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Counsel for the official committee of unsecured creditors of Sears Holdings is seeking court approval of a US $35 litigation funding facility with Bench Walk Advisors. Sears Holdings, the parent company of the iconic Sears retail brand, filed for Chapter 11 bankruptcy protection in October 2018. While under creditor protection, litigation was commenced by a restructuring subcommittee seeking over $2 billion in damages arising from certain pre-filing related party transactions. $25 million was set aside to cover the initial costs of the litigation, but these funds are now near exhaustion. In order to continue in the pursuit of the claims, a competitive process was initiated to secure additional funding. After several rounds of hard-fought and arm’s-length negotiations with Bench Walk and another funder, Bench Walk emerged as the winner.
A US federal district court has rejected a novel request from class counsel for reimbursement of litigation funding expenses, stating that litigation funding is just “the cost of doing business” for class counsel. Among the costs for which counsel sought recovery were a $300,000 payment to a broker that reportedly arranged the litigation funding agreement, as well as $15 million to be paid to the litigation funder, which represented a $5 million return on the funder’s $10 million investment.
Akin Gump shares it key takeaways from the landmark Merricks v Mastercard judgment, noting that the Competition Appeal Tribunal initially raised concerns during the hearing over a unilateral termination clause in favour of the funder and the funding difficulties that it could cause the class mid-proceedings before ultimately concluding that an addendum requiring that the funder’s view to terminate be based on independent legal and expert advice sufficiently addressed those concerns.
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