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`Exhibit A
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`LONDON COURT OF INTERNATIONAL ARBITRATION
`CASE NO. 225609
`
`In the matter of an arbitration under the 2014 LCIA Arbitration Rules between:
`
`
`
`GLAZ LLC, POSEN INVESTMENTS LP, KENOSHA INVESTMENT
`LP (“Burford”)
`
`Claimants
`
`VS.
`
`
`
`
`
`SYSCO CORPORATION (“Sysco”)
`
`Respondent
`
`
`Order on Claimants’ Preliminary Injunction Application
`(corrected)
`
`
`
`
`Tribunal
`J. William Rowley KC
`John J. Kerr, Jr.
`Laurence Shore (Presiding Arbitrator)
`
`Administrative Secretary
`
`Letizia Santin
`
`
`
`
`
`
`10 March 2023
`
`
`
`
`
`
`
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`

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`Table of Contents
`
`I.
`
`The Parties
`
`I.A
`
`I.B
`
`Claimants
`
`Respondent
`
`II. The Arbitral Tribunal (“Tribunal”)
`
`III. The Arbitration Agreement
`
`IV. Seat – Applicable Law – Language
`
`V. Procedural History
`
`VI. Brief Summary of the Parties’ Positions
`
`VI.A Claimants’ Application for Interim and Conservatory
`Measures and for an Immediate Temporary Restraining
`Order (“Claimants’ PI Request”)
`
`VI.B Respondent’s Opposition to Claimants’ Application for
`Interim and Conservatory Measures
`(“Respondent’s
`Opposition”)
`
`VI.C Claimants’ Reply to Opposition to Claimants’ Application
`for Interim and Conservatory Measures (“Claimants’
`Reply”)
`
`VI.D Respondent’s Rejoinder to Claimants’ Application for
`Interim and Conservatory Measures
`(“Respondent’s
`Rejoinder”)
`
`VII. The Tribunal’s Analysis and Decision
`
`VII.A The Applicable Preliminary Injunction Standard
`VII.A.1 New York law versus international practice
`VII.A.2 Is the Heightened Standard Applicable?
`VII.A.3 Irreparable Harm
`
`VII.B Has The PI Request Satisfied the New York Law Ordinary PI
`Standard?
`VII.B.1 Has Burford Shown that it will suffer irreparable harm
`absent the requested injunction?
`VII.B.2 Has Burford Demonstrated a Likelihood of Success on the
`Merits?
`VII.B.3 Balance of Equities
`
`VIII. Order
`
`
`
`
`
`
`
`i
`
`
`
`1
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`1
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`1
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`2
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`3
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`6
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`7
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`22
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`22
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`27
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`30
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`33
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`35
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`35
`36
`40
`46
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`56
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`56
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`64
`74
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`I.
`
`The Parties
`
`I.A Claimants
`
`1.
`
`2.
`
`3.
`
`Claimants in these proceedings are Glaz LLC, Posen Investments
`LP, and Kenosha Investments LP (collectively “Burford”). They are
`indirect subsidiaries of Burford Capital Limited, a Guernsey corpo-
`ration that is publicly traded on the London Stock Exchange and the
`New York Stock Exchange and is in the business of litigation fi-
`nance.
`
`Claimants’ address is 251 Little Falls Drive, Wilmington (DE 19808).
`
`Claimants are represented in this arbitration by:
`
`Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.
`1615 M Street, N.W., Suite 400
`Washington, D.C. 20036
`Tel: + 1 202 326 7931
`dho@kellogghansen.com
`kschumm@kellogghansen.com
`cgoodnow@kellogghansen.com
`
`Three Crowns, LLP
`Washington Harbour
`3000 K Street NW Suite 101
`Washington, DC 20007-5109
`Tel: +1 202 540 9500
`liz.snodgrass@threecrownsllp.com
`
`I.B Respondent
`
`4.
`
`Respondent is Sysco Corporation (“Sysco”), corporation organized
`under the laws of Delaware, which operates in the field of distribu-
`tion of food and related products.
`
`5.
`
`Sysco’s address is: 1390 Enclave Parkway, Houston (TX 77077).
`
`
`
`
`
`1
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`6.
`
`Sysco is one of the plaintiffs currently engaged in a series of com-
`plex antitrust litigation against several food suppliers. In 2019, Bur-
`ford agreed to invest in Sysco’s antitrust cases in exchange for a
`share of the proceeds.
`
`7.
`
`Sysco is represented in this arbitration by:
`
`Cleary Gottlieb Steen & Hamilton LLP
`One Liberty Plaza
`New York, NY 10006
`Tel: +1 212 225 2000
`jrosenthal@cgsh.com
`cmoore@cgsh.com
`lbensman@cgsh.com
`pswiber@cgsh.com
`
`8.
`
`Claimants and Respondent are also referred to individually as a
`“Party” and jointly as the “Parties.”
`
`II.
`
`The Arbitral Tribunal (“Tribunal”)
`
`9.
`
`Burford nominated Mr. J. William Rowley KC, whose contact de-
`tails are:
`
`Twenty Essex
`20 Essex Street
`London WC2R 3AL (UK)
`wrowley@twentyessex.com
`
`10.
`
`Sysco nominated Mr. John J. Kerr Jr., whose contact details are:
`
`Simpson Thacher & Bartlett LLP
`425 Lexington Avenue
`New York, NY 10017 (USA)
`jkerr@stblaw.com
`
`11.
`
`The LCIA appointed Mr. Laurence Shore as Tribunal President. Mr.
`Shore’s contact details are:
`
`BonelliErede
`Via Michele Barozzi 1
`20122 Milan (ITALY)
`
`
`
`
`
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`laurence.shore@belex.com
`
`12.
`
`The Parties have not lodged any objection to any Tribunal member’s
`service on the Tribunal.
`
`13. With the consent of the Parties, the Tribunal engaged an Adminis-
`trative Secretary to the Tribunal, Ms. Letizia Santin, whose contact
`details are:
`
`BonelliErede
`Via Michele Barozzi 1
`20122 Milan, Italy
`letizia.santin@belex.com
`
`14.
`
`The Parties have not lodged any objection to the Administrative
`Secretary’s services.
`
`III. The Arbitration Agreement
`
`15.
`
`The arbitration agreement is contained in the Second Amended and
`Restated Capital Provision Agreement signed on 22 December 2020
`by Claimants and Respondent (“CPA”):
`
`29(a) Any and all of the following shall (to the exclusion of
`any other forum except as set forth herein) be referred to
`and finally resolved by arbitration under the LCIA Arbitra-
`tion Rules (2014) of the London Court of International Ar-
`bitration (the “Rules” and the “LCIA”), which Rules are
`deemed to be incorporated by reference into this clause:
`any dispute, controversy or claim arising out of or in con-
`nection with (i) this Agreement (including this Section 29);
`(ii) any other Transaction Document; (iii) any relationship
`or interaction between the Counterparty, on the one hand,
`and any Capital Provider(s), on the other hand; or (iv) a
`claim or assertion by any other Person of any right arising
`out of or in connection with this Agreement (including this
`Section 29) or any other Transaction Document, including,
`as to all such disputes, claims and controversies, any ques-
`tion regarding (x) the existence, arbitrability, validity or ter-
`mination of this Agreement (including this Section 29) or
`
`
`
`
`
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`any other Transaction Document, (y) any relationship or in-
`teraction between the above identified parties, or (z) the ob-
`ligation of any Person to arbitrate any such dispute.
`
`29(b) Except as otherwise specifically provided in this
`Agreement (including this Section 29) or any other Trans-
`action Document, (i) the arbitral tribunal (the “Tribunal”)
`shall have the exclusive power to grant any remedy or re-
`lief that it deems appropriate, whether provisional or final,
`including but not limited to emergency relief, injunctive re-
`lief and/or any other interim or conservatory measures or
`other relief permitted by the Rules (collectively, “Conserv-
`atory Measures”), and any such measures ordered by the
`Tribunal shall, to the extent permitted by applicable law, be
`deemed to be a final award on the subject matter of such
`measures and shall be enforceable as such in any court of
`appropriate jurisdiction; and (ii) prior to the formation or
`expedited formation of the Tribunal (under Article 5 or 9A
`of the Rules), the provisions of Article 9B of the Rules shall
`apply to any request for Conservatory Measures.
`
`29(c) The referral of a dispute to arbitration shall not sus-
`pend or interfere with the Counterparty’s (or the Payment
`Agent’s) obligation to make timely payment to the Capital
`Providers of the Capital Providers’ Entitlement (or any por-
`tion thereof); provided that if the Counterparty disputes its
`(or the Payment Agent’s) obligation hereunder to pay any
`amount to the Capital Providers, the Counterparty must
`(or, as applicable, cause the Payment Agent to) (i) com-
`mence an arbitral proceeding pursuant to this Section 29
`within two (2) Business Days after the date such amount
`was (but for the dispute) due, (ii) make timely payment to
`the Capital Providers of any undisputed amounts and (iii)
`immediately deposit any and all disputed amounts in a
`dedicated account with the LCIA as fund holder, which
`amounts shall be released, including any interest thereon,
`as directed in writing by the Tribunal in any award, order
`or decision, unless the parties expressly agree otherwise in
`writing.
`
`29(d) Any request for arbitration or response thereto sub-
`mitted to the LCIA may be delivered by any means (includ-
`ing email) set forth in Section 18 (Notices) or any other
`means that is reasonably likely to achieve actual service.
`
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`29(e) The number of arbitrators shall be three. Subject to
`Article 8 of the Rules, each party to the arbitration shall
`nominate one arbitrator and the two arbitrators nominated
`by the parties shall, within ten (10) days of the nomination
`of the second party-nominated arbitrator, agree upon and
`nominate a third arbitrator who shall act as Chairman of
`the Tribunal. If no agreement is reached within ten days or
`at all, the LCIA Court shall select and appoint a third arbi-
`trator to act as Chairman of the Tribunal.
`
`29(f) The seat, or legal place, of arbitration shall be New
`York, New York. Notwithstanding the terms of Section 27
`(Governing Law), the U.S. Federal Arbitration Act shall
`govern the interpretation, application and enforcement of
`this Section 29 and any arbitration proceedings conducted
`hereunder. The language to be used in the arbitral proceed-
`ings shall be English.
`
`29(g) In addition to the confidentiality requirements im-
`posed on the parties by Article 30 of the Rules, each party
`is obligated to keep confidential the existence and content
`of any arbitral proceedings initiated hereunder and any
`rulings or award except (i) to the extent that disclosure may
`be required of a party to fulfill a legal duty, protect or pur-
`sue a legal right, or enforce or challenge an award in bona
`fide legal proceedings before a state court or other judicial
`authority, (ii) with the consent of all parties, (iii) where
`needed for the preparation or presentation of a claim or de-
`fense in such arbitral proceedings, (iv) where such infor-
`mation is already in the public domain other than as a re-
`sult of a breach of this clause (g), or (v) by order of the Tri-
`bunal upon application of a party.
`
`29(h) In addition to the authority conferred upon the Tri-
`bunal by the Rules, the Tribunal shall have the authority to
`order production of documents in accordance with the IBA
`Rules on the Taking of Evidence in International Arbitra-
`tion as current on the date of the commencement of the ar-
`bitration. No other form of disclosure or discovery shall be
`permitted.
`
`29(i) The judgment of any court of appropriate jurisdiction
`shall be entered upon any award made pursuant to an ar-
`bitration conducted pursuant to the terms of this Section
`29.
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`29(j) Any attempt by the Counterparty, a Capital Provider,
`or any other Person subject to this Section 29 to seek relief
`or remedies in any forum that contravenes this Section 29
`shall constitute a breach of this Agreement and entitle the
`non-breaching party to damages, equitable relief, and full
`indemnification against all costs and expenses incurred in
`connection therewith.
`
`29(k) The parties, being sophisticated commercial entities
`with access to counsel, irrevocably waive and forever and
`unconditionally release, discharge, and quitclaim any
`claims, counterclaims, defenses, causes of action, remedies
`and/or rights that they have or may have in the future aris-
`ing from any doctrine, rule or principle of law or equity that
`this Agreement or any other Transaction Document, or any
`of the relationships and transactions contemplated hereby
`or thereby, (i) are against the public policy of any relevant
`jurisdiction; (ii) are unconscionable or contravene any laws
`relating to consumer protection; (iii) are usurious or call for
`payment of interest at a usurious rate; (iv) were entered
`into under duress; (v) were entered into as a result of ac-
`tions by a Capital Provider that violated its obligations of
`good faith and/or fair dealing; (vi) constitute illegal gam-
`bling or the sale of unregistered securities; (vii) constitute
`malicious prosecution, abuse of process or wrongful initia-
`tion of litigation; or (viii) constitute champerty, mainte-
`nance, barratry or any impermissible transfer, assignment
`or division of property or choses in action. The parties spe-
`cifically agree that any issues concerning the scope or va-
`lidity of the foregoing waiver shall be within the exclusive
`jurisdiction of the Tribunal.
`
`IV.
`
`Seat – Applicable Law – Language
`
`16.
`
`17.
`
`Pursuant to Section 29(f) of the CPA, the seat or legal place of arbi-
`tration is New York, New York.
`
`This arbitration is conducted according to the LCIA Rules in force
`as from 1 October 2014 (“LCIA Rules”).
`
`18.
`
`Section 28 of the CPA, titled “Governing Law”, provides as follows:
`
`Except as set forth otherwise in Section 29, this Agreement
`shall be construed in accordance with, and this Agreement
`
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`and all matters arising out of or relating in any way what-
`soever to this Agreement (whether in contract, tort or oth-
`erwise) shall be governed by, the law of the State of New
`York (without reference to any conflict of law principles or
`choice of law doctrine that would have the effect of causing
`this Agreement to be construed in accordance with or gov-
`erned by the law of any other jurisdiction).
`
`19.
`
`Pursuant to Section 29(f) of the CPA, the language of the arbitration
`is English.
`
`V.
`
`Procedural History
`
`20.
`
`21.
`
`In this section, the Tribunal summarizes the procedural events in
`the arbitration. This summary does not purport to be an exhaustive
`listing of the entire procedural chronology or the entire record of
`communications with the Tribunal. Rather, the Tribunal reports on
`the major submissions to the Tribunal, as well as the Tribunal’s ma-
`jor procedural rulings.
`
`Burford commenced this arbitration by submission of its Request
`for Arbitration, dated 9 September 2022 (“Request”), together with
`Exhibits (1 to 7).1 In the Request, Claimants nominated Gary Born
`as co-arbitrator, pursuant to Article 8 of the LCIA Rules. Mr. Born
`was replaced by Mr. William Rowley KC.
`
`22.
`
`Sysco nominated Mr. Kerr as co-arbitrator.
`
`23. On 6 October 2022, the LCIA Court notified the Parties that it had
`appointed Mr. Rowley KC, Mr. Kerr, and Laurence Shore (presiding
`arbitrator) to be the Tribunal in this arbitration.
`
`24. On 7 October 2022, Claimants filed an Application for Interim and
`Conservatory Measures (“Second PI Request”), together with Fac-
`
`
`
`1 The Request was accompanied by an LCIA Article 9B application (“Emergency Arbitra-
`tor”) and a preliminary injunction request (“First PI Request”). The LCIA denied the
`Article 9B Application and the First PI Request was not pursued.
`
`
`
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`tual Exhibits, Legal Authorities, the Witness Statement of Christo-
`pher P. Bogart, and the Expert Report of Professor Samuel Issa-
`charoff, accompanied by Exhibits and Appendices.
`
`25. On 12 October 2022, the Parties informed the Tribunal that they
`were engaged in ongoing discussions to determine the possibility
`of resolving or narrowing the dispute. Accordingly, they agreed to
`hold Claimants’ Second Application in abeyance and to postpone
`sine die the deadline for Sysco to file its Response to the Request for
`Arbitration.
`
`26. On 31 October 2022, the Parties informed the Tribunal that their dis-
`cussions had not led to a resolution of the dispute and requested
`that the Tribunal resume the proceedings. The Parties also agreed
`on 7 November 2022 as the deadline for Sysco to file its Response to
`the Request. Claimants confirmed to hold the Second PI Request in
`abeyance.
`
`27. On 7 November 2022, Respondent filed its Response and Counter-
`claim to Claimants’ Request for Arbitration (“Response to the Re-
`quest”), together with Factual Exhibits and Legal Authorities.
`
`28. On 23 November 2022, the Tribunal circulated a draft Procedural
`Order No. 1 and an agenda for a remote Case Management Confer-
`ence (“CMC”) to be held on 29 November 2022. The Tribunal fur-
`ther proposed Ms. Letizia Santin to serve as Administrative Secre-
`tary of the Tribunal.
`
`29. On 29 November 2022, Respondent’s lead counsel, Mr. Jeffrey
`Rosenthal, informed the Tribunal that, due to unexpected circum-
`stances, he was unable to attend the CMC and asked the Tribunal
`to adjourn the CMC and provide alternative dates.
`
`30. On the same day, the Tribunal President confirmed the postpone-
`ment of the CMC and set 7 December 2022 as the new date for the
`CMC. Further, the Tribunal requested the Parties to exchange their
`respective procedural calendars and submit them to the Tribunal by
`noon (NY time) on 6 December 2022. The Tribunal also directed
`
`
`
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`Respondent to identify the “threshold issues” affecting the proce-
`dural calendar (mentioned in Respondent’s email of 29 November
`2022) by 2 December 2022.
`
`31. On 2 December 2022, in accordance with the Tribunal’s directions,
`Respondent sent a letter to the Tribunal and stated that “Claimants’
`claims in this arbitration necessarily will require the adjudication of the
`merits and value of Sysco’s antitrust claims since it is impossible for Bur-
`ford to establish that it has been harmed (a necessary element for a breach
`of contract claim) by any settlement Sysco reaches or the extent of such
`alleged harm without a full hearing on the merits of such claims.” Re-
`spondent thus contended that “in order to fairly present its defense to
`Burford’s claims in this arbitration, Sysco will need to have the oppor-
`tunity to use the record in the antitrust cases to rebut any evidence Burford
`offers regarding the value of Sysco’s antitrust claims.”
`
`32. On 6 December 2022, the Parties sent their comments on draft Pro-
`cedural Order No. 1 to the Tribunal.
`
`33.
`
`The same day, 6 December 2022, Claimants sent a letter to Respond-
`ent noting their concerns regarding the draft settlement agreement
`between Sysco and
` and urged Respondent to comply with
`its contractual obligations arising out of the CPA.
`
`34. On 7 December 2022, a CMC was held by videoconference.
`
`35. On 12 December 2022, Claimants filed a renewed Application for
`Interim and Conservatory Measures and for an Immediate Tempo-
`rary Restraining Order, (“Third PI Request” and “TRO Request”),
`together with Factual Exhibits (C-1 to C-62), Legal Authorities
`(CLA-1 to CLA-47), the Witness Statement of Christopher P. Bogart
`and the Expert Report of Professor Samuel Issacharoff, together
`with accompanying Appendices.
`
`36.
`
`The same day, 12 December 2022, Respondent filed a letter oppos-
`ing Claimants’ Third PI Request and TRO Request, accompanied by
`Exhibits 1 to 11.
`
`37. On 13 December 2022, Claimants filed a reply to Respondent’s 12
`December letter.
`
`
`
`
`
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`38. On 14 December 2022, the Tribunal issued the following directions:
`
`1. On the current record, the Tribunal considers that Claim-
`ants should have the opportunity for their preliminary in-
`junction application to be heard and not mooted. Absent
`Respondent’s identification of “compelling business rea-
`sons” for it to enter into the proposed settlement agreement
`before the preliminary injunction application to be heard,
`the Tribunal therefore directs Respondent not to enter into
`the proposed settlement agreement at this time. However,
`the Tribunal further considers that this restraint on Re-
`spondent shall be conditioned on Claimants’ acceptance —
`to be immediately indicated to Respondent (copying the
`Tribunal) that (a) Respondent may inform
` of the
`imposition of the restraint by this Tribunal; and (b) Re-
`spondent may inform
` of the hearing (see below) re-
`garding the preliminary injunction application.
`
`2. Respondent may submit a brief by 12 noon New York
`time on 22 December 2022, or choose to appear orally be-
`fore the Tribunal on that date, in which Respondent may
`seek to show reasons why the TRO should be lifted. If Re-
`spondent seeks to make a written submission or appear-
`ance on 22 December, it shall notify the contents of its sub-
`mission or intended oral pleading to Claimants by 12 noon
`New York time on 21 December 2022, so that Claimants
`may, if they choose, make a reply submission or oral plead-
`ing immediately following that of Respondent. The Tribu-
`nal, on the basis of such submission or pleading, may re-
`consider the imposition of the TRO.
`
`Further, in the event that the TRO remained in place, the Tribunal
`gave Respondent a choice of two scheduling options for a prelimi-
`nary injunction hearing.
`
`39. On 14 December 2022, Claimants requested the Tribunal to address
`the point in Respondent’s letter of 12 December regarding the dis-
`closure of OAEO material to Respondent’s client.
`
`40.
`
`The same day, 14 December 2022, Respondent replied to Claimants’
`correspondence regarding the disclosure of OAEO material.
`
`
`
`
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`41.
`
`The Tribunal invited Claimants to file a letter in support of their
`OAEO position by 10 am (DC time) on 15 December 2022, with Re-
`spondent to respond by 7 pm (NY time) on 15 December 2022.
`
`42. On 15 December 2022, the Tribunal requested the Parties to confirm
`that they had no objection to the appointment of Ms. Letizia Santin
`as Administrative Secretary. The same day, both Parties confirmed
`they had no objection.
`
`43. On 15 December 2022, both Claimants and Respondent filed corre-
`spondence on their OAEO position, pursuant to the Tribunal’s 14
`December directions.
`
`44. Also on 15 December 2022, the LCIA circulated the Statement of In-
`dependence and Consent to Appointment as Administrative Secre-
`tary signed by Ms. Santin.
`
`45.
`
`The Tribunal denied Claimants’ OAEO application on 16 December
`2022. The Tribunal further directed the Parties “to discuss and seek
`to agree, as soon as possible, an appropriate confidentiality regime in rela-
`tion to the use of all information and documents disclosed in this arbitra-
`tion.”
`
`46. On 18 December 2022, the Tribunal issued Procedural Order No. 1a
`(“PO1a”) on the appointment of the Administrative Secretary.
`
`47. On 19 December 2022, Respondent requested clarifications from the
`Tribunal on the procedure to be applied in the event Respondent
`wanted to challenge the TRO. The Tribunal responded the same
`day, with the requested explanations.
`
`48. On 20 December 2022, Respondent informed the Tribunal of its in-
`tention to challenge the TRO at a hearing. Respondent also re-
`quested that the Tribunal order Claimants to disclose two categories
`of documents (“Respondent’s Disclosure Application”). The Tri-
`bunal invited Claimants to reply on the same day.
`
`49.
`
`Claimants responded to Respondent’s Disclosure Application with
`a letter dated 20 December 2022. Also on 20 December 2022, Re-
`spondent replied to Claimants’ letter of 20 December.
`
`
`
`
`
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`50. On 21 December 2022, Claimants requested leave to reply to Re-
`spondent’s correspondence dated 20 December 2022 and submitted
`their reply simultaneously. The Tribunal accepted Claimants’ reply
`and stated that it did not wish to receive any further submission on
`Respondent’s Disclosure Application.
`
`51. On 21 December 2022, pursuant to the Tribunal’s email of 19 De-
`cember 2022, Respondent filed the outline of Respondent’s primary
`talking points for 22 December TRO hearing. Later on 21 December
`2022, Respondent sent the following letter to the Tribunal:
`
`[…] we wish to advise the Tribunal that given the current
`state of Sysco’s negotiations other than with
`,
`it is willing to moot the need for a TRO by representing that
`it will not execute any other settlement before 7 February
`2023. Accordingly, as Sysco is prepared to remove any im-
`minent threat of potential settlements other than with
`, there is no basis for a continued TRO or the im-
`position of a schedule that prevents Sysco from adequately
`presenting its defense to the preliminary injunction appli-
`cation with respect to
` or any other potential settle-
`ment counter-party. We respectfully request that such
`TRO be lifted immediately, and we would proceed tomor-
`row solely with respect to
`.
`
`52.
`
`Subsequently, on 21 December 2022, Respondent informed the Tri-
`bunal that the 22 December TRO hearing could be cancelled. Re-
`spondent also sent the Tribunal a proposed schedule for a hearing
`on Claimants’ Third PI Request.
`
`53. On 22 December 2022, the Tribunal asked the Parties for a timeta-
`bling conference.
`
`54. On 22 December 2022, a timetabling conference was held by vide-
`oconference. Among the persons who attended the conference were
`the following:
`
`- Laurence Shore, Tribunal President
`
`-
`
`-
`
`J. William Rowley KC, Co-Arbitrator
`
`John J. Kerr, Jr., Co-Arbitrator
`
`- Letizia Santin, Administrative Secretary
`
`
`
`
`
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`- Derek Ho, Counsel for Claimants
`
`- Christopher Goodnow, Counsel for Claimants
`
`- Travis Edwards, Counsel for Claimants
`
`- Dustin Graber, Counsel for Claimants
`
`- Liz Snodgrass, Counsel for Claimants
`
`- Katherine Shen, Counsel for Claimants
`
`-
`
`-
`
`Jonathan Molot, Burford Capital Limited
`
`Jeffrey A. Rosenthal, Counsel for Respondent
`
`- Brian Byrne, Counsel for Respondent
`
`- Christopher P. Moore, Counsel for Respondent
`
`- Lina Bensman, Counsel for Respondent
`
`- Paul Kleist, Counsel for Respondent
`
`- Patrick Swiber, Counsel for Respondent
`
`- Katerina Wright, Counsel for Respondent
`
`55.
`
`Following the 22 December conference, the Tribunal issued timeta-
`ble directions for Claimants’ Third PI Request and Respondent’s
`Disclosure Application.
`
`56. On 23 December 2022, Respondent filed a further letter, together
`with Exhibits A and B, in support of its Disclosure Application (per
`the Tribunal’s directions).
`
`57. On 26 December 2022, Claimants filed a reply to Respondent’s letter
`of 23 December 2022 on the Disclosure Application.
`
`58. On 27 December 2022, Respondent filed correspondence in reply to
`Claimants’ 26 December letter and requested that the Tribunal not
`“consider anything new raised for the first time by Burford in its rejoinder
`letter.”
`
`59. On 30 December 2022, the Tribunal issued its ruling on Respond-
`ent’s Disclosure Application.
`
`i. Request No. 1 seeking documents “concerning Burford’s decision
`to withhold consent to Sysco’s proposed settlements with
` and
`, including documents reflecting information
`
`
`
`
`
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`about any other settlements with those defendants.” The Tribunal
`denied “the second clause of this general request (“including docu-
`ments reflecting information about any other settlements”) as over-
`broad.” As to the first part (“documents concerning Burford’s
`decision to withhold consent”), the Tribunal ordered as follows:
`“Claimants shall produce documents concerning Claimants’ decision
`to date to withhold consent to the proposed settlements (see Bogart Wit-
`ness Statement at paragraph 39), including documents that discuss the
`reasons for Claimants’ decision. Documents already in Respondent’s
`hands (because sent to Respondent by Claimants) of course need not be
`produced. Responsive documents that contain information subject to
`confidentiality agreements or legal privilege shall be produced on a re-
`dacted basis.”
`
`ii. Request No. 1 (Subpart a). The Tribunal ordered that “Claimants
`shall produce to Respondent’s outside counsel of record in these pro-
`ceedings and to its relevant experts retained in these proceedings (for
`their eyes only) the documents that they relied on in support of the
`allegations in paragraphs 11 and 96 of their PI Application, including
`any documents in their possession, custody or control that contradict
`the assertions in these two paragraphs. The Tribunal will then con-
`sider, based on any further information regarding privilege or work
`product or confidentiality, whether Respondent’s counsel shall be per-
`mitted to disclose the documents to Respondent. Respondent’s counsel
`shall, however, be permitted to disclose paragraphs 11 and 96 to Re-
`spondent, unless these paragraphs are withdrawn from the PI Applica-
`tion. If Claimants decline to produce such documents for the reasons
`stated in their 26 December 2022 Letter and also fail to withdraw par-
`agraphs 11 and 96 from the PI Application, the Tribunal will not ex-
`pect any part of the PI Hearing (or further submissions of the Parties
`concerning the PI) to address the content of these allegations, since Re-
`spondent will not in that event have been able to test the assertions in
`the two paragraphs based on the underlying documents […].”
`
`iii. Request No. 1 (Subpart b) seeking production of “other docu-
`ments concerning the value of the claims considered by Burford in mak-
`ing its decision.” The Tribunal denied this Request for the follow-
`ing reasons: “This category is overbroad for the purposes of the PI
`
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`Application. It is also insufficiently precise (“considered by Burford in
`making its decision” could refer to every document that Claimants pos-
`sess).”
`
`iv. Request No. 1 (Subpart c) seeking production of “documents re-
`garding the value of the claims that were available to Burford but that
`Burford elected not to consider in making its decision.” The Tribunal
`denied this request on the same grounds as Request No. 1 (Sub-
`part b): overbreadth and imprecision.
`
`v. Request No. 2. The Tribunal ordered as follows: “The Tribunal
`understands from Claimants’ Rejoinder Letter that Claimants have
`made voluntary production (Exhibit A) to satisfy this request. If Re-
`spondent nonetheless views Exhibit A as an inadequate response, it
`may seek reconsideration from the Tribunal.”
`
`vi. Request No. 3 described in footnote 1 of Respondent’s 20 De-
`cember 2022 letter as follows: “We annex hereto as Exhibit A some
`passages from Burford’s 2021 Form 20-F filed with the U.S. Securities
`and Exchange Commission describing the documents Burford gener-
`ates to evaluate potential investments, including its due diligence, sta-
`tistical models, analytical tools, asset return models and targeted risk-
`adjusted returns. Burford presumably utilized this information in eval-
`uating the proposed settlement, as well as its analysis of objective
`events to drive valuation change, as its securities filings also tout.”
`The Tribunal ordered as follows: “The Tribunal notes, in relation
`to the final sentence in the above quotation, that Claimants in their
`Rejoinder Letter deny that Burford uses its investment models for the
`pu