. 23(e) imposes an independent obligation to “ensure that any class settlement is ‘fair, reasonable, and adequate,’” and this obligation includes a review of the attorneys’ fee award to ensure reasonableness. No. 19-56297 (June 1, 2021) at 31. Specifically, the Ninth Circuit found that lower courts must assess whether the Bluetooth red flags—i.e., (1) plaintiffs’ counsel receiving a disproportionate distribution of the settlement; (2) a clear-sailing provision; and (3) a reverter clause—are present, as they will help determine “if collusion may have led to class members being shortchanged.” Id. at 21. Because the ConAgra settlement “managed to run afoul of all three Bluetooth factors” and thus “favor[ed] class counsel and the defendant at the expense of the class members,” the Ninth Circuit remanded the case to the District Court to “give a hard look at the settlement agreement to ensure that the parties [had] not colluded at class members’ expense.” Id. at 24.

On remand, there were a few interesting developments.

First , Magistrate Judge McCormick submitted a declaration describing his role in the settlement negotiations. He offered two critical observations. On the one hand, he “saw nothing in the parties’ conduct before [him] to indicate that they were colluding at the class members’ expense.” Dkt. 739 ¶ 20. On the other hand, with respect to the “court proposals” he made to the parties, he conceded that they did not represent his evaluation of what is the “right outcome”; rather, they represented his “evaluation of the terms that [had] the best chance of being accepted by both sides.” Id. ¶ 14. Critically, he “did not at the time of the negotiations view [his] role as a settlement judge as reaching the issue of whether the settlement should be approved by the Court as fair, reasonable, and adequate.” Id. ¶ 19. This admission would become important later.

Second , the court largely agreed with the objector, Mr. Henderson, who reemerged to ask for discovery into the mediation process. The court allowed Mr. Henderson to obtain “discussions between Plaintiffs and Conagra” as well as “information or material shared with Judge McCormick.” Dkt. No. 750.

Third , in a renewed motion in support of final approval, plaintiffs, despite the Ninth Circuit’s discomfort with the case, asked the district court to grant final approval to the same exact settlement the Ninth Circuit had just remanded, arguing that despite the presence of all three Bluetooth red flags, the record confirmed that there was no “collusion” or “self-dealing.” Dkt. No. 783. This was not to be.

In December 2021, the district court denied plaintiffs’ motion for final approval of the settlement agreement. The court laid out this marker, noting that when all three Bluetooth red flags are present, that is a sign of “possible collusion” but not an automatic basis for settlement rejection. The district court opined, “When they are present, courts must scrutinize the settlement even closer to look for signs that self-interest, even if not purposeful collusion, has seeped its way into the settlement terms.” Dkt. 779 at 12.

Yet, at its core, the court’s conclusion is a bit of conundrum. The court conceded that the settlement was “not the product of collusion in the traditional sense,” i.e., “there is no evidence that class counsel and ConAgra intentionally schemed to enrich themselves at the expense of the class.” But setting that aside, the court focused on what appears to have been the real issue: the lack of proportionality between what the class and class counsel collected. The district court stated, “The fact that attorneys will receive nearly $7 million while the class receives less than $1 million is too disproportionate to ignore. This is particularly true when the structure of the settlement relied on compensating class members based on claims made, but the incentive for making such claims was extremely low.” But the incentive—or lack thereof—was the byproduct of a small-dollar product with an even smaller price premium. If you think about it, the entire situation is like a perfect storm for a settlement that seemingly cannot get over the finish line. But how did this come to be?

For starters, the litigation has been running for more than ten years, with class counsel seeking only 50% of its lodestar. So, class counsel’s fee request already represented a significant haircut over the costs incurred to date. And, as for the value of the claims at issue, the settlement provided the class with more than it could have had it prevailed at trial . But ConAgra repeatedly made clear that it would not allow class members to reap a “windfall.” Dkt. No. 783 at 20. As a result, that the settlement contained a “reverter” clause is no surprise. To the extent the court reduced the attorneys’ fee award, if it went to the class, by definition the class would have reaped a windfall. The same issue would have infected a common fund settlement. Because the per product damages were so small, any sizable common fund settlement would have necessarily resulted in either (1) a windfall to the class; or (2) a large cy pres distribution (that likely would have attracted the same objectors, albeit utilizing a different objection). To make a long story short (or less long), the court’s decision calls into question how class counsel is supposed to resolve a long-running, time-consuming, and expensive class action over a low-dollar product without awarding the class more than it’s entitled to.

Like any good novel, the ConAgra case had an interesting epilogue. In early January 2022, plaintiffs moved the district court to reconsider the order denying final approval, arguing that the court’s denial of final approval was based solely on the amount of attorneys’ fees rather than the benefit to the class. In plaintiffs’ view, because the parties’ settlement agreement expressly granted the court discretion to reduce the attorneys’ fee award, they contend that the court should do just that “as part of approving the settlement.”

Unsurprisingly, the objector, Mr. Henderson, did not agree. Among other arguments, Mr. Henderson chided plaintiffs for failing previously to argue to the trial court that it could reduce the attorneys’ fee to a proportionate amount (whatever that may be), instead choosing “to play chicken with an all-or-nothing strategy.” Dkt. No. 791 at 1. And, as for what an appropriate fee would be—well—Mr. Henderson believed it should be zero. Id. at 9.

On the auspicious 2.22.22, the District Court had what will be, for now, the final word. In denying plaintiffs’ motion, the court clarified that it wasn’t just the disproportion between attorneys’ fees and class recovery that doomed the settlement. Rather, it was the disproportion

taken together with other factors, including the clear sailing provision, the reverter provision, Judge McCormick’s explanation that he considered only what the parties would be likely to accept and not what was fair or just, the likely low claims rate, class counsel’s incentive to make sure claims did not get too high, and the worthless injunction—plus the evidence that the parties actually knew the claims rate would be extremely low and class counsel’s rejection of a more proportional settlement offer—[which] indicated that self-interest infected the negotiations.

Dkt. No. 795 at 7. So, it is back to the drawing board for the parties. Nearly eleven years into litigation and they are still no closer to resolving it.

In February 2022, the Tenth Circuit waded into territory that has bedeviled law students for ages: what is the line between misstatement and puffery? In Renfro v. Champion Petfoods USA, Inc. , No 20-1274, a group of pet owners brought a class action against Champion Petfoods USA, Inc., alleging representations on its Acana and Orijen brands of dog food were false and misleading. Specifically, plaintiffs took issue with the following descriptors:

•“Trusted Everywhere”
•“Fresh and Regional Ingredients”
•“Ingredients We Love [From] People We Trust”
•“Biologically Appropriate”

Under Colorado law, to prevail on a claim brought under the Colorado Consumer Protection Act, a plaintiff must establish that the defendant made a “ false statement of fact that either induces the recipient to act or has the capacity to deceive the recipient.” Rhino Linings USA, Inc. v. Rocky Mt. Rhino Lining, Inc. , 62 P.3d 142, 144 (Colo. 2003) (emphasis added). On the other hand, “puffery” is used to “characterize those vague generalities that no reasonable person would rely on as assertions of particular facts.” Alpine Bank v. Hubbell , 555 F.3d 1097, 1106 (10th Cir. 2009).

The district court dismissed the claims as either unactionable puffery or overly subjective and thus not materially misleading to a reasonable consumer. The Tenth Circuit affirmed, finding that the statements in question clearly landed on the puffery side of the ledger:

In short, the common thread among the statements at issue is their inability to be measured. “Biologically appropriate” is basically a tautology: the product in question is dog food made for dogs. “Fresh and Regional Ingredients” are ingredients from somewhere (a region) that are largely fresh (and not old). And “Ingredients We Love from People We Trust” is incapable of “testing for falsifiability,” i.e., there is simply no way to know if someone at Champion neither loved some of the ingredients nor trusted the people who manufactured them. When a company’s statements are more general than specific, a 12(b)(6) motion to dismiss may succeed.

Over the past few years, Starbucks has seen its share of litigation, including cases involving: (1) a consumer burning herself after receiving the wrong coffee; (2) claims that vanilla Frappuccinos are made with fake flavoring instead of real vanilla; and (3) allegations that its lattes are underfilled . In 2021, it fended off a different kind of case.

According to a few New York customers, Starbucks’ statements like “Best coffee for the Best You,” “Taste of Inspiration,” “Starbucks or nothing,” and “hear, soul, craft, pride, love[;] you won’t find that in any other cup of coffee” were all misleading because certain Manhattan locations utilized a “No-Pest Strip,” which is a time-release device that emits a powerful pesticide, 2,2-dichlorovinyl dimethyl phosphate (often abbreviated “DDVP”), into the air. George v. Starbucks Corp. , 19-cv-6185 (motion to dismiss decided Nov. 19, 2020). The theory: because these devices are both designed for use only in unoccupied structures and can make you sick (although no plaintiffs complained that they got sick), that Starbucks used them rendered Starbucks’ glossy claims about its coffee and ambience false under New York’s consumer protection laws.

The district court dismissed in full the claims under New York General Business Law Sections 349 and 350, finding that the customers failed to “allege that Starbucks’s advertisements communicate—even indirectly—any specific details about its products.” Id. Further, the court noted that any claim that a seller’s “wares are ‘premium’ or ‘the best’ cannot support a cause of action for deceptive practices, whether made in a single advertisement or a hundred.” Id.

For some reason, plaintiffs here decided to appeal to the Second Circuit, which had very little interest in resuscitating the claims. George v. Starbucks Corp. , 20-4050 (decision Aug. 27, 2021). The Second Circuit affirmed the dismissal, holding that statements like “Best coffee for the Best You” and “Taste of Inspiration” are puffery, i.e., they “vaguely assert that Starbucks’s coffee is better than its competitors in a manner best ‘understood as an expression of the seller’s opinion only.’” Id. They “are not specific enough to ‘misrepresent an inherent quality or characteristic of the defendant’s product.’” Id.

Moreover, the Second Circuit found that while certain statements “were plausibly specific enough to be more than puffery,” they refer “only to how Starbucks sources its products and crafts its coffee and the ingredients it uses in its baked goods. No reasonable consumer would believe that these statements communicate anything about the use of pesticide in Starbucks’s stores .” Id. While the Second Circuit conceded that courts should “ ordinarily refrain from resolving questions of reasonableness on a motion to dismiss,” id. , every rule has an exception. And when the allegations at issue are so disconnected from the allegedly false claims, it simply is “not error” to dismiss those claims. Id .

All in all, another win for Starbucks, and a glimmer of hope for other defendants looking to dispose of mislabeling claims at the pleading stage.

Ross Weiner is the Legal Director at Risk Settlements, where he helps evaluate new business, assess legal and financial risk, and create optimal settlement designs and risk transfer options. Prior to joining Risk Settlements, Ross spent nine years as a litigator at Kirkland & Ellis LLP, where he focused on, among other things, class action disputes. During that time, Ross came to understand the importance of providing clients with creative approaches to settling disputes.

Ezra Church counsels and defends companies in privacy, cybersecurity, and other consumer protection matters. He helps clients manage data security and other crisis incidents and represents them in high-profile privacy and other class actions. Focused particularly on retail, ecommerce, and other consumer-facing firms, his practice is at the forefront of issues such as biometrics, artificial intelligence, location tracking, ad tech, and blockchain. Ezra is a Certified Information Privacy Professional (CIPP) and co-chair of the firm’s Class Action Working Group.

This article originally appeared on https://plus.pli.edu/Details/Details?fq=id:(350194-ATL10).

Disclaimer: The viewpoints expressed by the authors are their own and do not necessarily reflect the opinions, viewpoints and official policies of Practising Law Institute.

This article is published on PLI PLUS, the online research database of PLI. The entirety of the PLI Press print collection is available on PLI PLUS—including PLI’s authoritative treatises, answer books, course handbooks and transcripts from our original and highly acclaimed CLE programs.

The post Class Action Developments in the Circuit Courts appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

TCPA Litigation Since Facebook – Where Are We Today?

Thu, 24 Mar 2022 17:07:00 GMT

Listen to Risk Settlements’ latest podcast where Kevin Skrzysowski interviews Tery Gonsalves, a Partner and trial lawyer with the law firm Alston & Bird. Kevin and Tery look back on last year’s landmark Supreme Court decision in Facebook and its impact on TCPA litigation, including Tery’s winning Motion for Summary Judgment in Johansen v. Efinancial. The two discuss how to successfully raise the TCPA’s safe harbor provision as a defense to alleged DNC list violations, how the courts have split on the meaning of obtaining express prior written consent, the ongoing risks of using ATDS and RoSNG technology, and the best practices for remaining in compliance with the TCPA as it stands today.

The post TCPA Litigation Since Facebook – Where Are We Today? appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

The Surge of Litigation Against Food & Beverage Manufacturers

Thu, 24 Feb 2022 20:36:00 GMT

Don’t miss the latest episode as Sascha Henry and Christopher Van Gundy, Partners at the law firm, Sheppard Mullin, and Co-Chairs of the 6th annual Food Law Conference (register here: Conference ), join Risk Settlements Director, Kevin Skrzysowski , for a robust discussion of the most impactful litigation trends in this industry today. Listen now as they discuss the biggest threats food companies are currently facing, the science and substantiation behind health-related claims, lessons from the Covid pandemic, and dispositive motion, trial and settlement strategies.

The post The Surge of Litigation Against Food & Beverage Manufacturers appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Trends in Consumer Product Class Actions and Strategies for Settling Them – Jan 7, 2022

Sat, 08 Jan 2022 14:30:00 GMT

The class action world moves fast. One day, there are hundreds of “natural” cases on the docket; the next, plaintiffs’ counsel have moved on to slack fill, vanilla claims, and whether items labeled “recyclable” actually are. Over the course of one hour, we will review recent trends in consumer product class actions, discuss developments in how best to resolve such cases, and analyze some recent appellate court decisions on how improperly structured attorneys’ fee awards can jeopardize a class action settlement.

Ezra D. Church, partner at Morgan, Lewis & Bockius LLP and Ross L. Weiner, legal director at Risk Settlements, will discuss:

Trends in recent consumer product class actions (20 Minutes), including:
- Slack fill
- Mislabeling claims (including “all natural,” “vanilla, “recyclable,” and honey)
- Non-toxic claims
- Challenges to arbitration clauses and class waivers
Settlement developments (20 Minutes), including recent:
- Uncapped settlements
- Claims-made settlements
Recent appellate court decisions on attorneys’ fee awards, including dos and don’ts to avoid jeopardizing your settlement (20 Minutes)

The above excerpt was originally published on pli.edu

The post Trends in Consumer Product Class Actions and Strategies for Settling Them – Jan 7, 2022 appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Litigation Buyout Insurance: A Case Study

Thu, 02 Dec 2021 19:51:00 GMT

Defending litigation is ultimately an exercise in risk management. So how do companies manage to protect themselves?

In the context of a company preparing for sale, litigation can often delay or in some cases halt the transaction. There are a variety of ways to address litigation such as a large escrow holdback or a purchase price reduction. However, these solutions may not be palatable to the seller.

Another option is Litigation Buyout Insurance (“LBO Insurance”). But as everyone wants to know, how does it work?

Risk Settlements recently had a webinar with Celesq on LBO Insurance where they discussed LBO Insurance and the benefits it can bring to your litigation.

An example they discussed was a FACTA case, which stands for the Fair and Accurate Credit Transactions Act. In short, the law says that beginning in 2006, no entity that accepts credit or debit cards for the transaction of business may print more than the last five digits of the credit card number or expiration date upon any receipt provided at the point of sale. Any willful violation allows a consumer to recover statutory damages ranging from $100 to $1,000 per occurrence and willful means, “not only knowing violations of a standard but reckless ones as well.”

In this particular example, a selling company had violated FACTA and if a jury were to find them liable, it could owe somewhere between $250 million and $2.5 billion. Clearly those are huge numbers and that is why this litigation was a concern for the potential buyer. Without resolution, the M&A deal would likely falter.

So how did LBO Insurance salvage the transaction? Our firm analyzed the risks and issues and designed a solution that met all of the parties’ objectives, secured risk transfer for the first dollar of loss, and provided commercial and rational cost options that ultimately allowed the deal to close.

LBO insurance can be adapted to fit a number of complex litigation issues. In each case, it removes the uncertainly of what the litigation will ultimately cost by ring-fencing the liability for a known, fixed cost. The end result is the removal of obstacles that may deter an M&A or financing transaction.

If you would like to view our recent webinar with Celesq on LBO Insurance for free, click here .

The post Litigation Buyout Insurance: A Case Study appeared first on Certum Group .

Massage Envy: Are All Vouchers Now Coupons Under CAFA?

Thu, 18 Nov 2021 04:26:00 GMT

The Ninth Circuit’s October 2021 McKinney-Drobnis v. Massage Envy Franchising decision might signal the death knell for voucher-based class action settlements that are not considered “coupon” settlements under CAFA. If this settlement cannot survive, it’s not clear what voucher-based settlement could.

The Back Story

In 2013, Massage Envy Franchising (“MEF”) began unilaterally increasing customers’ membership dues—first, $0.99 per month, then $10—without authorization. Years later, a class action was filed, followed by a nationwide class settlement, which permitted class members to submit claims for “vouchers” for MEF products and services, with each class member entitled to a voucher corresponding to the fee increase the class member paid. The vouchers:

Were usable at any MEF location;
Were freely transferable;
Could be used in multiple transactions until exhausted;
Did not expire for 18 months; and
Could be used to buy any of MEF’s 251 products and services.

The settlement provided for a $10m “floor,” meaning if class members did not claim enough vouchers to account for the full $10m fund, then the per-claimant voucher amount would increase pro rata until the floor was hit. After a direct notice program that reached approximately 97% of the 1.7m class members, a total of approximately 106,000 claimants submitted valid voucher requests seeking less than $3m in value. With the pro rata adjustment, the awarded vouchers ranged in value from $36.28 to $180.68.

The Trial Court Rules It’s Not a Coupon Settlement

At the trial court, class counsel sought a $3.3m attorneys’ fee award, which represented 33% of the $10m “floor.” Class counsel argued that this was proper because the settlement was not a “coupon” settlement. In response, one objector argued that this was a coupon settlement, which would dictate that the attorneys’ fee award be based not on the overall value of the vouchers, but on the value of the redeemed vouchers. The trial court overruled the objection, found that it was not a coupon settlement, and ultimately awarded class counsel $2.6m, which was 25% of the $10m fund plus the $450k paid to the settlement’s administrator. The objector appealed.

The Ninth Circuit’s Ruling

Under CAFA, if a class action settlement is a “coupon” settlement, a court must (1) apply heightened scrutiny to its evaluation; and (2) base the attorneys’ fee awards on the redemption value of the coupons, rather than on their face value. In re EasySaver Rewards Litig. , 906 F.3d 747, 754-55 (9th Cir. 2018). Because “coupon” is not statutorily defined, it has fallen on courts to do so. In In re Online DVD-Rental Antitrust Litig., the Ninth Circuit outlined three factors to guide the inquiry: (1) do class members have to hand over more of their own money before they take advantage of a credit; (2) whether the credit is valid only for select products or services; and (3) how much flexibility the credit provides, including whether it expires or is freely transferable. 779 F.3d 934, 951 (9th Cir. 2015). No single factor is dispositive.

In applying the facts of the case to the Online DVD test, the Ninth Circuit found that the voucher at issue was, in fact, a coupon. This was surprising.

The first factor questions whether class members have to hand over more of their own money to use the voucher. Curiously, however, the court conceded that even those class members receiving the smallest voucher ($36.28) “would be able to purchase entire products without spending their own money.” So, on its face, the answer to the first question was “no.” But because class members with the lowest voucher amount would not be able to purchase a single massage, i.e., “the service that is the basis for the membership fee that class members were allegedly injured by,” without spending their own money, the court concluded that factor one favored the conclusion that vouchers are coupons. This easily could have gone the other way.

The second factor asks whether the credit “is valid only for select products or services.” Here, the court acknowledged that MEF offers “much more than massages,” including “251 different products within the sphere of health and wellness.” And it appears that the voucher could be used on every single product and service that MEF sells. Yet, bizarrely, the court found that this still fell on the coupon side of the line, noting that 251 products “pale in comparison to the millions of low-cost products that Walmart sells,” a fact related to a different case in which this issue was litigated. But it is unclear why the court would compare MEF to Walmart, a store that is known for selling just about everything (except massages). This, too, easily could have gone the other way.

As for the third factor, the court found that because the vouchers were transferable and did not expire for 18 months, this factor “favors not viewing the vouchers as coupons.”

In all, given the strength of the vouchers in question here, this case would be as good as any to find that they were not coupons. And yet, upon a de novo review, the court held that they are “coupons and, consequently, are subject to CAFA’s requirements for coupon settlements.” Accordingly, it vacated the district court’s approval of the attorneys’ fee award and remanded so that the district court could use the value of the redeemed vouchers in awarding attorneys’ fees.

An Interesting Concurrence

Judge Miller wrote separately to “note [his] disagreement with [the Ninth] Circuit’s approach to determining when vouchers are coupons” under CAFA. Judge Miller stated that traditionally, if a statute does not define a term, then the court should “look to its ordinary meaning.” And yet, with “coupon,” something is amiss.

The Oxford English Dictionary defines coupon as a “form, ticket…entitling the holder to a gift or discount,” while Webster’s defines it as a “form, slip…resembling a bond coupon in that it may be surrendered in order to obtain some article, service, or accommodation,” or a “form or check indicating a credit against future purchases or expenditures.” There is no question that the vouchers in the instant case fit those definitions. Indeed, according to Judge Miller, “class representatives’ counsel repeatedly (albeit unintentionally) referred to them as ‘coupons’ during oral argument.” Despite this, Judge Miller lamented how Ninth Circuit precedent requires the use of the Online DVD test, which has “no basis in the statutory text,” and doesn’t explain how the three factors work together and/or which one holds the most sway.

In short, Judge Miller suggests that in an appropriate case, the Ninth Circuit “should reconsider Online DVD en banc.” Only time will tell if it will do so.

***

Risk Settlements, the industry leader in structuring class action settlements, can help defendants in class action litigation evaluate the litigation options and design an optimal settlement structure that is backed by full risk transfer to an insurer. Risk Settlements offers two insurance solutions for defendants in class action litigation.

Class Action Settlement Insurance (CASI) provides companies with the certainty they need to get back to business. It is the only product on the market that allows companies to mitigate, cap and transfer the financial risk of settlement in existing class action litigation. Designed by Risk Settlements in response to businesses’ need for financial certainty in class action lawsuits and resulting settlements, CASI eliminates the unintended consequences of settlement and helps businesses exit litigation for a known, fixed cost.

Contact us today to learn more about our creative insurance solutions to resolve existing or ring-fence threatened or existing litigation for a known, fixed cost.

The post Massage Envy: Are All Vouchers Now Coupons Under CAFA? appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Voiceprint and Facial Recognition Laws – Coming to a City Near You

Thu, 18 Nov 2021 00:33:00 GMT

Listen to the latest episode as Kevin interviews David Oberly – lawyer, author, and biometric information thought leader – as the two discuss groundbreaking municipal laws governing cutting-edge, voice-powered and facial recognition technology and their impact on commercial establishments.

The post Voiceprint and Facial Recognition Laws – Coming to a City Near You appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Briseño v. Henderson: Can the Parties Salvage the Settlement?

Tue, 05 Oct 2021 17:54:00 GMT

The Ninth Circuit’s June 2021 decision in Briseño v. Henderson , which reversed and remanded a claims-made settlement involving the ConAgra-owned Wesson Oil’s use of a “100% natural” label, attracted attention for its colorful language, including pop culture references to Star Wars, Matthew McConaughey, and The Bachelor (among others). But its import for the class action bar had more to do with its holding: that district courts must apply Bluetooth ’s heightened scrutiny to post-class certification settlements in assessing whether the division of funds between class members and their counsel is fair and adequate.

Under Bluetooth , courts are directed to analyze three factors, each of which can signal the possibility of a collusive settlement: (1) when counsel receives a disproportionate distribution of the settlement; (2) when the parties negotiate a “clear sailing arrangement;” and (3) when the agreement contains a “kicker” or “reverter” clause that returns unawarded fees to the defendant rather than the class. The Ninth Circuit found that the Briseño settlement “presented a Murderers’ Row of provisions out of left field that seemingly favor class counsel and the defendant at the expense of the class members.”

Specifically, these provisions included:

The class ultimately receiving approximately $1 million in benefits while class counsel received approximately $7 million in attorneys’ fees and expenses;
Both a clear sailing provision and a “kicker” clause; and
Injunctive relief that amounted to the sleeves off ConAgra’s vest, with ConAgra promising not to use the “100% natural” label on its Wesson Oil products even though ConAgra had actually sold the Wesson brand.

Notwithstanding the foregoing, the Ninth Circuit stated that any and/or all the Bluetooth factors may, depending on the circumstances, “be elements of a good deal,” noting that it does not “seek to make any of the identified signs of collusion an independent basis for withholding settlement approval.” Accordingly, the Ninth Circuit ordered the district court to “give a hard look at the settlement agreement to ensure that the parties have not colluded.”

And yet, a funny thing happened on the way back to the district court. Rather than scrapping the settlement, the parties appear to be fighting to save it, warts and all. On September 8, 2021, at the request of the parties, Magistrate Judge Douglas McCormick, who served as a settlement judge in Briseño , filed a declaration with the trial court highlighting his work in helping the parties reach a negotiated agreement, including a few candid observations on the litigation:

He spent approximately 100 hours on the case;
Class counsel believed that the litigation was the impetus for ConAgra removing the 100% natural label from the product, and Judge McCormick thought “this would be a vigorously contested issue of fact” for either the judge or jury to resolve;
Judge Morrow’s 140-page class certification order, which certified 11 statewide classes with several different class periods, would pose significant problems for Judge Carney (who took over the case after Judge Morrow’s retirement) and might be considered “impractical,”
He viewed plaintiffs’ mislabeling claims “skeptically,” and
He concluded that the parties were far apart on the amount of attorneys’ fees, so he made a “court proposal” that (i) set attorneys’ fees and expenses of $6.85 million; and (ii) valued injunctive relief at $27 million, to which both parties agreed.

Also of note, Judge McCormick conceded that he “did not at the time of the negotiations view [his] role as a settlement judge as reaching the issue of whether the settlement should be approved by the Court as fair, reasonable, and adequate,” stating that those questions “are properly resolved by the assigned district judge and they are not within my purview as the settlement judge.” And with respect to possible collusion, while Judge McCormick acknowledged that parties “should not be permitted to use the involvement of a sitting judicial officer to insulate a settlement” from review, he stated that he “saw nothing in the parties’ conduct…to indicate that they were colluding at the class members’ expense,” noting that the parties negotiated their positions “vigorously,” with nearly every settlement term being “the result of several rounds of proposals and counter-proposals.”

Where this case goes from here is anyone’s guess. Will Judge Carney find Magistrate Judge McCormick’s diligence sufficient to cleanse the settlement from charges of collusion? Or will Judge Carney find the “squadron of red flags billowing in the wind,” as the Ninth Circuit put it, too much to overcome and send the parties back to the drawing board? One thing is certain: Risk Settlements will continue to monitor the developments on these important issues.

***

Class Action Settlement Insurance (CASI) provides companies with the certainty they need to get back to business. It is the only product on the market that allows companies to mitigate, cap and transfer the financial risk of settlement in existing class action litigation. Designed by Risk Settlements in response to businesses’ need for financial certainty in class action lawsuits and resulting settlements, CASI eliminates the unintended consequences of settlement and helps businesses exit litigation for a known, fixed cost.

Contact us today to learn more about our creative insurance solutions to resolve existing or ring-fence threatened or existing litigation for a known, fixed cost.

The post Briseño v. Henderson: Can the Parties Salvage the Settlement? appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Litigation Buyout Insurance: How Does It Work?

Mon, 23 Aug 2021 17:54:00 GMT

In July 2021, Risk Settlements co-presented a PLI webinar on how litigation buyout insurance (LBO insurance) can help keep companies “deal ready.” Following up on that presentation, we thought a brief article detailing the nuts and bolts of litigation buyout insurance might help those interested in pursuing such a policy to determine if it is right for them. Below, we have outlined some of the most common questions we receive about the logistics behind LBO insurance and our thoughts on each.

LBO insurance is an insurance product through which the insurer agrees, in exchange for a premium, to take on the financial risks and liabilities associated with a known, threatened, or existing class action, antitrust, or non-class case at any time prior to a final settlement. It is like buying fire insurance, only instead of doing so to cover the risk of a fire, you do so because you already know your house is on fire. The only remaining question is how much damage (or loss) will there be?

Every LBO policy is for an amount certain. In other words, even if you want to insure an active litigation for “all the case is worth,” due to applicable insurance regulations, you cannot ask for an open-ended policy that covers all loss from a case. Rather, you must decide in advance exactly how much coverage you are looking for.

It goes without saying that every LBO policy is individually tailored, designed to help a company achieve its business, financial, and legal objectives. But if you are thinking about procuring LBO insurance, you should consider both the amount of coverage you may need and how you’d like to structure the policy, including the age-old question of retention vs. premium.

Policies are customized to address the unique legal issues facing a particular company and can be crafted to address a full spectrum of unique litigation risks. Once a policy is in place, the insurance carrier may take over defense of a case and pay defense costs, covers any adverse judgments or fee awards, or both.

The short answer: yes.

One paradigm example sticks out. In 2020, a private equity owned human resources company was finalizing a sale when it received a letter from a plaintiff’s attorney threatening a wage and hour lawsuit. The company promptly disclosed the letter to the potential buyer, after which the potential buyer expressed serious reservations about completing the transaction. The selling company, in consultation with its lawyers, estimated the potential exposure at $11 million.

At this point in time, the selling company turned to Risk Settlements to determine if there was an insurance-based solution that would assuage the buyer. After diligencing the case, weighing the risks, and evaluating comparable cases (and settlements) involving the same plaintiff’s counsel, Risk Settlements was able to price the risk. For less than $3 million, the company was able to procure a policy covering more than its estimated exposure, thereby giving the buyer the comfort it needed to close the sale. The transaction was saved.

A common question companies often ask is what costs—incurred by a company in the normal course of litigation—are not covered by the LBO insurance policy? The following are some standard exclusions that an insurer generally will not cover:

Settlements entered into without the insurer’s consent;
Costs above a certain (negotiated) materiality threshold incurred without the insurer’s consent;
“Overhead” costs related to litigation cooperation (i.e., the insurer will not pay for employee time cooperating (e.g. a 30(b)(6) deposition)) or traditional overhead expenses (e.g. photocopies); and
Loss arising from the insured’s failure to cooperate.

This is an issue also addressed in the policy itself. In our experience, negotiations surrounding the power to settle a matter are often the most contentious and involved. From the insurer’s perspective, it does not want the obligation to settle a matter at a significant loss if a better outcome can be salvaged. And from the insured’s perspective, it wants to be able to help drive a matter to its conclusion to try and minimize distraction stemming from litigation. So how does this play out?

The following questions help guide the discussion as the insurer and the insured consider their positions:

Will a settlement be purely monetary or will there likely be an injunctive relief component?
Will the company be required to admit wrongdoing as part of a likely settlement, and if so, could this cause harm in other ancillary matters?
Could a sizable settlement encourage either future private litigation or follow-on regulatory investigations?

The answers to these questions (among others) will help the parties think through how they view settlement and which party (insurer or insured) should control the decision.

Simply put, the most frequent reason cited by companies looking for LBO insurance is that (a) a third party (e.g., a potential acquiror) is concerned about a litigation exposure; (b) the third party is unwilling to act (e.g. complete an acquisition) unless and until the risk is abated; and (c) there is either insufficient time or interest to settle the matter promptly.

For those looking to close an M&A transaction, LBO insurance offers certain advantages over the alternatives. Yes, sometimes a large escrow can make the buyer comfortable, but that ties up the money for the life of the litigation, which can often go on for years. And overpaying for a quick settlement to make the case go away will take cash out of seller’s pocket and leave the buyer in worse fiscal shape. LBO insurance is far superior to both.

When considering whether to insure, insurance carriers place a premium (pun intended) on candor. Companies looking to transfer exposure should always be upfront with material risks related to the matter. Unfortunately, and all too frequently, we have received submissions where potentially problematic—but potentially solvable—issues are not disclosed at all, only to be discovered during diligence through a Google search. Such omissions of clear red flags can do irreparable harm to the process, leaving the insurer unable to trust the potential insured and unlikely to offer coverage.

The following is a non-exhaustive list of materials that the carrier may require before deciding on the matter:

Current counsel’s analysis of the merits, case status, and potential damages;
Current counsel’s budget; and
The history (if any) of settlement negotiations.

One benefit of seeking out LBO insurance—even if the company does not ultimately purchase it—is the opportunity to have another set of eyes review the risk a company is facing. Indeed, not just any set of eyes, but those of an entity looking to back the risk financially. In our experience, the insurer’s assessment can help focus the company on the strengths and weaknesses of the case, all of which inures to the company’s benefit as it proceeds with litigation (either with or without insurance coverage).

***

Ultimately, LBO insurance can be adapted to fit a wide array of complex litigation issues. It can help remove obstacles from the path of deals and assist companies to prepare for a sale. And at its core, it aims to take uncertainty off the books and allow companies to move forward with transactions that will help them grow and thrive.

This article has been published in the PLI Chronicle: Insights and Perspectives for the Legal Community , https://bit.ly/3fMTISg .

The post Litigation Buyout Insurance: How Does It Work? appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

NAD Dispute Resolution Process: Secret Until It’s Not

Tue, 17 Aug 2021 17:54:00 GMT

by Ross Weiner

I wrote a June 2021 article in Law360 describing how competitor advertising disputes brought to the National Adverting Division (NAD) are often a precursor to civil litigation. But a recent decision out of the Northern District of California confirms another worry for NAD participants: what happens in the NAD will not necessarily stay there.

Civil Litigation Concerning Woolite Follows an NAD Proceeding

In Prescott v. Reckitt Benckiser LLC , six consumers filed a 2020 class action against Reckitt Benckiser, the manufacturer of Woolite Laundry Detergent, alleging that Woolite’s promise to “bring[] the color back” is false and misleading. This lawsuit came on the heels of Proctor & Gamble, a Reckitt competitor, bringing Reckitt to the NAD in 2019 over the same issue.

During discovery in the federal court litigation, plaintiffs sought from Reckitt documents and communications relating to NAD’s investigation of Woolite as well as deposition testimony from a Reckitt executive on her meeting with NAD. Reckitt objected, arguing that any such documents, communications, and testimony would violate its “confidentiality agreement with a third-party pursuant to the Procedures set forth by [NAD].” Indeed, Reckitt argued that the confidentiality requirement “is important to facilitate NAD’s dispute resolution process.” Plaintiffs moved to compel.

How Did the Court Rule?

First , the court ruled that any such documents or communications concerning Reckitt’s “testing methodology” or the basis of its color renewal claims would satisfy FRCP 26(b)(1), as they would “likely…include information relevant to the claims and defenses in this case.”

Second , the court held that Reckitt had failed to establish “good cause” to preclude discovery of the communications, noting that it was pure speculation that NAD would prohibit Reckitt from future participation in NAD proceedings if Reckitt was required to produce its communications in discovery. The court sympathized with Reckitt’s confidentiality concerns but ultimately found them misplaced, stating that they “can be protected by invoking the provisions of the protective order in this case, so that individual plaintiffs, the public, and [Reckitt’s] competitors do not have access to the communications.”

Third , the court ordered Reckitt to produce its executive to testify further in deposition concerning the communications about which she was ordered not to testify.

Why Does This Decision Matter?

The Reckitt discovery dispute should help crystallize for companies the risk of the NAD dispute resolution process. While confidentiality has always been one of its main selling points (along with speed and efficiency), participants should not be fooled. Unlike the famous Las Vegas tagline, what happens in NAD proceedings will not necessarily stay there.

***

Class Action Settlement Insurance (CASI) provides companies with the certainty they need to get back to business. It is the only product on the market that allows companies to mitigate, cap and transfer the financial risk of settlement in existing class action litigation. Designed by Risk Settlements in response to businesses’ need for financial certainty in class action lawsuits and resulting settlements, CASI eliminates the unintended consequences of settlement and helps businesses exit litigation for a known, fixed cost.

Contact us today to learn more about our creative insurance solutions to resolve existing or ring-fence threatened or existing litigation for a known, fixed cost.

The post NAD Dispute Resolution Process: Secret Until It’s Not appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Developments in Biometric Information Privacy Laws

Thu, 12 Aug 2021 17:35:00 GMT

In the latest episode of the Alternative Litigation Strategies podcast, Director, Kevin Skrzysowski, is joined by Christopher Ward, labor and employment Partner at the law firm Foley & Lardner. The two discuss the current state of the Illinois BIPA, the developing landscape of private rights of action in other states, recent notable settlements, dispositive motion litigation strategies, and best practices to ensure that businesses are in compliance with current and future laws.

The post Developments in Biometric Information Privacy Laws appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

The 11th Circuit Tells Plaintiffs They Can’t ShoeHorn Insurance Coverage for a TCPA Claim

Wed, 04 Aug 2021 17:54:00 GMT

On June 1, 2021, the 11th Circuit stymied a certified class’s effort to force an insurance company to cover its insured’s TCPA settlement. Horn v. Liberty Ins. Underwriters, Inc ., 998 F.3d 1289 (11th Cir. 2021). The court agreed with the district court’s ruling that TCPA claims were excluded from coverage by the policy’s exclusion for “[c]laims … arising out of … an invasion of privacy.”

The underlying class action lawsuit

In 2017, Jacob Horn filed a TCPA class action against iCan Benefit Group, LLC for sending unauthorized text messages. The complaint alleged that iCan:

“invaded the personal privacy of Plaintiff and members of the putative Classes…[and] intentionally and repeatedly violated the TCPA;” and
“caused consumers actual harm in the form of annoyance, nuisance, and invasion of privacy.”

The class action settlement

After the lawsuit was filed, iCan tendered the defense and indemnity of the lawsuit to its carrier, Liberty Insurance Underwriters. Relying on the “invasion of privacy” exclusion, Liberty denied coverage. Eventually, plaintiffs and iCan “settled” the case for approximately $60 million, but with an important caveat. Because iCan could not afford the settlement, iCan agreed to assign its rights under the Liberty policy to the class, while the class agreed not to seek payment from iCan.

The liability coverage and exclusion

The dispute focuses on the following exclusion language:

The Insurer shall not be liable under Insuring Clause C for Loss on account of any Claim made against the Company: … (4) based upon, arising out of , or attributable to any actual or alleged defamation, invasion of privacy , wrongful entry and eviction, false arrest or imprisonment, malicious prosecution, abuse of process, assault, battery or loss of consortium.

(Italics added.)

The Eleventh Circuit’s decision

The class plaintiffs sued Liberty, seeking a declaratory judgment that Liberty was obligated to pay the class the $2 million in policy limits. The district court disagreed, granted summary judgment in favor of Liberty. The class appealed.

In a 2-1 decision, the Eleventh Circuit affirmed, holding that the TCPA claims at issue were “arising out of … an invasion of privacy” and therefore excluded by the policy. The court found that the phrase “arising out of” was critical to its decision, noting its broad definition as “originating from,” “having its origin in,” “growing out of,” “flowing from,” “incident to” or “having a connection with.” Accordingly, the majority found that the complaint, which alleged TCPA violations and explicitly mentioned the invasion of plaintiffs’ privacy, arose out of an invasion of privacy.

In so holding, the court rejected the dissent’s argument that the exclusion should be read to apply to only claims alleging the common law tort of “invasion of privacy.” The court was not persuaded by the fact that “invasion of privacy” was cabined in the policy by eight other specific torts. According to the majority, “[t]he insurance policy does not cabin the invasion of privacy exclusion to claims alleging those listed tort causes of action, rather it broadly excludes ‘civil proceedings’ ‘arising out of’ an ‘invasion of privacy.’” Thus, the Eleventh Circuit concluded the class action falls under the policy’s invasion of privacy exclusion because the class action has at least “a connection with” an “invasion of privacy.”

Not a per se ruling

In 2017, the Ninth Circuit decided Los Angeles Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 799 (9th Cir. 2017), which held that allegations that a defendant violated the TCPA are per se claims for invasion of privacy and thus subject to insurers’ exclusions for “[c]laims … arising out of … an invasion of privacy.” The Ninth Circuit summarized its ruling as follows:

When Congress passed the Telephone Consumer Protection Act (“TCPA”) it sought to protect individuals against invasions of privacy, in the form of unwanted calls (and now text messages) using automatic telephone dialing systems. Congress explicitly stated this purpose in the text of the TCPA. In light of this plainly stated purpose, and the lack of any other indicia of congressional intent in the statute, a TCPA claim is, by its nature, an invasion of privacy claim. Accordingly, a liability insurance policy that unequivocally and broadly excludes coverage for invasion of privacy claims also excludes coverage for TCPA claims.

The Horn court refused to go this far, stating that while the Ninth Circuit was correct in Lakers to note the connections between the TCPA and invasions of privacy, because of the “broad qualifying language in iCan’s insurance policy,” “we need not address” whether “every TCPA claim is by its nature an invasion of privacy claim.”

***

For defendants sued in courts in the 11th Circuit, Horn is yet another reminder of the challenges they face in seeking coverage from existing insurance policies. But not all hope is lost.

Class Action Settlement Insurance (CASI) provides companies with the certainty they need to get back to business. It is the only product on the market that allows companies to mitigate, cap and transfer the financial risk of settlement in existing class action litigation. Designed by Risk Settlements in response to businesses’ need for financial certainty in class action lawsuits and resulting settlements, CASI eliminates the unintended consequences of settlement and helps businesses exit litigation for a known, fixed cost.

Contact us today to learn more about our creative insurance solutions to resolve existing or ring-fence threatened or existing litigation for a known, fixed cost.

The post The 11th Circuit Tells Plaintiffs They Can’t ShoeHorn Insurance Coverage for a TCPA Claim appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

TransUnion’s Unintended Consequence: More State Court Class Actions

Tue, 27 Jul 2021 17:54:00 GMT

It has been well documented that the Supreme Court’s June 25, 2021, opinion in TransUnion LLC v. Ramirez further limits the ability of plaintiffs to bring lawsuits in federal court based on technical statutory violations. Indeed, to establish federal court standing, a plaintiff must have personally suffered “concrete harm.” Given this new barrier to entry, one of TransUnion ’s unintended results could be plaintiffs choosing to file class actions in state court and defendants losing the ability to remove them. Justice Thomas’ dissent predicts just this.

On What Basis Did Justice Thomas Dissent?

Justice Thomas’ dissent argued that the majority was improperly substituting its own judgment that TransUnion’s violations of the Fair Credit Reporting Act were too “insignificant” to merit court action over “Congress’ judgment that such misdeeds deserve redress.” He pointed out that “never before has this Court declared that legislatures are constitutionally precluded from creating legal rights enforceable in federal court if those rights deviate too far from their common-law roots.”

Justice Thomas’ Footnote 9

In an interesting footnote, Justice Thomas discussed the potential unintended consequence of TransUnion . Writing about future cases involving technical statutory violations, he surmised:

Today’s decision might actually be a pyrrhic victory for TransUnion [and other defendants]. The Court does not prohibit Congress from creating statutory rights for consumers; it simply holds that federal courts lack jurisdiction to hear some of these cases. That combination may leave state courts—which “are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law,” ASARCO Inc. v. Kadish (1989)—as the sole forum for such cases, with defendants unable to seek removal to federal court. See also Bennett, The Paradox of Exclusive State-Court Jurisdiction Over Federal Claims (2021). By declaring that federal courts lack jurisdiction, the Court has thus ensured that state courts will exercise exclusive jurisdiction over these sorts of class actions.

Even before TransUnion , the Court’s decision on standing in Spokeo was already having the impact described by Justice Thomas. For example, in Thornley v. Clearview AI, Inc . (7th Cir. 2021), the plaintiff filed a class action in Illinois state court alleging a single violation of Illinois’ Biometric Information Privacy Act. The plaintiff’s complaint was clear: no class member “suffered any injury as a result of the violations … of BIPA other than the statutory aggrievement alleged[.]” Defendant removed the case to federal court, which eventually remanded. The Seventh Circuit affirmed the district court’s decision to remand:

Our job is to decide whether Thornley and her co-plaintiffs have Article III standing to pursue the case they have presented in their complaint. We have concluded that they do not: they have described only a general, regulatory violation, not something that is particularized to them and concrete. It is no secret to anyone that they took care in their allegations, and especially in the scope of the proposed class they would like to represent, to steer clear of federal court. But in general, plaintiffs may do this…. Outside of the clumsily named area of “complete pre-emption,” they may choose to rely exclusively on state law and avoid federal-question jurisdiction. And here, they may take advantage of the fact that Illinois permits BIPA cases that allege bare statutory violations, without any further need to allege or show injury. […]]

We hold only that on the basis of the allegations of this complaint, the district court correctly decided that Thornley and the other plaintiffs did not present a case that lies within the boundaries set by Article III, and so the court properly remanded the case to the state court.

As Justice Thomas has pointed out, the decision in TransUnion further limits the reach of federal courts over class actions involving technical statutory violations without concomitant “concrete harm.” In light of cases like Thornley , Spokeo , and TransUnion , there is no question that the plaintiffs’ bar will adjust by filing more cases in state court. The only difference now? Due to the “pyrrhic victory” of TransUnion , defendants’ ability to obtain removal will likely be curtailed.

***

Are you looking to resolve a class action on a claims-made basis? If so, contact us to learn how we can help you to mitigate, cap, and transfer the financial risk of settlements in existing class action litigation.

The post TransUnion’s Unintended Consequence: More State Court Class Actions appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Can a Text Stand on Its Own? The 5th Circuit Says Yes

Tue, 29 Jun 2021 17:54:00 GMT

We are all Lucas Cranor.

In June 2018, Cranor made a purchase at a store called 5 Star, and while there, he gave 5 Star his mobile number. As a reward for his patronage, 5 Star sent Cranor a series of unsolicited advertising texts, about both a rewards program and a can’t miss sale. Annoyed to his core, Cranor replied: STOP.

This exchange led to legal threats, which ultimately resolved with a pre-suit settlement of $1,000. But of course, the story did not end there.

Months later, 5 Star went back to the well and sent Cranor another unsolicited text promoting a sale. Cranor again responded “STOP,” and this time 5 Star listened. Nevertheless, Cranor went to court, suing 5 Star and alleging that its one post-settlement text message to him violated the TCPA. According to Cranor, the text at issue caused him “the very harm that Congress sought to prevent [in enacting the TCPA]—namely, a nuisance and invasion of privacy.”

What Did the District Court Do?

The district court dismissed Cranor’s case for lack of standing. It concluded that 5 Star’s one text message to Cranor did “not constitute [an] injury in fact,” because a “single unwelcome text message will not always involve an intrusion into the privacy of the home in the same way that a voice call to a residential line necessarily does.”

Cranor appealed.

How Did the 5th Circuit Rule?

In short, the 5th Circuit found that Cranor has standing to sue over a single text message because he alleged a cognizable injury in fact: “nuisance arising out of an unsolicited text advertisement.” In so ruling, the 5th Circuit looked at Congress’s judgment in passing the TCPA and then considered the history of analogous common law actions.

Congress’s Judgment

The 5th Circuit stated that Congress’s intent could not have been clearer. In enacting the TCPA, Congress found that “unrestricted telemarketing can be an intrusive invasion of privacy” and a “nuisance.” Accordingly, “Cranor’s asserted injury is thus exactly the one Congress sought to remediate in enacting the [TCPA].” And the Court was not convinced—as 5 Star contended—that the TCPA was solely aimed at unsolicited marketing that affects the home. Rather, the court noted how the TCPA expressly covers cell phones and text messages and, in many other contexts, addresses invasions of privacy outside the home (e.g., paging services, emergency lines, and hospitals).

History of Analogous Common Law Actions

Funny enough, the court next took up whether the harm from an unwanted text message “has a close relationship to a harm “that has traditionally been regarded as providing a basis for lawsuit in English or American courts.” At first glance, it is hard to see anything traditional about the harm from a modern day annoying text message. But that did not dissuade the court. To the contrary, the 5th Circuit found that such a harm was very much akin to a harm actionable at common law: public nuisance.

While traditionally “the sovereign would address a public nuisance,” a private citizen could, however, also do so, but only if he “could show that he had suffered damage particular to him and not shared in common by the rest of the public.” The court then used some creative analogy work to explain its reasoning.

Cranor “wants to use our Nation’s telecommunications infrastructure without harassment.” Thus, he is “similar to someone who wants to use another piece of infrastructure, like a road or bridge, without confronting a malarial pond, obnoxious noises, or disgusting odors.”
5 Star is “similar to someone who illegally emits pollution or disease that damages members of the public.”

And Cranor succeeded in alleging a “special harm not suffered by the public at large,” specifically, the receipt of one of 5 Star’s texts, which caused:

Cranor to read the message;
Cranor to respond to the message;
a depletion of Cranor’s phone’s battery; and
a depletion of minutes allocated to Cranor by his cell phone provider.

Thus, the court found such harm more than sufficient to establish a “close relationship” between his injury and an actionable public nuisance at common law.

***

For companies thinking about marketing through text messages, be forewarned: just one wayward text can confer standing on the recipient to sue you under the TCPA. And once those floodgates open, look out, as the TCPA’s statutory damages range from $500 to $1,500 per violation.

***

Class Action Settlement Insurance (CASI) provides companies with the certainty they need to get back to business. It is the only product on the market that allows companies to mitigate, cap and transfer the financial risk of settlement in existing class action litigation. Designed by Risk Settlements in response to businesses’ need for financial certainty in class action lawsuits and resulting settlements, CASI eliminates the unintended consequences of settlement and helps businesses exit litigation for a known, fixed cost.
Litigation Buyout (LBO) Insurance provides companies with the ability to successfully ring-fence litigation exposure and transfer the full financial risk of class action, antitrust, and non-class litigation. With LBO Insurance, the insurance carrier takes on the financial risks and liabilities for businesses – at any time before settlement and for a known, fixed cost. In the context of an M&A transaction or financing, LBO Insurance negates the requirement for the use of escrows or indemnities, providing certainty and finality to both parties to the transaction.

Contact us today to learn more about our creative insurance solutions to resolve existing or ring-fence threatened or existing litigation for a known, fixed cost.

The post Can a Text Stand on Its Own? The 5th Circuit Says Yes appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

The Supreme Court to rule soon on what level of harm plaintiffs must establish to have standing to sue for statutory violations in the absence of actual harm.

Tue, 22 Jun 2021 17:54:00 GMT

Sergio Ramirez was trying to buy a car at a Nissan dealership when he was informed that his name matched two names on a list of suspected terrorists and criminals with whom U.S. companies are barred from doing business. TransUnion had provided to the dealership both the credit report and the notification that Ramirez’ name matched names on the list. When Ramirez first obtained a copy of his TransUnion credit report, it did not show the alert. The alert was included, however, in the second report that TransUnion sent the next day. That version omitted a legally required summary-of-rights form, which informs consumers how to exercise their rights, including challenging credit report inaccuracies.

As one of thousands who were incorrectly placed on the list, Ramirez filed a class action under the Fair Credit Reporting Act (FCRA) and ultimately moved to certify a class. TransUnion objected, arguing that of the 8,185 individuals incorrectly labeled as potential terrorist matches, only 1,853 had their credit reports sold to third parties. Moreover, TransUnion argued that there was no evidence that any class member other than Ramirez had been denied credit because of the inaccurate alert. The district court certified the class. Following a jury trial, the court entered a judgment in favor of the class for $8.1 million in statutory damages and $52 million in punitive damages. The Ninth Circuit affirmed but reduced the punitive damages award.

The Supreme Court granted review to address questions left unanswered by its decision in Spokeo, Inc. v. Robins , 136 S. Ct. 1540 (2016). In Spokeo , the Court held that plaintiffs must allege concrete injuries that are not “conjectural or hypothetical” and that a plaintiff cannot rely solely on non-compliance with legislative provisions to prop up a statutory privacy claim. Spokeo left open, however, whether standing may exist in cases arising from the distribution of erroneous information about a plaintiff. After Spokeo , federal courts have reached different results when addressing standing in data security and privacy cases.

The court heard oral argument in TransUnion LLC v. Ramirez on March 30, 2021. TransUnion argued that more than 6,000 members of the class lacked standing to sue because their erroneous credit reports were never accessed by prospective lenders. Plaintiff countered that that every class member was injured by the statutory violations, both because they were falsely flagged and because TransUnion did not adequately notify them of their rights as required.

The Court’s decision could greatly affect the scope of consumer privacy and data breach class actions in the future. It is common for class members in such class actions to be situated similarly to the more than 6,000 members of the Ramirez class who did not incur any actual harm under the traditional common law sense of the term. A decision is expected this summer.

***

Class Action Settlement Insurance (CASI) provides companies with the certainty they need to get back to business. It is the only product on the market that allows companies to mitigate, cap and transfer the financial risk of settlement in existing class action litigation. Designed by Risk Settlements in response to businesses’ need for financial certainty in class action lawsuits and resulting settlements, CASI eliminates the unintended consequences of settlement and helps businesses exit litigation for a known, fixed cost.
Litigation Buyout (LBO) Insurance provides companies with the ability to successfully ring-fence litigation exposure and transfer the full financial risk of class action, antitrust, and non-class litigation. With LBO Insurance, the insurance carrier takes on the financial risks and liabilities for businesses – at any time before settlement and for a known, fixed cost. In the context of an M&A transaction or financing, LBO Insurance negates the requirement for the use of escrows or indemnities, providing certainty and finality to both parties to the transaction.

Contact us today to learn more about our creative insurance solutions to resolve existing or ring-fence threatened or existing litigation for a known, fixed cost.

The post The Supreme Court to rule soon on what level of harm plaintiffs must establish to have standing to sue for statutory violations in the absence of actual harm. appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

How Ad Disputes Between Competitors Fuel Consumer Class Actions

Mon, 21 Jun 2021 17:54:00 GMT

This article was originally published on Law360.com

The National Advertising Division (the advertising industry’s voluntary self-regulator) is as busy as ever this year. Recently, the NAD recommended Spectrum Mobile discontinue claims of “fastest overall speeds” in response to a challenge from AT&T. It also recently directed Zarbee’s to qualify its use of the term “natural” on certain products.

Be warned: the companies involved and the advertising industry are hardly the only ones monitoring such disputes between competitors about advertising claims. When a company contends that a competitor’s advertising claim is misleading, the plaintiff’s class action bar takes notice. When a dispute is resolved by the NAD or when one competitor sues another for lost profits under the federal Lanham Act, the class action bar takes notices.

Allegations of false advertising continue to be a growing area of consumer class action litigation. These suits are typically grounded in consumer-friendly statutes such as California’s Unfair Competition Law and Consumer Legal Remedies Act. Legal risk managers need to know that the attorneys filing these lawsuits are monitoring disputes between competing enterprises.

There are dozens of recent examples of consumer class action allegations being ripped from the pages of commercial disputes between industry competitors. To fully anticipate and manage the risk of class action litigation, industry counsel need to understand how disputes between competitors can inspire follow-on or copycat consumer litigation and keep a close eye on all such disputes in their industry.

From NAD Dispute with Competitor to Class Action Settlement

When Sherwin-Williams wanted to challenge advertising claims being made by its competitor Rust-Oleum, it brought its complaint to the NAD, the investigative unit of the advertising industry’s system of self-regulation. The NAD is administered by the Council of Better Business Bureaus and its legal team specializes in examining advertising claims.

Companies sometimes choose to challenge the advertising practices of competitors before the NAD because the process is generally faster and cheaper than litigation. There is no document discovery or depositions, claims are often resolved within a matter of months, and the process is largely confidential. However, the conclusions and recommendations of the NAD are released to the public.

Sherwin-Williams challenged Rust-Oleum’s claims that its “Painter’s Touch Ultra Cover 2X Spray Paint” provided twice as much coverage as competing spray paint products. For example, the product packaging featured a prominent “2X” adjacent to a gold seal, the statement “made with double cover technology,” and a picture of one Rust-Oleum paint can next to two other paint cans—suggesting one can of Rust-Oleum equals the coverage supplied by two cans of a competitor’s product.

The NAD found that Rust-Oleum’s marketing materials conveyed the message that the paint delivers twice the coverage of competing brands but the evidence presented failed to support the claim. The NAD panel recommended that Rust-Oleum discontinue claims that the product provides twice as much and discontinue use of “2X” as part of the product’s name. The panel’s decision was affirmed by the NAD’s appellate arm, the National Advertising Review Board (NARB). The matter was referred to the FTC and concluded only when Rust-Oleum voluntary made some changes to the product’s label and marketing materials.

Meanwhile, not long after the NAD had issued a press release to announce its decision, consumer class action lawyers were already posting web pages about the NAD ruling. Consumers who purchased the Rust-Oleum product were advised to contact class action lawyers “for a free consultation regarding your legal options.”

Soon after the NARB affirmed the NAD decision, a nationwide class action was filed against Rust-Oleum in a state court in Missouri and a nearly identical class action was filed against Rust-Oleum in a federal court in Illinois.

The lawsuits closely tracked the allegations that had first been raised by Sherwin-Williams in the NAD against Rust-Oleum. Indeed, the allegations of liability in the class actions appear to have come directly from the NAD’s final report, amounting to little more than a paraphrasing of the NAD’s findings and conclusions. The class actions added that, despite the NAD decision, Rust-Oleum continued to market the product as providing double coverage.

Rust-Oleum eventually settled on a claims-made basis, agreeing to pay up to $20 per household that purchased the product from December 2011 to May 2017. The amount that a class member could receive depended on information submitted to support their claim. Those who submitted proof of purchase with their claim were potentially entitled to the maximum amount.

The road from NAD decision to consumer class action is becoming well-travelled. Consumer class action lawyers are closely monitoring activity at the NAD in search of potential deceptive advertising claims. The tale of Rust-Oleum is just one example. Colgate challenging Crest, Purina challenging Blue Buffalo, and Proctor & Gamble challenging GlaxoSmithKline are other examples of advertising disputes before the NAD that ultimately inspired consumer class action allegations. The ensuing lawsuits clearly relied heavily on the investigation and conclusions of the NAD. Such class action allegations also benefit from the efforts of the defendant’s competitor, i.e., the company that first raised the challenge with the NAD and then used its industry-insider expertise to undermine the advertising claims at issue.

From Lanham Act Dispute with Competitor to Class Action Settlement

In a Lanham Act lawsuit, an enterprise tries to collect lost profits due to “a false or misleading representation of fact” by a competitor in “commercial advertising or promotion.” 15 U.S.C. § 1125(a)(1). In 2015, Watkins, Inc. sued competitor McCormick & Company for misleading consumers as to the volume of black pepper inside its tins.

Watkins asserted that consumers became conditioned to several sizes of McCormick black pepper tins that had for decades held 2, 4, and 8 ounces. However, when McCormick started filling tins of the same size with only 1.5, 3, and 6 ounces, respectively, it only changed the net weight label.

Almost immediately after Watkins filed its suit, a series of consumer class actions against McCormick followed, each of which alleged the same deception regarding the volume of pepper inside the tins. The class actions closely tracked the factual allegations and legal reasoning of the Lanham Act suit. The lawsuits were consolidated and transferred to the U.S. District Court for the District of Columbia.

As for the class actions, McCormick eventually entered into a settlement benefitting California, Florida, and Missouri residents who purchased McCormick black pepper products between January 2015 and January 2020. The settlement provided $2.5 million to pay valid claims submitted by class members.

In recent years, many companies that have been sued by competitors under the Lanham Act have also been hit with copycat consumer class action lawsuits. Although the Lanham Act does not provide a cause of action for consumers, a competitor must demonstrate consumer confusion to prevail in a Lanham Act suit. Given the overlapping nature of competitor and consumer claims, it is hardly surprising that consumer class action lawyers keep an entrepreneurial eye on Lanham Act litigation between competitors.

From POM v. Coca-Cola Coke to Consumers v. POM and Coca-Cola

The nearly eight-year long false advertising battle between POM Wonderful, the pomegranate juice maker, and The Coca-Cola Company spawned consumer class actions against both companies. Litigation began with POM bringing a Lanham Act suit against Coca-Cola. POM alleged that Coca-Cola was misleading consumers with its Minute Maid division’s “Pomegranate Blueberry Flavored Blend of 5 Juices,” which contained only a half-percent of pomegranate and blueberry juice. Pom accused Coca-Cola of pilfering POM’s hard work to grow the pomegranate juice market and tricking customers into believing a much cheaper juice provided the healthy benefits of pomegranate juice. POM sought $77.6 million in lost profits. POM’s allegations fueled consumer class actions against Coke based on substantially similar allegations of false advertising regarding the Minute Maid juice.

Among the defenses that Coca-Cola raised in response to POM’s allegations was the defense of “unclean hands.” Coca-Cola contended that POM had made unsubstantiated claims about the health benefits of its own juice. It pointed to a 2012 administrative law judge’s decision in a case brought by the FTC against POM, which found POM made unsubstantiated claims that its juice treated, prevented, or reduced the risk of heart disease, prostate cancer, and erectile dysfunction. These same allegations against POM made their way into a consumer class action against POM.

A jury eventually sided with Coca-Cola in the suit brought by POM. However, the consumer class action against Coca-Cola resulted in a settlement. Coca-Cola agreed to provide full refunds to class members with proof of purchase (uncapped) and vouchers for free replacement products from Coca-Cola for class members submitting claims without proof of purchase.

Prepare for Consumer Litigation in the Wake of Competitor Disputes

Class action attorneys understand that competitor litigation can be exceedingly helpful in their own efforts to bring large, consumer-oriented cases. Information developed in a dispute between competitors can help consumers show that statements made by a company have been false or misleading—a key evidentiary hurdle in consumer class actions.

For competitors, a dispute over advertising claims may be an unavoidable price of doing business. Nevertheless, whether you are bringing or defending a claim of false advertising with a competitor, you should recognize and anticipate the additional legal risk that may accrue from follow-on consumer litigation. Class action counsel will almost certainly be watching and considering how to use your dispute to their advantage. Be prepared.

—

Ross Weiner is the Legal Director at Risk Settlements, where he helps evaluate new business, assess legal and financial risk, and create optimal settlement designs and risk transfer options. Prior to joining Risk Settlements, he was a litigator at Kirkland & Ellis LLP and focused upon class actions among other matters.

The post How Ad Disputes Between Competitors Fuel Consumer Class Actions appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

A Wave of Class Actions Under the Illinois Biometric Information Privacy Act is Causing Insurers and Policyholders to Consider Novel Coverage Questions Under General Liability Policies

Fri, 11 Jun 2021 17:54:00 GMT

Over the past few months, you have probably heard about big dollar settlements in cases brought under the Illinois Biometric Information Privacy Act (“BIPA”). From the social media world, Facebook and TikTok both had significant settlements, agreeing to pay $650 million and $92 million, respectively. A variety of other companies are now or soon will be facing similar BIPA class actions.

BIPA is an Illinois statute regulating the collection and use of biometric data, including fingerprints, retina and iris scans, voiceprints, and scans of hand and face geometry. (740 Ill. Comp. Stat. 14/1 et seq . (2008)). It prohibits private entities from disclosing a person’s biometric information without that person’s consent. While a few other states have similar laws, only BIPA provides a private right of action. Accordingly, the plaintiffs’ bar has sought to capitalize.

Under BIPA, plaintiffs can recover $1,000 for each negligent BIPA violation and $5,000 for each intentional or reckless violation, plus attorneys’ fees. The Illinois Supreme Court has held that when a private entity violates BIPA, any person whose biometric information was wrongfully shared can recover, even in the absence of actual injury. Thus, BIPA class actions expose companies to tremendous potential liability. As the recent Facebook and TikTok settlements confirm, potential damages can add up quickly.

The new cottage industry of BIPA class actions has led to a predictable result: defendant companies litigating with their insurers over whether there is coverage for the underlying BIPA case. One case, in particular, stands out.

West Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc .

In West Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc . (“ West Bend ”), the court was tasked with deciding whether the insurer was obligated to provide a defense for a tanning salon in a BIPA class action brought by a salon customer. The customer alleged that the tanning salon violated BIPA by obtaining customer fingerprints and sharing them with a third-party vendor without first obtaining the required written release. The tanning salon, which was covered by two business owners’ liability policies, sought coverage from its insurer. In response, the insurer filed a declaratory judgment action seeking a declaration that the policy provided no such coverage. Both parties both moved for summary judgment.

The policies provided coverage for a “personal injury” that arises out of an “oral or written publication of material that violates a person’s right of privacy,” but also contained an exclusion for “distribution in violation of statutes.” The parties disputed whether the salon owner’s sharing of customer biometric information with its vendor was a “publication” that violated the customer’s right to privacy and whether the policy’s exclusion applied to BIPA liabilities.

The trial court ruled for the tanning salon, finding the insurer was obligated to provide a defense in the class action. The Illinois Supreme Court affirmed.

“Publication” and “Right of Privacy”

The insurance policies at issued stated, in pertinent part, as follows:

Business Liability
1. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to which this insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking those damages. However, we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’, ‘property damage’, ‘personal injury’, or ‘advertising injury’ to which this insurance does not apply.

* * *

This insurance applies:

To ‘bodily injury’ and ‘property damage’ only if:
- (a) The ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence’ that takes place in the ‘coverage territory’; and
- (b) The ‘bodily injury’ or ‘property damage’ occurs during the policy period.
(2) To:
- (a) ‘Personal injury’ caused by an offense arising out of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you;
- (b) ‘Advertising injury’ caused by an offense committed in the course of advertising your goods, products or services[.]”

The policies contain the following pertinent definitions:

“F. Liability And Medical Expenses Definitions

‘Advertising injury’ means injury arising out of one or more of the following offenses:

* * *

b. Oral or written publication of material that violates a person’s right of privacy;

* * *

‘Bodily injury’ means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.

* * *

‘Personal injury’ means injury, other than ‘bodily injury’, arising out of one or more of the following offenses:

* * *

e. Oral or written publication of material that violates a person’s right of privacy.”

The insurer argued that the customer’s BIPA complaint did not trigger the policies’ coverage for “personal injury” or “advertising injury” because the complaint did not allege a “publication” of material that violates a person’s “right of privacy.” The insurer first contended that “publication,” as used in business liability policies, means “communication to the public at large,” and because the tanning salon disclosed the biometric information at issue to only a single entity, there was no “publication.” The Illinois Supreme Court rejected the insurer’s position, relying on publication’s dictionary definition: “the term means both communication to a single party and communication to the public at large.” Accordingly, the tanning salon’s decision to share the biometric information with its vendor was a “publication.”

The parties also disputed what “right of privacy” means under the policy. Looking again to the dictionary definition, the court found that the right to privacy includes two primary privacy interests: seclusion and secrecy. As a result, the court defined the right to secrecy as the right to keep certain information confidential. Applying this definition, the court found that BIPA protects a secrecy interest—the right of an individual to keep his or her personal identifying information, like fingerprints, secret. Thus, the court found that the customer’s allegation that the tanning salon shared the customer’s biometric information with a third-party sufficiently alleged a potential violation of the customer’s “right to privacy” within the purview of the insurance policies.

Violation of Statutes Exclusion

The policies contained the following pertinent exclusions:

B. Exclusions

Applicable To Business Liability Coverage

This insurance does not apply to:

* * *

p. Personal Or Advertising Injury

‘Personal injury’ or ‘advertising injury’:

* * *

(2) Arising out of oral or written publication of material whose first publication took place before the beginning of the policy period;

(3) Arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured.

Additionally, an endorsement to the policies added the following exclusion:

This insurance does not apply to:

DISTRIBUTION OF MATERIAL IN VIOLATION OF STATUTES

‘Bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ arising directly or indirectly out of any action or omission that violates or is alleged to violate:

(1) The Telephone Consumer Protection Act (TCPA) [(47 U.S.C. § 227 (2018))], including any amendment of or addition to such law; or

(2) The CAN-SPAM Act of 2003 [(15 U.S.C. § 7701 (Supp. III 2004))], including any amendment of or addition to such law; or

(3) Any statute, ordinance or regulation, other than the TCPA or CAN-SPAM Act of 2003, that prohibits or limits the sending, transmitting, communicating or distribution of material or information.”

The insurer argued that that the policies’ exclusions expressly ruled out claims stemming from BIPA violations. According to the insurer, the policies barred coverage for violations of statutes that “prohibit the communicating of information,” which, according to the insurers, BIPA does. In response, the tanning salon emphasized the title of the exclusion and argued that the “other than” language in the exclusion bars coverage only for violations of statutes that regulate methods of communication like telephone calls, faxes, and e-mails. The court agreed with the tanning salon.

The court began its analysis by pointing out that the exclusion is titled “Violation of Statutes that Govern E-Mails, Fax, Phone Calls or Other Methods of Sending Material or Information.” The court noted that all the items listed in the title are methods of communication. Next, the court referenced how the exclusion explicitly lists two statutes that regulate methods of communication: the TCPA (telephone calls and faxes) and the CAN-SPAM Act (e-mails). Accordingly, the court construed the words “other than” in the exclusion to mean other statutes of the same general kind that regulate methods of communication like the TCPA and the CAN-SPAM Act. Because BIPA does not regulate methods of communication, the court held that the statutory violation exclusion does not apply. Furthermore, to the extent that the “other than” language in the policies could be viewed as ambiguous, the court noted that it must be construed against the insurer.

Different Allegations, Different Policies

In West Bend , the Illinois Supreme Court focused on the specific allegations in the underling class action complaint and its holding relied heavily on the policy language.Different facts underlying an alleged BIPA violation could lead to a different result on issues such as “publication” or “right to privacy.” And of course, not all general liability policies contain definitions and exclusions that are identical to the policy provisions considered by the court. Careful review of the underlying BIPA allegations as well as all pertinent policy language is essential to determine the scope of possible coverage for claims under BIPA.

The case was part of a growing trend of similar actions brought by insurers seeking to avoid coverage in the context of Illinois BIPA class actions. Even beyond the Illinois statute, companies need to recognize the increasing concern regarding privacy and protecting biometric information. Insurers will continue to challenge coverage in this area, and some may even seek to introduce changes to policy language to limit coverage. Policyholders need to scrutinize past, present, and future policies and carefully evaluate whether they are covered for possible BIPA violations. And companies without existing general business liability coverage for such claims may need to pursue other insurance options if faced with a potentially damaging class action.

—

Ross Weiner is the Legal Director at Risk Settlements, a team of highly experienced legal, insurance and risk specialists. He helps companies assess legal and financial risk and create optimal settlement designs and risk transfer options. Prior to joining Risk Settlements, he was a litigator at Kirkland & Ellis LLP and focused on class actions among other matters .

The post A Wave of Class Actions Under the Illinois Biometric Information Privacy Act is Causing Insurers and Policyholders to Consider Novel Coverage Questions Under General Liability Policies appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Tenth Circuit Blesses Class Action Settlements with “Kicker” and “Clear-Sailing” Provisions

Fri, 28 May 2021 17:54:00 GMT

On May 7, 2021, the Tenth Circuit issued an important decision affirming the Western District of Oklahoma’s approval of a class action settlement that contained both a “kicker” and “clear-sailing” provision relative to the award of attorneys’ fees and costs. In re Samsung Top-Load Washing Machine marketing, Sales Practices and Prods. Liability Litig. , No 20-6097 (10th Cir. 2021). The thorough decision explains why such provisions can be appropriate and what type of scrutiny lower courts should apply to settlements including them. Before getting to that, first a bit on the underlying settlement.

The Settlement

In 2015, 34 models of Samsung top-load washing machines experienced “weakness issues with the top-load door mechanism.” Basically, the door would come off during spin cycles, allowing water to spill out. Not ideal.

After consumers filed a slew of lawsuits, the JPML order the cases combined into an MDL in the Western District of Oklahoma. Following this consolidation, the parties spent months negotiating a settlement with the help of a mediator. Of the nine days spent with the mediator, the first eight were spent discussing compensation to the class, while the final day was spent on the award of attorneys’ fees and costs. Overall, the parties estimated the settlement’s value to the class at between $6.55 and $11.42 million.

As for attorneys’ fees and costs, the parties agreed that Samsung would not contest any requested award of fees and costs up to $6.55 million (the “ clear-sailing ” provision). Should the court reduce the award of attorneys’ fees and costs below $6.55 million, the settlement agreement permitted Samsung to retain the differential (the “ kicker ”).

The District Court Weighs In

The district court reviewed the settlement agreement and “concluded compensation under the Settlement Agreement was fair and adequate to the class.” Indeed, the court relied on the evidence of an expert offered by class counsel to value the future warranty protection at between $6.44 and $11.31 million. And the court found that the settlement offered class members a rebate of 15.5% of the purchase price, which exceeded the 7% the class likely would have received had plaintiffs prevailed in a trial.

With respect to attorneys’ fees and costs, Samsung had asked the court to approve approximately $5.99 million in fees and $242,000 in costs, which was less than the $6.55 million Samsung had promised not to contest. The court “critically analyz[ed]” the request and ultimately awarded a base fee amount of $2.95 million and a lodestar multiplier of 1.3 for a total of $3.84 million.

The Appeal

On appeal, a class member argued that the “district court abused its discretion by granting final approval to the Settlement Agreement where it included both a kicker and a clear-sailing provision.” The Tenth Circuit framed the relevant question here as what degree of scrutiny should a district court apply to a settlement agreement containing both a “kicker” and “clear-sailing” provision? At the outset of its opinion, the Tenth Circuit identified four possible standards:

a per se prohibition;
a presumption against the fairness and reasonableness of such settlement agreements;
a requirement that the district court apply “increased or heightened scrutiny”; or
the “normal standard governing the approval of settlement agreements in class action litigation.”

If you guessed option 3 – you would be correct. The Tenth Circuit found that heightened scrutiny was appropriate “because while ‘kicker’ and ‘clear-sailing’ agreements may serve a purpose in the negotiation process, the presence of both agreements in a settlement agreement also suggests the class members may not be receiving all reasonable benefits.”

The Value of a “Kicker” and “Clear-Sailing Provision ”

After endorsing the heightened scrutiny approach, the Tenth Circuit explicitly defined “kickers” and “clear-sailing” provisions and then explained the importance of each:

Kicker:

- Definition:

- - “[A]llows all fees not awarded to class counsel to revert to defendants rather than be added to the cy pres fund or otherwise benefit the class.”

- Importance :

- - “Can valuably further negotiations by allowing defendants to establish their maximum liability with the expectation that their actual liability will ultimately be less once the district court scrutinizes class counsel’s fees and costs request.”

- - “In settlements providing fair and reasonable compensation to class members,” kickers “avoid situations where participating class members receive a windfall, well above their actual damages, at the expense of the defendant.”

Clear-Sailing

- Definition:

- - An agreement “where the defendant agrees not to object to an award of attorneys’ fees specified in a settlement agreement.”

- Importance :

- - Can “play an important role in class action settlement negotiations ‘because the defendants want to know their total maximum exposure and the plaintiffs do not want to be sandbagged.”

After noting how these provisions can be important, the Tenth Circuit emphasized that it was cognizant of the fact that a settlement agreement with both can be an “indication of possible implicit collusion.” Given this, the Tenth Circuit described how a district court should apply heightened scrutiny.

What Does Heightened Scrutiny Mean?

For district courts in the Tenth Circuit, when evaluating a class action settlement agreement with both a kicker and clear-sailing provision, here’s the non-exhaustive list of factors they should consider:

“whether the settlement was negotiated at arm’s-length”;
whether “class members receive fair and reasonable compensation based on record evidence of their actual damages and the likelihood of success at trial”;
“the fees and costs award provided for by the settlement in comparison to the value of the settlement to the class”;
“the structure of the negotiation process, including whether the parties negotiated attorneys’ fees and costs while negotiating class compensation or whether negotiations on fees and costs were reserved until after the parties reached an agreement on class compensation”;
whether there has been an “independent verification of any claims by the parties that attorneys’ fees and costs were negotiated subsequent to and apart from class compensation”; and
“whether the parties relied upon a neutral mediator to aid settlement negotiations”

In addition, the Tenth Circuit instructed district courts to “consider the litigation and settlement agreement as a whole, searching for other indicia of self-sealing by class counsel through negotiations with the defendant.”

Did the District Court Apply Heightened Scrutiny to the Samsung Settlement?

In affirming the district court’s approval of the class settlement, the Tenth Circuit found that district court “applied sufficient scrutiny and acted well within its discretion to grant final approval of the Settlement Agreement.” Indeed, the Tenth Circuit commended the lower court for relying on expert evidence to determine the valuation of certain parts of the settlement. Finally, the Tenth Circuit laid down a marker for future cases, noting that in Samsung , “where class members were receiving compensation equivalent to or in excess of actual damages, it cannot be said that class counsel and defendants negotiated terms that favored attorneys’ fees and costs at the expense of adequate and reasonable compensation for the class.”

Takeaways

Samsung contains several valuable lessons for class action practitioners looking to garner final approval for a class action settlement that includes a kicker and/or clear-sailing provision. Those include, but are not limited, to the following:

Experts are critical to (i) valuing tough-to-value parts of a settlement ( e.g. injunctive relief, warranties, etc.) and (ii) assessing the benefit(s) the class received through trial vs. what the class could have received at trial;
Well-established mediators can help give settlements imprimatur of fairness; and
It is better to negotiate attorneys’ fees and costs after concluding negotiations on benefits to the class.

***

The post Tenth Circuit Blesses Class Action Settlements with “Kicker” and “Clear-Sailing” Provisions appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Managing Litigation Risk While Contemplating M&A Activity

Tue, 25 May 2021 17:54:00 GMT

When acquiring an entity, it is critical to understand and address the litigation risk that may come with it. On this front, it is difficult to overstate the importance of due diligence.

Before you can analyze, evaluate or treat a risk, it has to be first identified as a risk. Some key considerations for detecting and managing litigation risk when contemplating M&A activity include:

Dig Deep. Dig smart.

It pays to engage litigation experts to assist you with due diligence. Contract disputes, shareholder concerns, regulatory notices, employee complaints, debt commitments— litigation risk is potentially lurking around every corner. Experienced professionals know how to efficiently search and analyze lawsuit court records, UCC filings, tax liens, bankruptcy proceedings, state regulatory filings and much more.

Remember the Business

When evaluating a specific litigation issue, you obviously need to consider the materiality of that risk as well as the potential for further such suits or claims. However, sometimes litigation can provide a more general red flag. The lawsuit or dispute might be signaling a broader issue with the company’s business model that needs to be addressed.

Litigation Managers

Experienced M&A attorneys are necessary but expensive. Litigation managers, sometimes called legal risk managers, are not only usually less expensive but can complement your team by bringing focused-expertise to the area of litigation risk. A good litigation manager combines lawsuit know-how (they are often attorneys themselves) with a significant business background to help you make litigation decisions that are also good business decisions.

Ring-Fence Exposure

Consider insurance to absorb litigation risk. Litigation Buyout insurance (LBO) can be used to transfer, and cap, your exposure to any uncertain litigation-related risks during and after the transactional process. You might decide insurance is only needed for a particular lawsuit. Other times, it might make sense to insure the entire litigation risk related to a merger or acquisition.

If your company is facing uncertainty because of litigation and you would like to explore strategies to minimize that uncertainty, please contact us to discuss how we may be able to help .

The post Managing Litigation Risk While Contemplating M&A Activity appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

The Impact of Facebook on TCPA Litigation and Settlements

Mon, 24 May 2021 17:21:00 GMT

In the latest episode of the Alternative Litigation Strategies podcast, Risk Settlements’ National Director, Kevin Skrzysowski, is joined by Richik Sarkar, commercial litigation Partner at the law firm Dinsmore & Shohl. The two discuss the impact of the recent SCOTUS Facebook decision, subsequent filing trends and ways to mitigate risk in TCPA class action litigation and settlements.

The post The Impact of Facebook on TCPA Litigation and Settlements appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

When is it Time to Hold and Time to Fold?

Wed, 19 May 2021 17:54:00 GMT

The settle-or-litigate conundrum

A victory, in complex litigation, is sometimes difficult to distinguish from a Pyrrhic victory. King Pyrrhus won the battle, but his army suffered such heavy and irreplaceable losses that he was forced to abandon his campaign against the Romans. High stakes litigation can easily drag on and the accumulated attorney’s fees and discovery expenses can end up approaching or even exceeding an amount that might have resolved the dispute months or even years earlier.

There is no science of knowing when to litigate and when to settle. Every dispute presents its own difficulties and opportunities. Although we know almost all litigation settles before trial, there will always still be some cases with no workable path to compromise. Moreover, even when settlement is clearly in the cards, there is never a perfect time to settle.

The Courthouse Steps

A critical last-minute ruling from the court will sometimes push the parties toward a compromise they had avoided for years. However, such eve-of-trial settlements seldom survive the scrutiny of hindsight. After all, it takes a lot of time and money to reach those courthouse steps. Too often, parties realize that they failed to explore earlier opportunities to resolve the case. A useful way to approach the settle-or-litigate conundrum is to remain wary of any case snowballing all too predicably toward another and costly eve-of-trial settlement that might be resolved earlier and far more efficiently.

The Bigger Picture

Litigation does not take place in a vacuum. Decisions about courtroom tactics and settlement approaches need to be consistent with the near, and long term, goals of the company. Time spent dealing with a lawsuit can reduce the productivity of key employees. Litigation can impact business relationships, funding and investors, stock prices, insurability and more. Sometimes the need to settle is driven by a need to get back to business.

The Cost of Discovery

There are two sorts of costs to discovery during litigation. First, there is the money. Discovery is the most expensive aspect of litigation and, in many complex matters, can readily provide its own justification for pursuing settlement. Second, there is the disclosure aspect. Discovery often means sharing information a company would prefer not to share. There is no reason to actually incur all costs of discovery before including them in settle-or-litigate calculations.

Merits and Money

Don’t overemphasize the strength or weakness of an opponent’s legal position. Your perception of the merits of a case must always be weighed with not only the amount at stake but the cost of further litigation. It is often far better to pay a smaller amount to settle a case instead of spending a great deal of time and money just to “win.”

Creative Solutions and Litigation Insurance

An exorbitant demand for X and a stingy counteroffer for Y. There are more creative ways to get deals done. When deciding to settle or litigate, consider the availability and cost of litigation buyout insurance that can replace the uncertainty of litigation, long before any settlement is reached, with a known, fixed cost. In the class action context, remember that a claims-made settlement can be designed in any number of different ways. Work with class action experts and develop a settlement structure that makes the most sense for your organization. Keep in mind that insurance is available even after a settlement is reached to absorb the risk of a claims-made settlement.

If your company is facing uncertainty because of litigation and you would like to explore strategies to minimize that uncertainty, please contact us to discuss how we may be able to help.

The post When is it Time to Hold and Time to Fold? appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Identifying Litigation Trends to Protect Your Brand

Wed, 12 May 2021 17:54:00 GMT

Corporate legal departments were once viewed as little more than an internal law firm. They handled legal problems in relative isolation, largely cut-off from the company’s commercial activities. Today, in-house legal teams are increasingly seen as an important and inseparable component of the company’s business team.

With this shift has come an expectation that legal departments do more than react to legal problems as they arise. They are expected to proactively monitor litigation trends, looking for clues in the evolving legal landscape to help the organization better position itself or even pre-empt potential problems before they develop.

Trend watchers agree that the wide range of issues related to COVID-19 will continue to command considerable attention in the near future. The challenging environment of the last year has resulted in a variety of contract and commercial disputes as well labor/employment issues. In addition, COVID-19 can be expected to impact the nature and frequency of worker’s compensation claims, insurance coverage disputes, legislative changes, loan defaults and bankruptcy filings.

Many believe the reopening of the economy will also see the filing of legal disputes predating the pandemic. Numerous potential litigants delayed pursuing lawsuits while focused on other concerns over the last year. For others, recent difficulties have made pursuing certain disputes now critical enough to be worth the trouble and expense of litigation. In short, issues you thought were behind you may be returning.

Cyber-security and data protection are also areas of increasing concern. A network shutdown, whether caused by a deliberate attack or an innocuous technology issue, can bring businesses to a halt and engender significant litigation risks from numerous angles. Laws regarding digital security are still evolving and that uncertainty only adds to the risk. Additionally, a large data breach is almost always followed by a class action.

Consumer-friendly statutory protections in some jurisdictions can make the fallout from data breaches particularly problematic.

Speaking of class actions, securities fraud and false advertising claims continue to be a source of numerous cases. For both of these areas, it is relatively easy for the vigilant to monitor claims being raised within one’s industry. If a competitor is facing such a claim, it is a safe bet your organization should recognize and address the possibility of similar claims.

Counsel for product manufacturers, distributors and retailers know they are always exposed to a variety of claims, from economic losses to personal injuries. In-house counsel should take note of litigation involving competitors. A telling recent example is Volkswagen’s “Dieselgate” woes spreading until similar claims were also alleged against every one of its competitors.

Part of monitoring litigation trends is keeping up with developments in insurance litigation and coverage. COVID-19 and the rise of cyber-attacks are two easy examples to highlight how quickly and dramatically things can change. It is critical to continually reassess insurance coverage against potential litigation risk. Policies purchased for yesterday’s problems may not be appropriate for tomorrow’s lawsuit.

If your company is facing uncertainty because of litigation and you would like to explore strategies to minimize that uncertainty, please contact us to discuss how we may be able to help.

The post Identifying Litigation Trends to Protect Your Brand appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Risk Settlements Launches Podcast on Alternative Litigation Strategies

Tue, 04 May 2021 17:31:00 GMT

May 4, 2021

Plano, TX – Risk Settlements is excited to introduce its brand-new podcast titled Alternative Litigation Strategies . The podcast features interviews with leaders and visionaries in the commercial litigation industry. Guests discuss and debate alternative litigation and settlement strategies to complex litigation, including class action litigation. Alternative Litigation Strategies is available now for listening in your favorite podcast app.

The Alternative Litigation Strategies podcast is hosted by Kevin Skrzysowski, a national Director at Risk Settlements. New episodes will drop once a month.

The first episode features Roger Colaizzi of Venable; he and Kevin discuss trends in advertising class action litigation and settlements. Kevin and his guests will walk listeners through a variety of different ways to approach complex litigation with an emphasis on solving complex issues and mitigating litigation risk.

“There’s so many new and effective strategies in the alternative litigation space that our listeners will take away fresh ideas from each episode,” said Mr. Skrzysowski. “Whether you are in-house or defense counsel, we have success stories that you can apply to your litigation immediately.”

The first episode is available for listening now on Spotify, Apple Podcasts, Google Podcasts, Pandora, and everywhere you listen to podcasts.

Risk Settlements provides risk transfer solutions for companies facing the uncertainty of known, threatened or pending litigation, and companies that possess affirmative litigation claims that have yet to be monetized. We are the industry leader in alternative litigation strategies, providing customized solutions at any stage of litigation, including Class Action Settlement Insurance, Litigation Buyout Insurance and Litigation Asset Monetization. Our team of experienced former litigators, insurance professionals, and risk mitigation specialists helps companies remove the financial and operational volatility arising out of litigation by transferring the outcome risk. To find out more, please visit www.risksettlements.com .

The post Risk Settlements Launches Podcast on Alternative Litigation Strategies appeared first on Certum Group .

How Class Action Settlement Insurance Helps Companies Transfer Risk in Class Action Litigation – May 4, 2021

Tue, 04 May 2021 13:36:00 GMT

According to data from the 2020 Carlton Fields Class Action Survey, $2.64 billion was spent on class action litigation in 2019. In 2020, the survey data showed that 64% of all major companies surveyed were currently dealing with a class action lawsuit.

Class action lawsuits are not only expensive, they also have significant business and reputational implications on a company.

Class Action Settlement Insurance (CASI) allows companies to mitigate, cap and transfer the financial risk of settlement in existing class action litigation. This insurance product was designed in response to businesses’ need for financial certainty in class action lawsuits and resulting settlements. CASI eliminates the unintended consequences of settlement and helps businesses exit litigation for a known, fixed cost.

Join our panelists for a complimentary webinar that will explain how class action settlement insurance works and how companies have used CASI to transfer the financial risk of class action litigation.

In this webinar, attendees will learn:

The benefits of structuring a claims-made settlement
How to resolve class action litigation for a known, fixed cost
The importance of negating the unintended consequences of settlement
How to assess viral claims risk
Why defending businesses and their counsel should consider CASI
And much more…

The post How Class Action Settlement Insurance Helps Companies Transfer Risk in Class Action Litigation – May 4, 2021 appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Mesa Laboratories v. Federal Insurance Co.: The Seventh Circuit Confirms There’s No Way Around the TCPA Insurance Exclusion

Mon, 03 May 2021 17:54:00 GMT

In 2018, Mesa Laboratories sent faxes promoting its dental-industry-related services. After receiving one of those faxes, James Orrington, II, a Chicago-area dentist, filed a class action against Mesa alleging that Mesa’s unsolicited faxes were sent in violation of the TCPA and the Illinois Consumer Fraud and Deceptive Business Practices Act. Orrington also alleged that Mesa’s conduct constituted common-law conversion, nuisance, and trespass to chattels (for Mesa’s appropriation of Orrington’s and others’ fax equipment, paper, ink, and toner).

Five days after the Orrington complaint was filed, Mesa, through its broker, notified its insurer, Federal Insurance Company (“Federal”), of the complaint. At the time the Orrington action was filed, Mesa was insured by Federal under multiple insurance policies, including one providing that Federal “will pay damages … that the insured becomes legally obligated to pay” for, among other things, personal injury or property damage caused by a covered offense or occurrence.

The Federal insurance policy, however, contained a familiar exclusion:

With respect to all coverages under this contract, this insurance does not apply to any damages, loss, cost or expense arising out of any actual or alleged or threatened violation of…the United States of America Telephone Consumer Protection Act (TCPA) of 1991 (or any law amendatory thereof) or any similar regulatory or statutory law in any other jurisdiction .

Mesa’s theory of coverage was straightforward:

Orrington’s nuisance claim—that by sending unwanted faxes, Mesa violated recipients’ property interests, including their right to privacy—brought the claim within the policy’s definition of personal injury;
Orrington’s conversion claim—that Mesa converted ink, toner, and paper from recipients’ fax machines—brought the claim within the policy’s definition of property damages.

And according to Mesa, if any portion of the allegations in the Orrington complaint was potentially covered by the policy, then Federal was obligated to provide a complete defense to all claims asserted and indemnify Mesa for same.

In May 2018, Federal formally denied coverage for claims asserted in the Orrington action. Most pertinent to that rejection was Federal’s finding that the lawsuit was excluded from coverage “under the Unsolicited Communications Exclusion, which applies to TCPA claims and claims under similar statutory and regulatory laws.”

Mesa Settles the TCPA Lawsuit

In January 2019, the Orrington court preliminarily approved a settlement, pursuant to which Mesa agreed to pay $3.3m to settle the class claims. The court granted final approval a few months later.

Mesa Sues Federal

Following correspondence back and forth during which Federal continued to deny coverage, Mesa ultimately sued Federal in April 2019, alleging breach of contract, common law bad faith, and improper delay and denial of claims under Colorado law. Federal moved for judgment on the pleadings. In January 2020, the district court granted Federal’s motion. Mesa appealed to the Seventh Circuit.

The Seventh Circuit Weighs In

The Seventh Circuit homed in on the policy’s exclusion that ruled out coverage for damages, loss, cost, or expense arising out of any actual or alleged or threatened violation of the TCPA. The court found the following:

The “alleged conduct underlying each claim was the same: Mesa sent unsolicited fax advertisements to Orrington’s office”;
The “arising out of” language subjects the common-law claims to the exclusion;
The trial court’s ruling must be affirmed.

According to the Seventh Circuit, this result was dictated by its decision earlier this year in Zurich Am. Ins. Co. v. Ocwen Fin. Corp. , 990 F.3d 1073 (7th Cir. 2021). In Zurich , the Seventh Circuit concluded that the “arising out of” language “excludes the underlying conduct that forms the basis of the violation of an enumerated law, even if liability for that underlying conduct might exist under a legal theory that is not expressly mentioned in the policy exclusion ( e.g. , common-law invasion of privacy).” In other words, the “arising out of” phrase “presents a ‘but-for’ inquiry: if the plaintiff would not have been injured but for the conduct that violated an enumerated law, then the exclusion applies to all claims flowing from that underlying conduct regardless of the legal theory used.” Zurich , 990 F.3d at 1079.

***

If your company is confronting TCPA litigation, traditional insurance policies are unlikely to provide much (if any) coverage. As a result, you might want to consider alternatives, like class action settlement insurance (CASI). How does CASI work?

CASI is purchased to transfer the settlement risk in existing class action litigation.
Coverage is available for the full spectrum of consumer class cases including: statutory claims (like TCPA lawsuits), fraud, mislabeling, products liability, and other types of litigation.
A policy covers all valid claims made by class members under the settlement agreement.
There is no deductible or self-insured requirement, just a one-time premium that transfers 100% of the aggregate settlement liability.

***

The post Mesa Laboratories v. Federal Insurance Co.: The Seventh Circuit Confirms There’s No Way Around the TCPA Insurance Exclusion appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Trends in Advertising Class Action Litigation and Settlements

Thu, 29 Apr 2021 19:20:00 GMT

In the first episode of the Alternative Litigation Strategies podcast, Risk Settlements’ National Director Kevin Skrzyowski is joined by Roger Colaizzi, Partner in Venable’s Washington D.C. office and Chair of Venable’s National Advertising Litigation Group. The two discuss trends in advertising class action litigation and settlements.

The post Trends in Advertising Class Action Litigation and Settlements appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Waiting to Settle Cost a Company Millions

Mon, 12 Apr 2021 20:08:00 GMT

Case Status When Risk Settlements Was Engaged:

A company was facing consumer class actions in which it was defending five separate lawsuits pending in two states.

Risk Settlements initially assisted the company in its efforts to settle the case precertification. With an optimal settlement structure in place, Risk Settlement arranged for a cost efficient risk transfer making a deal in principle possible. Over the next few weeks, however, as the settlement documents were negotiated, the company decided to pull out of the tentative settlement and resume litigation. The company bought into the notion that they could defeat class certification. Unfortunately, the law and facts were not nearly as favorable as the company had hoped. After the failed settlement attempt, the company continued to engage in expensive and time-consuming litigation and discovery battles. Eighteen months and over $1 million in attorney’s fees later, the company lost class certification in federal court.

Obstacles to Resolution:

The company was owned by a PE firm and was in the midst of an M&A transaction. Placing significant liability on the company’s financial statements would have driven down the acquisition price, encumbered liquidity with a massive escrow or killed the deal outright. The owners needed certainty so that they could close the M&A transaction under favorable terms.

Solution:

The company was motivated to return to the settlement table and once again looked to Risk Settlements to help it get there. Being in the unenviable position of having lost not only one, but two class certification motions, Risk Settlements was still able to provide this company with an innovative settlement and notice plan that achieved preliminary and final approval while providing risk transfer options to remove the uncertainty and ongoing financial implications of settlement. Using Class Action Settlement Insurance (“CASI”), the company transferred 100% of the settlement risk.

Results:

Risk Settlements designed an optimal solution to achieve final approval. The company followed Risk Settlements’ recommendations to prevent waste, fraud and abuse under the settlement. As a result, the cost of risk transfer was both efficient and compelling. After considering the economic and noneconomic benefits to the class, the Court determined that the claims made settlement was fair, reasonable and in the best interest of the class. Although the company paid twice as much as they could have for the first settlement, it resolved a massive liability, obtained full risk transfer, mitigated the impact of the settlement from the pending M&A transaction and ended years of legal expenses and litigation risk. Better a late win, than no win.

The post Waiting to Settle Cost a Company Millions appeared first on Certum Group .

Preventing Bankruptcy Through Risk Transfer

Mon, 12 Apr 2021 20:00:00 GMT

Case Status When Risk Settlements Was Engaged:

In 2013, a class action lawsuit was filed against a manufacturer. Class plaintiffs alleged that design and manufacturing defects in certain of the company’s branded products caused two distinct safety risks.

Due to an interlocutory appeal, there was no final disposition in the case until 2018. In the meantime, motions to dismiss were briefed but never ruled upon. Class certification motions were never filed. All settlement efforts were halted due to the two-year appeal process.

Obstacles to Resolution:

Due to the uncertainty and potential exposure stemming from class action litigation, the manufacturer’s debtholders were threatening to foreclose on outstanding obligations. This would have forced the company into bankruptcy and, likely, liquidation. The equity holders would have been wiped out and consumers would have been left with no rights or remedies.

Solution:

The company retained Risk Settlements to provide innovative strategies for designing a settlement and notice plan that would achieve final approval and provide risk transfer options to remove the uncertainty and financial implications of settlement. Using Class Action Settlement Insurance (“CASI”), the company transferred 100% of the settlement risk off its financial statements for a fixed cost.

Results:

Risk Settlements designed an optimal solution to achieve final approval. The Court considered both economic and non-economic benefits to the class and determined that the claims made settlement was fair, reasonable and in the best interest of the class. Furthermore, the company survived the inevitable bankruptcy which would have resulted from the $30 million liability hitting its financial statements. The risk transfer costs were reduced as the company adopted recommendations and strategies to reduce waste, fraud and abuse.

The post Preventing Bankruptcy Through Risk Transfer appeared first on Certum Group .

FLSA Litigation Jeopardizes M&A Deal

Mon, 12 Apr 2021 19:52:00 GMT

Case Status When Risk Settlements Was Engaged:

After months of heated negotiations over every detail in a stock purchase, a PE-owned HR company was finalizing the closing documents when it was served with a lawsuit alleging that it failed to comply with California’s wage-and-hour laws. Suddenly the company was facing the prospect of years of litigation, uncapped legal expenses, statutory penalties, private attorney general fines, all of which represented $11 million in exposure.

Obstacles to Resolution:

Faced with the untenable choice of losing the sale or having to escrow a material amount of sale proceeds, the seller sought risk transfer for the litigation and any other wage-and-hour or FLSA cases which arose prior to the sale. The buyer was increasingly uncomfortable, because it did not know how large the exposure was and whether there were additional employment liabilities lurking in the shadows of this transaction.

Solution:

In order to make sure that the buyer’s and seller’s objectives were met, Risk Settlements designed a solution that:

Met the parties’ financial, legal and business objectives;
Provided certainty with full risk transfer of known, threatened or pending litigation arising out of
employment or wage-and-hour violations prior to the sale;
Secured risk transfer for the first dollar of loss including payment of all litigation costs; and
Obtained coverage limits for seventy percent (70%) more than the potential exposure, which gave comfort to the buyer and allowed the seller to eliminate the special litigation escrow.

Results:

Because time was of the essence, Risk Settlements immediately commenced quantitative and qualitative risk analyses using the company’s historical HR records, its proprietary database, and risk models. Within two weeks of being contacted by the seller, Risk Settlements interfaced with the seller’s Rep and Warranty broker, deal team, M&A counsel and outside litigation counsel to design an optimal risk transfer solution with a total cost of less than $3 million. This litigation buyout solution provided a pathway to close the transaction on schedule, avoided a large specific litigation escrow, and gave the parties certainty concerning exposure from any pre-sale employment or wage-and-hour violations.

The post FLSA Litigation Jeopardizes M&A Deal appeared first on Certum Group .

Delivering Certainty in the Uncertain World of Class Action Settlements

Mon, 12 Apr 2021 19:22:00 GMT

Problem:

Unfortunately, class action settlements tend to be another step down the road of financial uncertainty and unpredictability. In the class action context, when resolving a case using a claims made settlement, the financial payout varies significantly, which can adversely impact liquidity, enterprise value, cash flow and assets. Additionally, when settlements go viral, companies face extreme losses which could exceed reserves and available cash on hand. Below are some examples of settlements that experienced statistically higher claim rates than quantitative risk models would have predicted:

Starkist Co. Settlement. Allegations of slack fill (under-filling of cans). The $25 settlement benefit generated approximately 2.4 million claims from class members seeking $60 million in class benefit.

Red Bull Settlement. Allegations of false and deceptive labeling and marketing of its drinks. This settlement provided for a $10 cash benefit or $15 voucher per household. Publication notice only. Claimants filed more than 2.7 million claims.

Naked Juice Settlement. Allegations regarding false labeling of products, as discussed in more detailed herein. The settlement experienced a take rate which was 356% greater than its established $9 million settlement cap.

Zirmed, Inc. Allegations that the company violated the Telephone Consumer Protection Act (TCPA). This settlement had a 50% take rate which was significantly higher than other similar TCPA cases and that most lawyers would have predicted in evaluating the risk for the company.

So why did these cases go viral and have take rates significantly higher than predicted? How can a company assess its risk when there are no simple or easy answers to evaluating financial risk? Risk Settlements has developed the science behind assessing and providing alternative risk mitigation strategies to hedge against varied and unpredictable outcomes.

Assessment:

To assess financial risk, we evaluate between 35 and 100 different variables, which may impact the ultimate financial risk arising out of settlement. Some of the factors to be considered include:

A. Case Type: Consumer, Employment or Statutory

Aggregating Factors
High/Low Public Interest
Individual and Aggregate Exposure
Notice: Direct, Publication or Both
Stage of the Case
Past or Anticipated Free Media Attention
Likelihood of Claims Promotions Sites to Push Claims

B. Questions Affecting Risk

What percentage of the class will see the notice?
If people see the notice, how many will file claims?
Of the claims filed, how many will be fraudulent?

C. Key Drivers on Notice

Notice Type (Direct, Publication, Both)
Direct Notice Type (Postcard, Letter, Fax, Email)
Publication Notice Type (Print, Search, Display, Combination)
Publication Reach (70%+ Identified Class)
Free Media, Blog Posts, Promoters
ISP Preclearance of Bulk Email
Budget
Metrics Used, Impressions Measured, Click Rates Measured
Process for Undeliverables, Bounce-Backs, Returned Mail
Age of Class Address List
Class Demographics

D. Key Drivers to Validate Claims

Audit Against Class List
Audit Against List of Known Fraudulent Filers
Examine Inbound Links to Ascertain Fraudulent Patterns
Ensure TPA Employs Ordinary and Customary Fraud Controls

E. Viral Analysis

As part of our robust risk analytics, we examine the likelihood of whether a proposed class action settlement will go viral, thus posing uncorrelated financial risk. For example, in the Naked Juice settlement, claimants filed claims totaling $32 million in class benefits before the cap was applied. (Risk Settlements did not consult or participate in this matter.) Is there any way to know why this happened and whether it could have been predicted? We think so for the following four reasons.

First, the Naked Juice brand had massive name recognition. By examining the 2013 sales figures of the leading refrigerated juice and juice drink smoothie brands in the United States, we can see Naked Juice was the top brand with the second highest brand more than $260 million behind. Moreover, Naked Juice’s sales made up 55% of this particular sales category. Indeed, in the United States, more than 125 million people regularly purchase products in the juice/drink category, and nearly 1.7 million of those people drink Naked Juice daily. With nearly two daily glasses consumed on average, Naked Juice consumption was estimated to represent 2.5% of the juice/drink market as a whole.

Second, Naked Juice had a significant advertising, social media and marketing footprint. According to market research, Naked Juice’s 2013 advertising budget was approximately $15 million, of which 40% was dedicated to television commercials and 40% was allocated to magazine advertisements. In addition, it had over 900,000 Facebook fans and its YouTube channel had over 4 million views.

Third, the class demographics for Naked Juice consumers presaged a large take rate. For this industry, the top marketing strategies target white females, ages 18-34. There is an emphasis on health-oriented consumers who are loyal to the brand and have a household income of more than $75,000. In this case, class demographics increased the risk profile as consumers were more likely to feel aggrieved due to the allegations of the use of GMO products in what was marketed as a healthy,
nutritional drink. Class members were both tech savvy and existed within like-minded ecosystems to share stories about the settlement, sense of outrage and mechanisms like filing claims to redress the harm.

Fourth, the Company and third party administrator did not take any actions to deter fraudulent claims from being filed. Given the high level of claims filed, it is likely that a significant portion were filed by claimants that were not part of the class and were seeking “free money” as was advertised on claims promotion sites.

Taking all this information into account, the Naked Juice settlement was ripe to go viral, experience a high number of fraudulent claims from waste, fraud and abuse, and would likely exceed the settlement damage cap.

Solution:

Each case’s unique facts and circumstances present different risks that require a bespoke approach. To that end, Risk Settlements performs quantitative and qualitative analyses based upon sophisticated and proprietary models to assess the underlying financial risks arising out of settlement. But that is only the start. With our unique risk transfer solutions, we can answer the critical question— how much is this litigation or settlement actually going to cost the company? Risk transfer is backed by a leading, nationally recognized A++/AA+ carrier and provides certainty that may mitigate the financial impact of known liabilities (e.g., public market narrative, accounting recognition), remove impediments to M&A/financing transactions and reduce or eliminate escrow holdbacks. It is also designed to meet the company’s business, financial, and legal objectives.

Using these proprietary risk models and settlement solutions, Risk Settlements has assisted companies in resolving and transferring over $2 billion in class action exposure in exchange for a fixed premium representing a fraction of the total settlement liability.

For more information, call or email Kevin Skrzysowski at 216-570-9370 or kevins@risksettlements.com.

The post Delivering Certainty in the Uncertain World of Class Action Settlements appeared first on Certum Group .

Consumer Products Manufacturer Ends Litigation in Multiple Jurisdictions

Mon, 12 Apr 2021 17:41:00 GMT

Company combines federal and state plaintiffs under one uniform settlement to prevent exposure to future liability

Case Status When Risk Settlements Was Engaged:

In 2016, a class action lawsuit was filed in state court against a consumer products manufacturer. The class plaintiff was alleging that the defendant had deceptively labeled, advertised, marketed, and sold its products by including certain representations that were neither accurate nor truthful. Defendant removed that suit to federal court and, subsequently, an additional federal class action was filed and, ultimately, consolidated with it.

Defense counsel vigorously defended the consolidated action and prepared the case for trial with a full defense that the defendant’s products were labeled, advertised, marketed, and sold accurately and truthfully and, further, that no harm or injury had been suffered by any of its consumers. After conclusion of discovery, the federal court partially granted the defendant’s motion for summary judgment; however, it left certain implied representation claims for the jury to decide.

Armed with the partial victory, plaintiffs pressed on, and after two additional years of litigation, the federal court certified the state class. As a result, multiple class action lawsuits in other states were immediately filed, each alleging the same allegations as the federal consolidated case and all seeking reimbursement for the “price premium” paid by the class as well as injunctive relief, prohibiting the defendant company from continuing its then-marketing campaign. Defendant continued to maintain that its labeling, advertising, and marketing claims were accurate and that consumers suffered no harm or injury from their purchases of the same.

Defendant now feared a nationwide class certification would be possible in one of the companion state class actions.

Obstacles to Resolution:

When considering settlement, the defendant knew that it could cap its maximum liability. However, the company was very concerned as to whether this case would go viral like so many others have done and that the actual payout would be far greater than its budget and reserves, creating financial uncertainty and intolerable risk.

In cases using a robust publication notice plan, the company’s concerns that the settlement would go viral were both valid and well-founded based upon the current environment. Today, scores of websites and social media groups exist for two key purposes: (a) notifying the public of available class action settlement payouts; and (b) providing a quick and easy portal for filing claims. The impact of these sites is undeniable. For example, in one recent case against a supplement manufacturer, 90% of consumers who filed a claim came directly from class action promotion websites.

Free Money = Heavy Traffic

The reality of class action promotion sites is that they wouldn’t exist if they weren’t a successful revenue stream for their owners. And successful they are. The model is simple: the sites advertise “free money” promises to generate huge online traffic. This induces advertisers to pay top dollar for ad placements guaranteed to reach big audiences. While many of them also claim to be promoting the common good by protecting consumers, they are undeniably generating income through advertising.

Indeed, one need look no further than the “Advertise with us” page of one of the top class action promotion sites. It boasts:

Other sites refer to class action payouts as “rebates” and advertise settlement funds on their homepage so they look like coupons that would be clipped from a newspaper . Still other sites purport to advertise class action settlement funds as part of the site owner’s “ passion for finding the best deals , bank promotions, credit card offers, cash back, points & miles, and everything in between.”

Claim Veracity is Almost an Afterthought

In fact, a Google search for “free money class action” yields dozens of results with site taglines like “Class Action Lawsuit Settlements — Claim Free Cash,” “No Proof Required Class Action Settlement,” and “Do You Like Free Rebates? File a Claim for a Class Action Settlement.” If there is one commonality amongst these class action promotion sites, it is that they’re very good at communicating that many class payouts do not require proof of purchase. For example, on the “ Frequently Asked Questions ” page of one popular site, the following questions and answers are presented:

Given this “free money, low risk” atmosphere, it’s no wonder that so many settlement claims go viral.

Social Media Expands Reach

It’s probably safe to say, of course, that the majority of Americans are not searching for the types of websites discussed above. The purveyors of these websites know this, and that’s why instead of waiting for consumers to come to them, they are going directly to consumers. They do this through one principle channel — social media.

According to the Pew Research Center , nearly seven in ten Americans use Facebook, and 73% use YouTube. It’s no wonder, then, that class action settlement announcements are abundant on those sites.

In fact, a review of the Facebook pages for the websites cited in this article alone reveals a collective Facebook following of nearly 170,000 individuals. That means that every time a class action settlement opens for claims, 170,000 people are alerted to the potential for recovery — regardless of whether those people were harmed in a manner similar to class plaintiffs.

For its part, YouTube offers scores of videos on how one can collect cash from submitting class action claims. The videos have titles like “ An Easy Way to Collect Cash: Joining Settlements on Class Action Lawsuits ” and “ Rake in Money with Class Actions .”

Given that Facebook and YouTube both use algorithms to present relevant content to users who have expressed a prior interest in a particular subject, it’s not a stretch to imagine that those seeking to improperly profit from class action settlements will be the first to have these posts appear in their social media feeds.

Internet News Creates Immediate Impact

Finally, the impact and immediacy of internet news sources cannot be overstated. On the date of this writing, for example, a Google search for news from the last 24 hours concerning “class action lawsuits” produced 916,000 results, including articles about a class action suit against the Department of Veterans Affairs, securities-related class action suits, and pharmaceutical class litigation.

Today, many people receive up-to-the-minute news alerts on their cell phones and other mobile devices. This ensures that the potential for class action recovery is never far from the minds of consumers. This may be particularly true when the news involves a class action suit against a popular brand. News of these lawsuits (and resultant claims against settlement funds) can quickly go viral as consumers clamor to take down “giant” corporations perceived as having deep pockets.

Risk of Free Media

In addition to claims promotion sites, settlements can go viral as a result of free media. At times, the news picks up the story organically. Oftentimes, the promoter sites generate the media’s interest in a particular settlement. Once free media picks up a story, the claims promotion sites and broader consumer awareness drive the submission of both legitimate and fraudulent claims. The following are some examples of cases where free media exploded the claims rate:

Consumer product case – footwear. This case also involved allegations of deceptive advertising. The parties’ settlement agreement called for a $3.75 million settlement fund, which the parties estimated would yield a payout of $20 to $50 per pair of shoes to aggrieved claimants. After free media reached a nationwide audience, claims skyrocketed such that the actual refund to each claimant was just $8.44 per pair. It is estimated that there were more claims submitted than products sold during the class period.

Consumer product case – juice drink. News outlets, including ABC news, Fox and Huffington Post, reported that consumers could be eligible for up to $75 as compensation for a product alleged to be improperly labeled as “all natural.” The stories went viral, which caused 1.4 million consumers to visit class action promotion sites and the claim site. Eventually, 634,278 claims were submitted, which collectively sought nearly $32 million in benefits.

Consumer product case – energy drink. News outlets reported that consumers could be eligible for up to $10 cash or a $15 voucher for the labeling settlement. The stories went viral, which caused 2.5 million consumers to file claims.

Solution:

Because the company was vigorously defending multiple class actions in varying jurisdictions, its time, energy, and efforts were focused on keeping its head above the litigation tide rather than attempting to effectuate settlement terms with the many plaintiffs and dozens of plaintiffs’ attorneys. Due to the number of lawsuits, the company had multiple plaintiff attorneys with whom to coordinate settlement talks and, so, the possibility of the plaintiff side coming to any sort of consensus seemed unlikely.

Furthermore, one of the actions was nearing its trial date, and with class certification already being granted in that action, certain plaintiffs were not as amenable to settlement discussions. Trial for the defendant company could not only mean a loss; it could mean risking a massive onset of media coverage, which, in turn, would draw the attention of millions of consumers, all wanting to file claims.

The company retained Risk Settlements to provide innovative strategies to structure settlements in different jurisdictions which combined a single notice plan, a combined settlement website, and administration plan. Using this approach, the company benefited from the cost efficiencies created by using one notice and administrative approach across multiple settlements.

The notice and media plans were effected by a nationally-recognized class action administrator who designed a constitutional notice campaign that would not only achieve full and final approval but also ensure the risk transfer options to remove the uncertainty and financial implications of settlement.

Even with all of the structural efficiencies of creating two separate settlements in two different courts, which would provide for a nationwide release using combined notice and administration, the settlements did not answer the penultimate question: how much will this actually cost the company? As part of the overall settlement solution, Risk Settlements included a strategy to get full risk transfer of the underlying settlement using Class Action Settlement Insurance (“CASI”). This way, the company could evaluate not only the merits of settlement but also the actual cost and mitigate all financial risk.

Results:

Risk Settlements designed an optimal solution to achieve final approval of multiple class actions in dual jurisdictions — one federal, one state. By consolidating the notice campaign and the claims administration process, the two final settlements were able to wind down in a more cost-effective and streamlined manner. Since both settlements called for the same notice, payout structure, and administration procedures, the third party administrator was alleviated of duplicative work, which, as explained by the president of the company who created the campaign:

Class members nationwide were able to receive monetary redress for their claims. By choosing a claims-made settlement over the “common fund” structure, the parties were able to avoid the unfair scenario in which a small number of claimants receive a disproportionately large pro-rata share of an immovable fund; rather, each claimant was compensated for his or her grievances in an amount that exceeded the actual harm plaintiff’s expert claimed was proper at trial, and which defendant vigorously disputed and countered with evidence of no price premium.

Further, class members have the added benefit of the injunctive relief, which, for defendant, also alleviates the threat of repeated actions in the future for the same claims as the settled actions.

Two separate courts in two very different venues considered both economic and non-economic benefits to these classes and determined that these claims-made settlements were fair, reasonable and in the best interest of the classes. The federal court approved the settlement over the concerns of one objector who was concerned about the “money left over from the settlement.” In overruling that objection, the court noted, “[t]he Settlement does not create a settlement fund; rather, Defendants agreed to pay out individual claims subject to a cap on total claims.”

This settlement demonstrates an efficient and effective model to resolve materially similar class actions pending in multiple jurisdictions. The risk transfer costs were reduced as the company adopted recommendations and strategies to reduce waste, fraud, and abuse.

i https://www.pewresearch.org/fact-tank/2019/05/16/facts-about-americans-and-facebook/

ⁱⁱ https://www.youtube.com/watch?v=7wJE4X89NUo

ⁱⁱⁱ https://www.youtube.com/watch?v=Ep0egQQTfTA

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Law.com: As Transactions Accelerate, Litigation Buyout Insurance May Help Keep Companies ‘Deal Ready’

Thu, 08 Apr 2021 17:54:00 GMT

This article was originally published in the Corporate Counsel magazine on law.com.

Mergers and acquisitions are expected to make a strong comeback in the months ahead, as COVID-19 vaccinations increase and business recovers from the pandemic-related economic downturn. Even now, the deal market is exhibiting renewed strength, with transactions increasing during the second half of 2020 and into the first quarter of 2021.

Still, uncertainty lingers, and as a recent article published by NASDAQ noted, “ultimately, dealmakers that remain ‘deal ready’ will be best positioned to reap rewards in 2021.” Optimally, for dealmakers and their counsel, this means squaring away any transaction-derailing risks as early as possible in the deal process.

One of the most challenging of those potential risks is litigation. Threatened, pending, or ongoing litigation matters can scuttle transactions, reduce sale prices, and saddle a freshly merged enterprise with unfavorable deal terms and significant out-of-pocket costs just as it is integrating operations.

Enter litigation buyout (LBO) insurance. LBO insurance is designed to offset litigation-related risk during the transactional process and to limit liability faced by a company once a deal has been completed. LBO insurance essentially serves to ring-fence the litigation, transferring risk to the insurer and removing the uncertainty that can complicate or kill deals.

In this article, we examine how litigation buyout insurance works and its potential benefits for companies, and we consider practical examples—based upon actual cases—of how LBO insurance has been deployed to reduce transactional risk and help companies remain “deal ready.”

How LBO Insurance Works

With litigation buyout insurance, the insurer agrees, in exchange for a premium, to take on the financial risks and liabilities associated with a known, threatened, or existing class action, antitrust, or non-class case at any time prior to a final settlement. LBO insurance policies can cover the full spectrum of legal subjects, including securities and other class actions, antitrust matters, products liability, tax risks, and intellectual property disputes.

Policies are customized to address the unique legal issues facing a particular company, and they can be crafted to address a full spectrum of unique litigation risks. Once a policy is in place, the insurance carrier typically takes over defense of a case, pays defense costs, and covers any adverse judgments.

With traditional insurance policies, carriers provide coverage for unexpected losses. Even deal-related policies, like representation and warranties insurance, are generally offered to compensate for an unforeseen event that causes a loss for the insured.

LBO insurance policies are different. They are written to cover any existing, threatened, or anticipated claims. This can mean, for example, that a company may already be facing a significant judgment that is hampering its ability to finance or complete a deal. With an LBO insurance policy, the insurer would assume the risks of the ongoing litigation, and manage any appeal or potential settlement negotiations with plaintiffs.

Potential Benefits

LBO insurance is particularly useful in cases where a settlement is not an immediate option or where a deal must be completed quickly. Policies frequently expedite or even salvage M&A transactions, because the insurance carrier is accepting the financial risk and liability for a known, fixed cost. This allows the insured to move forward with its business opportunities.

When liability issues—such as unknown or uncapped litigation exposure—arise during a deal, a company is often required to place significant cash in escrow. Alternatively, a portion of sale proceeds may be withheld and paid out over time, with indemnified claims offset by deferred amounts.

Because the insurance carrier assumes liabilities for litigation, the need for escrows or indemnities is negated under an LBO policy. This provides certainty and finality for both parties in a transaction, and it frees up capital that would have otherwise remained dormant for a significant period of time (often a year or more).

As a balance sheet matter, litigation can be particularly damaging for a company seeking a merger or financing. Under generally accepted accounting principles, legal costs immediately accrue to the bottom line, and high probability contingent liabilities must be estimated and recorded as a potential loss. This can depress sales prices and spook potential lenders or investors. With so much at stake, companies may also be tempted to cloak potential liabilities from a prospective merger partner. This can be devastating as well, undermining confidence in the accuracy of deal disclosures.

An LBO policy helps remove financial liabilities associated with a piece of litigation from the balance sheet. It can also promote greater clarity about potential legal issues, and build trust that the seller is being above-board and complete in its disclosures. In addition, aside from its financial costs, litigation requires a significant expenditure of time and effort by in-house lawyers and executives. Because the insurance carrier has taken on the litigation obligations under a litigation buyout policy, however, the company is able to return its energy to critical operational issues.

Real World Performance

An LBO insurance policy can have an immediate impact on the course of a deal. The brief case studies that follow illustrate a number of the ways LBO insurance has been deployed by both the buy- and sell-side companies to transfer risk and create substantial value for their investors, including:

Sidestepping escrow requirements and salvaging an M&A deal. A private equity firm sought to purchase a company facing a wage-and-hour lawsuit in California, a particularly hostile jurisdiction for wage-and-hour defendants. Although the parties considered the risk of liability remote, the damages claimed were substantial and materially altered the terms of the transaction. The PE firm’s representation and warranties insurance excluded this type of litigation risk, and the seller declined to fund an escrow account to cover the potential liability. An insurance policy was created with a liability limit equal to the proposed escrow deposit and that covered defense costs, as well as first-dollar losses, without any deductible. Ultimately, this policy eliminated the need for the seller to tie up funds in escrow and helped push the transaction across the finish line.

Proceeding with an acquisition despite multimillion-dollar class action exposure. A buyer sought to acquire a company defending a multimillion-dollar class action. Although the target company believed it could avoid liability, the acquiring company was concerned: The appellate court had reversed the trial court’s prior dismissal, and plaintiffs had engaged a top law firm to try the case. As such, the acquiror demanded that the entire potential exposure be placed in escrow pending the outcome of the trial and any appeals, which could take several years. To avoid this, the target company worked with insurers to ring-fence the risk via a significant coverage policy. The insurance policy and the reduced size of the liability retained by the target company gave the acquiring company sufficient comfort to complete the transaction.

Reviving a deal derailed by a competitor’s patent infringement suit. Litigation risk can occur as a result of a proposed deal—including cases from competitors hoping to disrupt a transaction. In one case, an acquiror sought to buy a privately held company as part of a roll-up transaction. As negotiations progressed, the buyer’s chief competitor sued the private company for patent infringement. Although the buyer believed the suit was merely an effort to interfere with the transaction, it sought an escrow indemnity from the target company. The target company’s shareholders refused, and the deal stalled. The acquiror was then able to arrange for an insurance policy to cover the target company’s exposure. This removed uncertainty from the transaction and allowed the buyer and target to move forward with their deal.

Unlocking a company’s capital, credit, and sale possibilities after a significant judgment . After losing a $20 million judgment, a small company and its owner, a private equity firm, felt paralyzed. An appeal bond compromised the company’s cash position and prevented the private equity firm from pursuing sale opportunities. Further, the company’s lenders had constrained its borrowing ability. Rather than waiting for the appeal to play out, the company negotiated an insurance policy crafted for its unique position. The policy placed a cap on the company’s exposure if the appellate court affirmed the decision. Policy in hand, the company was able to recoup its cash, reopen its lines of credit, and market itself to potential buyers.

Allowing shareholders to benefit from an arbitration award despite a pending appeal. For one public company, a $600 million arbitration award appeared to be a significant windfall. But it found that the losing party’s agreement to provide a full satisfaction payment to avoid post-judgment interest also allowed it to appeal the award and, if successful, recover funds in a subsequent proceeding. Given the chance of an appellate reversal, a post-appeal recovery proceeding, and additional arbitration and appeals, all of which could take many years, the public company was unable to take advantage of its award. The company then sought “judgment preservation insurance”—a form of LBO insurance that helps shield the proceeds of an award or judgment from reversal on appeal and from other procedural costs. With a bespoke policy, the company freed up cash and was able to disburse a sizable dividend to shareholders.

Boosting share price and sale value following an accounting restatement. Shareholders brought suit against a company whose share price dropped after it made an accounting restatement to address irregularities. The suit blocked the planned sale of the company, and the company’s reputation and employee morale began to deteriorate. Fighting back, the company purchased an LBO insurance policy. The policy helped remove the cloud of uncertainty hanging over the company, helped it boost share prices, and allowed the sale to proceed—at a higher valuation.

Preserving a board of directors whose D&O claims were denied. When a private equity firm threatened to bring suit against one of its portfolio companies to oust its directors, the company made a claim under its directors and officers (D&O) liability policy. The claim was denied, and the directors nearly resigned. The portfolio company then negotiated an LBO insurance policy, which gave it a two-year option to purchase $5 million in coverage for defense, costs, and any damages, with no retention amount. As a result, the directors were able to remain in place.

Supplementing coverage to reduce the impact of claims on a company’s sale price. Litigation buyout insurance can also be used to supplement other insurance that may not fully cover potential claims. Consider this case involving a business defending a series of product liability suits. The company was negotiating its sale, but the buyer’s purchase price reflected a worst-case-scenario estimate of the seller’s liability. The seller possessed existing liability insurance, but it decided to seek an additional $40 million in coverage via a “catastrophic equity protection policy” to help grapple with potential product liability claims. The policy removed the uncertainty surrounding litigation from the transactional process, and allowed the seller to achieve a purchase price that reflected its full value.

Removing Uncertainty

As the scenarios above demonstrate, LBO insurance can be adapted to fit a wide array of complex litigation issues. A policy can act as a cap, stop-loss, or hedge against adverse judgments and appeals. It can help remove obstacles from the path of deals and assist companies in preparing themselves for a sale. And it can be used free up capital that can be devoted to operations or returned to shareholders. In the end, the aim is to take uncertainty off the books and allow companies to move forward with transactions that will help them to grow and thrive.

Dean Gresham is a managing director at Risk Settlements. Risk Settlements provides solutions that remove the uncertainty of litigation by transferring the outcome risk. He can be reached at dgresham@risksettlements.com .

The post Law.com: As Transactions Accelerate, Litigation Buyout Insurance May Help Keep Companies ‘Deal Ready’ appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

The Pitfalls of a Common Fund Settlement

Wed, 07 Apr 2021 17:54:00 GMT

When resolving class actions, plaintiffs and defendants often weigh the pros and cons of a common fund vs. a claims-made structure. (See our previous article describing how claims made settlements are more common than you think). One of the biggest risks of a common fund, however, is that a low claims rate will result in a windfall to participating class members. That is exactly what happened in Bonoan v. Adobe, Inc. , 3:19-cv-01068-RS (N.D. Cal.).

Bonoan was a TCPA class action in which an individual sued Adobe, Inc., alleging that Adobe violated the TCPA by using an auto dialer to make thousands of unsolicited cell phone calls. In late 2020, the parties agreed on a $1 million common fund settlement, with claimants entitled to a pro rata share of the settlement once attorneys’ fees, litigation costs and expenses, and incentive awards were deducted. In the motion for preliminary approval of the settlement, class counsel estimated that this would result in claimants receiving between $400 and $800, an admittedly hefty sum.

Yet, when all the claims were tallied, the class’s lackadaisical response to the settlement resulted in something remarkable. Rather than $400 or $800 payments, each class member would actually receive $2,800 for the trouble of having allegedly received one unwanted telephone call. Given this, the parties decided to waive any objection to all late received claims (approximately 70), leaving each class member with $2,000 apiece, even though the maximum statutory recovery for a willful TCPA violation is $1,500.

As plaintiff’s counsel astutely put it in the motion for final approval, the “per-claimant recovery [of $2,000] remains near the very top of [TCPA] class action settlements.” Indeed.

***

Are you are looking to resolve a class action on a claims-made basis? If so, contact us to learn how we can help you to mitigate, cap, and transfer the financial risk of settlements in existing class action litigation.

The post The Pitfalls of a Common Fund Settlement appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Seventh Circuit Class Action Opt-Outs: Learn and Follow the Rules

Mon, 05 Apr 2021 17:54:00 GMT

On March 11, 2021, the Seventh Circuit issued an important decision in In re Navistar Maxxforce Engines Marketing, Sales Practices, and Products Liability Litigation (No. 20-1821), holding that class members who wish to opt out of a class action settlement must do so by following court-approved opt-out procedures rather than through insinuation. If not, those class members are S.O.L. (surely out of luck).

The Navistar MDL Settlement

The Navistar MDL concerned alleged defects in the engines of certain 2010-13 heavy-duty trucks manufactured and sold by Navistar. The parties reached a class settlement in 2019, with preliminary approval granted on June 12, 2019. Paragraph 29 of the preliminary approval order specified the process for a class member that wanted to opt out of settlement, requiring the class member to send the claims administrator the following information:

The class member’s full name, address, and telephone number;
The model, model year, and VIN of the class member’s class vehicle;
An explicit and unambiguous statement that the class member wanted to be excluded from the Navistar settlement class; and
A signature from the class member.

Class members were given 60 days to opt out from the date notice was provided. And the preliminary approval order contained one more critical clause: “All Class Members who do not Opt Out in accordance with the terms of this Order…shall be bound by all determinations and judgments concerning the Settlement.”

The Ohio Litigation

Separate and apart from the MDL, Navistar had been concurrently litigating similar claims in Ohio state court against Drasc, Inc. and S&C Trucks of Winklepleck, Ltd. (collectively, “Drasc”) since 2014 (the “Ohio Case”). Litigation in the Ohio Case continued unabated even after the MDL settlement was announced.

How were class members notified of the MDL settlement?

On August 19, 2019, a court-approved notice was sent by first-class mail to all class members describing the claims in the MDL, the terms of the settlement, and the option to litigate independently by “opting out” of the settlement. The instructions to class members also included a link to a website with the full opt-out details and a phone number to call for people who had questions. Drasc did not submit a request to opt out by the October 10, 2019 deadline.

The district court held a final fairness hearing on November 13, during which it rejected some class members’ objections to the settlement. On January 21, 2020, it entered a final judgment implementing the settlement. All the while, the parties continued litigating the Ohio Case.

Navistar Tells Drasc It Is Out of Luck

After the district court entered the final judgment, Navistar’s lawyers informed Drasc’s counsel that its then-pending suit in Ohio was barred by the release in the settlement and final judgment. Drasc’s counsel disagreed.

Drasc’s Argument to the District Court

At the trial court, Drasc conceded that the settlement released its claim in the Ohio Case. It presented four arguments, however, as to why the release should not apply:

Drasc’s pursuit of the Ohio Case demonstrated its intent to opt out;
The settlement notice was “deficient with respect to Drasc both in terms of method of service and content,” thereby violating Rule 23 and Drasc’s due process;
Navistar knew Drasc’s attorneys’ email addresses and should have provided them to the notice provider; and
Drasc’s deadline to opt out should be extended.

The District Court Rejects Drasc’s Arguments

At its core, the district court viewed the issues through an equitable lens, noting that the Seventh Circuit has held “that courts have discretion to permit the filing of late claims [and] they should permit such claims only when the equities, on balance, favor claimants.” Here, the court found that the equities favored Navistar, specifically noting:

Drasc was gaming the system, refusing to opt out of the settlement (while waiting to find out if the settlement would be approved) while continuing to litigate the Ohio Case in the hopes of achieving a superior result. This presented the “one-way intervention” problem the modern version of FRCP 23 prohibits;
No precedent requires a notice administrator to inform a class member’s counsel of a pending settlement;
Navistar established that the administrator mailed Drasc the settlement notice, and Drasc’s president, rather than denying receipt, averred that he did “not recall” receiving it;
The notice sufficiently explained what would happen if a class member, like Drasc, failed to timely opt out;
Contemporaneous communications between Drasc’s counsel and Navistar’s counsel confirmed that Drasc’s counsel had “actual notice” of the settlement, thereby precluding the court from finding the “excusable neglect” Drasc needed to extend the deadline.

The Seventh Circuit Affirms

The Seventh Circuit, in a succinct opinion affirming in full, found that the none of the district court’s findings was “clearly erroneous.” It also added its gloss on the decision with a few key holdings.

First , it found that first-class mail satisfies the Due Process Clause of the Fifth Amendment. And in this case, it noted that the trial court’s “unchallenged finding” that Drasc’s lawyers in Ohio had actual knowledge of the settlement “eliminates any opportunity for Drasc to argue that mail must be certified rather than plain-vanilla first-class envelopes.”

Second , it chastised Drasc for failing to follow court-approved opt-out procedures and plainly refused to adopt Drasc’s proposed standard that a “reasonable indication” of opting out should suffice, finding it untenable in practice.

Classes may have thousands, even millions, of members. A clear rule [on how to opt out] can be implemented mechanically by a claims administrator. A ‘reasonable indication’ approach, by contrast, could pose dozens or hundreds of difficult questions for a judge. In response to Drasc’s motion, the trial court took evidence, made findings, and wrote a 14-page opinion. Imagine that exercise a dozen or a hundred times over, each with slightly different facts asserted to show a ‘reasonable indication’ that someone wanted to do something.

Third , it explained that an accurate count of opt-outs is needed to help the trial court judge know whether to approve the settlement. “Without knowing who remains in, the judge could not decide whether $135 million is appropriate or perhaps should be reduced by opt-outs’ claims, or treated as inadequate because class members had voted with their feet to disapprove the resolution.”

***

Overall, the Seventh Circuit’s decision in Navistar contains two valuable lessons for practitioners who practice in the class action space and are contemplating a class-wide settlement.

Make sure you hire sophisticated settlement administrators who will maintain meticulous records of how they provided notice to the class, as any given class member might later challenge that notice as insufficient.
Make sure that the court approved opt-out procedures in the settlement notice are unambiguous, as are warnings of what will happen should a class member fail to opt out.

***

Are you are looking to resolve a class on a claims-made basis? If so, contact us to learn how we can help you to mitigate, cap, and transfer the financial risk of settlements in existing class action litigation.

The post Seventh Circuit Class Action Opt-Outs: Learn and Follow the Rules appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

The Impact of COVID-19 on Class Action Settlement Take Rates

Mon, 29 Mar 2021 17:54:00 GMT

By now, we have become accustomed to the significant changes that the Covid-19 pandemic has brought. Online shopping, Zoom conferences, facemasks and vaccination appointment competition are all part of “The New Normal.” And apparently, so is increased participation in consumer class action settlements.

The plaintiffs’ bar is incredibly creative, and the pandemic and its effects have given it more reasons to file class action lawsuits. As the first novel coronavirus wave broke last year, millions of people cancelled travel plans, and airlines, hotels, and tour agencies suddenly were on the hook for billions worth of refunds. Many companies were caught cash-poor and were slow to issue refunds, and plaintiffs across the globe sued.

Online behavior suggests that more people are receptive to making claims in class action settlements as they find out about them. Employees working at home are keeping social network browser tabs open at least part of the day. And, while the unemployment situation has improved since last year, when 15 million people were out of work, a still sizable group of 10.1 million were unemployed as of January, and could read increased notices of class action settlements as they were posted on social networks like Twitter, Telegram, and Facebook.

Whie consumers drive business, they also drive take-rates in class action settlements, particularly during times of financial hardship. A comparison of class action settlement take-rates from 2019 and those since the initial Covid shut-down last spring illustrates this nicely. In 2019, only 28% of class action settlements had high take-rates. However, of the class action settlements that have occurred since early March of 2020, nearly half have experienced exceptional claim take-rates.

Since the initial shutdown, consumers are spending more time online and engaging with media to a greater degree. Grocery digital coupon programs are up 57% over 2019 and enrollment in digital coupon programs across the top 30 grocery chains is up 93%. More than six in ten adults use digital coupons. Fifty-one percent of adults are using social media more, Facebook messaging has increased by 50%, and online media use has increased by over 45%. The same factors — driving people to use coupons — are the impetus to self identify in class action settlements and obtain free cash. Due to Covid 19, record unemployment and low job prospects, people are looking for all sources of stretching their budgets including couponing and filing claims seeking a cash benefit.

The following examples demonstrate the striking effect COVID-19 has had on class action settlement take-rates:

Two nationwide consumer products cases: both had the same notice campaigns with similar benefit amounts and settlement funds. The settlement approved in October 2020 had a 97.72% take-rate while the settlement finalized less than a year earlier, in November 2019, had a drastically lower take-rate.

Two state FLSA cases: the pre-Covid, 2019 case had a stronger notice campaign with a benefit of upwards of $4,500 per settlement class member; however, the post-Covid case that offered a benefit of only $250 saw three times the number of claims submitted.

Two nationwide FCRA cases, approved eight months apart: both had the same notice campaigns with similar common settlement funds. The settlement with the $33 benefit had a take-rate of six times higher than the settlement with the $129 benefit. The only real difference between the two was that the former reached final approval post-Covid.

As outlined in the comparisons above, regardless of the amount of the benefit available, consumers are making claims under settlements at significantly higher rates since Covid hit the U.S.

Our Loss is Your Gain

If your company is defending a class action during these unsettling times, all is not lost. Do not let the unpredictability of claim take-rates prevent you from considering a class settlement. Risk Settlements offers the only post-litigation insurance product on the market that allows companies to mitigate, cap, and transfer the financial risk of settlement to the insurer. Class Action Settlement Insurance (“CASI”) removes the concerns regarding the unpredictability of take-rates from the equation and provides the company with a mechanism to resolve expensive litigation efficiently for a known, fixed cost.

In a recent case, a utility provider found itself as a defendant in a class action lawsuit in which the plaintiff claimed the defendant engaged in deceptive marketing practices that caused its customers to purchase and then pay more for electricity through their fixed term supply contracts than they otherwise would have via the local delivery utility.

After more than a year’s worth of extensive discovery, including nearly twenty depositions and review of tens of thousands of pages of documents, and with class certification pending along with multiple expert challenges, the company contacted Risk Settlements.

With the assistance of Risk Settlements, the company was able to negotiate a claims-made settlement, whereby class members could obtain a cash benefit based upon a per-kilowatt-hour payment structure. Further, the settlement resulted in a certified class that consisted of hundreds of thousands of members and a significant release for the defendant. While the claims take-rate was ultimately more than three times what it was estimated, the company was able to resolve the expensive litigation, cap its settlement exposure, obtain a class-wide release, and get back to business. In this case, our loss was the company’s gain.

Uncertainty in the economy is just one of the many factors that can affect take-rates. The ripple effects of high take-rates in class action settlements detract from business goals and can even derail M&A transactions and impact efforts to raise capital. CASI clients shed that uncertainty. With CASI, companies are empowered to mitigate, control, and shift the financial risk of settlement in class action litigation.

If your company is facing uncertainty because of litigation and you would like to explore strategies to minimize that uncertainty, please contact us to discuss how we may be able to help.

The post The Impact of COVID-19 on Class Action Settlement Take Rates appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Reducing Waste, Fraud and Abuse in Public-Notice Class Action Settlements

Mon, 22 Mar 2021 17:54:00 GMT

In settlements in which consumers self-identify as class members, the question is not whether there will be fraud but rather the extent, nature, and cost of the fraudulent claims filed. By way of example, in a state-wide settlement on behalf of class members who purchased products, the vast majority of claims were initiated through promoter sites, and made on behalf of people who did not even live in the applicable state. In another case, there were more claims filed than units sold of the product at issue. So, the focus must be on appropriately identifying the fraud that exists. Otherwise, final approval may be at risk if the settlement is oversubscribed and the actual class members’ class benefits may be reduced pro rata because of fraudulent claims.

Participant Self-Identification: The Root Cause

In settlements involving publication notice, the court will order constitutional notice so that the identified class members are informed about their rights. With digital and print ads, the world is then invited to file a claim and obtain a cash benefit. Additionally, promotion websites that maintain massive contact lists send mass emails containing hyperlinks to claim forms and post information on how to get cash back. Some of these sites have a more subtle message while others exploit the opportunity — “if you click here, you’ll get free money.” In cases without an identifiable class, broad notice and the ability to receive a cash benefit by simply filing out a claim form, the stage is set for waste, fraud and abuse.

The COVID-19 Effect

Since the initial shutdown, consumers are spending more time online, engaging with media to a greater degree. Grocery digital coupon programs are up 57% over 2019 and enrollment in digital coupon programs across the top 30 grocery chains is up 93%. More than six in ten adults use digital coupons. Fifty-one percent of adults are using social media more, Facebook messaging has increased by 50%, and online media use has increased by over 45%.

While spending more time online than any other time in history while facing unparalleled financial hardship, consumers have found class action settlements can provide a source of money. A comparison of class action settlement take-rates from 2019 and those since the initial COVID-19 shut-down last spring illustrates this phenomenon. In 2019, only 28% of class action settlements had high take-rates. However, of the class action settlements that have occurred since early March of 2020, nearly half have experienced exceptional claim take-rates.

The following examples demonstrate the striking effect COVID-19 has had on class action settlement take-rates:

Two nationwide consumer products cases: Both had the same notice campaign with similar benefit amounts and settlement funds. The settlement approved in October 2020 had a 97.72% take-rate while the settlement finalized less than a year earlier, in November 2019, had a drastically lower take-rate.

Two state FLSA cases: The pre-Covid, 2019 case had a stronger notice campaign with a benefit of upwards of $4,500 per settlement class member; however, the post-Covid case that offered a benefit of only $250 saw three times the number of claims submitted.

Two nationwide FCRA cases, approved eight months apart: both had the same notice campaign with similar common settlement funds. The settlement with the $33 benefit had a take-rate of six times higher than the settlement with the $129 benefit. The only real difference between the two was that the former reached final approval post-COVID.

As outlined in the comparisons above, regardless of the amount of the benefit available, consumers are making claims under settlements at significantly higher rates since COVID-19 hit the U.S.

The Right Guardrails

What guardrails can defense counsel put in place to help ensure both that only legitimate class members receive benefits and fraudulent filers are identified or flagged?

As part of monitoring their settlement websites, defendants should track filings linked to promoter sites and be vigilant regarding any uptick in traffic from those sites. Participants who file on these sites, not surprisingly, are less likely to be legitimate class members. A recent example involves the settlement of a case against a supplement manufacturer in which 41,000 of the 44,000 filers—93%—came directly from promoter sites.

The court-approved claim form should use a unique member identifier which is assigned to a single mailing address and/or IP address. Therefore, if there are multiple claims from the same household address or IP address, those claims can be reviewed for potential fraud. One common scheme is to file multiple claims by the same person by slightly changing name on the claim form.

Run claimants’ names against a database of known fraudulent filers. Those claims may be reviewed or audited.

Review the demographics of the claimants. For example, if the settlement involves a male testosterone supplement but the claims are made by women, then those claims may warrant additional scrutiny.

In the audit, determine if there are class members with different addresses but closely spelled names (i.e., one or two letters off). Those may warrant additional review to ensure that the claims are valid.

Awareness and Action

It is incumbent upon class action defense counsel to be aware not simply that the risk of waste, fraud and abuse is high, but also that defendants are particularly vulnerable. Counsel should integrate detection and mitigation methods into their standard procedures. If the settlement is oversubscribed due to fraud, some objectors will argue that the settlement was not fair as class members will be diluted pro rata on the benefit. This could prevent the settlement from becoming final which would adversely impact the defendant who is seeking to end litigation. Additionally, the social policy of providing a benefit to affected class members is substantially frustrated when those who have not been affected receive a windfall while adversely impacting the parties to the settlement.

If your company is facing uncertainty because of litigation and you would like to explore strategies to minimize that uncertainty, please contact us to discuss how we may be able to help.

The post Reducing Waste, Fraud and Abuse in Public-Notice Class Action Settlements appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

How Does Litigation Finance Dovetail with Corporate Strategy?

Tue, 16 Mar 2021 17:54:00 GMT

As the saying goes, nature abhors a vacuum. There’s a corporate version of that, too: Companies fear uncertainty. Even newer companies in embryonic industries (think Tesla and electric vehicles) that invite disruption to established markets prefer to follow business plans along with all they entail, such as income projections, product rollouts, and marketing plans.

Uncertainty comes in a variety of flavors. There’s predictable, “natural” uncertainty—sooner or later the economy will hit a speed bump, or a massive winter storm could paralyze whole regions of the country. Those events aren’t under corporate or, indeed, anyone’s, control.

But that’s not what we’re addressing here. Sooner or later, companies have to sue another company that they believe interferes with their legitimate interests. The resulting litigation could be over a simple contractual issue, or it could be a market/antitrust dispute. And in our tech-obsessed economy, differences over intellectual property can take on a War of the Roses aspect, with each side committing to a years-long battle that consumes millions of dollars in profits and human capital. Think of epic battles such as Apple vs. Microsoft at the turn of the century, or Pfizer vs. Teva Pharmaceuticals and Sun Pharma, costing a whopping $2.1 billion in litigation costs.

Surprises await companies even in what first appears to be straightforward corporate litigation. Discovery can turn up unpleasant facts that blindside one of the parties. The defendant’s lawyers can wage a long war of slow attrition, draining human and financial capital and distracting management from important goals. The legal department, under budgetary pressure during the best of times, is now responsible for possibly paying out millions of dollars for outside counsel to wage war on its behalf. Such battles generate the perception of company lawyers as a drain on the legitimate business of the enterprise. Litigation can damage a company in other ways, too. Costs are charged against profits, and a drain on profits can set in motion a host of bad events not limited to reduced product investment, sagging share prices, and a key employee exodus.

But it doesn’t have to be that way. Committing to litigation finance as a matter of corporate policy when disputes arise can smooth out these unexpected, unpleasant surprises along the way, and mitigate the unavoidable aftereffects of a drawn-out legal war. Litigation finance can take the cost of litigation off the company’s balance sheet. Down the road, if the company prevails, it will have to report the win—but it won’t be reported as profit, but as a singular event. At the same time, the company at the outset of litigation will get an infusion of capital that will ease pressure on the legal department’s resources, including hiring of optimal outside counsel to wage the battle.

The benefits go beyond the legal department. Without the drain of litigation costs, startups and others contemplating IPOs look better to prospective investors. Company operations benefit, too, with more capital available to other departments.

Finally, the legal department, long stigmatized as a cost center, can start to erase that perception and function as a full business partner that adds value to the company. That perception that it exists solely to say “no” to business-side colleagues and to defend the company only, will fade. And, with the uncertainty that litigation can bring to corporate plans vanquished, management, including top lawyers, can return to realizing crucial corporate goals.

If your company is facing uncertainty because of litigation and you would like to explore strategies to minimize that uncertainty, please contact us to discuss how we may be able to help.

The post How Does Litigation Finance Dovetail with Corporate Strategy? appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Will Your Settlement go Viral and Create a Run on the Bank?

Mon, 08 Mar 2021 20:07:00 GMT

When assessing financial risk arising out of a class action settlement, companies need to consider whether a proposed settlement is likely to go viral. The four factors below should help guide the analysis:

Brand Awareness : Well-known, well-recognized consumer brands tend to have statistically higher take rates. Starkist , Redbull and Naked Juice class actions are all examples of leading brands that had settlements go viral. And that’s not a surprise considering these three companies spend millions building brand awareness. Indeed, digital ads about settlements involving well-known companies garner more attention. This trend plays out repeatedly in class action settlements.

Free Media : When news media reports on a settlement it can amplify the settlement’s chances of going viral. For example, in the Naked Juice settlement, ABC NEWS reported that “Naked Juice fans who bought bottles of the beverage in the last six years could get up to $75 in payments from a $9 million class action settlement fund after plaintiffs questioned the company’s claims of ‘100 percent juice,’ ‘all natural’ and other labeling.” After ABC NEWS ran its story, Huffington Post and others ran similar articles informing members of the public that they were eligible for up to $75. As a result, 1.4 million people visited the settlement website and 634,278 people filed claims, seeking $31,713,900 in payments. The media also spent time reporting on the Starkist and Red Bull settlements and each received more than 2.5 million claims.

The question is why will the media pay attention to one settlement and not to others? Some factors include: 1) press releases from the parties attracting attention; 2) news stories from promotion sites like Top Class Actions; 3) notoriety of the settlement e.g., Facebook BIPA Settlement was the largest of its kind); 4) notable parties (e.g., Equifax, which suffered the largest data breach in history); 5) large benefit (e.g. the $75 benefit for a $4 product in Naked Juice ); and 6) participation by governmental entities (e.g., DOJ, FCC, FTC).

Promoter Sites: Many websites and social media groups exist for two key purposes: (1) notifying the public of available class action settlement payouts; and (2) providing a quick and easy portal for filing claims. The impact of these sites is undeniable. The claims promoters ran stories and provided direct links on the Naked Juice, Starkist and Red Bull settlements. In some settlements, the promotion sites account for more than 90% of all submitted claims. When free media, a well-known brand, and active engagement from the promotion sites are combined, the results can be catastrophic.

Closed Ecosystem: Some class actions involve a closed ecosystem where class members communicate through social media and encourage each other to participate. This occurred in Electricity Maine , a case pertaining to variable rate electricity costs. A local Maine news station ran the story about the pending settlement, which led to a spattering of Facebook groups in which filing claims was encouraged. Accordingly, the participation rate in Electricity Maine was multiples higher than substantially similar settlements.

Know What You Are Getting

As part of the settlement analysis, companies should:

assess the likelihood that the case will go viral;
perform a quantitative analysis on brand awareness;
consider what factors will garner free media attention;
evaluate the likelihood that the promotion sites will be active on the settlement;
determine if there is likely to be a closed ecosystem that will affect the outcome.

The answers to these questions will help guide the assessment of whether the proposed settlement might go viral.

The post Will Your Settlement go Viral and Create a Run on the Bank? appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

The Cherry on Top: The 11th Circuit Becomes Friendlier to Class Action Plaintiffs

Mon, 01 Mar 2021 20:22:00 GMT

In early February 2021, the 11 ^th Circuit issued a significant ruling, holding in Cherry v. Dometic Corp. that class representatives need not “prove the existence of an administratively feasible method to identify absent class members as a precondition for [class] certification.” Unquestionably, Cherry is reverberating throughout the 11 ^th Circuit, with class action defense lawyers losing a favorite tool to defeat class certification.

What was Cherry about?

Dometic Corporation manufactures and sells gas-absorption refrigerators, which are used in RVs. Unlike regular refrigerators, Dometic’s could work without electricity by relying on a chemical solution.

The plaintiffs alleged that each refrigerator was sold with a design defect, which both increased the risk of fire and ultimately ruined each refrigerator’s functionality. Plaintiffs’ theory was that everyone who bought a Dometic refrigerator overpaid.

Plaintiffs eventually moved for class certification under Rule 23(b)(3), proposing a class consisting of “all persons who purchased in selected states certain models of Dometic refrigerators that were built since 1997.” Dometic opposed.

What did the parties argue about ascertainability?

In the trial court, plaintiffs argued that the proposed class was ascertainable because it could be readily identified through:

Dometic’s sales and warranty registration records;
Prior refrigerator recall programs;
DMV records; and
Customer affidavits.

In response, Dometic argued that because it sold its refrigerators to RV manufacturers and dealers, rather than to the ultimate consumers, its sales records would not help identify class members. And Dometic argued that both past recall programs and DMV records were incomplete and unhelpful.

How did the trial court rule?

The trial court sided with Dometic and denied class certification, finding that the class was not ascertainable. The court relied on an unpublished 11 ^th Circuit opinion, Karhu v. Vital Pharms., Inc. , for the proposition that “in order to establish ascertainability, the plaintiff must propose an administratively feasible method by which class members can be identified.” And by administratively feasible, the court meant a “manageable process that does not require much, if any, individual inquiry.” The court went on to state that when a plaintiff proposes to identify class members through a defendant’s records, the plaintiff “must establish that the records are in fact useful for identification purposes, and that identification will be administratively feasible.”

Why did the 11 ^th Circuit Reverse?

The 11 ^th Circuit reversed because it concluded that administrative feasibility “is not a requirement” for class certification. To get there, the 11 ^th Circuit asked: does “circuit precedent or the text of Rule 23 establish[] administrative feasibility as a requirement for class certification.” [1] The answer to both? No.

11 ^th Circuit Precedent

With respect to circuit precedent, the 11 ^th Circuit found that a district court must determine that a proposed class is “adequately defined and clearly ascertainable” before it may consider whether the requirements of Rule 23(a) are satisfied. And while the court acknowledged—as it had to—that the word “ascertainable” is not found in the text of F.R.C.P. 23, the court when on to say that the text includes what is implicit, and “ascertainability—at least as traditionally understood—is an implied prerequisite to the requirements of Rule 23(a).”

But when it comes to ascertainability, the court found that what matters is whether the class is “capable of being” determined; not whether plaintiffs have proven administrative feasibility. In other words, “membership can be capable of determination without being capable of convenient determination.” With no precedent governing, the court then turned to the text of Rule 23(a) and (b) to determine if either requires proof of administrative feasibility.

The Text of FRCP 23

The question before the court was whether the text of Rule 23(a) or (b) “necessarily requires proof of administrative feasibility.” For FRCP 23(a), the court easily answered no. “Neither foreknowledge of a method of identification nor confirmation of its manageability says anything about”:

The qualifications of the class representatives;
The practicability of joinder of all members; or
The existence of common questions of law or fact.

For FRCP 23(b), however, the court conceded that administrative feasibility “has relevance” for the determination, under FRCP 23(b)(3), of whether a class can be manageable. Nevertheless, because Rule 23(b)(3) requires a balancing test, the 11 ^th Circuit concluded that it “does not permit district courts to make administrative feasibility a requirement.” To put a finer point on it, the court instructed future courts to apply the following test: will the class action “create relatively more management problems than any of the alternatives,” not “whether it will create manageability problems in an absolute sense.” And the court warned that manageability problems will “rarely, if ever, be in [themselves] sufficient to prevent certification.”

What Impact will Cherry Have on Class Actions in the 11 ^th Circuit?

Cherry likely sounds the death knell for a defendant’s chances of prevailing at class certification in the 11 ^th Circuit by arguing that a proposed class is not ascertainable, with class action defense lawyers losing a favorite tool to defeat class certification. As such, practically overnight, the 11 ^th Circuit has become a more hospitable location for plaintiffs seeking to file a class action. Indeed, the 11 ^th Circuit now joins Second, Sixth, Seventh, Eighth, and Ninth Circuits in rejecting proof of administrative feasibility as a prerequisite for certification. Whether the Supreme Court ultimately confronts this now well-established Circuit split (with the First, Third, and Fourth Circuits requiring proof of administrative feasibility) remains to be seen.

***

The post The Cherry on Top: The 11th Circuit Becomes Friendlier to Class Action Plaintiffs appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

The Importance of Prohibiting Mass Opt-Outs in Class Action Settlement Agreements

Tue, 23 Feb 2021 22:05:00 GMT

Class action settlement agreements can be long and complicated. But sometimes it’s the simplest provisions—like one prohibiting mass opt-outs—that can pay dividends.

The Backstory

In July 2019, Equifax entered into a $700 million settlement agreement to resolve all consumer litigation arising out of its 2017 data breach, during which the personal information of 147 million people was exposed. Immediately thereafter, a lot of ink was spilled concerning the $125 benefit purportedly available for all consumers, regardless of whether those consumers were actually harmed. But one issue that largely flew under the radar involved the propriety of the settlement agreement’s provision prohibiting mass opt-outs.

Provision Prohibiting Mass Opt-Outs

Under the settlement agreement, to opt-out: “Each written request for exclusion must set forth the name of the individual seeking exclusion, be signed by the individual seeking exclusion, and can only request exclusion for that one individual.”

Class action settlement agreements can be long and complicated. But sometimes it’s the simplest provisions—like one prohibiting mass opt-outs—that can pay dividends.

Mississippi Lawyer Attempts Mass Opt-Out

One day before the opt-out deadline, a Mississippi lawyer named Jeffrey Hosford sent the settlement administrator, JND Legal a letter listing thousands of individuals purportedly seeking to opt-out. The letter was signed by only Mr. Hosford.

Two weeks before the final approval hearing, JND filed with the court a list of what it considered the valid opt-out requests. JND did not include the names of individuals listed on Mr. Hosford’s letter.

The Court Approves the Settlement

In December 2019, the court granted final approval of the settlement, issuing a written order a few weeks later. The final order barred all class members who had not opted out from “commencing, pursuing, maintaining, enforcing, or prosecuting, either directly or indirectly, any Released Claims in any judicial, administrative, arbitral or other forum.” It also wholeheartedly approved the provision prohibiting mass opt-outs, finding that it:

“is not burdensome at all”;
“ensures that each individual has carefully considered his options and understands that he is giving up his right to relief under the settlement”; and
combats unauthorized mass opt outs.

But the story does not end here.

Mississippi Lawyer Starts Suing

In late 2019 and early 2020, despite all the above-mentioned developments, Mr. Hosford, on behalf of the “Mississippi Plaintiffs” ( i.e. those individuals for whom Mr. Hosford tried—but failed—to opt-out of the settlement), filed 83 separate cases against Equifax in the Justice Court of Noxubee County, Mississippi. The complaints raised the same claims resolved in the settlement. According to Equifax:

Counsel for Equifax have repeatedly told Mr. Hosford…that the Mississippi Plaintiffs’ prosecution of Data Breach-related claims in state court violates the Final Judgment. Equifax has also filed motions to dismiss in 54 of the state court cases arguing that the Mississippi Plaintiffs’ claims are barred by the Final Judgment because they failed to properly exclude themselves.

In the state court actions, the Justice Court judge “permitted 31 of the Mississippi Plaintiffs to proceed with non-jury trials after which the judge entered judgments for each Mississippi Plaintiff in the amount of approximately $3,500 (the jurisdictional maximum in Justice Court).” Equifax appealed them all. In conversations with Equifax’s counsel, Mr. Hosford informed them that he intended to file over 4,500 additional cases in Justice Court.

Equifax Enforces the Settlement

All of this left Equifax with little choice but to file in the district court an emergency motion to enforce the Final Judgment and for an order to show cause. Basically, Equifax sought to enforce the Final Judgment by having the District Court issue an order requiring the Mississippi Plaintiffs to dismiss their state court actions with prejudice. And the District Court agreed.

In a September 16, 2020 ruling, the court found that all the Mississippi Plaintiffs “are Consumer Settlement Class Members who did not exclude themselves from the Settlement .” Accordingly, the court permanently banned the Mississippi Plaintiffs from pursuing their state court claims and ordered them to dismiss with prejudice all such actions, including those “in which judgments have already been obtained but are on appeal.”

The Lesson

When you are preparing your settlement agreement, it pays to remember that a provision prohibiting mass opt-outs is encouraged and enforceable.

The post The Importance of Prohibiting Mass Opt-Outs in Class Action Settlement Agreements appeared first on Certum Group .

W. Tyler Perry

October 23, 2025

Make the Deal, Sweeten the Deal: The Appeal of Injunctive Relief Remedies in Class-Wide Settlements

Wed, 21 Oct 2020 17:54:00 GMT

The modern class action, now on the books for over fifty years, allows injunctive remedies under all three subsections of Rule 23(b). Injunctive remedies, requiring that a defendant alter one or more aspects of its business practices or offer claimants non-monetary compensation in exchange for the release of their claims, have become a regular feature in class action settlements.

Injunctive relief provisions, usually in combination with monetary damages, are attractive for a number of reasons. Retrospective injunctive relief is widely accepted across the class action litigation spectrum because it aims to remediate past known harms. Such relief could come in the form of repairs or recalls, changes in product design, manufacturing, warnings, labeling, or compliance-related obligations.

For classes comprised of repeat buyers of a product or service, prospective injunctive relief prevents the same harm from reoccurrence. Though incidental to the primary goals of class actions, such relief affects policy changes that can justify attorneys’ fees especially where monetary damages are small or nonexistent.

Injunctive Relief in Practice

Four recent decisions granting final approval of class-wide settlements illustrate the varying role injunctive relief plays in class action resolution. Whether the court: (1) found that injunctive measures were the only way to protect plaintiffs’ future interests ( see In Re: Equifax Inc. Customer Data Security Breach Litigation ); (2) found that unquantifiable injunctive relief was an adequate way to rectify class member injury ( see Clapp et. al., v. Accordia Life and Annuity Co. and Alliance-One Services, Inc. ); (3) recognized that injunctive relief was satisfactory as stand-alone relief ( see Littlejohn et. al., v. Ferrara Candy Company ); or (4) acknowledged that it comprised only a small component of a much larger settlement ( see In Re: GSE Bonds Antitrust Litigation ), injunctive remedies make or sweeten the deal for reviewing courts. Ideally for litigants, and as exemplified in the following cases, this means a total release of claims coupled with approval of attorneys’ fees.

In Re: Equifax Inc. Customer Data Security Breach Litigation , 1:17-md-2800, Dkt. No. 956 (N.D. Ga. January 13, 2020)

In September 2017, an estimated 147 million U.S. consumers had their personal information compromised in a cyberattack and data breach on Equifax, Inc. Consumers filed thousands of complaints that were consolidated before Judge Thomas W. Thrash Jr. of the United States District Court for the Northern District of Georgia. The parties agreed to a settlement in consultation with state and federal regulators in 2019.

Judge Thrash granted final approval of the settlement that allocated a minimum of $380 million into a common fund as the class benefit, $77.5 million of which was dedicated to attorneys’ fees. Equifax also agreed to pay up to $2 billion more for class member-elected credit monitoring and identity restoration services.

In terms of injunctive relief, the company agreed to comply with comprehensive data security requirements, to spend at least $1 billion on related technology over the next five years, and to subject itself to monitoring by a qualified third-party assessor. The court found that the $1 billion expenditure “benefits the class because it ensures adequate funding for securing plaintiffs’ information long after the case is resolved.”

Clapp et. al., v. Accordia Life and Annuity Co. and Alliance-One Services, Inc. , 2:17-cv-02097, Dkt. No. 66 (C.D. Ill. June 23, 2020)

Purchasers of consumer life insurance policies filed suit against two insurance companies in pursuit of damages and injunctive relief after the companies’ migration to a new electronic administration system caused their policies to freeze and lapse during a host of “Conversion-Related Issues.” On June 23, 2020, the Illinois federal court granted final approval of the parties’ settlement and awarded $2.2 million as attorneys’ fees.

The settlement incorporated both monetary and non-pecuniary remedies for the nearly 500,000 class members. The injunctive relief included a 24-month grace period to repay missed premiums, back-dating of premium payments to enable policyholders to receive retroactive fixed interest, and automatic corrections of forfeiture or negative tax implication statuses.

The defendants also agreed to review their own records to ensure class member notification, dedicate 75 specially-trained employees to help claimants navigate the settlement and resolve policy issues, and conduct “independent policy testing,” a plan overseen by a third-party accountant to ensure adequate redress of customer issues.

Noting that the value of the settlement differs for each class member, and may be limited to injunctive relief for some, the court considered, “[w]hat is that relief worth? Peace of mind, $5, $10, or $20?” In concluding that though unquantifiable, the measures were “valuable, adequate, and fair,” the court wrote “[i]t is sensible that each class member will receive injunctive relief tailored to the type of Conversion-Related Issues they experienced, such as lapsed policies, lost benefits, etc. The settlement requires that relief to be provided.”

Littlejohn et. al., v. Ferrara Candy Company , 3:18-cv-00658, Dkt. No. 47 (S.D. Cal. June 17, 2019), affirmed 19-55805, Dkt. No. 40-1 (9th Cir. June 30, 2020)

In a recent food-labeling class action, defendant Ferrara Candy Company agreed to pay $272,000 in attorney’s fees, and remove its “no artificial flavors” label from its SweeTARTS candy following allegations that the product contained an artificial additive. The settlement provided no monetary compensation for the class. Instead, it afforded them the opportunity to “make a learned judgment” regarding whether to purchase the candy again in the future.

A single objector appealed. In an unpublished opinion, the appellate court rejected the objector’s merits arguments. The panel confirmed that the district court independently analyzed and corroborated the propriety of the attorneys’ fees award, acknowledged the lack of significant economic injury to class members, weighed the risk plaintiffs ran in taking the case to trial, and recognized the value of the injunctive relief to class members, some of whom were repeat purchasers.

In Re: GSE Bonds Antitrust Litigation , 1:19-cv-01704, Dkt. No. 430 (S.D.N.Y. June 16, 2020)

Institutional and individual investor plaintiffs brought a class action alleging an overarching conspiracy to fix prices of Government-Sponsored Enterprises (“GSE”) bonds, inflating the price of those purchased in the secondary market by members of the putative class. Defendants were sixteen major domestic and foreign banks engaged in GSE bond trading. In its June 16, 2020 order, the court for the Southern District of New York approved settlements with the thirteen remaining defendants, as well as $77.5 million in attorneys’ fees, resolving all claims in the dispute.

Though the bulk of the value of the $337 million settlement was cash, the settlement provided for non-monetary relief in the form of antitrust compliance and monitoring. This was particularly important, because, as the plaintiffs noted, class members “are limited to dealing in high-credit government securities due to statutory or other constraints, [and] need to have confidence that the GSE Bond market is free from collusion.” In turn, the defendants agreed to maintain a compliance program, and for 24 months confer with plaintiffs to consider and evaluate antitrust compliance best practices in the GSE bond market.

In a preliminary approval order, the court acknowledged that the “substantial antitrust compliance remediation measures… provide[] some additional value.” In its final approval order, the court granted a $300,000 service award to the class representative, the Pennsylvania Treasury, in part because of its role in overseeing future injunctive relief measures. The court wrote that the award was warranted because the Pennsylvania Treasury will “continue to be involved in supervising compliance measures that it helped to develop to ensure the continued integrity of the GSE bond markets.”

Conclusion

Regardless of industry or cause of action, injunctive relief has a solid place in class action settlements . Although determining its precise value can be difficult, the court in Accordia Life and Annuity Co. acknowledged that injunctive relief has context-dependent value, whether looking forward to prevent future harm, or backwards to remediate past harms. Accordingly, practitioners should consider structuring deals with non-monetary injunctive relief as a primary or secondary remedy in order to pass muster with the court, win approval of attorneys’ fees, and obtain a release of claims.

The post Make the Deal, Sweeten the Deal: The Appeal of Injunctive Relief Remedies in Class-Wide Settlements appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

Class Action Promotion Sites and Free Media: The Business of Making Claims Go Viral

Tue, 12 Mar 2019 17:54:00 GMT

Class action lawsuits are a much bigger risk today than they were 30 years ago. The internet has completely changed how consumers gain awareness of class action lawsuits and how they file claims for settlement benefits. As a result of these changes, class sizes have grown exponentially.

In years past, known class members received direct notice, via mail, of their right to file a claim. Additionally, claim notices and filing instructions might be posted in one or two relevant print publications. For many consumers, filing a claim was more trouble than it was worth.

Today, scores of websites and social media groups exist for two key purposes: (1) notifying the public of available class action settlement payouts; and (2) providing a quick and easy portal for filing claims. The impact of these sites is undeniable. For example, in one recent case against a supplement manufacturer, of the 44,000 consumers who filed a claim, approximately 41,000 came directly from class action promotion websites.

This article explores (a) the universe of these promotion sites; (b) the risks these sites pose to class action defendants; (c) the impact of free media and (d) whether, notwithstanding these websites, there is any way to minimize the risk of having a class action settlement going viral.

The reality of class action promotion sites is that they wouldn’t exist if they weren’t a successful revenue stream for their owners. And successful they are. The model is simple: the sites advertise “free money,” which promise generates huge online traffic, which induces advertisers to pay top dollar for ad placements guaranteed to reach big audiences. While many of them also claim to be promoting the common good by protecting consumers, they are undeniably generating income through advertising.

Indeed, one need look no further than the “ Advertise with us ” page of one of the top class action promotion sites. It boasts:

Top Class Actions is the #1 source of class action news online. Harness the power of our 5 million+ monthly page views and 705,000+ newsletter subscribers to drive up the number of Class Members who submit settlement claims or potential clients who are looking to participate in a consumer class action lawsuit or mass tort case. (Emphasis in the original.)

Other sites refer to class action payouts as “rebates” and advertise settlement funds on their homepage so they look like coupons that would be clipped from a newspaper . Still other sites purport to advertise class action settlement funds as part of the site owner’s “ passion for finding the best deals , bank promotions, credit card offers, cash back, points & miles, and everything in between.”

If there is one commonality amongst these class action promotion sites, it is that they’re very good at communicating that many class payouts do not require proof of purchase. For example, on the “ Frequently Asked Questions ” page of one popular site, the following questions and answers are presented:

Do I need to prove I purchased these products?

Many settlements require no proof or purchase whatsoever.

Why don’t you need a receipt? Couldn’t anyone file a claim?

This trust based system does open them up to abuse, by people filing fraudulent claims. The legal philosophy that underpins the system is that as the party that wronged consumers, it is better the company bear the cost of these fraudulent claims than to deny the victims their just compensation.

The only reference to the truthfulness of claims is a brief statement that “lying is not cool.” Given this “free money, low risk” atmosphere, it’s no wonder that so many settlement claims go viral.

In addition to claims promotion sites, settlements can go viral as a result of free media. At times, the news picks up the story organically. Often times, the promoter sites generate the media’s interest in a particular settlement. For example, in the Naked Juice settlement, ABC news reported that “Naked Juice fans who bought bottles of the beverage in the last six years could get up to $75 in payments from a $9 million class action settlement fund after plaintiffs questioned the company’s claims of ‘100 percent juice,’ ‘all natural’ and other labeling.” After ABC news ran its story, Huffington Post and others ran similar articles letting class members know that they were eligible for up to $75. As a result, 1.4 million Class Members went to the settlement website and filed 634,278 claims, seeking $31,713,900 in payments. Both Starkist and Redbull had settlements which were picked up by free media and experienced over 2.5 million claims each. In Redbull, the benefit was limited to $10 per household.

It appears these class action promotion sites are here to stay. Indeed, many are making the foray into social media as well. Top Class Actions has a nearly 750,000 person mailing list and 125,000 followers on Facebook alone. Additionally, free media is constantly looking for relevant content. Given the rampant popularity of the class action promotion concept and the thirst for relevant information, is there any way to avoid an onslaught of claims against class funds?

First, hire a notice expert who can design a media plan to meet constitutional due process, provide brand safe messaging and is intended to get the message out clearly to class members. At Risk Settlements, we can assist with this important task as we confront notice issues in every case.

Second, determine if there are appropriate antifraud provisions which can detect waste, fraud and abuse.

Third, empower the third party administrator to validate claims for fraud using customary processes.

Fourth, hedge your bets. Some companies seek risk transfer of known, threatened or pending litigation with solutions such as Class Action Settlement Insurance (“CASI”) or Litigation Buyout (LBO) Insurance (“LBO Insurance”). CASI provides an efficient resolution to expensive litigation at a known cost, mitigating a company’s concern that its settlement could go viral. LBO Insurance coverage is ideal when the company needs to ring-fence exposure due to M&A or other extraordinary business activity.

In this age of free online media and claims promoters, the financial risks and unknowns of class action lawsuits are greater than ever before. Popular brands seem especially vulnerable to viral media that spawn unprecedented take rates. In this climate, class defendants would be wise to seek any solution that could bring some certainty and finality to these inexact circumstances.

The post Class Action Promotion Sites and Free Media: The Business of Making Claims Go Viral appeared first on Certum Group .

October 23, 2025

W. Tyler Perry

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