The litigation funder Burford Capital is touting details of a “highly profitable” investment that it says represents the future of its industry.
Burford announced on Tuesday that it backed the U.K. power company Rurelec plc in an arbitration against the government of Bolivia that culminated in a $41 million award this year. Burford said it loaned Rurelec $15 million in 2012, and got back the principal, plus $11 million in profit. (That’s a 73 percent return on its investment.)
Traditionally, litigation funders cover the cost of a lawsuit in exchange for a big slice of the winnings. The client doesn’t have to pay back the funder if the litigation is unsuccessful. But with Rurelec, Burford acted more like a conventional lender. It loaned $15 million that Rurelec could spend on its business needs, rather than just on the lawsuit. Regardless of whether Rurelec won or lost against Bolivia, it had to pay back the $15 million plus 12 percent interest. If Rurelec won, Burford was entitled to an additional contingency fee.
In a statement, Rurelec’s chairman said the deal was attractive because traditional lenders usually charge higher interest rates. Said Bogart: “We made what was basically a below-market loan, and we were willing to make up the difference on the arbitration claim.”
“Pending claims aren’t given much credit by the banks. But these are big-dollar claims,” he said. “These are basically invisible assets.”
Bogart said that Burford has reached similar deals with other companies. He said the traditional litigation funding model—fronting legal fees for a case in exchange for a chunk of any recovery—is becoming a smaller part of Burford’s business. “This has been happening quietly for a while now,” he said.
Professor Maya Steinitz of the University of Iowa College of Law, who writes frequently on litigation funding, says it’s difficult to say if this is the first or only deal of its kind, because this funding market isn’t transparent. “But it is the first and only one publicly reported in which a corporate debt facility was linked to an arbitration claim,” she said in an email. Steinitz added that the financing arrangement “does show that some companies, such as Burford, are really innovating and expanding the way we think of litigation once we view it as as an asset.”