That pesky activist shareholder demands it. Your board mandates you to realize it. And your executive team turns to you for the marching orders.
“It” is that “hidden value” that you must now “unlock” from the depths of your balance sheet. The first place everybody looks is where there is an attributable number – that “non-core” business line, the under-utilized production plant or the undeveloped real estate.
But what about intangible assets that don’t show up in the numbers?
Finding the free money
Remember that off-take agreement a customer never honored or the licensing contract the partner failed to fulfill? Or maybe those written-off receivables against a state-owned enterprise or the suspected patent infringement by a large-cap competitor? Or that business you just bought that already appears to be in breach of a representation clause?
Balance sheets can be littered with such “free money” opportunities in the form of broken contracts, potential damage claims, unclaimed judgments and written-off receivables. These opportunities are easy to ignore: they can be expensive to pursue, have binary outcomes and unclear probabilities of success.
A CFO or General Counsel can be forgiven for not risking his career on an uncertain foray into an international arbitration. It is far from clear that the expected value of a single legal dispute exceeds a company’s cost of capital. So what now?
Enter Dispute Finance
The path to value realization starts with an outside perspective. Options abound – if you know where to look. It is often helpful to engage a dispute finance advisor to identify potential claims, disputes and recovery opportunities, and to gauge which would be the most likely to attract external capital.
Engage a dispute finance advisor to help identify “hidden value” in legal claims
Niche alternative capital providers focused on disputes – commonly known by the rather limiting term “litigation funders” – have grown rapidly in the past decade, offering dispute finance to claimants around the world. These investors pool all kinds of disputes into diversified portfolios to mitigate their binary risk profiles, which in turn allows them to offer financing to claimants at attractive levels.
For the more esoteric assets, there are structured solutions and creative hedge funds interested in sharing risk. Capital and competition continues to pour into the dispute finance space – despite some recent negative headlines about accounting practices – which should ensure an attractive cost of capital to claimants.
How Dispute Finance Works
Generally speaking, dispute finance providers can offer a claimant funding to pursue a dispute in return for a share of the gross recoveries. Such funding evens the playing field between parties to a dispute and allows a claim to proceed on its merits – often leading to faster resolution through settlement.
Dispute financiers can either fund your claim directly, or by providing portfolio funding to a law firm that may then risk some of their fees by taking up your case. Some dispute financiers may also provide adverse cost cover – insurance to cover the costs of the other side if you lose, depending on your jurisdiction.
Finding the Right Dispute Financier
So you have identified a claim (or portfolio of claims) you would like to pursue, you’ve retained outside counsel to review the merits and it is looking good. You’ve googled “dispute finance”, “litigation funding” and iterations thereof enough times to tell who spends the most on Google AdWords. Now what?
Like in any industry, dispute finance providers are unique, each with their own core competencies, funding structures, jurisdictional preferences and costs of capital. And the industry is growing and evolving rapidly, with new players entering the fray every year. Finding the best fit at the right terms poses a challenge and can be a significant effort. This is where retaining a good dispute finance advisor can make a big difference.
Best Fit at the Right Terms
You won’t have to pay a thing up front, so what does it matter what dispute funder you pick? If you care about under what terms your claim is financed and how much you ultimately may recover in a victory, it matters a lot. Fee schedules vary wildly across dispute funders, from simple multiples on costs or committed capital to percentages of gross recovery to complex combinations of the two.
But there is more to it than just recovery: Is adverse cost cover included in the funder’s offer, or do you have to find it yourself? Is the funder really committed to your case, or can they pull out at any moment? Does the funder offer other complementary expertise or services that could help you along the way?
Perhaps the most important question to ask is, who is the dispute financier’s true client? Is the funder in the business of making your counsel rich, or you?
Is the funder in the business of making lawyers rich, or you?
The make-up of a funder’s existing portfolio and its deal investment strategy could give you a good indication of their priorities.
Selecting a Funder and Fiduciary Duty
Bringing on a dispute finance provider is like selecting a joint-venture partner or a new bank relationship. You want dependability and strength of relationship at competitive terms. The process of obtaining dispute finance should be no different than raising bank debt, equity capital or selling a business unit.
Often, your external counsel may have a close relationship – or even a dedicated funding line – with a dispute finance provider and may push you in that direction. Many claimants go this route – if your counsel trusts them, why shouldn’t you?
One should consider the underlying incentives. Who would be paying whom? Is your counsel fulfilling their fiduciary duty by advising you to select a particular provider with no basis for comparison? Perhaps even one that funds their firm? A dispute finance advisor can help you sidestep these conflicts of interest and find the capital most suited to realizing value from the trickiest assets on your balance sheet.
More information on Multiplicity’s global dispute finance advisory capabilities, and to get in touch with Gian Kull, please click here.