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Back in April 2019, prominent litigation funder Longford Capital announced that it was opening a Dallas office, giving the company a foothold in the growing Texas legal market as it looked to deploy the remaining capital from its $500 million Fund II. To helm the new office, Longford brought in a leading local litigator, the then-managing partner of the Dallas office of K&L Gates, John Garda. After recently seeing that John (as well as a number of his Longford colleagues) had been recognized as one of the 2020 Lawdragon Global 100 Leaders in Legal Finance, I reached out, hoping to hear from John about his personal transition from Biglaw practice to running an office for a litigation funder. He graciously agreed to share his experience.

By way of background, John is responsible for managing Longford Capital’s Dallas office, investment sourcing, underwriting, and monitoring investments. John has more than 25 years of litigation experience, which includes representing clients in business disputes; complex commercial litigation; securities litigation; professional liability relating to accountants, lawyers, investment bankers, officers, and directors; and disputes involving healthcare contracts, real estate, and construction. John has appeared before state and federal trial and appellate courts, arbitration associations, and administrative boards around the nation. John also served as legal advisor to several corporate boards of directors and board committees, counseling directors on how to manage the critical issues related to their fiduciary responsibilities. John also represented clients, including independent audit committees, in corporate governance matters, SEC investigations, and internal investigations.

Prior to joining Longford Capital, John was the managing partner of the Dallas office of K&L Gates LLP, a Global 20 law firm, where he served on the firm’s management committee and advisory council. Following graduation from law school, John clerked for the Honorable Jorge A. Solis of the U.S. District Court in the Northern District of Texas. Prior to pursuing a law career, John practiced as a certified public accountant for the accounting firm now known as Ernst & Young. John earned a bachelor’s degree from the University of Delaware in accounting and a law degree from the University of Notre Dame Law School.

As seen below, and in next week’s installment, John is an enthusiastic proponent of the benefits of litigation finance for the legal industry and clients. His insights into the process that litigation funders use to diligence cases will be helpful to anyone looking to maximize their chances of success in terms of attracting litigation funding for meritorious claims.

As usual, I have added some brief commentary to John’s answer below but have otherwise presented his answer to my first question as he provided it.

Gaston Kroub: What excited you about transitioning from a Biglaw leadership position to opening an office for a leading litigation funder?

John Garda: I was so excited to be given the opportunity to open up a Dallas office and join a true pioneer and market leader in the litigation finance industry when the time was right. I first became excited about litigation funding when Longford Capital engaged my law firm — K&L Gates — to perform due diligence involved with some of its potential investments.  Longford Capital’s two-stage due diligence process is unique and effective — if we are interested in funding a case after we perform our due diligence on the opportunity, then we hire a law firm to perform an independent case assessment as part of the second phase of the due diligence process. I was able to manage several case assessment projects on behalf of Longford Capital as part of performing that due diligence. So, I have been personally involved and interested in litigation funding since Longford Capital began funding cases in 2013.

Longford Capital has experienced rapid growth since it began funding in 2013. In 2017, Longford Capital launched its second fund dedicated to litigation finance for $500 million, which was the single largest litigation finance fund created in North America. This rapid growth continues today, and the company currently has over $1 billion in assets under management.

In 2019, Longford Capital was looking to capitalize on this growth, expand its geographic reach, and open up a Dallas office. At that time, I had been managing the Dallas office of K&L Gates for the past several years and had developed a very close relationship with the management team at Longford Capital, which I personally believed was the best management team in the industry. Having worked as a CPA for a Big 4 accounting firm, a trial lawyer focused on complex commercial disputes, and a managing partner at K&L Gates, I was particularly excited to combine these experiences and jump at the opportunity that Longford Capital presented to me.

GK: John’s path to his current position at a litigation funder is an interesting one and evidences a long relationship with Longford going back to his Biglaw days. His description of how seriously Longford approaches due diligence of potential investments is consistent with my personal experience working with funders, either as potential outside counsel for a client, or as outside counsel helping the funder diligence a potential investment in a patent enforcement campaign or case. While different funders approach diligence efforts differently, there is obvious merit to Longford’s combination of internal and outside resources for the foundational effort at the base of any successful funding effort. I am sure that Longford’s comprehensive approach to diligence helps the company on at least two fronts: 1) giving investors comfort that their capital will be deployed well, and 2) assuring potential funding targets that their proposed projects will get careful attention. Put another way, for a litigation funder diligence approaches can be a competitive advantage, a fact that Longford clearly recognizes.

Next week, we will conclude our interview with John, focusing on how lawyers and their clients can best position themselves for successful dealings with litigation funders.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

With Donald Trump tapping out multiple deranged tweets daily warning that mail-in ballots will lead to “RIGGED 2020 ELECTION: MILLIONS OF MAIL-IN BALLOTS WILL BE PRINTED BY FOREIGN COUNTRIES, AND OTHERS. IT WILL BE THE SCANDAL OF OUR TIMES!,” his dutiful staff are working overtime to prove the big man right.

On the heels of news that White House Press Secretary Kayleigh McEnany used her parents’ address to vote in the 2018 midterms and Donald Trump attempted to register to vote at his business address — both in Florida, obviously — Vice President Mike Pence, the former governor of Indiana, is showing some hinky voting love for the Midwest.

Business Insider’s Tom Lobianco reports that Mike and Karen Pence have once again used the Indiana governor’s mansion as their home address to vote absentee in their home state. Which is probably news to Eric Holcomb, the Hoosier State’s governor since January 9, 2017.

Does Governor Holcomb forward the Second Lady her Taste of Home and Good Housekeeping magazines? Will Vice President and Mother Pence be bedding down in the governor’s mansion if voters see fit to evict them from Number One Observatory Circle in November? Will the Pences ever again pay their own electric bill, as they dutifully strive to cut the safety net out from under poor Americans?

So many questions! But apparently using their old taxpayer-funded digs, to which the Pences have no intention of returning, as their Indiana residence is perfectly legal.

Pence’s spokesman Devin O’Malley told BI that “lawyers previously reviewed the issue for him and determined that, since the Pences did not own any homes in Indiana or Washington, the governor’s mansion was fine for complying with state law.”

Which is mighty convenient for the Veep! The GOP is suing to toss hundreds of thousands of voters off the rolls in Wisconsin and Georgia, and courts blocked Indiana’s Secretary of State Connie Lawson’s attempt to purge up to 481,235 “inactive voters” from the rolls. But for Mike and Karen Pence, who haven’t lived in Indiana for four years and have no fixed address in the state, Indiana will always home.

Trump’s lies about voter fraud aside, most members of his retinue have used mail-in ballots in recent years. The Washington Post reports that, in addition to Trump, AG Bill Barr, HHS Secretary Alex Azar, Commerce Secretary Wilbur Ross, Trump campaign manager Brad Parscale, RNC chair Ronna Romney McDaniel, and White House advisor Kellyanne Conway have all used absentee ballots in recent elections.

Maybe the reason Trump thinks absentee ballots are rife with errors is because he and his family are just really bad at it? The Post reports that in the 2017 New York mayoral election, Melania Trump forgot to sign the envelope, Ivanka sent her ballot in too late, Jared Kushner couldn’t even be bothered to return his at all, and Trump’s vote was rejected because he got his own birthday wrong. Or maybe Trump is kicking up such a fuss about mail in ballots because it leads to “levels of voting that if you’d ever agreed to it, you’d never have a Republican elected in this country again.”

Which is exactly what he said in March, so, yeah, it’s probably that one.

Mike Pence and his wife, Karen, voted by mail in April from a mansion they haven’t lived in for 4 years [BI, paywall]
Trump calls it ‘rigged,’ but voting by mail is routine among his top administration and campaign officials [WaPo]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

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It’s safe to say that the people of the Securities and Exchange Commission have other things on their minds, but they did get a little pick-me-up from the Supreme Court yesterday. The justices found that the agency can go on using one of its very favorite toys, disgorgement, against the evil-doers it sues.

The 8-to-1 decision on Monday said a reference in a federal law to “equitable relief” was enough to allow the remedy with appropriate limits.

Yes, the SEC will get to continue to seek any ill-gotten gains, often the lion’s share of what it actually collects—but only ill-gotten gains, less any “legitimate” business expenses incurred by the people ripping off their investors, and they might not be allowed to do anything they want with them.

The top trending topic on my Twitter right now is Alan Dershowitz which is an unusual candidate for top honors in a world where there’s a pandemic, protests, and 90 Day Fiancé marathons. Whenever someone starts to trend out of nowhere, there’s a moment of weightlessness where anything is possible. What happened?

But eventually all possibilities must collapse on Schrodinger’s Twitter feed so let’s figure out what’s got his unfortunately infamous knickers in a twist.

From mid-afternoon until around 9 yesterday evening, Dershowitz, who isn’t known for being a rapid-fire tweeter like his buddy Donald Trump, tweeted eight times about his relationship with Jeffrey Epstein, repeating his claims that Virginia Giuffre is falsely accusing him — a claim that has gotten him sued — and dragging Netflix into the fray.

This “wrong… simply wrong” thing is one of Dershowitz’s favorite arguments to raise and one that Giuffre’s lawyer, David Boies, has denied.

The way this is phrased, it suggests that Giuffre accused Gore of improprieties, which she didn’t. Her claim in the memoir was to have met the Gores on Epstein’s island though it seems as if they never went to the island. But no one is denying that Gore met and interacted with Epstein over the years. Of all the things to use as a cudgel against her credibility, “she had the wrong mansion” seems like a weird one.

That sound you heard was the Biebs saying, “Don’t drag me into this, old man.”

He misspelled Giuffre’s name too.

Also, why did he bring his family to this guy’s sex island? Even if he didn’t know it was a sex island, that seems like an odd move for a lawyer. In any event, for some reason the Dersh felt we all needed to know this last night completely out of the blue and apropos of nothing.

Just a tsunami of defensive tweets for no reason when literally no one was talking about this case anymore.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com. 

This past Juneteenth holiday, I came across this tweet by the ACLU of Colorado, which claims the state had officially ended qualified immunity. On its face, the tweet appeared to make a fundamental error given that qualified immunity is a federal court-created defense that cannot be overturned by state legislatures. The more I delved into the new Colorado law, however, the more I came to appreciate the law’s ambitions in regard to bypassing the notorious federal immunity.

To be sure, in many other ways outside of bypassing federal qualified immunity, Colorado’s newly signed Enhance Law Enforcement Integrity Act lives up to its title. For example, the law’s provisions establish limits on when an officer may use deadly force and prohibits officers from using dangerous tactics like the chokehold. Even more encouraging, the law creates a statewide database listing officers who have been convicted of using such inappropriate force, or who are found untruthful, or fired for cause. Anyone placed in this database would be ineligible to be rehired as a peace officer in Colorado.

When it comes to the issue of qualified immunity in particular, the Colorado law in effect bypasses the federal immunity by creating a state cause of action that recognizes no such defense: the new law creates a right for every resident of Colorado to sue any state police officer who deprives them of their rights in a state court where the federal defense of qualified immunity will not apply. Moreover, in cases where an officer “did not act upon a good faith and reasonable belief that the action was lawful” the Colorado law establishes that the officer will be personally liable “for five percent of the judgement or settlement or twenty-five thousand dollars, whichever is less.”

As Nick Sibilla points out, at the state level, wholesale indemnification of police officers who commit abuses or constitutional violations is a routine practice. The problem with taxpayers footing the entire bill, however, is it does not appear to offer any deterrence to such abuse or lead to accountability of bad actors despite the incredible amounts states and municipalities have had to pay out in damages. By making individual officers personally liable (even if only for 5% of the damages) Colorado has taken an extraordinary and unprecedented step toward personal accountability within law enforcement.

Of course, a strong argument can be made that officers should be indemnified, at least to some degree. After all, a single police officer is unlikely to have the personal wealth required to pay out significant damages. Making victims whole or satisfied would therefore require that an entity with deeper pockets cover most of the expenses.

Another remarkable feature of Colorado’s Enhance Law Enforcement Integrity Act is that it was introduced and passed in an astonishingly little amount of time — 16 days. Perhaps even more astonishing is how the legislation “picked up substantial Republican backing along the way” with only 15 of the state’s 100 lawmakers voting “no” in the end. Then again, maybe this bipartisanship is not astonishing at all and merely a product of the times we are living in where we have seen extraordinary movement in regards to public perception of policing.

Here is where it should also be said that Colorado’s new law is not without some potentially glaring flaws. For one thing, the law leaves the determination of whether an officer acted unreasonably or with bad faith (thus triggering an officer’s personal accountability) up to the “officer’s employer.” It probably does not need to be said at this point that systems where police are only held accountable to themselves have not led to meaningful oversight or accountability. Moreover, juries make determinations as to “reasonableness” and “bad faith” all the time, so it is not as though it would be impractical to allow juries to make these conclusions.

Time will certainly tell whether Colorado’s new law will have the intended effect its most ardent proponents want. Nevertheless, Colorado has taken the most significant progress toward enacting personal accountability within law enforcement than arguably any other state. At this point, I suppose we can all look to Colorado with hope in that any chance at accountability, even just a 5% one, is better than none.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

There are many different and exciting ways to rank law firms. How prestigious are they? How much money are they making? How much take-home cash do partners earn? How big are they?

Yes, size matters, and because the legal profession is obsessed with every single measurable and quantifiable factor law firms have to offer, there’s obviously a ranking for that.

Today, the National Law Journal unleashed its annual NLJ 500, a ranking of largest law firms in the United States covering the previous calendar year. If you’ve ever wondered about precise law firm headcounts, this is the ranking for you.

1. Baker McKenzie: 4,809
2. DLA Piper: 3,894
3. Norton Rose Fulbright: 3,266
4. Latham & Watkins: 2,720
5. Hogan Lovells: 2,642
6. Kirkland & Ellis: 2,598
7. Jones Day: 2,514
8. White & Case: 2,204
9. Greenberg Traurig: 2,070
10. Morgan Lewis & Bockius: 2,063

Congratulations go out to Baker McKenzie for employing more lawyers than any other firm. Once again, this firm wins the award for putting the “big” in Biglaw.

Head to the National Law Journal if you’re curious about the firms ranked 11-500.

The NLJ 500: Our 2020 Survey of the Nation’s Largest Law Firms [National Law Journal]
The NLJ 500: Main Chart [National Law Journal]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Bankruptcy filings have dropped precipitously in the last decade (from more than 60,000 in 2009 to 22,000 last year) — but that trend has reversed as companies deal with the devastating consequences of the pandemic.  Law firms are reportedly scrambling to hire bankruptcy attorneys to help with the flood of expected filings.  Litigation finance may be a creative and viable option for restructuring attorneys and advisors to consider throughout the bankruptcy process especially as traditional sources of financing by outside lenders, creditors, and law firms are constrained by the current environment.

Litigation finance can preserve or increase estate resources for creditors and enable additional recoveries. But its use is not limited to a debtor or potential debtor.  Financing can be useful for creditors in intercreditor disputes or other matters and especially useful for a litigation or liquidation trust seeking to prosecute ongoing claims.  Here are some examples where litigation finance may be an attractive option (although creative restructuring professionals may find it useful in a host of other circumstances):

Pre-filing.  Companies in distress (particularly small- or medium-sized businesses) that have significant litigation or litigation-related claims may look to litigation finance to free up, or even increase, cash reserves through financing the costs of prosecuting a claim or by monetizing some or all of a claim.  Litigation finance can provide these companies the necessary runway to see through the recovery of its business and the realization of litigation proceeds.

DIP financing.  Many bankruptcy estates have options with respect to debtor-in-possession (“DIP”) financing from traditional lenders.  But there may be instances where the estate’s most valuable assets are litigation claims — in that case it may make sense to discuss potential DIP financing with a commercial litigation funder.  Crystallex, for example, secured this very type of financing (in its Canadian bankruptcy proceeding) from a litigation funder to prosecute a $3.4 billion claim against Venezuela for expropriation of a gold mine it had developed.  The Canadian court approved the funding agreement finding that “there is a single ‘pot of gold’ asset which, if realized, will provide significantly more than required to repay the creditors.”

In the National Events bankruptcy, a “litigation funding DIP” funded by creditors sought to investigate potential claims on behalf of the essentially defunct entity.  In that case, the company didn’t need DIP financing to continue operations, but only to pursue potential recovery through litigation.  In another instance, a related party provided funding under DIP provisions in the Welded Construction bankruptcy seeking to recover funds from a construction dispute.  Styled as a litigation funding agreement, the arrangement also resolved some of the claims the funder had against the debtor due to its existing business relationship.  In both of these cases, related parties provided the funding because they presumably had the most to gain from successful litigation; in each, the role of funding could have also been assumed by a litigation funder in coordination with the debtor and the related parties.  The involvement of a litigation funder could prove attractive to all parties because (1) related parties and creditors may not be willing or able to provide additional funding and (2) a litigation funder, who specializes in assessing litigation risk, may be able to provide funds at the lowest cost of capital.

Sale of litigation assets in bankruptcy.  A bankruptcy estate can sell a stake in its litigation or litigation-related claims much in the same way that it sells other assets in its bankruptcy process.

Many companies hold litigation-related assets, for example, in large class actions, and these can be sold like a traditional asset in a bankruptcy.  Numerous companies, for example, have sold claims in the Visa Mastercard class action (In re Payment Card Interchange) through bankruptcy asset sales.  (See, for example, Shopko’s motion to sell its claim for $2.2 million during its bankruptcy process last year.)

Bankruptcy estates may also have more traditional litigation claims available for monetization during a bankruptcy process (including claims stemming from the bankruptcy itself).  These claims are much harder for the estate to value and their continued prosecution often requires expense and resources of the bankrupt entity or its representatives.  A bankruptcy estate may wish to sell some or all of its litigation claims to maximize cash recoveries for the estate, reduce or offset estate expenses (including funding the litigation), and hedge its risk of loss in the litigation. The most significant example of this type of sale was the 2016 sale of litigation claims in the Magcorp bankruptcy pending an appeal of that action following an intensive bidding and auction process.  A litigation funder paid $26.2 million to acquire a $50 million interest in the claims, which allowed creditors to off-load some risk of a loss on appeal and to fund the appeals process itself.

Litigation or liquidation trusts.  Litigation trusts and liquidation trusts can also be prime candidates for litigation funding.  The establishment of these trusts generally allows for the confirmation of a plan of reorganization while litigation claims that may take years to play out continue to progress.  The litigation trusts typically benefit unsecured creditors who might otherwise end up with little or nothing from the bankruptcy.  These trusts sometimes receive seed funding from the estate or from more typical lenders or rely on contingency arrangements with law firms, but because the assets they hold are litigation-related, and because funds expended on the fees or expenses of litigation might otherwise be returned to creditors if not used for litigation, these trusts make excellent candidates for litigation funding.

The General Motors Avoidance Action presents a prime example of how this funding can be used.  The long-running dispute stemmed from the alleged improper repayment of GM’s term lenders during the automaker’s bankruptcy.  This intercreditor dispute centered on whether the term lender’s security interest had been terminated prior to repayment and, if so, how much of the funds paid to the term lenders should have gone to other creditors.  The action proceeded with $1.6 million in “seed” funding from the estate, but that amount and an additional $13 million were soon exhausted.  GM’s reorganization plan was confirmed, but the avoidance action was permitted to proceed as a liquidation trust.  As the case progressed, the U.S. Department of Treasury and Export Development Canada provided an additional $15 million to the trust to prosecute the action.  Once that amount was exhausted, a private litigation funder provided another $15 million facility, and finally Lake Whillans (through an SPV) provided a $10 million facility.  Eventually, the matter settled for $231 million, an amount that would certainly not have been possible without funding for the protracted and costly litigation that took nearly 10 years to resolve, and included a two-week representative trial that narrowed the issues between the parties.

The motion for $40 million in additional funding in the Paragon Litigation Trust offers a behind-the-scenes look at the type of process that a litigation trustee might undergo in seeking additional funding after the trust had exhausted its initial $10 million funding for the offshore driller’s claims seeking more than $1 billion against its former parent company.  The monthslong process involved soliciting interest from dozens of parties including holders of interests in the litigation trust and commercial litigation funders.  Eventually, the trustee and its advisors held an auction that resulted in a number of different funders signing on to provide an additional $40 million in funding for the litigation.

To underscore how valuable this type of funding can be for a standalone litigation trust consider the Tropicana matter.  After the casino operator went bankrupt in 2008, the estate eventually formed a litigation trust to pursue claims (backed largely by investor Carl Icahn) in an adversary proceeding against its former CEO.  More than a decade later, those claims survived a summary judgment motion, which wouldn’t have been possible without an additional cash infusion from Icahn and other funders in 2016.

The coming wave of bankruptcies will challenge companies seeking to restructure, creditors seeking recovery, and the attorneys and other professionals seeking to advise them.  Litigation finance provides a creative tool to help as companies consider their options and plan for what may be (as in the case of GM and Tropicana) matters that live on for the next decade or more.