INSIGHTS INTO LITIGATION FINANCE

Another Effort to Amend Federal Rule 26 with a One-Size Fits All Litigation Finance Disclosure Requirement Does Not Persuade the Federal Rules Advisory Committee

Marla Decker

The decision should still be up to the litigant, the Advisory Committee on Civil Rules says in a new report.

In early October 2021 — citing “challenges” in the rulemaking procedure — the Advisory Committee on Civil Rules for federal courts again declined to recommend a rule be adopted requiring the disclosure of third-party litigation financing (TPLF) agreements.

Mandatory disclosures are generally governed by Rule 26 of the Federal Rules of Civil Procedure, which requires parties to reveal a broad range of information. This includes documents and other materials the party expects to use to support its claims or defenses, the computation of categories of damages, the identity of those with discoverable information, and insurance agreements.

As it stands, the rule does not require disclosure of TPLF.

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Litigation Funding in Bankruptcy and Distressed Situations

Marla Decker

Litigation finance can preserve or increase estate resources for creditors and enable additional recoveries.  Financing can be useful for debtors (or potential debtors), but can also be useful for creditors in intercreditor disputes or other matters and especially useful for a litigation or liquidation trust seeking to prosecute ongoing claims.  Fortunately, courts are recognizing that funding can play an appropriate role in bankruptcy proceedings, with two recent district court opinions leaving intact funding arrangements approved by the bankruptcy court.

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Levelling the Playing Field: The Rise of Litigation Funding in Canada

Marla Decker

Lake Whillans has been following closely the developments in Canada related to litigation funding and recently consummated its first public and court-approved litigation funding agreement in Canada.  In Lilleyman v Bumble Bee Foods LLC, a class proceeding alleging violations of the Competition Act among canned tuna producers, Lake Whillans provided expenses and a cost indemnity to the plaintiff in exchange for a share of any future proceeds.   We first wrote about early decisions related to litigation finance in Canada in 2015, and since then litigation funding has steadily gained acceptance amongst parties, practitioners and the courts.   While litigation funding is becoming a world-wide phenomenon, each jurisdiction approaches the practice slightly differently.  We asked Gavin Finlayson (Partner, Miller Thomson LLP) and Monica Faheim (Associate, Miller Thomson LLP), to provide us with an overview and insight on the Canadian viewpoint and legal framework of litigation funding.

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How to Choose a Litigation Funder

Marla Decker

Litigation finance is growing in prominence in the legal industry, embraced not just by lawyers but also increasingly by courts and state bars.  As lawyers and claimholders have come to understand the utility and flexibility of litigation finance, the demand for funding has increased, and so too has the number of funders in the market.  Some funders (like Lake Whillans) focus exclusively on litigation financing, whereas others are incorporating litigation finance investments as part of a larger investment portfolio.  Some funders are interested only in the highest-value disputes, whereas others target smaller investments.  Some will fund a strong case in any area of commercial litigation, whereas others specialize in a more focused range of cases.

How are claimholders choosing among the increasing diversity of funding options?  How should they be choosing?  In this article we first present some empirical evidence on considerations in funder selection and then offer our advice, gleaned from our long experience in the litigation finance market.

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“State of the Rules” on Third-Party Funding in International Arbitration

Marla Decker

The role of third-party funding in international arbitrations is on the rise, in both common and civil law jurisdictions. Lake Whillans is meeting that demand with expanded capabilities and investments in the space.  To help our audience understand the developing corpus of rules and guidance set forth by international arbitral institutions addressing such matters as disclosure obligations, privileges, and allocation of costs, we asked  Ari MacKinnon, Aaron Gavin, and Leila Mgaloblishvili of Cleary Gottlieb to provide an overview.  

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Litigation Finance and State Bars — What Should Counsel Know? (Part II)

Marla Decker

In our last post, we examined how state law has addressed litigation finance, reviewing key cases in four states. We discussed the ongoing national trend towards removing perceived obstacles and clarifying that properly structured funding arrangements do not violate state law. Naturally, counsel exploring litigation finance options should be mindful of case law in their…

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Litigation Finance and State Law — What Should Counsel Know?

Marla Decker

At Lake Whillans, we frequently field questions about the legal issues surrounding litigation finance.  One question that frequently comes up is whether legal doctrines such as champerty and maintenance impede litigation finance arrangements.  For the most part, the doctrines of champerty and maintenance do not impede litigation finance arrangements.  But the answer will depend significantly…

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Communication with Litigation Funders — What Should Counsel Bear in Mind?

Marla Decker

Counsel who have not been through the process of raising litigation funding often have questions about the risks of disclosing confidential information about their client’s case. The process of obtaining litigation funding necessarily involves sharing information about the facts, legal theories, damages and defenses of a claim, often coupled with discussions about the claimholder or counsel’s views on the strengths and weaknesses of each. Cases are more likely to get funded when a robust dialogue is established on these topics. Nonetheless, counsel should be aware of where the boundaries lie, and how to protect their clients from inadvertent waivers and fulfill their professional responsibility obligations.

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Raising Litigation Finance — What Should You Expect?

Marla Decker

The potential benefits of litigation funding are increasingly well-known to litigators and in-house counsel. But until you have been through the process of raising funding, it can be difficult to know what to expect. Lake Whillans has years of experience introducing claimholders and counsel to the funding process and helping to determine whether litigation finance makes sense for their claim. In this article, we outline the main steps in raising funding.

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Litigation Finance and the ABA — A Mixed Bag of Best Practices (Part II)

Marla Decker

In Part I of this double post, we reviewed some of the key issues raised in the American Bar Association Best Practices for Third-Party Litigation Funding document released in August 2020. In this Part II, have excerpted parts of a Q&A that I did with Above the Law that compares the ABA’s recommendations and to current standards practiced by reputable funders.

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The best way for companies and their counsel to determine if litigation finance is an attractive option is to discuss it with us.