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2022 ILFA Conference: GCs are increasingly pursuing affirmative recovery programs

  • Affirmative recoveries
December 13, 2022
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At its inaugural annual conference on October 24 in New York, the International Legal Finance Association (ILFA) gathered a group of senior in-house and private practice lawyers to discuss how to set up an efficient and effective affirmative litigation strategy. 

“One of the prior panelists made the connection between claims being assets of the company and our job being to protect the assets of our organization. Letting claims wither on the vine without pursuing them is not taking care of our assets, so we view that as part of our responsibility.”

- Dan Nugent, US General Counsel, Nestle 

US General Counsel of Nestle, the largest publicly held food company in the world, Nugent’s comment demonstrates companies recognize that their pending litigation and arbitration claims are assets, and that GCs, as stewards of the company, should pursue those assets when the company has been harmed by rulebreakers. 

Companies are increasingly pursuing meritorious claims rather than leaving money on the table. GCs are increasingly discovering that by establishing systematic affirmative recovery programs, they can transform legal departments from cost centers to revenue generators. Indeed, recent research shows that two of three in-house lawyers interviewed say that their companies have an affirmative recovery program.

A common barrier to the pursuit of meritorious claims is the concern around the associated cost and risk of seeing a claim through to resolution. By working with a legal finance provider like Burford, a company can offload the cost and risk of pursuing claims in a recovery program. Typically, capital is provided on a non-recourse basis with the funder paying litigation costs and/or accelerating a guaranteed financial result ahead of the resolution of the case in exchange for a portion of a future recovery. In the event of a loss, the legal finance provider is owed nothing as it has no recourse against the company to recoup its initial investment or return.

About the panel

The panel was moderated by Sarah Tsou, Portfolio Manager, Global Intellectual Property and Senior Investment Manager, Omni Bridgeway, the panel included Terri Ahrens, Assistant General Counsel, Litigation, US Foods; Ian DiBernardo, Partner, Brown Rudnick; Blase Iaconelli, Vice President and Assistant General Counsel, Aramark; Steven Nachtwey, Partner, Bartlit Beck; Dan Nugent, General Counsel, Nestle Zone North America and Nestle USA.