Intellectual Property

Following Up With A Litigation Risk Insurance Broker (Part I)

These litigation and contingent risk insurance solutions -- particularly judgment preservation insurance -- are now becoming 'mainstream.'

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Intellectual PropertyAnyone who has read this column knows how much importance I place on the growing role of insurance in the IP litigation space. Last year, I had the pleasure of interviewing a leading insurance broker — himself a former litigator — about the opportunities created when insurance is brought into play in a litigation context. As we have arrived at 2023’s end, it became clear to me that an update on the state of this increasingly important slice of the patent litigation ecosystem was in order. I am pleased, therefore, that once again we get to hear from Stephen Kyriacou Jr., a managing director and senior lawyer in Aon’s Litigation Risk Group, where he structures and places litigation risk insurance policies. Stephen was the first insurance industry hire dedicated solely to the litigation and contingent risk insurance market, which he has been working to develop and grow since 2019. Stephen has twice received the designation of “Power Broker” from Risk & Insurance Magazine (in 2022 and 2023), which called him “a pioneer in judgment preservation insurance,” and is the only litigation and contingent risk insurance broker to have been so recognized. While Stephen places insurance across all of Aon’s solution lines, he specializes in single-case judgment preservation insurance and adverse judgment insurance placements.

Now to the interview. As usual, I have added some brief commentary but have otherwise presented Stephen’s answer to my first question as he provided it.

Gaston Kroub: It’s been about 18 months since our last conversation, where you gave a great primer on the litigation and contingent risk insurance market (Part I here and Part II here).  What’s been happening in the space since then?

Stephen Kyriacou: Eighteen months doesn’t sound like a long time, but given that the litigation and contingent risk insurance market has only really existed in its current form since 2019, it actually represents about a third of the life of the market. But with respect to how things are progressing, we have continued to see “hockey stick” growth in terms of activity in the space over the last 18 months.

One of the best indicators of activity in the market is looking at the “submissions” through which litigation and contingent risk insurance brokers like Aon seek formal coverage quotes from insurance carriers. Aon’s submission flow is up this year, as it has been year-over-year since we started building out this market in earnest five years ago. And while we don’t have great visibility into submission counts from other brokers, we do know that submission flow across the board is way up, with several leading insurers in the space recently reporting to us that they expected to see between 100 and 120 submissions for 2023 by the time the calendar turns to January, which is 10 per month at the high end of that range.  That level of activity would have been unthinkable in the early days of this market, so it’s been incredibly gratifying to see how things have grown over the years.

There are also more insurers writing this coverage than ever before, more insurers who used to be excess-only players who are now starting to write primary coverage on deals, and more litigation and contingent risk-focused underwriters at insurance companies, as well, with many insurers recently hiring from the litigation funding world. And as deal flow continues to increase and insurers get more sophisticated in their underwriting, we expect to see more complex and creative deals getting done because, in the past, there had been good opportunities that insurers passed on solely due to lack of underwriting bandwidth or expertise in a given area of the law.

Policies of all sizes are continuing to get done, as well. Our team at Aon has closed two $500 million-plus judgment preservation insurance policies this year alone, and we’re seeing tremendous insurer interest in smaller, sub-$50 million policies, too, including several that have been led by insurers who were either new to the space or who had previously participated only as excess insurers on these policies, but had never led them. And we’re seeing increased activity in the U.K. and EMEA, as well, and increased cross-border activity where U.S. insureds are buying insurance for U.K. or European litigation risks and U.K. or European insureds are taking out these policies to insure U.S. litigation risks.  This uptick in cross-border activity has been a big boon for our team at Aon given that we have a full team of litigation and contingent risk brokers in the U.K. and Europe, several of whom joined Aon from industry-leading litigation funders. Interest in these solutions is rising in Asia, as well, which prompted us to recently hire the first litigation and contingent risk broker on that continent, who works out of Singapore.

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We have also seen increased interest in and awareness about the use of insurance to ringfence contingent risks as a means for releasing capital that otherwise would be tied up pending the outcome of a litigation, dispute, regulatory inquiry, or other similar situation. These tend to be very low-risk situations where the insured benefits from accessing funds sooner than it otherwise would be able to.  Increased underwriting bandwidth, experience, and know-how has improved the market’s ability to do these types of deals, which rarely fit into a simple box.

And perhaps more than anything, these litigation and contingent risk insurance solutions — particularly judgment preservation insurance, which has been the main thing that I have focused on developing during my time in the insurance industry — are becoming “mainstream” in the sense that we no longer need to provide a “101”-level primer every time we discuss a potential candidate for coverage with someone. Lawyers, C-suite executives, litigation funders, and the other folks who we deal with on a day-to-day basis now more often than not come into their first conversation with us knowing at least the fundamental basics of whatever kind of insurance coverage we’re talking about — how it works, what it does and doesn’t do, what it costs, and how it’s placed. Litigation funders, too, are now especially well-versed in the coverage that is available to them in the market, which demonstrates that years of presenting at conferences and building relationships in that world has paid off. When I left Boies Schiller to take this job back in 2019, I felt like I was really taking a risk to get in on the ground floor of something that may or may not catch on, and to see that now, five years later, it has more than caught on, and has become an incredibly active and robust area that lots of people know about and are talking about and are actively involved in, it’s just amazing.

GK: Thanks to Stephen for such a comprehensive overview of all the fantastic developments in these markets over the past few years. More than anything, I hope that readers will consider Stephen’s recap as a call to action. For those already participating in the growth of the litigation risk insurance space, 2024 and beyond is the time to keep the momentum going in a responsible and growth-oriented way. And for those for whom this slice of the market remains unfamiliar, now is as good a time as any to learn more. By doing so, IP professionals will be able to provide more value to their colleagues and clients, for now and the foreseeable future.

Next week, Stephen discusses where the challenges have arisen in this space, as well as his thoughts on what the future might hold in his slice of the profession.

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.

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